HKSAR v. HUI CHI MING

CACC 132/2022, [2024] HKCA 1167 On appeal from [2022] HKDC 847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL CRIMINAL APPEAL NO 132 OF 2022 (ON APPEAL FROM DCCC NO 704 OF 2021) ______

BETWEEN

HKSAR Respondent and HUI CHI MING (許智銘) Applicant ______ Before: Hon Macrae VP, Zervos and M Poon JJA Dates of Written Submissions (Applicant): 26 July and 26 September 2024 Date of Written Submission (Respondent): 12 September 2024 Date of Judgment: 13 December 2024 ___

JUDGMENT ___ Hon M Poon JA (giving the Judgment of the Court) On 5 June 2024, this Court handed down its reasons dismissing the applicant’s application for leave to appeal against his convictions of “Common Assault” (Charge 1) and “Criminal Damage” (Charge 3). One of the grounds concerned the judge’s findings against the applicant’s claim of self-defence. It was argued that “one of the judge’s reasons for rejecting the applicant’s claim of self-defence was erroneously based on the failure of the applicant to mention to the police that PW1 waved the pitchfork at him, which infringed his right of silence”. This Court found that the applicant had waived his right of silence when he replied to the caution for the offence of criminal damage and the failure to mention the pitchfork was a matter that the judge could take into account in assessing his credibility and whether his allegation that PW1 was the initial aggressor had any substance. This application for a Certificate to the Court of Final Appeal on the ground that there arises a point of law of great and general importance is couched in the following terms: “Where a defendant has made out of court statements only under caution for a specific offence but not the other offences, is it permissible for the prosecution or court to question and for the court to draw adverse inference against the defendant’s pre-trial

lack of disclosure of a defence in relation to another offence which the defendant has not been cautioned for or questioned about?” There is no objection from the parties to this application being disposed of on the papers without an oral hearing. We shall not repeat the facts contained in paragraphs 7 to 11 of the Judgment. Put shortly, the applicant was found to have assaulted PW1 and damaged his mobile telephone in the course of a neighbourhood dispute. It is significant that the applicant was specifically advised by his solicitor before the police’s arrival that he need not say anything to the police. Despite that, during preliminary police enquiries at the scene, he complained of pain in his shoulder and alleged that it was PW1 who hit him first. After he was sent to North Lantau Hospital for treatment, he gave the following reply following his arrest by PW4 for the offence of criminal damage: “He [PW1] took photos/videos of me without my consent so I pushed aside his phone.” Whether an accused has waived his right of silence is a question of fact not a question of law. The nature of a caution is set out in HKSAR v Chan Chu Leung as follows: “56. …The caution instructs an arrested person that he need not say anything unless he wishes to and warns him that, should he do so, it may be put into writing and given in evidence. The context of the warning is clearly intended, as

a matter of fairness, to prevent the accused from involuntarily saying something potentially incriminating that might then be used by the prosecution against him.” The applicant gave evidence that he was not aware that he was already arrested for criminal damage when he gave the reply under caution (as he accepted he did), albeit that it was his evidence that he had been advised by his solicitor not to say anything until his legal team arrived even before the police arrived. Contrary to that advice, he told the police upon their arrival that it was PW1 who hit him first. However, during the whole enquiry (before and after caution) he made no mention of a pitchfork, which he said at trial was used by PW1 to threaten him. Indeed, it was his own counsel who asked him during his examination-in-chief why he made no mention of the pitchfork to the police. He said it was because he had been advised by his lawyer. It was suggested during cross-examination that there was no mention of the pitchfork “because it took no part in the events”, with which suggestion the applicant disagreed and went on to explain that he was in pain and keen to go to the hospital. Hence, even on his own evidence, it was not that he was unaware of his right of silence. He made selective replies. In HKSAR v Tsui Lok Hin , this Court, relying on Lee Fuk Hing v HKSAR, held that even if the exercise of an accused’s

right of silence is a selective one, the jury can be invited to draw relevant and fair inferences against him if there are any inconsistencies between what he said (under caution or otherwise) and his defence. The law in this area is well-settled. The present case only concerned the application of those principles to the facts of this case. It was clear that the judge assessed the applicant’s evidence, including the circumstances in which he made those replies, and his explanation as to why he made no mention of the pitchfork during the police enquiries. Once the applicant waived his right of silence, albeit selectively, the law is well-settled as to the circumstances in which, and how, any inconsistencies between his previous statements and his evidence at trial can be used against him. However, the failure by the applicant to mention the pitchfork was only one aspect of the evidence on which the judge was asked to assess his credibility. The other aspect was that the lack of any consequent movement of the video recorded by PW1 at the time at which the applicant alleged that PW1 was also holding and waving the pitchfork at him in his other hand. Having viewed the videos at the hearing, we agreed with the observation of the judge and we further noted the calmness of the applicant’s reaction at the time as well as that of his team which went directly against the applicant’s

claim of PW1 waving such a dangerous weapon at them. The appeal never turned on the issues now framed in the proposed question. No valid point of law of great and general importance is therefore derived from the proposed question. Conclusion The appeal before us concerned the application of well-settled legal principles. The question cannot be said to raise a point of general importance. The Court declines to certify the question posed. (Andrew Macrae) Vice President (Kevin Zervos) Justice of Appeal (Maggie Poon) Justice of Appeal Mr Raymond Cheng, SADPP and Mr Lucas Lai, SPP (Ag.) of the Department of Justice, for the respondent Mr Joe Chan and Mr Schwitzer Wong, instructed by O Tse & Co, for the applicant