THE QUEEN v. LAC VINH QUANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 170 of 1985

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BETWEEN

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JUDGMENT

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1. The appellant pleaded not guilty to two charges, one of theft contrary to section 9 of the Theft Ordinance and the other of attempted theft. He was convicted by the learned Magistrate after trial. The defendant gave evidence at the trial. He now appeals against his conviction and has put forward three grounds in support of his appeal. It will only be necessary for me to deal with the first ground because Mr. Bulleid who appears for the respondent on this appeal quite properly, in my view, concedes that the appeal must succeed on that ground.

2. In his statement of findings the Magistrate sets out fully and fairly the evidence which was adduced before him at the trial. After having done that he then continued in his statement of findings as follows:-

"The Upshot

 

            The appellant could not on a balance of probabilities satisfy me on any of the alleged facts that he asserted he was innocent."

3. It would be difficult to formulate in clearer terms the wrong approach to the onus of proof than the formulation by the learned Magistrate in this case. His direction to himself in those terms is so fundamentally wrong that a conviction arrived at on that basis cannot possibly be sustained. In a case such as this there cannot be any question of a retrial. The law allows me but one course to follow and that is to allow the appeal, quash the convictions and set aside the sentences. I accordingly so order.