HKSAR v. Wu Kwan Shing

HCCC 67/2023

[2025] HKCFI 4644

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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RULING

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Introduction

1.The defendant is charged with one count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap. 200. The trial is currently fixed for 13 to 27 October 2025.

2.By a Notice of Application for Leave to Use Television Link under section 79B of the Criminal Procedure Ordinance, Cap. 221 (“s79B Application”) dated 16 October 2024 (“Notice of Application”), the prosecution applied for the court’s leave to allow (1) the complainant, X, to give evidence by way of a live television link, and (2) a trained support person to accompany X when giving evidence.

Procedural History

3.On 20 March 2023, the defendant was committed for trial. During the first (14 August 2023) and the second (11 December 2023) case management hearings, the prosecution did not apply for X to give evidence by way of a live television link. In fact, no application for any special procedure was made by the prosecution then.

4.On 2 January 2024, the prosecution formally applied for the following special procedures for X, namely (1) a special passageway to be provided for X to enter and exit the court and (2) screens to be erected to shield X from the defendant and the public gallery when giving evidence.

5.In that application, Mr Duncan Percy, counsel-on-fiat, referred to X’s witness statement to the police dated 15 November 2021 (“2021 Witness Statement”), where X had stated that she would need to use a special passageway and screens to give evidence in court, but that she would “not need to give evidence by way of a live television link”.

6.On 15 January 2024, Mr Percy confirmed with the court in writing that the application was “only” for X to be permitted to give her evidence behind a protective screen in court. Pertinently, there was “no application for a live television link” and “no application for a support person” from the prosecution.

7.Ms Priscilia Lam (now Ms Priscilia Lam, SC), counsel for the defendant, objected to the use of a screen to shield X from the defendant. However, she had no objection to the use of a screen to shield X from the public gallery when giving evidence, or to X’s accessing the court through a special passageway.

8.On 26 January 2024, the learned Deputy High Court Judge Woodcock (as Her Ladyship then was) (“Woodcock J”) granted the prosecution’s application in part. Whilst there would be a special passageway for X to enter and exit the court, as well as a screen to shield X from the public gallery when giving evidence, the prosecution’s application to erect a screen to shield X from the defendant’s line of vision was refused.

9.It was until some nine months later that the prosecution lodged the present s79B Application by way of the Notice of Application on 16 October 2024. The application was opposed by the defence on grounds set out in the Notice of Objection (“Notice of Objection”) duly filed by Ms Lam on 23 October 2024.

10.Pursuant to my direction earlier on, parties have since filed written submissions. I have indicated that I would deal with the s79B Application on paper and would give my ruling in writing in advance of the trial, which I now do.

Parties’ Submissions

11.In the Notice of Application, the prosecution put forward four grounds in support of its s79B Application, namely that (1) X is a “complainant” as defined under s79B(1) of the Criminal Procedure Ordinance, and s.156(8) of the Crimes Ordinance; (2) X is to give evidence in proceedings involving a specified sexual offence as defined under s.117 of the Crimes Ordinance, namely rape; (3) it would be “stressful” and “embarrassing” for X to give evidence in a formal court setting and in the presence of the defendant, given the circumstances of the case and the nature of the offence; and (4) it is in the interest of justice for X to give evidence and be cross-examined by way of a live television link at trial.

12.Additionally, the prosecution relied on X’s witness statement to the police dated 25 September 2024 (“2024 Witness Statement”), in which X had stated that “[t]he case has gone on for a long time, causing a severe disturbance to my life and emotions. When giving evidence in the future court hearing, I am scared of seeing the defendant again that would affect my emotions and state of mind during my testimony. So, I wish to give evidence by way of a live television link. Besides, I also need to apply for the use of special passage when entering and leaving the courtroom to avoid being seen by the public, reporters or even the defendant. During the adjournment, I also wish to be separated from the defendant, the public and reporters, etc. At the same time, I also wish to apply for a support person to assist me until the case is concluded”.

13.In her Notice of Objection, Ms Lam based her objections to the s79B Application on three grounds, namely (1) the credibility and reliability of X’s evidence cannot be properly assessed by the jury if a live television link is used, thereby depriving the defendant of a fair trial; (2) the screens and the special passageway permitted by the learned Judge could already alleviate any stress or embarrassment to X; and (3) the inordinate and unjustified delay of the s79B Application.

14.Ms Lam elaborated on these grounds in her written submissions dated 25 May 2025. Ms Lam first emphasised that the s79B Application was made inordinately out of time well after the 28-day time limit had lapsed. In fact, it was made only after Woodcock J had refused the prosecution’s application to erect a screen to shield X from the defendant’s line of vision.

15.Ms Lam submitted that X had changed her stance as to whether to testify by way of a live television link. Whereas X had stated in clear terms in the 2021 Witness Statement that she would “not need to give evidence by way of a live television link”, she stated the exact opposite in the 2024 Witness Statement allegedly because “[she is] scared of seeing the defendant again”. Accordingly, Ms Lam submitted that X’s sudden change of stance after the long lapse of time shows that X is not a witness who is in genuine fear. As no explanation was offered by the prosecution, Ms Lam submitted that the s79B Application is the prosecution’s attempt to have a second bite of the cherry after the unsuccessful application for a screen shielding X from the defendant.

16.Ms Lam also referred to the long-established common law principles in R v Davis [2008] 1 AC 1128 that a defendant in a criminal trial should be confronted by his accusers. Additionally, reliance was placed on R (Al-Fawwaz) v Governor of Brixton Prison [2002] 1 AC 556 where the House of Lords had held that a defendant’s right to confront his accusers in a criminal trial should only be denied in “rare and exceptional circumstances”. Whether there are “rare and exceptional circumstances” as to justify a departure from these principles is pre-eminently one for the exercise of the judge’s discretion. The aim, ultimately, is to “balance the need for protection of the witness against unfairness or the appearance of unfairness to the defendant”.

17.Lastly, Ms Lam submitted that the fairness of a trial should be safeguarded for both the alleged victim and the defendant. She contended that X’s interests and welfare would be sufficiently protected by the anonymity order and the arrangement that will be put in place for her to be shielded from the public when she testifies.

18.In his letter to the court dated 2 June 2025, Mr Percy intimated that he had no further submissions in response to those of Ms Lam, but maintained that the prosecution still wished to pursue the s79B Application on behalf of X. In this regard, Mr Percy relayed X’s concerns as to why she would like to give evidence by way of a live television link, namely (1) “the case has gone on for a long time, causing a severe disturbance to her life and emotions”, and (2) “[s]he is scared when giving evidence at trial, when confronting the Defendant in court as she feels it will adversely affect her emotions and state of mind having to recall as accurately as possible what had taken place between them”.

Discussion

19.On the issue of delay, rule 3 of the Live Television Link and Video Recorded Evidence Rules, Cap. 221J (“Rules”) provides that:-

“(1) Any party to a proceeding may apply for leave —

(a) for a witness to whom section 79B of the Ordinance applies to give evidence by means of a live television link; or

(b) for a witness, in respect of whom evidence in the form of a video recording has been allowed under section 79C of Ordinance, to be cross-examined by means of a live television link […]

(2) Subject to subrule (7), an application shall be made within 28 days after the date of —

(a) the committal for trial of the defendant;

(b) the consent to the preferment of a bill of indictment in relation to the case;

(c) the order of transfer under section 88 of the Magistrates Ordinance (Cap. 227); or

(d) the setting down of the case for trial before magistrate,

as the case may be […]

(7) The period specified in subrule (2) may be extended, before or after it expires, on an application made in writing, specifying the grounds of the application, and sent to —

(a) the officer of the court; and

(b) all other parties to the proceedings,

and the officer of the court shall notify all the parties of the decision of the court.

(8) An application for extension of time under subrule (7) shall be determined by the court without a hearing unless the court otherwise directs ...” (emphasis added)

20.As Ms Lam correctly pointed out, given that the defendant was committed for trial on 20 March 2023, the s79B Application lodged by the prosecution on 16 October 2024 was made inordinately out of time – almost a year and a half after the time limit prescribed under the Rules.

21.The delay of the s79B Application is not insignificant. The prosecution has not provided any explanation for the delay. Neither is there any attempt to apply for an extension of time in accordance with the Rules. The unjustified delay alone is, therefore, enough to dispose of the s79B Application.

22.Nevertheless, I will consider the merits of the s79B Application for completeness’ sake.

23.The right of a defendant in a criminal trial to be confronted by his accusers to cross-examine and challenge their evidence has an extensive history rooted in the common law. Its rationale is founded on open justice and the reasoning that confronting a witness and examining them publicly “has always been found the most effectual method of discovering of the truth”, and that evidence received in secret would leave the door “wide open to mendacity, falsehood, and partiality”: see Lord Bingham’s extensive discussion regarding the history of this right in R v Davis [2008] 1 AC 1128 at §5, citing Duke of Dorset v Girdler (1720) Prec Ch 531 , 532 and Bentham (Rationale of Judicial Evidence (1827), vol 2, bk III, pp 404, 408, 423) respectively. In similar vein, in the United States Supreme Court case of Coy v Iowa (1988) 487 US 1012, Scalia J observed at 1019 that: “It is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’ In the former context, even if the lie is told, it will often be told less convincingly”.

24.However, the modern position in England and Hong Kong is more nuanced. The right to confrontation is not absolute. It is subject to statutory intervention and can be curtailed if the interests of justice so require.

25.In R. (D) v Camberwell Green Youth Court [2005] 2 Cr App. R 1, the House of Lords held that there was nothing preventing a judge from taking whatever action was needed to secure a fair trial, such that there was nothing intrinsically unfair in children giving evidence by way of video recording or live television link under the Youth Justice and Criminal Evidence Act 1999. Lord Rodger of Earlsferry, while expressing support in obiter for the rationale behind the position in the United States, observed that there was never a corresponding requirement in English law:

“14. It is for the people of the United States, and not for your Lordships, to debate the virtues of the Sixth Amendment in today's world. It overlaps, to some extent, with Art.6 (3)(d) of the Convention as interpreted by the European Court. But, as interpreted by the Supreme Court, the Sixth Amendment appears to go much further towards requiring, as a check on accuracy, that a witness must give his evidence under the very gaze of the accused. For my part, I would certainly not disparage the thinking behind that requirement. But, whatever its merits, this line of thought never gave rise to a corresponding requirement in English law. That is amply demonstrated by the very brevity of the decision of the Court of Criminal Appeal in R. v Smellie (1919) 14 Cr. App. R. 128, holding that a judge could remove the accused from the sight of a witness whom his presence might intimidate.” (emphasis added)

26.R. (D) v Camberwell Green Youth Court was cited by the Hong Kong Court of Appeal in HKSAR v. See Wah Lun and Others [2011] 2 HKLRD 957. In the context of a “witness in fear” giving evidence by way of a live television link under s79B(4) of the Ordinance, the Court of Appeal summarised the relevant principles at §29:-

“(1) An accused is entitled to the fundamental right of a fair trial. The accused is also entitled to confront his accuser and see him in the eye. It is not necessary to decide whether the right to a fair trial includes the right to confront and look the accuser in the eye. It appears that the common law right of a face-to-face confrontation is not guaranteed by the European Convention on Human Rights (see R. (D) v. Camberwell Green Youth Court [2005] 2 Cr. App. R 1). This view may probably be explained by the fact that, apart from England, many European countries do not have the requirement of seeing the witness in court. In the context of the Basic Law and Bill of Rights in Hong Kong, such a rationale may not necessarily be applicable. In any event, even under common law, the right to confront and see the witness can be curtailed. As Lord Coleridge J stated in R v George Smellie (1919) 14 Cr. App R 128 at 130:

‘If the judge considers that the presence of the prisoner will intimidate a witness there is nothing to prevent him from securing the ends of justice by removing the former from the presence of the latter.’

(2) These rights, however, are now subject to statutory intervention by allowing a witness in fear to give evidence by way of live television link.

(3) It is rare and exceptional to adopt the live television link approach. The Court must consider the interests of the accused.

(4) At the same time the Court must balance the interests of the accused and the significant public interest of witnesses giving evidence without occasioning danger to themselves or to members of the community. The fact that an accused may suffer some forensic disadvantage does not mean such an order should be refused …” (emphasis added)

27.In 2018, the relevant provision of the Criminal Procedure Ordinance was amended[1] to introduce an additional ground of allowing a complainant of a specified sexual offence (including rape, non-consensual buggery, indecent assault, and attempts to commit these offences) to give evidence by way of live television link under s79B(4A). This was in addition to the existing provision under s79B(4) applicable to a “witness in fear”. It is not required for a complainant of a specified sexual offence under s79B(4A) to be “in fear”.

28.In my judgment, the general principles set out by the Court of Appeal in See Wah Lun are equally applicable in the present context of a complainant of a “specified sexual offence” wishing to give evidence by way of a live television link under s79B(4A) of the Ordinance. The balancing exercise to be conducted is between the interests of the defendant in confronting and cross-examining his accuser face-to-face on one hand, and the interest of the complainant in giving evidence without unnecessary fear, anxiety or embarrassment on the other. The discretion conferred on the Court is a wide one. The relevant considerations, the weight to be attributed to them, and the balancing exercise will naturally differ in each case depending on their particular circumstances.

29.At the crux of the prosecution’s contention for the s79B Application in the present case is that it would be stressful and embarrassing for X to give evidence in a formal court setting and in the presence of the defendant. On the materials before me, however, I do not find these to constitute sufficient basis to conclude that there are rare and exceptional circumstances in this case to allow the s79B Application.

30.I accept that, in substance, X’s request for a screen shielding her from the defendant and the present s79B Application are both founded on the same reason that she was “scared of seeing the defendant again” as she claimed in her 2024 Witness Statement. Although she stated the contrary in her 2021 Witness Statement, this should be read in the context of the first application in that she was comfortable giving evidence in court without requiring live television link so long as there was a screen erected between her and the defendant. Viewed in this light, there was arguably no change in stance on the part of X.

31.Nonetheless, upon balancing X’s interests in testifying without unnecessary fear, anxiety or embarrassment against the defendant’s interests to confront X in open court, I take the view that the scales weigh in favour of not allowing the prosecution’s application for X to give evidence by way of live television link.

32.I agree with Woodcock J’s observation at §§16-17 of her Ladyship’s ruling that a central issue in this case is consent and, therefore, the credibility of X and that of the defendant if he elects to give evidence. Of course, consent and credibility are central issues in the majority of trials for sexual offences, and it does not follow that in every trial of this nature an application for live television link would be denied. However, in this particular case, there is nothing to suggest that X is in an exceptionally vulnerable position. X and the defendant are two mature adults who met each other on equal footing some time before the alleged offence took place. There are no features in this case which are out of the ordinary and sufficient to justify allowing X to give evidence without confronting the defendant face-to-face.

33.It follows that it would only be fair for the defendant and the defence counsel to see and observe X’s demeanour face-to-face and vice versa during her cross-examination, especially when X and the defendant were already acquainted at the time of the alleged offence. Being conservative, embarrassed, nervous and anxious do not amount to sufficient or exceptional grounds to curtail the defendant’s right to confront X at trial in the present circumstances.

34.In my view, any fear, stress or embarrassment on the part of X that may arise from her giving evidence in court could be alleviated by the measures that will be put in place including the special passageway and the screens shielding X from the public gallery. These special procedures, together with the anonymity order already granted by Woodcock J, are sufficient to provide the necessary safeguards for X when she testifies in the coming trial.

Conclusion

35.For the reasons set out above, I refuse the prosecution’s s79B Application.

36.The trial will be conducted in accordance with the special procedures granted by Woodcock J. There would be a special passageway for X to enter and exit the court as well as a screen shielding X from the public gallery when giving evidence, but there would not be a screen shielding X from the defendant’s line of vision.

Order

37.It is hereby ordered that this Ruling is to be provided to the parties including the defendant only and without the leave of this Court:

(a)  this Ruling is not to be handed to any other person or made available for reading by any other person; and

(b)  the contents of this Ruling are not to be disclosed to any other person or published, including the uploading of any part thereof on the internet or any other public information or media platform.

Upon the conclusion of the trial of this case at the Court of First Instance this Order shall be discharged automatically and this Ruling will be uploaded on the Judiciary website.  

Mr Duncan Percy, Counsel-on-Fiat, for the Prosecution / HKSAR

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