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  • Peter Kam Fai Cheung SBS

Responsibilities & Burdens

I should have appeared in court today but for the case's settlement largely influenced by my opinion. While it is my professional responsibility to identify the evidence to establish the facts and to advance valid and good arguments to arrive at the truth, the play-safe settlement relieved my moral responsibility towards my client. Litigation is an expensive and risky zero-sum game.

In court proceedings, which side bears the burdens of proof of a matter or issue would impact on the outcome. The "legal burden"(like the reverse "persuasive burden" ie the burden justifiably shifted to the other side by statute) is to prove the existence of a matter. The "evidential burden" is to adduce or point to evidence that suggests a reasonable opportunity that the matter exists or does not exist.

As to the requisite degree of belief, the legal burden on the prosecution in criminal cases is "beyond reasonable doubt", while the accused's reverse persuasive burden is "on the balance of probabilities" - the same standard of proof in civil matters. Just as incomplete, misleading, fabricated or false evidence cannot establish facts, illogical reasoning in arguments cannot be persuasive either.

Before I took up law, I studied Logic and Methodology, Theory of Knowledge and Ethics, among other philosophical subjects. As a rational and moral agent in the law context, I have a good sense in discerning facts that carry weight and in advancing arguments that are persuasive. As I have the privilege to know my professional and moral responsibilities, I have the duty to act justly to all!

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