In The High Court of The Hong Kong Special Administrative Region Court of Appeal

A A
B B
CACC 333/2018
C [2020] HKCA 852 C
IN THE HIGH COURT OF THE

D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E COURT OF APPEAL E
CRIMINAL APPEAL NO 333 OF 2018

F F
(ON APPEAL FROM DCCC NO 619 OF 2017)

G G
H
BETWEEN H
HKSAR Respondent
I I
and
J Rahman Md Sheikh Mojibur (艾力) Applicant J
K K
Before: Hon Macrae VP, Yuen JA and McWalters JA in Court

L L
Dates of Written Submissions: 17 April 2020 (Applicant); 4 May 2020
(Respondent)
M M
Date of Judgment: 22 October 2020
N N
O JUDGMENT O
P P
Hon Macrae VP (giving the Judgment of the Court):
Q Q
1. The applicant (the respondent at the appeal) seeks leave to
R argue two questions of law of great and general importance which are R
said to arise from the decision of this Court on 13 January 2020. That
S S
decision was made following the now respondent’s successful appeal
T against the costs order made in favour of the present applicant by Deputy T
U U
V V
A - 2 - A
B B
Judge CH‍Li (“the judge”) in the District Court. In allowing the appeal,
C we set aside the judge’s order in its entirety. C
D D
2. The parties have consented to this application being
E determined on the papers. E
F F
3. The questions for which certification is sought are as
G
follows: G
1. Whether a defendant’s silence (or partial silence) to law

H enforcement queries made under caution can be treated H
as a defendant bringing suspicion upon oneself when:
I (a) The allegation(s) made by the law enforcement I
is different to the prosecution case at trial?
J (b) The defendant’s possible answers only provide J
an incomplete defence to the intended charges?
K K
(c) The defendant’s possible answers may lead to
investigation of other criminal or regulatory
L offences? L
2. Whether a defendant brings suspicion on oneself and/or

M results in the prosecution being misled depends on the M
defendant’s state of mind at the time of answering law
enforcement’s allegations? (Ref: para 26 of Judgment).
N N
4. In answering these questions, it is important to see how they

O O
are said to derive from the facts in this case and the judgment of this
P Court. For it seems to us that despite the reference to “(or partial P
silence)”, Question 1 is predicated on the assumption that the applicant

Q Q
chose to remain silent under caution upon arrest. However, the applicant
R was not silent when interviewed by the police under caution. He had in R
fact answered several pertinent questions as to his job and income,

S S
although he had declined to answer further questions as to the flow of
T funds through his account, or about the remittance slips to the four T
persons in the Mainland, as he was perfectly entitled to do. Although the

U U
V V
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B B
actual interview itself was not produced as an exhibit at trial, the relevant
C answers he did give under caution were reduced into an Admitted Fact to C
the following effect:

D D
“The Defendant’s primary monthly salary was about

E HK$15,000 per month earned through his labour as a E
transportation worker and that such work was offered to him on
a casual basis.”
F F
5. The police were investigating the applicant, in circumstances

G G
where his bank account showed 100 deposits amounting to
H HK$1,350,503.74 going into the account, and 160 withdrawals H
amounting to HK$1,043,576 coming out of the account, during the same

I I
13-month period between 7 April 2014 and 19 May 2015. They had also
J J
found 16 ‍remittance slips either in his premises or on the applicant’s
K
person to a total sum of HK$540,068, which had been exchanged for K
RMB433,700 and remitted to the Mainland to four named individuals.
L L
6. The applicant’s answers under caution, therefore, would

M M
have told the investigating officers that the appellant’s main source of
N income was as a casual transportation worker earning about HK$15,000 N
per month. As a matter of common sense, any investigating authority

O O
would have had their suspicions aroused by how it was that sums
P equivalent to more than 6 times the applicant’s salary as a casual P
construction worker had ended up in his account.

Q Q
R 7. It is not, therefore, a case where a defendant has remained R
silent under caution and his income was wholly unexplained. Yet
S S
Question 1 of the questions for which certification is sought seems to
T equate a defendant’s silence under caution with his partial silence where T
he answers some questions but refuses to answer others. With respect, he

U U
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B B
did not remain silent and the police were entitled to wonder how it was
C that someone in his position, who had told them he was a casual worker C
with a primary source of income of about HK$15,000 per month, could

D D
generate the account movements in question.
E E
8. As for the argument that the applicant may not have

F F
answered questions because it might have exposed him to investigation in
G respect of other criminal or regulatory offences, the applicant was G
perfectly entitled not to answer any questions, whatever his reasons.

H H
However, if he chose to answer some questions but not others, the police
I were entitled to consider the answers he did give and channel their I
investigation and prosecution accordingly.

J J
K 9. We do not, therefore, see how Question 1 arises from the K

facts and circumstances of this case. The principle that an acquitted
L L
defendant may be deprived of his costs if he brings suspicion on himself
M and/or leads the prosecution to believe that the case against him is M
stronger than it is, is one that is well-settled in our law.

N N
10. As for Question 2, we again do not consider that it arises in

O O
the case or emerges from anything the Court has said in its judgment. We
P were merely making the point, at paragraph 26 of our judgment, that as a P
matter of logic whether the prosecution considers that a defendant has

Q Q
brought suspicion on himself and/or misled the prosecution into believing
R R
that the case against him is stronger than it is, does not depend on the
S
defendant’s state of mind, but on all the circumstances of the case, S
including what the defendant has in fact chosen to tell those investigating
T T
him.
U U
V V
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B B
11. This application was simply concerned with the issue of
C whether the police believed that the case against the applicant was C
strengthened by his claim that his primary source of income was about
D D
HK$15,000 per month derived from his work as a casual construction
E worker, when the evidence showed that he had received a large number E
of deposits amounting to HK$1,350,503.74 into his account and F

F
withdrawn HK$1,043,576 over a 13-month period.
G G
12. We do not consider that either of the questions posed arises

H H
from the Court’s decision and refuse the application.
I I
13. In respect of the costs of this application, we make the
J J
following order:
K K
(i) The applicant’s own costs be taxed in accordance with the
L Legal Aid regulations; L
M (ii) The costs of this application and incidental to this application be M
to the respondent in the agreed sum of HK$5,200.

N N
O O
P P
Q Q
(Andrew Macrae) (Maria Yuen) (Ian McWalters)

R R
Vice President Justice of Appeal Justice of Appeal
S S
T T
Ms Hermina Ng ADPP(Ag), of the Department of Justice, for the
U Respondent U
V V
A - 6 - A
B B
C
Mr Kay K W Chan, instructed by Choy Yung & Co, assigned by the C
Director of Legal Aid, for the Applicant
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
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A A

IN THE HIGH COURT OF THE

CRIMINAL APPEAL NO 333 OF 2018

(ON APPEAL FROM DCCC NO 619 OF 2017)

Before: Hon Macrae VP, Yuen JA and McWalters JA in Court

1. Whether a defendant’s silence (or partial silence) to law

2. Whether a defendant brings suspicion on oneself and/or

4. In answering these questions, it is important to see how they

silence)”, Question 1 is predicated on the assumption that the applicant

fact answered several pertinent questions as to his job and income,

persons in the Mainland, as he was perfectly entitled to do. Although the

the following effect:

“The Defendant’s primary monthly salary was about

5. The police were investigating the applicant, in circumstances

amounting to HK$1,043,576 coming out of the account, during the same

6. The applicant’s answers under caution, therefore, would

per month. As a matter of common sense, any investigating authority

construction worker had ended up in his account.

R 7. It is not, therefore, a case where a defendant has remained R

he answers some questions but refuses to answer others. With respect, he

with a primary source of income of about HK$15,000 per month, could

8. As for the argument that the applicant may not have

perfectly entitled not to answer any questions, whatever his reasons.

investigation and prosecution accordingly.

K 9. We do not, therefore, see how Question 1 arises from the K

stronger than it is, is one that is well-settled in our law.

10. As for Question 2, we again do not consider that it arises in

matter of logic whether the prosecution considers that a defendant has

of deposits amounting to HK$1,350,503.74 into his account and F

12. We do not consider that either of the questions posed arises

L Legal Aid regulations; L

M (ii) The costs of this application and incidental to this application be M

to the respondent in the agreed sum of HK$5,200.

(Andrew Macrae) (Maria Yuen) (Ian McWalters)

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