終院判兩例違假定無罪原則

Common Law有一個conception叫做"Presumption of Innoncence"即被告在被定罪前「假定無罪」。CFA現在就《危險藥物條例》及《火器及彈藥條例》中，被告必須主動提出證據，證明自己不知管有的為毒品，或其仿製火器並非用作犯罪用途，才可脫罪，但終審庭昨裁定條例違反《基本法》中，被告在被定罪前「假定無罪」的原則。 終院判兩例違假定無罪原則 2006年9月1日 【明報專訊】現時《危險藥物條例》及《火器及彈藥條例》中，被告必須主動提出證據，證明自己不知管有的為毒品，或其仿製火器並非用作犯罪用途，才可脫罪，但終審庭昨裁定條例違反《基本法》中，被告在被定罪前「假定無罪」的原則。不過終審法院指裁決不會引起上訴潮，法庭毋須設定追溯力的時限。 須證明不知自己管有違禁品 上訴庭較早前處理2宗牽涉管有仿製火器及販毒案件時，發現《火器及彈藥條例》第20(c)條，以及《危險藥物條例》第47(1)及(2)條中，將舉證責任放在被告身上，被告須主動證明自己無罪，終審法院昨同意條例偏離了「假定無罪」的法律原則。法庭續指，控方在舉證時並非遇到極大的困難，足以要違反法律原則，而去達到阻止罪行發生的立法目的。 指不會引起上訴潮 終審法院裁定，日後涉及管有仿製火器及販毒案件時，控方須負責列舉證據，證明被告有罪，而被告則可提出疑點，他仍受到「疑點利益歸於被告」的法律保障，與以往非要證明自己無罪的情不同。 另外，法庭相信這個裁決並不會掀起上訴潮，因為法庭會根據每宗案件的不同因素，不會每宗案件均會准許逾期上訴的申請。 【案件編號﹕FACC4/05、FACC1/06】 Friday, September 1, 2006 Court upholds ruling on drug carriers NICK GENTLE and RAVINA SHAMDASANI Hong Kong's highest court has upheld a ruling that the government had warned could open the floodgates to tens of thousands of appeals by convicted drug offenders. The Court of Final Appeal ruled unanimously yesterday that the Court of Appeal was correct when it said two pieces of law had been wrongly interpreted so as to violate the presumption of innocence, which lies at the heart of the city's criminal justice system. One result of the ruling is that suspects found in possession of dangerous drugs who claim they did not know they had them, will no longer have to prove their lack of knowledge in court. It will instead be for the prosecution to prove the defendants knew about the drugs. The decision has retrospective effect and could lead to appeals from people who have already been convicted in such cases. But a senior lawyer said a flood of appeals was unlikely. The top court's decision changes the interpretations of section 47 of the Dangerous Drugs Ordinance and section 20 of the Firearms and Ammunition Ordinance to ones consistent with the presumption of innocence as protected by Article 87 of the Basic Law and Article 11 of the Hong Kong Bill of Rights. Before the Court of Appeal's decision on June 23 last year, the interpretation of the two sections placed the burden on defendants to show that on the balance of probabilities they did not know they were carrying drugs. In the case of imitation firearms, they had to show a legitimate reason for carrying them. But the top court found a reading of the law that produced such a "reverse" burden of proof was unsupportable. It said the law should be read so that defendants need only satisfy the court that, based on the evidence, there is a doubt about their guilt. "So read, each [provision] leaves the defendants with what the presumption of innocence exists to provide," wrote Permanent Judge Kemal Bokhary. "By that, I mean a measure of protection consistent with the idea that convicting the innocent is far more abhorrent than letting the guilty go free." Concerned by the implications of the ruling's retrospective element, the government had requested that the Court of Final Appeal place a limitation on the effect of the decision by saying it would apply only to appeals active on June 23 last year or made afterward. The court decided the situation created by the ruling did not warrant such an order. The time limitations on appeals would preclude many from challenging their convictions, as would any guilty pleas. Moreover, it would only be in exceptional circumstances that a belated appeal would be heard. Senior criminal barrister Andrew Bruce SC did not envisage any floodgates being opened by the ruling, as the government had previously warned.