The Queen v. Chan Kam Kwong

HCMA000946/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.946 OF 1995

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Coram : Hon Duffy, J. in Court

Date of hearing : 21 December 1995

Date of handing down judgment : 3 January 1996

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J U D G M E N T

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1. This was an appeal against a conviction for blackmail and resisting a police officer and a sentence of training centre.

2. The appellant appeared in person. At the end of the trial, giving his reasons for verdict, the learned Magistrate said this :

"Prima facie the defendant have thus committed blackmail unless defendant can show that he (defendant) had reasonable grounds for making the demand, - subject to accepting PW1's evidence of the conversation between defendant and PW1."

This was a manifest misdirection in law imposing an onus on the appellant which did not exist. While it is correct to say that it is for the defence to raise the issue of reasonable grounds, it is always then for the prosecution to negative, never for the defence to "show" or prove, that the grounds are reasonable. The appeal had to be allowed. As the matter was a serious matter, and as the evidence in support of it was strong, I ordered a retrial before a different magistrate.

Representation:

Mr W.S. Cheung, C.C., for Crown

Appellant (Chan Kam Kwong) in person