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.

3. The Criminal Appellate Regime Post-Hui Lai Ki

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.

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.