HKSAR v. Huang Ruifang (黃瑞芳)

FAMC No. 29 of 2025

[2025] HKCFA 15

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 29 OF 2025 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 106 OF 2022)

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BETWEEN

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DETERMINATION

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The Appeal Committee:

1.We are satisfied that it is appropriate to grant leave to appeal to the applicant in respect of the certified question of law framed by the Court of Appeal, namely:

“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?”

2.In so granting leave, we would observe that the question so framed is overly broad.  However, we grant leave so that the question raised in the context of the present case, which involves the proper interpretation of section 54(1)(b) of the Criminal Procedure Ordinance (Cap.221), can be answered to the extent appropriate to the needs of this case.

3.We are also satisfied that it is reasonably arguable that the prosecutor’s remarks in his closing speech to the jury regarding the applicant’s failure to give evidence constituted a material irregularity in the trial, which was not cured by the trial judge’s directions to the jury, and so resulted in substantial and grave injustice to the applicant.

4.The appeal will be heard on 27 November 2025.

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

Mr Jonathan Man DDPP and Mr Steven Yip PP, of the Department of Justice, for the Respondent