The Queen v. Lam Kwok Ying

HCMA000604/1992

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 604 OF 1992

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BETWEEN

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Coram: The Hon. Mr. Justice Leonard in Court

Date of Hearing: 22 October 1992

Date of Delivery of Judgment: 22 October 1992

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REASONS  FOR  DECISION

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1. These are my reasons for allowing this appeal.

2. The Appellant was convicted after trial by a magistrate of the theft of certain garments from a department store. She gave evidence in her own defence but that evidence was rejected by the magistrate. The appellant appealed against conviction and sentence.

3. In her Statement of Findings, the magistrate made certain criticisms of the appellant's story and then she said :

"    Apart from my observations in para. 34-36, judging from the demeanour of the defendant in giving evidence in Court, I could not accept her evidence as credible even on a balance of probability."

4. The appellant was under no obligation to give evidence. When she chose to give evidence, she was under no obligation to prove anything.

5. The magistrate's remark unfortunately suggests that she may have treated the appellant's evidence as being required to meet some standard of proof amounting at least to proof on a balance of probabilities. In the circumstances the conviction was unsafe. I therefore allowed the appeal and ordered that the conviction and sentence be set aside.

Representation:

Mr. Patrick LI S.C.C. for Crown

Mr. K.B. Egan inst'd by M/S Y.T. Wong & Co. for Appellant