由此 - 11 A A defendant between 12 noon and 3 pm and to the extent that DW1 testified that between 12:30 pm and 2 pm the defendant was at the Buddhist Hospital in Wong Tai Sin, I reject it. As to precisely what time the defendant may have been at the hospital that day, if he ever was, I cannot speculate.” (Emphasis applied) B C D F th The 5 charge is the only charge which specified the date of the offence in the particulars. No explanation at all was given to the judge why the application to adduce alibi evidence was made after Miss X had already been cross-examined on this area. G H C D 35. E B E F The fact that the prosecution did not resist the application and did not put to DW2 that he was either lying or his testimony was unreliable does not mean that the G H judge was bound to accept the alibi evidence. As a fact-finder, it is up to I the judge to decide whether the alibi evidence was credible. J J 36. K L I In the absence of a proper explanation, clearly the judge did not find the alibi evidence credible. The judge did not rule out the possibility that the applicant might have gone to the hospital on the day in K L question, he just did not accept that it was between 12:30 p.m. and 2 p.m. M as testified by DW2. N N 37. O P M It is trite law that the burden of disproving an alibi is on the prosecution (see R v Tsang Kam Hing [1991] 1 HKC 72). Although the judge did not specifically refer to this burden on the prosecution, as an O P experienced professional judge who is also the fact-finder, there is no Q R S T requirement for him to spell such out—unlike the case of a jury being the fact-finder. 38. Q R The sentence used by the judge which we have put emphasis on was “In any event, I have already accepted the evidence of Miss X that S T U U V V