HKSAR v. Wu Kwan Shing

HCCC 67/2023

[2024] HKCFI 323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 67 OF 2023

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R U L I N G

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1.The defendant in this case faces one charge of rape. The trial was set down for November 2023 but it became clear during the first case management hearing on 14 August 2023 that counsel were not consulted as to availability and both parties agreed to apply to re-fix the trial. This trial was re-fixed to 6 February 2024.

2.There was a second case management hearing on 11 December 2023. Many matters were canvassed and directions were given but there was no mention of any application from the prosecution for a safe passageway and screens in court for the Miss X.

3.On 2 January 2024, the prosecution applied formally for special procedures for Miss X, referred to as a vulnerable witness. The application specifically applied “to permit PW1 to have access to and from the court by way of a special passageway and the use of screens during her giving testimony.” In the formal application, the request is for a screen to be provided in court to protect her “from the public and the defendant in the dock”.

4.Prosecution counsel, Mr Duncan Percy, intended to make this application formally on the first day of trial. Ms Priscila Lam, for the defendant objected to part of the application.

5.I decided to deal with this application on paper before trial and asked both parties for submissions in advance. I intend to give my ruling now.

6.As correctly and properly pointed out by defence counsel, Miss Lam, this application is made out of time but no explanation has been given for the reasons for this delay. According to part 9 of Practice Direction 9.3, the prosecution should notify the defendant of any request by any witness to use a screen when giving evidence, and if so, type of screen requested as well as the grounds not later than 10 days before the case management hearing. The prosecution has not provided any reasons for failing to comply with the practice directions.

7.These practice directions allow for active, hands-on, case management by the Court to ensure the case is properly prepared. Preparation is key to a fair and expeditious criminal process. To ignore these directions and timelines will mean a trial does not start prepared and immediately. This is precisely the situation here, if I were to allow this application to be dealt with on the first day of trial, to hear submissions, read authorities provided and then take time to consider the application, time is simply wasted.

8.On this one occasion, I will allow this application to be made out of time. Miss Lam has made it clear she has no objection to part of the application. She does not object to the witness accessing the court by way of a special passageway and the use of a screen to shield her from the public gallery. She does object to the use of a screen to shield Miss X from the defendant as the defendant has a right to see the accuser whilst giving her evidence.

9.The prosecution has relied on the case of HKSAR v Shamsul Hoque, HCCC 379/2023. This was an application by the prosecution for the use of a screen to shield a witness when giving evidence from the members of the public in the public gallery. A detailed ruling was given prior to trial and various authorities referred to by the trial judge.

10.The issue in that case was specifically confined to shielding the witness from members of the public. The trial judge, Zervos J (as he then was) held that no prejudice would be caused to the defendant by using a screen to shield the witness from the public in court and refused the application. This ruling is not helpful when there was no application in that case to shield the witness from the defendant.

11.In the grounds for the application, Mr Percy has described PW1 as a vulnerable witness and refers me to s79B of Part IIIA of the Criminal Procedure Ordinance, Cap 221 and Archbold Hong Kong 2024, para 8-68. He does not define how, under that section or any authority, she is a vulnerable witness. There is no definition of a vulnerable witness. In any event, Part IIIA of this Ordinance aims at particularly vulnerable classes of witnesses giving evidence in criminal cases, namely children, those who were mentally incapacitated and those who feared for their safety if they gave evidence. The Ordinance allows for those classes of witnesses to be permitted to give testimony via video link, video recording or deposition.

12.It would also include complainants of specified sexual offences where the court may permit the complainant to give evidence by way of a live television link, subject to any conditions the court considers appropriate in the circumstances.

13.Mr Percy submits since she is a complainant of a specified sexual offence, rape, he invites the Court to treat her as a witness in fear. Even if I agreed, s79B would allow her to give evidence by way of a live television link. However, Mr Percy is not making any application for a live television link for Miss X nor any application for a support person. In fact, Miss X in her witness statement stated she did not need to give evidence by way of live television link.

14.In his submissions to support his application, Mr. Percy highlights the conservative Muslim background of Miss X, a foreigner in Hong Kong and her apprehension of reliving the allegations made in court in front of strangers. She is fearful of seeing the defendant again in court. He suggests she may become emotional and be unable to accurately recall important details if she feels that the defendant is watching her. Mr Percy submits to shield her from the defendant’s line of vision would give her a fair opportunity to give evidence unhindered and without too much anxiety or embarrassment. The prosecution submits there would be no prejudice to the defendant if there is a screen to shield Miss X from the defendant as well as the public.

15.Ms Lam for the defendant emphasises that a defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence; it is a long established common law principle. She refers me to Lord Bingham’s judgement in R v Davis (2008) 1 AC 1128. She derives the following principles from that judgement which is firstly that the defendant has a right to confront his accusers; this right should not be denied if doing so would hamper the conduct of the defence in a manner and to an extent that is unlawful and renders the trial unfair. Secondly, that right of the defendant should only be denied in exceptional circumstances and even then, such exceptional circumstances should have limited flexibility.

16.I agree with the defence and I see no exceptional circumstances in this case to grant the very rare approval to shield the witness from the defendant. Especially where in this case the issue is one of consent and the credibility of Miss X and indeed the defendant, if he elects to give evidence, will be the mainstay of cross-examination. Therefore, demeanour will be important and defence counsel as well as the defendant who knows her best since they were not strangers at the time of the alleged offence should be able to see, watch and observe Miss X giving evidence.

17.Being conservative, embarrassed, nervous and anxious are not sufficient let alone exceptional grounds to deny the right of the defendant to see how Miss X, an adult gives evidence in court.

18.This application is granted to the extent that there will be a passageway arranged for Miss X to enter and leave court. There will also be erected a screen shielding Miss X from the public during the course of her evidence but not to the extent that Miss X is shielded from the defendant’s line of vision.

Mr Duncan C H Percy, Counsel on fiat, for Department of Justice

Ms Priscilia Lam, instructed by Yung, Yu, Yuen & Co., assigned by Director of Legal Aid, for the Defendant