The Court of Final Appeal Revisits The Approach of an Appellate Court in Magistracy Appeals


On 3 April 2024, the Court of Final Appeal (CFA) (the highest court in Hong Kong) handed down its judgment in HKSAR v Hui Lai Ki [2024] HKCFA 7 clarifying the correct approach to be adopted by an appellate court for an appeal by way of rehearing under section 113 of the Magistrates Ordinance (Cap 227) (“MO”).


The Appellant was charged with theft of various items (with an aggregate price of HK$648.70) from a grocery shop.  She was convicted in the Magistrates’ Court after trial and subsequently appealed the magistrate’s decision pursuant to section 113 of MO.

On appeal to the Court of First Instance, the Judge dismissed the appeal on the basis that the Court would not intervene the magistrate’s findings of fact unless they were “plainly wrong, illogical or inherently improbable”.

The Appellant took it to the Court of Final Appeal on the following questions of law:

1. In what circumstances is the court bound to re-assess the evidence upon which the conviction was based on an appeal under section 113 of MO?

    2. When is the court justified in overturning such conviction on the basis of its own view of the available evidence?

    CFA Decision

    Below is a summary of the CFA’s decision.

    1. An appeal under section 113 of MO is by way of rehearing the evidence, which include (i) evidence as contained in the transcript of evidence in the lower court and (ii) further evidence as may be admitted.  The appellate court also has the right to consider the magistrate’s statement of findings which contains determinations made by the magistrate regarding the credibility of witnesses and the reasons for their decisions.

      2. The CFA recognised that there are some limitations of the appellant court – the judge reviewing an appeal by way of rehearing does not have the advantage of receiving the witnesses’ evidence at first-hand and usually does not conduct the rehearing on the whole of the evidence. Despite such limitations, however, “it remains the duty of the appellant court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law”.

      3. In the present case, the Court of First Instance erred in adopting the “plainly wrong” test which is a test applied by the Court of Appeal in its civil jurisdiction when hearing a civil appeal.  This test is “inconsistent with the principle that it is a criminal judge’s duty to come to his or her own conclusion on the question of whether an appellant’s guilt is proved beyond reasonable doubt on the evidence before the court on the appeal”.

      4. As the Court of First Instance failed to properly discharge the appellate duty of rehearing the contested issue (i.e. whether the appellant dishonestly intended to misappropriate the items in the grocery shop), the CFA undertook the task to reassess the available evidence, and concluded that there is reasonable doubt as to whether the Appellant had the requisite intention to steal.  As a result, the Appellant’s conviction is quashed.

      Hui Lai Ki is an example of an appeal from a magistrate’s decision reaching the highest appellate court level. However, in its decision the CFA stresses that appeals of this kind will be limited, because leave to appeal against an appellate court’s decision will only be available in exceptional circumstances, and on ground of substantial and grave injustice.  Unlike an appeal to a single judge in the Court of First Instance, an appeal to the Court of Final Appeal does not operate to provide an opportunity to re-argue factual issues for the third time.

      How can we help

      Tanner De Witt’s Dispute Resolution team specialises in criminal defence regarding white-collar crime and regulatory investigations. Our team is well placed to represent clients in criminal trials at first instance as well as appeals against convictions.

      Pamela Mak and Adam Hoi

      If you would like to discuss any of the matters raised in this article, please contact via this Email.

      The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.