1. Introduction

In criminal appeals, it had long been established that appellate courts ought not to reconsider lower courts’ findings of fact unless they were deemed “plainly wrong,” illogical, or inherently improbable (see Ting Kwok Keung v Tam Dick Yuen (2002) and HKSAR v Egan (2010)) – until the landmark decision in HKSAR v Hui Lai Ki [2024].

In Hui Lai Ki, the Court of Final Appeal (CFA) revisited principles underlying criminal appeals and overruled the traditional reliance on lower courts’ findings on fact. The CFA concluded that appellate courts must go beyond identifying errors in lower courts’ judgments – they should conduct a rehearing of evidence to determine whether the prosecution’s case satisfies the criminal standard of proof. The judgment marked a significant shift in Hong Kong’s criminal appellate regime, compelling legal practitioners to take a more nuanced approach on appeals concerning findings of fact.

2. The Judgment in HKSAR v Hui Lai Ki [2024] HKCFA 7

The Magistrate’s Findings
Ms. Hui, a housewife, was charged with theft after leaving a grocery store with unpaid items worth HK$648.70. Whilst she attributed her oversight to physical fatigue from a recent COVID-19 vaccination and family-related stress, the Magistrate concluded that Ms. Hui’s evidence and defense case lacked credibility, found her guilty and sentenced her to 12 months’ probation.

Appeal to the Court of First Instance
Ms. Hui appealed her conviction under section 113 of the Magistrates’ Ordinance (Cap. 227). The Court of First Instance (CFI) upheld the Magistrate’s decision, finding no reason to interfere with the lower court’s findings of fact, as they were neither plainly wrong nor illogical.

Appeal to the Court of Final Appeal
Subsequently, Ms. Hui sought leave to appeal to the CFA. The court granted her application to address two critical issues:

1. When is an appellate court required to reassess the evidence upon which a conviction was based?
2. Under what circumstances is an appellate court justified in overturning a conviction based on its own evaluation of the evidence?

Ms. Hui argued that the CFI erred by applying the “plainly wrong” test without independently reassessing the evidence presented at trial. Conversely, the prosecution suggested that a conviction should be overturned only if the trial court committed a material legal, factual, or discretionary error; a principle that the criminal appellate courts had followed for decades.

The CFA’s Analysis and New Approach
The CFA extensively considered leading precedents, including HKSAR v Ip Chin Kei [2012] and Chou Shih Bin v HKSAR (2012), and identified three types of criminal appeals:

1. Appeal by hearing de novo: A complete retrial, including fact-finding, witness examination, and determination of guilt.
2. Appeal by way of rehearing: A review based on the trial transcript and the lower court’s findings, occasionally supplemented by fresh evidence.
3. Appeal in the strict sense: A review of the lower court’s activity and findings, with the lower court’s findings overruled only if plainly wrong or legally flawed.

While the “plainly wrong” test had long been the standard for appeals on fact, Justice Fok PJ emphasized that appellate courts bear an overarching duty to ensure that a conviction is supported by evidence proving guilt beyond reasonable doubt. This requires a substantive reassessment of evidence, not merely deferring to the lower courts’ conclusions on fact.

Justice Fok further highlighted the inherent limitations of appellate courts, which typically review evidence from transcripts rather than observing fresh evidence. However, he cautioned that this longstanding approach had never relieved appellate courts of their duty to scrutinize the credibility of evidence, in order to ensure justice for defendants and uphold the rule of law.

Rehearing and Acquittal
Based on this revised approach, the CFA conducted a rehearing of Ms. Hui’s case from the facts. Unlike the lower courts, the CFA found her justifications plausible and sufficient to cast reasonable doubt on her dishonest intent. Consequently, the CFA quashed Ms. Hui’s conviction and acquitted her.

3. The Criminal Appellate Regime Post-Hui Lai Ki

Implications for Defendants and the Courts
The CFA’s decision in Hui Lai Ki will likely have far-reaching consequences.  Going forward, lower court judges may become more mindful to prudently exercise their discretion and meticulously consider the evidence submitted before them, as their findings are now subject to enhanced intervention at the appellate level.

However, the reform introduced in Hui Lai Ki could lead to an influx of appeals, resulting in longer waiting times for defendants and further straining the judiciary’s capacity, thus affecting the timely administration of justice. While the CFA held that appeals under section 113 of the Magistrates’ Ordinance fall into the second category, i.e. a rehearing by the appellate court to independently assess the evidence submitted, this judgment could also prompt an extension of the revised approach to other types of criminal appeals, such as prosecution appeals and sentence reviews, and even to the separate realm of civil cases, which might chart a new path and diverge from other common law jurisdictions.

The long-term impact of Hui Lai Ki remains to be seen. Whether it brings about a limited impact or fundamental overhaul of Hong Kong’s criminal appellate regime will depend on how the courts and practitioners apply the new approach to other cases moving forward.

 

Conclusion

The decision in Hui Lai Ki represents a turning point in Hong Kong’s criminal appellate regime in that the CFA overruled the “plainly wrong” test in an appeal under section 113 of the Magistrates’ Ordinance and concluded that appellate courts must go beyond identifying errors in lower courts’ judgments – they should conduct a rehearing of evidence to determine whether the prosecution’s case satisfies the criminal standard of proof.

For defendants, the revised appellate approach offers a new possible avenue of appeal, particularly in cases where factual disputes or evidentiary issues arise. Therefore, the judgment in Hui Lai Ki effectively lowers the barriers to successful appeals, which could incentivize defendants to appeal their convictions.

 

Johnny Ho and Christopher Yeu

 

For further information, please contact:-
Johnny Ho | johnny_ho@robertsonshk.com | + 852 2861 8486

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.