By Arthur Chan and Jasmine Kwong

Hong Kong, 6 February 2026: A defendant’s right to remain silent, a facet of the presumption of innocence that places the burden of proving guilt solely on the prosecution, has been reinforced in a significant judgment by the Court of Final Appeal. The ruling underscores that prosecuting counsel are forbidden from commenting on a defendant’s failure to testify since this risks prejudicing jurors.

The judgment is made in the case of HKSAR v Huang Ruifang [2026] HKCFA 3. The appellant, a Mainland-born woman who attained permanent residency in Brazil, was arrested in April 2017 at Hong Kong airport after customs officers found a substantial quantity of cocaine in her luggage upon arrival from Sao Paulo. Following a retrial, she was convicted of drug trafficking by the Court of First Instance and, on appeal, sentenced to 25 years’ imprisonment.

The sole issue for the jury was whether the woman knew there were dangerous drugs inside the suitcases she was carrying. In his closing submissions, prosecuting counsel reminded jurors she had a right to remain silent and need not prove her innocence, but went on to say: “The burden is all along on me, on the prosecution, but the fact remains the [appellant] did not give evidence.” (Emphasis added.)

He later said: “But I did not have the opportunity to cross-examine the [appellant]. 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.” (Emphasis added.)

The woman appealed, contending the comments breached 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”. The Court of Appeal, by a majority, dismissed her appeal and she took her case to the highest court.

The CFA made a distinction between a statement of fact, comment as to weight and comment to the defendant’s failure to testify. For example, it is permissible for prosecuting counsel to point out that a defendant’s statement was not made under oath and is not subject to cross-examination, so it may be considered to carry less weight than the evidence of a witness under oath. This is not a comment on the failure of a defendant to give evidence. However, great care must be taken to avoid saying the defendant had a choice whether to testify but has decided not to do so.

In the present matter, the CFA declared that the prosecuting counsel’s remarks undermined the defence’s case and bolstered that of the prosecution. The comments essentially suggested the appellant’s choice not to testify was a tactical one to prevent herself from being cross-examined for fear of her guilt being exposed. Further, the Recorder presiding over the hearing failed to address the prosecuting counsel’s inappropriate remarks in his directions to the jury.

The CFA noted that while there is a proviso to section 83 of the Criminal Procedure Ordinance which allows for the Court of Appeal to dismiss an appeal “if it considers that no miscarriage of justice has actually occurred”, it should not apply in this particular case.

The CFA thus unanimously allowed the appeal, quashed the appellant’s conviction and ordered another retrial. It also issued guidance for the conduct of future jury trials, detailing the procedure to be followed should prosecutors wish to draw attention to any absence of evidence on oath from a defendant, and the steps a judge must take to ensure continuing fairness.

In conclusion, it can be observed from the CFA’s judgment that the presumption of innocence and the burden of proof in Hong Kong’s criminal justice system leaves no room for ambiguity. The right of silence “is deeply rooted in the common law” and is also “given express protection” by Article 11 of the Hong Kong Bill of Rights Ordinance (Cap 383).

Given the fundamental importance of the right to silence within Hong Kong’s criminal justice system, individuals under investigation must exercise this right with care and informed judgment. Decisions made at the earliest stages – for example, during police interviews conducted under caution – can have lasting consequences for the conduct of trial and outcome of a case. Anyone facing arrest or potential criminal charges should seek legal advice at the earliest possible opportunity.

At BC&C, we have extensive experience advising and representing clients from the outset of criminal investigations, including attending police interviews to ensure their rights are fully protected.

Arthur Chan is a Partner with BC&C. He specialises in Criminal Litigation, being a Recommended Criminal Lawyer in the Doyles Guide rankings, and has a strong record in cyber fraud recovery claims. As well, he develops a broad range of civil and commercial litigation such as immigration, personal injuries and employment issues. He can be contacted at Arthur@boasecohencollins.com.

Jasmine Kwong is an Associate Solicitor at BC&C, developing her practice in both criminal and civil litigation. She is involved in cases across various areas of law, including fraud recovery claims, contractual disputes, employees’ compensation, personal injury claims, defamation, and matrimonial matters. She can be contacted at jasmine@boasecohencollins.com.