Hong Kong remains one of the few places in the common law world where the right to silence is unaffected by legislation. The Court of Final Appeal examined different aspects of this right in two rulings over two years.
While the landmark case of HKSAR v HUANG Ruifang (黃瑞芳) marked, for the first time, a reduction of sentence for trafficking in a very large quantity of cocaine, heroin, or ice by the Court of Appeal, it also proceeded further, establishing important legal issues regarding a person’s right to silence.
In January 2026, the Court of Final Appeal handed down their judgment in HKSAR v HUANG Ruifang (黃瑞芳) [2026] HKCFA 3, allowing Huang’s appeal and overturning her conviction. It’s been only two years since the CFA handed down another judgment in this seemingly well established area.
As explained in HKSAR v CHAN Chu-leung (陳柱良) (2024) 27 HKCFAR 31, the “Right of Silence” is a label that comprises a number of different immunities:
29. In R v Director of Serious Fraud Office, Ex p Smith, Lord Mustill identified the following different immunities comprised within the expression “the right of silence”:
“(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.
(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.
(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.
(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.
(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.
(6) A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.”
Adverse Comments
In HUANG Ruifang, the last immunity is at issue, which was provided by section 54(1)(b) of the Criminal Procedure Ordinance (Cap 221), that:
(1) Every person charged with an offence, whether charged solely or jointly with any other person, shall be a competent witness for the defence at every stage of the proceedings:
Provided as follows—
(b) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution…
At trial, the prosecuting counsel made a closing submission that touched upon Huang’s failure to give evidence and be cross-examined:
“… the defendant needs not prove her innocence. She needs not prove anything. She needed not to give evidence. She needed not to call any defence witnesses and she only exercised her right not to give evidence and not to call any defence witnesses and no adverse inference can be drawn against her. The burden is all along on me, on the prosecution, but the fact remains the defendant did not give evidence…
… you will remember the defendant exercised her right not to give evidence, not to go to the witness box. That’s her right. That’s fine. As I have said the burden is on me to prove the case. But I did not have the opportunity to cross-examine the defendant. I cannot ask her any questions. I did not because she elected not to give evidence and I am unable to test her credibility to test whether she is an honest person, to test about her reliability, whether what she says would be reliable. I have no such opportunity… ”
In holding that the comments were in contravention of section 54(1)(b), Mr Justice Stock NPJ had clarified important legal issues.
First of all, the section is not confined to adverse comments but is an absolute prohibition on any comments. If the comment is not adverse, it might be a problem with the proviso, depending on the wording and context.
Secondly, a comment that evidence not given under oath (e.g. unsworn statement in the VRI) carries less weight is not a comment prohibited by section 54(1)(b). However, the CFA warned that great care must be exercised in doing so, as it must not be implied that the defendant had a free choice whether or not to testify and chose not to do so. From now on, such comments should also be discussed with the trial judge beforehand.
In this case, the court held that the prosecutor’s comments went well beyond a remark on weight. Hence, Huang’s appeal against conviction was allowed. Retrial ordered.
Pre-Trial Disclosure of Defence Case
On the other hand, CHAN Chu-leung is concerned with other areas of immunity related to the pre-trial or investigation stage. The case is one of drug trafficking, where the accused had exercised his right to silence when being cautioned and arrested.
At trial, Chan gave evidence. However, when he was cross-examined, the prosecution raised allegations of recent fabrication, concerning two areas: (1) failure to reveal key defence case during investigation, and (2) lack of complaint to police impropriety.
In essence, for the first area, the prosecution challenged Chan that he could have provided information about the involvement of an “Ah Chu” to the police:
Q: Let’s move on, then. Did you ever tell the police that it was Mr Chu who got you into all this trouble?
A: No.
Q: Was today the first time you mentioned Mr Chu to people — to anybody, particularly in the court of law?
A: Yes.
Q: Didn’t you think it would help your cause if you were to tell the police earlier?
The second area concerned the prosecution’s challenge that Chan never complained about police impropriety involving evidence of “fluorescent powder,” despite ample opportunities.
Q: Your hand coming into contact with the bag?
A: I do not know how he caused that stuff to come onto my hand.
Q: So, again, 503 would be telling lies about that? He would be a liar?
A: I dare not to say that.
Q: Well, he fabricated, he tried to fabricate contact evidence against you?
A: Yes.
Q: Do you accept that you had plenty — you had seen your lawyers, you had plenty of opportunities to complain through your lawyer to either the police or to court or to CAPO or to all relevant authorities, if anybody had done anything improper against you? But you had done none of those?
A: That’s right.
The Court of Appeal accepted that the cross-examination on Ah Chu was impermissible since it sought to make use of his exercise of the right of silence to challenge his credibility. However, the judge’s directions remedied the effect on the jury. On the other hand, the CA does not accept that the fluorescent powder cross-examination relates to Chan’s defence and thus did not encroach upon his right of silence.
In refusing to grant leave to appeal concerning the “Ah Chu” challenge, the CFA accepted the CA’s ruling in relation to it. However, the CFA held that the fluorescent powder cross-examination was closely related to Chan’s defence and it did infringe his right of silence. However, as in the CA, the judge’s directions remedied the effect on the jury.
In so holding, the CFA refused to distinguish between the lack of complaint, which challenges the accused’s credibility, and an inference that he is guilty of the offence. Both are prohibited.
These two cases illustrate Hong Kong’s firm stance concerning the protection of an accused’s right to silence.
Gordon Chan, Esq
Barrister-at-law, Archbold Hong Kong Editor on Public Health, and Member of the Bar Association's Committee on Criminal Law and Procedure. Specialised in medical, technology and criminal law.
