CONSTITUTIONAL PROTECTION OF THE RIGHT TO BE PRESUMED INNOCENT AND THE RIGHT AGAINST SELF-INCRIMINATION

• Citation: (2013) 25 SAcLJ 679
• Published date: 01 December 2013
• Date: 01 December 2013
• Author: Johannes CHAN LLB, PCLL (University of Hong Kong), LLM (Lond); Senior Counsel (Hong Kong); Dean and Professor, Faculty of Law, University of Hong Kong.

The Hong Kong Experience

This essay provides a detailed analysis of Hong Kong judicial decisions on legislative encroachment of the constitutional right to be presumed innocent and the right against self-incrimination.1 It argues that the impact of a constitution depends very much on the approach adopted by the Judiciary towards the interpretation of constitutional provisions, and this approach is in turn affected by a whole range of factors, including personal value choices regarding the relative priorities of public interests versus individual rights and the socio-political environment in which the constitution operates. It cautions against the adoption of a balancing approach, which on most occasions will lead to undermining fundamental rights, and argues that placing at the forefront the values of a constitutional right will likely lead to a more rigorous scrutiny of legislative encroachment and provide better protection to fundamental rights.

I. Introduction

1 While civil libertarians embrace the introduction of a bill of rights as a hallmark in human right protection, sceptics have labelled a bill of right as a “bill of wrongs” or even a “criminal's charter”. Such a negative sentiment is understandable, as those who face criminal charges are usually the first to invoke human rights protection. Not surprisingly, some people consider that constitutional protection may have gone too far in protecting the dubious members of the community. This tension between protection of fundamental rights and the protection of public interest is best seen in the context of the presumption of innocence, which lies at the heart of our criminal justice system. This presumption shapes our approach towards burden of

proof, the right against self-incrimination, and remedies in the event of a violation. Yet ironically, this golden thread of our criminal justice system has only a recent origin and is entirely judge-made. This means that, traditionally, it is at the mercy of parliamentary acceptance. In a traditional common law system, without a bill of rights, the presumption of innocence has been hamstrung by Parliament through the introduction of reverse onus provisions and the statutory abrogation of the right against self-incrimination. When the presumption of innocence acquires constitutional status in a bill of rights, the power is rebalanced as it is now in the hands of the Judiciary to determine whether statutory encroachment into this originally judge-made presumption has gone too far. This essay will examine how the Hong Kong judiciary has responded to this new challenge by focusing on two main issues: reverse onus provisions and statutory inroads into the right against self-incrimination. At the end of the day, whether a bill of right turns out to be a criminal's charter or nothing more than a set of rhetorical promises depends largely on how the Judiciary is going to interpret the constitutional provisions, and the approach of the Judiciary is from time to time shaped by the prevailing social, political and legal environment. In Hong Kong, there is, in addition, the unique constitutional framework of “one country, two systems” wherein the sovereign country has a different criminal justice system and does not accept the presumption of innocence. The challenge for the Hong Kong judiciary is best captured by Justice Kennedy of the US Supreme Court in his inspiring speech to the Hong Kong judiciary shortly after the change of sovereignty over Hong Kong:2

It is our human condition, it is our common fate that we may never know the verdict that history returns on our efforts, our attempts to shape our own times. We do not know whether you in Hong Kong are writing a quiet epilogue, or are instead writing a prologue for what will become a new and noble chapter in the history of the law. I hope and pray it is the latter.

2 It is against such a background that this essay examines the development of the presumption of innocence under the constitutional system of Hong Kong in the last decade.

II. The constitutional framework

3 Hong Kong became a British colony in the mid-19th century. Despite all the shortcomings associated with colonialism, the British government brought to Hong Kong the common law system, a benign government that ruled on consensus, and an efficient and a relatively

liberal regime. Within a century Hong Kong was transformed from a remote fishing village into a major international financial centre. By virtue of the Sino-British Joint Declaration 1984, the British government agreed to return Hong Kong to the People's Republic of China in 1997, and in return, China agreed to make Hong Kong a Special Administrative Region governed by the so-called “one country, two systems” model. In essence, Hong Kong would retain its legal, social and economic system. The common law would be preserved. The previous judicial system would be retained, save that a Court of Final Appeal would be established in Hong Kong. Independence of the Judiciary, fundamental human rights, and prosecutorial independence would be guaranteed. Chinese socialist policies, including the criminal law, would not apply to Hong Kong. These guarantees were written into the Basic Law, the Constitution of the Hong Kong Special Administrative Region, which was promulgated by the National People's Congress of China in April 1990.

4 In 1991, despite China's objection, the Hong Kong Legislative Council enacted the Hong Kong Bill of Rights Ordinance, which incorporated into domestic law the International Covenant on Civil and Political Rights (“ICCPR”) as applied to Hong Kong.3 On 1 July 1997, the Basic Law came into effect. Chapter 3 of the Basic Law sets out the protection for fundamental rights. Article 39 provides that the provisions of the ICCPR as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region (“HKSAR”). The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless prescribed by law, and such restrictions shall not contravene the provisions of the ICCPR as applied to Hong Kong. Soon after the establishment of the HKSAR, the Court of Final Appeal has confirmed the constitutional status of the ICCPR as applied to Hong Kong, and the supreme authority of the Basic Law such that any law in contravention of the Basic Law shall be of no legal effect.4 In short, the courts assumed without question the power of constitutional review.

III. Reverse onus provisions

5 The presumption of innocence has rightly been described as “the golden thread” which runs through the criminal law.5 It lies at the heart of our criminal justice system. It would have been a very

different system without such a presumption. Among other things, the presumption means that the burden of proof of an offence falls on the Prosecution. However, over the years, it has been found convenient to place the burden of proof of some elements of an offence on the defendant, invariably on the ground that it is difficult or impossible for the Prosecution to prove these elements or that the facts are peculiarly within the knowledge of the defendant. Thus, it is not surprising that the first case that reached the Court of Appeal on the Bill of Rights was a case challenging the constitutionality of a number of reverse onus provisions in the Dangerous Drug Ordinance. In a colourful judgment, Silke VP held that:6

In my judgment, the glass through which we view the interpretation of the Hong Kong Bill is a glass provided by the Covenant. We are no longer guided by the ordinary cannons of construction of statutes nor with the dicta of the common law inherent in our training. We must look, in our interpretation of the Hong Kong Bill, at the aims of the Covenant and give ‘full recognition and effect' to the statement which commences that Covenant. From this stems the entirely new jurisprudential approach to which I have already referred.

6 Under this new jurisprudential approach, in balancing individual rights against societal interests, the courts proceed with a presumption in favour of individual rights, and the Government has to justify tilting the balance by presenting cogent and persuasive evidence. Silke VP laid down the following guidelines:7

The onus is on the Crown to justify. It is to be discharged on the preponderance of probability. The evidence of the Crown needs to be cogent and persuasive. The interests of the individual must be balanced against the interests of society generally but, in the light of the contents of the Covenant and its aim and objects, with a bias towards the interests of the individual.

7 After reviewing comparative jurisprudence from international and foreign domestic jurisdictions with a constitutional bill of rights, the court concluded that a mandatory presumption of fact may be compatible with the constitutional guarantee of presumption of innocence only if the Crown could show, taking into account the legislative intention, that “the fact to be presumed rationally and realistically follows from that proved and also if the presumption is no more than proportionate to what is warranted by the nature of the evil against which society requires protection”.8 Under the then legislation, a defendant was presumed to be in possession of dangerous drugs for the purpose of trafficking if he was found to be in possession of a

certain quantity of dangerous drug (0.5g or more than five packets whatever be the quantity of the drug). He was further presumed to be in possession of a dangerous drug and to know the nature of the drug if he was found to be in possession of a key to anything where the drug was found, which involved building a presumption upon another presumption. The court held that these reverse onus provisions were too broad and, on the evidence before it, failed to satisfy the rationality test and were hence unconstitutional.

8 Encouraged by...