HKSAR v. Yao Yanwu

DCCC 918/2022

[2023] HKDC 124

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 918 OF 2022

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RULING

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1.This is an application for disclosure by the defendant.

2.The defendant is facing four charges involving inciting an act of gross indecency, indecent conduct and unlawful sexual intercourse with the same complainant, who was a girl under the age of 16 at the material times. She is named as X in the charges. The defendant pleaded not guilty to all these charges and the case has been set down for trial on 13 to 20 October 2023.

3.The defendant, represented by Mr Kalvin Chan, applies for an order of disclosure against the prosecution to disclose those materials shown to X during her video-recorded interview (VRI) from 15.25 to 15.49 hours on 18 July 2022 (“subject materials”). The transcript of the VRI (unused material item 51), with the subject materials double underlined, is enclosed in the written submission dated 4 January 2022 of Mr Chan.

4.It is not disputed that the subject materials involved pornographic clips and photographs involving the complainant and another person. However, they are not related to the defendant in the present case and not the subject matter or evidence to be produced by the prosecution against the defendant. Mr Chan submits that it remains the burden on the prosecution to justify non-disclosure. One matter that is relevant to the case is that it was X’s assertion that the defendant brought her to Jade Garden Motel at Tsuen Wan (Charges 2 to 4), while the defence case is that the defendant denies ever meeting X in person. It is argued that one of the possibilities is that X deliberately lied or unintentionally, but in any event mistakenly, confused or misidentified the real culprit. Comparing the subject materials against those photographs of Jade Garden Motel allegedly taken by DPC16969 (documentary exhibit item 17 page 640 to 674) is relevant to the defence as defence counsel could then possibly find out whether the scene of the pornographic clip and photographs was Jade Garden Motel, and hence to prove that the complainant was lying or mistaken. It is contended that if the prosecution wants to protect the privacy of the complainant, they could cover her face and private part depicted in the subject materials.

5.Ms Lam Hiu Man Human, Senior Public Prosecutor, objects to the defendant’s application. In her written submission dated 5 January 2023, Ms Lam submits that in addition to the present case, X is an underaged complainant in another two District Court criminal cases, DCCC 916/2022 and DCCC 917/2022. She is a vulnerable witness who both the court and the prosecution strive to protect.

6.The subject materials were related only to the other two criminal cases. They were not found in the defendant’s phone nor taken by the defendant in the present case. While they contain explicit images of X, they certainly have no relevance to the present case. The VRI of X taken on 18 July 2022 referred to by Mr Chan is not evidence in the present case, such being disclosed to the defence as unused material only. Ms Lam emphasises that she is fully aware of the defence’s right to be provided relevant and disclosable materials. She also stresses that such right is not an absolute and unfettered right to give the defendant a free pass to obtain any materials concerning a complainant or any prosecution witness whose privacy should be valued and protected by the court and the prosecution.

7.She suggests that if the defence wishes to challenge X’s assertion that D had brought her to Jade Garden Motel at Tsuen Wan, they could cross-examine X by putting to her that she might have deliberately or intentionally, but in any event mistakenly, confused or misidentified the real culprit. There was nothing to suggest or support the possibility that any of the subject materials were taken at Jade Garden Motel. It is indeed the prosecution’s case that they were not taken there.

8.The prosecution submits that a baseless possibility by the defence counsel suggesting that the subject materials may contain something that is possibly relevant or may reasonably affect X’s credibility is simply speculative and an impermissible fishing expedition. The prosecution could produce to the court a copy of the subject materials for the court’s inspection, if needed, in considering the application.

9.The principles concerning disclosure by the prosecution are trite law and not in dispute in the present case. Briefly, the prosecution is under a positive duty to make disclosure to the defendant all material information in their possession which is or may be relevant to an issue in the case and which may help the defendant in the conduct of its defence. It is part of a defendant’s fundamental right to a fair trial.

10.I have borne in mind the relevant legal principles set out in HKSAR v Lee Ming Tee [2003] 6 HKCFAR 336, as well as the guidelines contained in chapter 12 of the Prosecution Code cited by the defence counsel. I do not find it necessary to inspect the subject materials myself.

11.In the present case, the complainant is an underaged girl and hence a vulnerable witness. The court has the duty to protect a vulnerable witness. The subject materials involve very sensitive pornographic materials relating to a vulnerable witness. Neither the subject materials nor the VRI in question will be used as evidence against the defendant in the present case. On the other hand, the defence case is simple, that the defendant has never seen X.

12.I agree with the submission of Ms Lam. In my view, whether the subject materials were taken at Jade Garden Motel is not material in the present case. Comparing the subject materials against the photographs taken at Jade Garden Motel by the police would be a futile, if not fishing, exercise.

13.On the paper evidence before me and having considered the submission of defence counsel, I am unable to see the relevance of the subject materials to the present case. The application for disclosure is therefore refused.

Ms Human Lam, SPP of the Department of Justice, for HKSAR

Mr Chan Ka Hin Kalvin, instructed by K T Lo & Co, assigned by Director of Legal Aid, for the defendant