The Chinese University of Hong Kong

Faculty of Law
Evidence
The Burden and Standard of Proof
Burden of Proof
2015-16
Dr Arthur McInnis

Introduction
A Legal Burden is a burden of proof, i.e. to prove
a fact
If on the prosecution, the standard is beyond
reasonable doubt
If on the defence, the standard is on a balance of
probabilities

An Evidential Burden is an obligation to adduce

some evidence so as to raise an issue for the
courts consideration

Burden of Proof in Criminal Cases

General rule:
The prosecution bears the legal burden of
proving all the elements of an offence
(Woolmington v. DPP [1935] AC 462)

Burden of Proof in Criminal Cases

The presumption of innocence:
Basic Law Art. 87 & HKBORO Art. 11(1)

Exceptions to the rule

1. The defence of insanity

D bears the legal burden (on a balance of

probabilities: McNaghten (1843) 10 Cl & F 200

Exceptions to the rule

2. Express statutory exceptions

E.g. s.3(2) Homicide Ordinance (Cap 339): it

shall be for the defence to prove that the person
charged is not liable to be convicted of
murder

3. Implied statutory exceptions

Implied Statutory Exceptions

Where a statute does not expressly place a
legal burden on D, it may, upon a true
construction, imply to that effect
This is so where statutes are drafted such that
offences involve qualifications, exceptions,
exemptions, proviso or limitations on the
extent to which conduct is made criminal

Implied Statutory Exceptions

Negative averments (related only to statutory
offences)
There is a rule at common law that if a negative
averment is made by one party, which is peculiarly
within the knowledge of the other, the burden of proof
is on the party asserting the affirmative

Eg Oliver [1944] KB 68 (selling sugar without a

licence)
P alleges D does not have a licence, then D must prove,
on a balance of probabilities, that he has a licence)

Implied Statutory Exceptions

This has been codified:

See S.94A Criminal Procedure Ordinance (Cap 221)

(2) For the avoidance of doubt it is hereby declared that in criminal
proceedings(a) it is not necessary for the prosecution to negative by evidence
any matter to which this subsection applies; and
(b) the burden of proving the same lies on the person seeking to
avail himself thereof.
(4) The matters to which subsection (2) applies are any licence,
permit, certificate, authorization, permission, lawful or reasonable
authority, purpose, cause or excuse, exception, exemption,
qualification or similar issue.

Implied Statutory Exceptions

See also The Indictment Rules Rule 4(c) Cap 221C
4. Where the specific offence with which an accused person is
charged in an indictment is one created by or under an Ordinance
or a national law applying in Hong Kong, then, without prejudice to
the generality of rule 3
(c) it shall not be necessary to specify or negative an exception,
exemption, proviso, excuse or qualification.

Implied Statutory Exceptions

The Onus of Proof
Hunt [1987] AC 352
D was found in possession of morphine (a controlled
drug) mixed with two other substances
According to an exemption in the schedule to the
Misuse of Drugs Act 1971, if the percentage of
morphine in the substance was not more than 0.2%,
it would not be regarded as controlled drug
P produced no evidence as to the proportion of
morphine in the substance
D submitted no case to answer but failed and then
changed his plea to guilty.

Implied Statutory Exceptions

The Onus of Proof
Hunt [1987] AC 352
In the HL Lord Griffiths said that Woolmington v
DPP [1935] AC 462 had not established a rule that
the burden of establishing a statutory defence lay on
the defendant only where the statute expressly so
provided.

Implied Statutory Exceptions

Hunt [1987] AC 352 contd
Lord Griffiths (Lord Keith and Lord McKay agreeing, Lord
Templeman concurring) wrote that where it was not clear upon
whom a burden should lie then when construing a statute
courts should take into account:
(i) the mischief at which the Act is aimed;
(ii) the difficulty for D to prove the fact (in question);
and
(iii) the seriousness of the offence

Implied Statutory Exceptions

Hunt [1987] AC 352 contd
Lord Griffiths: The essence of the offence was having a
prohibited substance in one's possession. It was an offence to
have morphine in one's possession in one form but not to have
it in another form. The prosecution therefore had to establish
that it was in the prohibited form otherwise there was no
offence. Accordingly, the burden had been on the prosecution
to establish not only that the powder in Hunts possession had
been morphine but also that it had not been morphine in the
form permitted by reg. 4(1) and para 3 of Schedule 1.
As such, while a legal burden may be imposed on an accused
in certain circumstances as a matter of construction it had not
in Hunts case.
Hunts appeal was thus allowed and his conviction quashed.

Implied Statutory Exceptions

Is a reverse onus of proof unconstitutional? No.
Salabiaku v. France (1988) 13 EHRR 379
Presumptions of fact or law operate in every legal
system. Clearly, the convention does not prohibit such
presumptions in principle. It does, however, require
the contracting states to remain within certain limits in
this respect as regards criminal law....[Article 6(2)]
requires states to confine [presumptions] within
reasonable limits which take into account the
importance of what is at stake and maintain the rights
of the defence.

Implied Statutory Exceptions

Is a reverse onus of proof unconstitutional?
Salabiaku v. France (1988) 13 EHRR 379
A reverse onus of proof is permissible so long as it is
kept within reasonable limits which take into account
the importance of what is at stake and maintain the
rights of the defence.

Implied Statutory Exceptions

Is a reverse onus of proof unconstitutional?
Salabiaku v. France (1988) 13 EHRR 379
Courts approach this question by asking whether the
provision unjustifiably infringes the presumption of
innocence. If so, the next question is whether the
provision could and should be read down so as to
impose an evidential and not a legal burden on D

Case Examples on Reading

Down

Case Examples on Reading

Down
HKSAR v. Hung Chan Wa [2006] 3 HKLRD 841

The defendants were convicted of trafficking in

dangerous drugs
They admitted being in possession of a container
which housed a substance, but denied knowing that
the substance was a dangerous drug
S.47 of the Dangerous Drug Ordinance provided:
(2) Any person who is proved or presumed to have
had a dangerous drug in his possession shall, unless
the contrary is proved, be presumed to have known
the nature of such drug.

Case Examples on Reading

Down
HKSAR v. Hung Chan Wa [2006] 3 HKLRD 841
Held (CFA):
The reverse onus was placed on a critical aspect of the
offence. Ds might be convicted even if there is a reasonable
doubt as to their legal possession or knowledge of the
dangerous drug
The persuasive (legal) burden imposed was disproportionate
Accordingly, a remedial interpretation would be applied
i.e. reading down the provision as imposing only an
evidential onus on D

Note: the remedial approach is based on an implied

power conferred upon the courts by the Basic Law

Case Examples on Reading

Down
AGs Reference (No.4 of 2002)
S.11(1) of the Terrorism Act 2000 created the offence of belonging or
professing to belong to a proscribed organization
S.11(2) provides that it is a defence for the accused to prove (a) that the
organization was not proscribed on the last (or only) occasion on which
he became a member or began to profess to be a member, and (b) that
he has not taken part in the activities of the organization at any time
while it was proscribed
Problem: the provision was of extraordinary breadth, such that it
would cover a person who joined an organization when, for example:

it was not a terrorist organization

it was not proscribed
or a person who joined as an immature juvenile
or who joined in a country where the organization was not proscribed and who
came to this country ignorant that it was proscribed here, etc.

Case Examples on Reading

Down
AGs Reference (No.4 of 2002)
Held:
There was a serious risk of unfair conviction if the
accused could only exonerate themselves by establishing
a defence on a balance of probabilities
It is difficult to prove non-involvement
The consequences of failing to prove the defence was
very severe (imprisonment for up to 10 years)
Therefore, s.11(2) was to be read down in accordance
with the Human Rights Act so as to impose only an
evidential burden on the accused. (The nature of the
burden dealing with professing membership was left
open).

Case Examples on Reading

Down
HKSAR v. Lam Kwong Wai & Another [2006] 3
HKLRD 808
Ds were found in possession of an imitation firearm
s.20(1) Firearms and Ammunition Ordinance (Cap 238)
provides: Subject to sub-s. (2) and (3), any person who is
in possession of an imitation firearm commits an offence.
Ds relied upon s.20(3) which provides: A person shall not
commit an offence under sub-s.(1) if he satisfies the
magistrate that(c) he was not in possession of the
imitation firearms for a purpose dangerous to the public
peace, or of committing an offence

Case Examples on Reading

Down
HKSAR v. Lam Kwong Wai & Another [2006] 3
HKLRD 808
Held (CFA):
There is an overriding concern for trial fairness and the
fundamental right of the presumption of innocence
A derogation from the presumption can only be justified if it
had a rational connection with the pursuit of a legitimate aim
and was no more than necessary for the achievement of that
aim (rationality and proportionality)
There is a risk of wrongful conviction i.e. D may raise
some doubt as to the purpose of his possession yet still be
convicted because he cannot prove to the standard of a
balance of probabilities

Case Examples on Reading

Down
Contd
Held (CFA):
s.20(3)(c) satisfied the rationality test but failed the
proportionality test
HK courts have an implied power from the Basic Law to
adopt a remedial interpretation for such provisions, including
by way of severance, reading in, reading down and striking
out
Only where a remedial interpretation was not possible would
a court declare legislation unconstitutional and invalid
Here, an evidential onus was sufficient, hence s.20(3)(c) was
read down

Case Example on No Reading Down

Case Example on No Reading Down

Sheldrake v. DPP [2004] UKHL 43
Sheldrake was charged with the offence of being in charge of a
motor vehicle in a public place after consuming so much alcohol
that the proportion of alcohol in his breath exceeded the
prescribed limit, contrary s 5(1)(b) of the Road Traffic Act 1988.
Sheldrake relied on s 5(2) which provides: It is a defence for a
person charged with an offence under subsection (1)(b)...to
prove that at the time he is alleged to have committed the offence
the circumstances were such that there was no likelihood of his
driving the vehicle whilst the proportion of alcohol in his
breath...remained likely to exceed the prescribed limit.

Case Example on No Reading Down

Sheldrake v. DPP [2004] UKHL 43
At trial the magistrates found the following facts proved:
Sheldrake was found in his vehicle in a public place;
Sheldrake was in charge of the vehicle whilst the proportion of
alcohol in his breath exceeded the prescribed limit;
while Sheldrake claimed that he had attempted to arrange
alternative transport with a friend, there was no corroborative
evidence of this and he admitted he had not pursued other measures
such as calling a taxi;
the weather conditions prevailing at the time could have increased
the likelihood of his driving in the absence of an alternative mode
of transport.

Case Example on No Reading Down

Sheldrake v. DPP [2004] UKHL 43
In the result Sheldrake was convicted of the
offence of being in charge of a motor vehicle in a
public place after consuming excessive alcohol,
exceeding the prescribed limit
Section 5(2) of the Road Traffic Act 1988 was
thus construed as to impose a legal burden on
Sheldrake to prove that there was no likelihood of
him driving the vehicle whilst in that condition

Case Example on No Reading Down

Sheldrake v. DPP [2004] UKHL 43
Following his conviction the magistrates posed three questions for
the Court of Appeal:
1. Were we entitled to be satisfied that the statutory defence contained
within s 5 (2) of the Road Traffic Act 1988 did not prima facie interfere with
the presumption of innocence contained within Article 6 (2) of the European
Convention on Human Rights?
2. If we had found that prima facie there had been an interference with the
presumption of innocence, were we entitled to be satisfied that a legitimate
aim was being pursued by the legislation and that the measure imposed by
the statute was proportionate to achieving that aim?
3. If we had concluded that s 5(2) did breach Article 6(2), would the court
be able to interpret the legislation in a way that is compatible with the
presumption of innocence by placing only an evidential burden upon the
appellant?

Case Example on No Reading Down

Sheldrake v. DPP [2004] UKHL 43
The Court of Appeal allowed Sheldrakes appeal and quashed the
conviction holding:
1. the defence in s 5(2) interferes with the presumption of innocence and
derogates from Article 6(2) of the Convention;
2. although a legitimate aim is being pursued by s 5(2) the means is not
justified and proportionate if it imposes a legal burden of proof;
3. s 5(2) can and should be read down under the Human Rights Act s 3(1)
and construed as imposing only an evidential burden of proof on the
accused.

The issue for the House of Lords then became whether to uphold the
reading down?

Case Example on No Reading Down

Sheldrake v. DPP [2004] UKHL 43
Held in the HL:
It was not objectionable in such circumstances not to require
the prosecution to prove criminal intent
Sheldrake had a full opportunity to show that there was no
likelihood of him driving, given the matter was so closely
conditioned by his own knowledge and state of mind at the
material time
Hence, it was more appropriate for Sheldrake to prove on a
balance of probabilities that he would not drive (rather than
for the prosecution to prove it beyond reasonable doubt)
The legal burden on Sheldrake did not go beyond what was
necessary, i.e. not disproportionate

Case Example on No Reading Down

Contd
Held:
The conviction did not rest on a presumption that Sheldrake was
likely to drive. Instead, it rested on his being in charge of a vehicle
while unfit in a public place
Accordingly, the overall burden remained on the prosecution
although the defendant still had a legal burden to prove he would not
drive.

See also AGs Reference (No 1 of 2004)

Reverse legal burdens may be justified where the overall burden of
proof is on P
In essence, the easier it is for D to discharge the burden (as the facts
are within his knowledge), and that it would be difficult for P alone
to prove, the more likely would the reverse onus be considered
justifiable

Case Examples of Burden on

Prosecution

Case Examples of Burden on

Prosecution
Hunt [1987] AC 352 above
Held:
Notwithstanding the use of the words exemption and
exception in the statute, and the fact that the
exemption was only in a schedule to the Act, proof that
the substance contained more than 0.2% of morphine
was an essential element of the offence and hence for P
to prove.

Case Examples of Burden on

Prosecution
Lam Yuk Fai v. HKSAR [2006] 2 HKLRD 165
Ds had an agreement to unlawfully transfer diplomatic
passports (conspiracy)
s.42 of the Immigration Ordinance (Cap 115) provides
that:
(2) Any person who(a) (ii) transfers to another without reasonable
excuse, any travel document, certificate of
entitlement, entry permit, re-entry permit,
certificate of identity shall be guilty of an
offence.

Case Examples of Burden on

Prosecution
Lam Yuk Fai v. HKSAR [2006] 2 HKLRD 165
Held (CFA):
The offence had two limbs: (i) the transfer of a travel
document, and (ii) having no reasonable excuse
The second limb did not constitute an exception or
exemption from or qualification to the operation of the
law creating the offence under s.94A(1) of the
Criminal Procedure Ordinance (Cap 221)
Both limbs were the law creating the offence, hence
for P to prove

Case Examples of Burden on

Prosecution
Tong Yiu Wah v. HKSAR [2007] 3 HKLRD 565
D was charged with loitering in the Airport Bylaw
Area without reasonable cause
The issue was whether without reasonable cause
was an element of the offence for P to prove
beyond reasonable doubt

Case Examples of Burden on

Prosecution
Tong Yiu Wah v. HKSAR [2007] 3 HKLRD 565
Held (CFA):
The proper approach was to ascertain the ingredients of
the offence which included not only the form of the
provision but also the substance of its language
Here, loitering meant that there was no reasonable
cause
Hence, without reasonable cause was an essential
ingredient of the offence for P to prove beyond
reasonable doubt

Case Examples of Burden on

Prosecution
See also AG of Hong Kong v. Lee Kwong Kut [1993]
AC 951
The Privy Council held that a statute containing an offence
of possessing anything reasonably suspected of being
stolen without giving a satisfactory explanation to the
magistrate, violated Art. 11(1) because it placed a legal
burden on D to prove the key ingredient of the offence

Evidential Burden in Criminal Cases

Evidential Burden in Criminal Cases

General rule:
The party who bears the legal burden on a particular issue will also
bear the evidential burden on that issue
D must adduce some evidence (discharge an evidential burden) in
order to raise a defence
Once evidence of a defence is raised, P must negative the defence
beyond reasonable doubt
An evidential burden is required for the defences of provocation,
self-defence, duress and non-insane automatism. Remember that D
bears a legal burden (on a balance of probabilities) to raise the
defence of insanity

Conclusion on Burden of Proof

Conclusion
The general rule is that the P bears the legal burden of proving
all the elements of an offence
If an offence contains exemptions, properly construe it to
ascertain whether the burden of proof remains on the P, or
whether a persuasive (legal) burden is imposed on the D
If the provision imposes a legal burden on the D, consider
whether it may violate the Basic Law and Bill of Rights, such
that it must be read down or declared unconstitutional
Bear in mind that a D must sometimes discharge an evidential
burden in order to raise certain defences

Conclusion
The modern approach on this question is to construe the
provision to see whether it may properly impose a legal
burden on an accused or whether it must/might be read
down
Relevant factors when reading down are policy, fairness,
necessity, reasonableness and proportionality
The trend is that provisions raising this question are
construed as imposing only an evidential burden on
defendants