R. v. FUNG CHI HO and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 384 OF 1996

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J U D G M E N T

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1. This is an appeal from Mr Jenkins at Sha Tin. These two men were convicted of the theft of 43 bottles of orange juice, a bottle of lemon juice and 15 packets of orange juice.

2. They were seen pushing along two rubbish bins. The exhibits were not produced in Court and there was no evidence as to who had lost them. The Magistrate at the close of the Crown case should have stopped the case, because there was no evidence against these two men that they had stolen them. The doctrine of recent possession could not been applied as no one knew who or when the goods were allegedly stolen. Further these goods were not in the category of diamonds, or other value. However, they gave evidence and denied they had stolen the goods, but had found them on a refuse trip. Because they gave evidence and denied the charge and he did not believe them, he found the case proved.

3. This, in my judgment, is reversing the onus of proof. The burden of proof is always upon the prosecution to prove the guilt of the defendants. Although their story may not have been believed, the Magistrate could not have then jumped from that to find an inference that they stole the goods. The telling of lies is not proof of guilt. In my judgment, there was no evidence of theft here and the appeal is allowed.