THE PRESUMPTION OF INNOCENCE AND THE BURDEN OF PROOF
A suspect does not have to prove their innocence.
The presumption of innocence is protected by Article 87 of the Basic Law and Article 11(1) of the Hong Kong Bill of Rights, given effect by the Hong Kong Bill of Rights Ordinance (Cap. 383). It applies from the investigation through to the final determination of the charge.
The burden of proof
The prosecution bears the burden of proving the charge. A defendant is not required to prove their innocence or provide the Police with an explanation merely because an allegation has been made. Particular statutes may impose a limited evidential or legal burden in relation to a specific issue, but the prosecution retains the ultimate burden of proving guilt.
The standard of proof
The prosecution must prove the case beyond reasonable doubt. After considering all the evidence, the court or jury must acquit if a reasonable doubt remains. The doubt must arise rationally from the evidence, an absence of evidence or the circumstances of the case; it is not an imaginary or speculative possibility.
02 — THE RIGHT TO REMAIN SILENT AND THE CAUTION
The decision whether to answer questions belongs to the suspect.
The right to silence and the privilege against self-incrimination are closely connected to the presumption of innocence. During an ordinary Police interview, a suspect is generally under no legal obligation to answer questions.
Where an officer has evidence affording reasonable grounds to suspect that a person has committed an offence, the Rules and Directions for the Questioning of Suspects and the Taking of Statements require the person to be cautioned before questions about that offence are asked. The standard caution is:
“You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.”
The Rules and Directions are administrative safeguards rather than legislation. A breach does not automatically exclude the interview, but it is an important matter when the court determines voluntariness, admissibility and fairness.
NO ADVERSE INFERENCE FROM ORDINARY PRE-TRIAL SILENCE
The general rule in Hong Kong is that guilt must not be inferred merely because a suspect remained silent or refused to answer Police questions. Silence is not evidence proving the charge. The court may, however, consider the evidential significance of a later account in its full context—for example, when assessing credibility and consistency—and specific statutory regimes can modify the ordinary position. Legal advice should therefore be obtained before deciding how to respond.
03 — HOW POLICE INTERVIEWS ARE CONDUCTED
The record must accurately show what occurred during questioning.
Police interviews should comply with the Rules and Directions and the applicable custody procedures. A material breach may lead to a challenge to the statement and, depending on the circumstances, the court may rule it inadmissible.
Video Recorded Interview (VIR)
Serious or complex investigations are frequently conducted by Video Recorded Interview. A VIR preserves the questions, answers, timing, tone and visible condition of the participants, providing an objective record that can assist the court when the accuracy, voluntariness or fairness of the interview is disputed.
Written interview record
Written records of interview and handwritten cautioned statements remain common, particularly in straightforward or less serious cases. A suspect controls whether to answer questions or make a statement. The recording format is governed by Police procedure and the circumstances.
THE VOLUNTARINESS TEST
The prosecution must prove a confession was voluntary beyond reasonable doubt.
Under the common-law rule associated with Ibrahim v R, a confession is admissible only if the prosecution proves beyond reasonable doubt that it was voluntary—meaning that it was not obtained by fear of prejudice or hope of advantage exercised or held out by a person in authority. Oppression and broader fair-trial considerations may provide further grounds of challenge.
Oppression
Examples may include excessive fatigue, prolonged deprivation of food or sleep, violence, degrading treatment or an intensely hostile course of questioning. The assessment is fact-sensitive and considers the suspect's individual condition and the overall circumstances.
Inducement
A statement may be challenged where a person in authority holds out a promise or advantage connected with the allegation—for example, suggesting that a confession will secure immediate release on police bail—and that inducement causes the statement.
Threats or coercion
Physical force, intimidation or psychological threats directed at the suspect or their family may render a statement involuntary and may also engage the court's broader duty to ensure a fair trial.
LEGAL AND PROCEDURAL SAFEGUARDS
Advice and verification protect the integrity of the interview record.
Legal representation
A person in Police custody may communicate privately with a lawyer and have the lawyer present during an interview, subject to the limited qualifications stated in the Police notice concerning unreasonable delay or hindrance. The lawyer may advise whether and how the suspect should answer, intervene to protect the client's legal rights and record objections, but may not answer factual questions on the client's behalf.
Review, correction and signature
After a written cautioned statement is taken, the suspect must be invited to read it and make any correction, alteration or addition. The suspect is then asked to complete and sign the certificate confirming the record.
QUESTIONING A CHILD OR YOUNG PERSON
Additional safeguards to persons under 16.
The Rules and Directions and Police procedures impose safeguards when a person under 16 is interviewed or asked to sign a cautioned statement.
Presence of an appropriate adult
A suspect under 16 should normally not be interviewed or asked to sign a cautioned statement without an appropriate adult present. The person may be a parent, guardian, responsible relative, social worker, a person experienced in supporting someone with special needs or another responsible adult who is independent of the Police.
Exceptional urgency
Interview without an appropriate adult should be exceptional. Police guidance recognises departure where delay would cause undue hindrance to the furtherance of justice or might cause harm to others. An immediate danger to life or an imminent risk that vital evidence will be destroyed may fall within that urgent assessment, but the reasons should be clearly documented.
Role of the adult
The appropriate adult provides emotional support, helps the young person understand their rights, facilitates communication, monitors welfare and acts as a witness to whether the procedure is conducted fairly. The adult does not provide answers for the young person or replace independent legal advice.
HOW MCS CAN ASSIST
Legal advice before and throughout a Police interview.
MCS can obtain information about the allegation, advise on the right to silence and the available interview strategies, attend the Police station, confer with the client privately and remain present during questioning.