The Queen v. Chan Sek Hung and Another

HCMA001795/1988

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H E A D N O T E

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STANDARD OF PROOF - EVIDENCE OF PROSECUTION AND DEFENCE COMPARED - PROSECUTION EVIDENCE PREFERRED - WRONG APPROACH - CONVICTION QUASHED.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1795 OF 1988

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 28 April 1989

Date of delivery of judgment: 28 April 1989

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J U D G M E N T

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1. The appellant was convicted by Mr Li at Central Magistrates Court of lending money at an execssive rate of interest contrary to Section 24(1) of the money Lenders Ordinance, Cap. 163.

2. The case depended on the credibility of the witnesses. There was little dispute about much of the evidence. The principal matter in contention was whether there was one loan, which was the prosecution case, or two loans, as claimed by the 1st appellant.

3. Unfortunately, having reviewed the evidence, the magistrate directed himself in these terms: "I have therefore to decide whether I should accept the evidence of PW1 or defendants." He then proceeded to compare the prosecution and defence evidence and reiected that of the defence. He failed to consider how the prosecution case looked on its own and whether the defence evidence caused him to entertain a reasonable doubt in the end There was, instead, a balancing of two stories. See R. v. CHAN Wing-yuen (1977) HKLR 186.

4. The magistrate's application of the civil standard of proof cannot be cured his statement at the very end of his judgment that he was satisfied he Crown had proved its case beyond reasonable doubt.

5. The appeal is allowed and the conviction quashed.

Representation:

Mr D. Pang, Crown Counsel, for Respondent

Mr G.J.X. McCoy (M/s C.W. Leung & Co.) for both Appellants