R. v. CHOW YAM MING

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 116 OF 1992

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J U D G M E N T

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1. The appellant was convicted of Assault Occasioning Actual Bodily Harm and Claiming To Be A Member Of Triad Society. I have read all the papers in this case. I have looked at the evidence and I have looked at the finding of the Magistrate.

2. This was a straightforward dispute between two witnesses and therefore it was essential that the Magistrate directed himself correctly upon the standard of proof. There is no burden upon the defendant to prove anything whatsoever. It is for the Crown to prove the case so that the Magistrate will be sure where you have one witness against another. It is quite wrong for a Magistrate or a Judge to say he prefers one witness's evidence to another and there were number of other errors in this finding and I have no doubt that this appeal should be allowed and convictions be quashed. I should add that the prosecution recognise the shortcomings in the Magistrate's approach.

3. I am only surprised that legal aid was refused on the merits of the appeal.