Reverse burden of proof in domestic violence: legislator

PUBLISHED : Tuesday, 09 October, 2007, 12:00am
UPDATED : Tuesday, 09 October, 2007, 12:00am

The government has agreed to study a proposal aimed at reducing domestic violence cases - but the plan has been accused of hitting at the fundamental spirit of the legal system.

Lawmaker and barrister Alan Leong Kah-kit, of the Civic Party, yesterday suggested the Labour and Welfare Bureau consider switching the burden of proof to suspects in domestic abuse cases.

It would mean the onus would be on a suspect to prove his or her innocence rather than the prosecution to prove guilt.

'I understand this is a deviation from normal prosecution procedure,' he said. 'But when cases of family violence are escalating by the day and lives are threatened at a pace at which the whole of Hong Kong is worried ... we need innovative measures proportionate to the problem we are facing.'

Security Bureau statistics show there were 4,967 domestic violence cases over the first eight months of this year - an average of 20 cases per day, almost double the 2,500 cases over the same period last year.

In Hong Kong, all criminal suspects are presumed innocent until proven guilty. The Basic Law and the Bill of Rights say the burden of proof lies with the prosecution.

In response to Mr Leong's proposal at yesterday's Legislative Council subcommittee on strategy and measures to tackle family violence, deputy director of public prosecutions John Reading said he wondered whether the proposal could survive the test of the Bill of Rights.

But Hinny Lam Shuk-yee, principal assistant secretary for the Labour and Welfare Bureau, said she would take Mr Leong's suggestion to the bureau. 'That would be a consequential change, we have not considered that before, but I would bring your suggestion back to the bureau and study whether it is feasible.'

A senior government counsel said the government could expect tirades from the Law Reform Commission if the question was raised.

'I don't see how it could be feasible? Where do you draw the line and when do you reverse the burden of proof? Should it be when these suspects have similar previous convictions, or would previous complaints against them be sufficient [to trigger the reverse]?'

Another practising barrister agreed, saying it would open a floodgate for similar demands and shatter one of the most fundamental legal principles in Hong Kong's legal system.

'Why should the reversal be adopted in domestic violence cases alone; others would ask why wouldn't it be adopted in other areas?'

Mr Leong argued that in domestic violence cases police faced particularly big hurdles in the collection of evidence because cases often involved wives who were the only witnesses and not willing to testify against their husband.

Police statistics submitted to the panel showed that among the 1,274 domestic violence cases in 2005, only 287 abusers were prosecuted, 265 were released and 628 were bound over - a form of order where defendants are released on the condition they will be fined if they reoffend within a certain period.

Meanwhile, a 50-year-old man was charged yesterday with the murder of his wife, whose body was found in their home on Sunday after the man survived a jump from a 14-storey building in Western. The man remained in serious condition in Queen Mary Hospital yesterday.