HKSAR v. Huang Ruifang

CACC 106/2022

[2025] HKCA 509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 106 OF 2022

(ON APPEAL FROM HCCC NO 10 OF 2022)

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J U D G M E N T

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Hon Macrae Acting CJHC (giving the Judgment of the Court):

1.On 30 August 2024, the Court handed down its judgment in HKSAR v Huang Ruifang (No 2) [2024] 4 HKLRD 848, dismissing the applicant’s appeal against her conviction by a majority. Although the applicant did not initially apply for leave to appeal against her sentence, the Court was concerned that a number of important sentencing decisions involving very large quantities of dangerous drugs had been issued since the commission of the offence in April 2017. Moreover, the Court considered it was an appropriate opportunity to revisit the sentencing guidelines for large quantities of dangerous drugs. Accordingly, the Court unanimously granted the applicant an appeal aid certificate in respect of an appeal against sentence and set the matter down for hearing within 6 months: see [160]-[165].

2.On 5 March 2025, in HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138, following full argument and the reception of fresh evidence with the agreement of the parties, the Court unanimously allowed the applicant’s appeal against sentence, resulting in new guidelines being issued, where very or exceptionally large quantities of Heroin, Cocaine and “Ice” were concerned.

3.The applicant now applies for a Certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that there exist in relation to the Court’s decision in HKSAR v Huang Ruifang (No 2), three points of law of great and general importance as follows:

“(1) On a true construction of section 54(1)(b) of the Criminal Procedure Ordinance, Cap 221 which provides that ‘the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution, what is the nature of the words or conduct on the part of a prosecutor which constitutes a prohibited comment under section 54(1)(b)?

(2) Is there any difference between the nature and scope of prohibited comment under section 54(1)(b) in trials in the District Court or before a magistrate?

(3) In the event that a comment by a prosecutor is prohibited under section 54(1)(b), on the assumption that (a) on appeal against a conviction on indictment to the Court of Appeal, the prohibited comment falls within the grounds upon which that Court must allow an appeal under section 83(1) of the Criminal Procedure Ordinance, and (b) that the dominant concerns underlying section 54(1)(b) are the protection of the right of silence of an accused person and the obligation to accord to such a person a fair trial, what informs the discretion vested in the Court of Appeal to apply what is commonly called the proviso to the grounds upon which the Court of Appeal must allow an appeal under section 83(1) and by reason thereof dismiss the appeal?”

The application has been decided on the papers, having received written submissions from both parties.

4.We may quickly dispose of the 2^nd and 3^rd points of law. We agree with the respondent that the 2^nd question simply does not arise out of anything said by any member of the Court in his or her respective judgment. As for the 3^rd question, it should be made clear that the two judges in the majority did not apply the proviso to section 83(1)(c) of the Criminal Procedure Ordinance, Cap 221: per M Poon JA, at [46]-[49]; and per Macrae VP, at [155]-[159]; nor did the judge in the minority, who considered that it was not an appropriate case for the application of the proviso: per Zervos JA, at [113]. And since the law relating to the application of the proviso is well-traversed and settled in this jurisdiction, we do not see how the 3^rd question arises in the present case as a point of law of great and general importance. If the Court of Final Appeal were ultimately to consider the application of the proviso to the present case, it would do so according to well-established principles.

5.In relation to the 1^st point of law, the Court was divided. Moreover, there appears to be a divergence of opinion in this jurisdiction between rather old and more recent authority from the Court of Appeal on this topic, which the Court of Final Appeal might feel it necessary to resolve. In certifying the 1^st question, however, we would respectfully suggest that it would be more helpful and complete if the words “and what are the appropriate remedies for a breach of the prohibition?” were added to the question posed. Accordingly, we shall certify the question in the following terms:

(1)  On a true construction of section 54(1)(b) of the Criminal Procedure Ordinance, Cap 221 which provides that “the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution”, what is the nature of the words or conduct on the part of a prosecutor which constitutes a prohibited comment under section 54(1)(b) and what are the appropriate remedies for a breach of the prohibition?

6.We would accordingly certify as a point of law of great and general importance the 1^st question posed in its slightly reformulated terms.

Mr Derek Wong SADPP (Ag), of the Department of Justice, for the Respondent

Mr Andrew Bruce SC and Mr Martin Li, instructed by Johnnie Yam, Jacky Lee & Co, assigned by the Director of Legal Aid and Mr Allen Judge (on a pro-bono basis), instructed by Johnnie Yam, Jacky Lee & Co, for the Applicant