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
A - 3 - A

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

V V
A - 4 - A

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
A - 5 - A

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

V V