HKSAR v. Chim Hon Man

FAMC000008/1998

FAMC No. 8 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 8 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 283 OF 1997)

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Date of Hearing: 9 July 1998

Date of Determination: 9 July 1998

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D E T E R M I N A T I O N

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Mr Justice Bokhary, PJ:

1. On 1 April last year, following a trial which commenced on the 24th of the previous month, this applicant was convicted (by a majority of 5:2) on two counts of raping his stepdaughter in the family home almost eight years earlier when she was only nine years old. The victim (as we shall refer to this girl) was born on 1 March 1980. The first count charged a rape on a date unknown between 14 and 31 July 1989, while the second count charged a rape on a date unknown between 1 and 15 August 1989.

2. The sole evidence against the applicant was the uncorroborated testimony of the victim. She made no complaint of the rape to anyone until speaking to a school friend some five years later in 1994. According to the victim, her long silence was the result of the applicant having told her not to tell anyone of what he had done to her.

3. Testifying in his own defence, the applicant denied having had any sexual contact with the victim. And he suggested that her allegations against him might have been instigated by her elder sister with whom he was on bad terms.

4. Having failed to persuade the Court of Appeal to quash his convictions, the applicant now seeks our leave to appeal to the Court of Final Appeal.

5. Taking them from his notice of application, the three grounds of appeal which the applicant hopes to advance before the Court of Final Appeal are:

"1. The Court of Appeal erred in law in holding that the evidence in cross examination of [the victim] was not wrongly received in evidence by way of live television link, when at the time of cross examination [the victim] was not under 17 years of age.

2. The Court of Appeal erred in holding that the second count of rape against the Applicant should have been left to the jury for their verdict when there was no evidence on which a reasonable jury properly instructed could find to a criminal standard of proof that the Applicant had sexual intercourse with [the victim] between 1st August and 15th August 1989.

3. In the alternative, the Court of Appeal erred in holding that the incidents of sexual intercourse claimed by [the victim] were indistinguishable, so precluding

(a) the Prosecutor being required to elect upon which offence during each period of each count the trial should have proceeded; and

(b) the Learned trial Judge from directing that the jury could only convict on a count of rape if the members of the jury each found that the same rape had occurred during the period of the count."

6. The point which underlies the first ground was not taken at the trial, presumably because nobody saw the point. But where, as here, there would be no evidence at all on which to convict if the point turns out to be a good one, such an application as this one cannot turn on a failure to take the point earlier.

7. As for the circumstances relevant to this ground, they are as follows.

8. At the trial the victim's evidence-in-chief took the form of four videotaped interviews of her between January and August 1996. She was aged 15 at the beginning of the interview period but turned 16 in the course of it.

9. Those video recordings were given in evidence pursuant to s.79C of the Criminal Procedure Ordinance, Cap. 221 ("the Ordinance").

10. As for the victim's cross-examination, it was by live television link. In other words, it took place in a room other than the courtroom but was shown live on television in the courtroom. This cross-examination took place on 26 March 1997. By then the victim had attained the age of 17 (which she did on the 1st of that month). There was no re-examination.

11. Evidence by live television link is dealt with by s.79B of the Ordinance, subsection (2) of which provides that:

" Where a child, other than the defendant, is to give evidence, or be examined on video recorded evidence given under section 79C, in proceedings in respect of -

(a) an offence of sexual abuse;

(b) an offence of cruelty; or

(c) an offence which involves an assault on, or injury or a threat of injury to, a person and the offence is triable ?

(i) on indictment; or

(ii) either summarily or on indictment,

the court may, on application or on its own motion, permit the child to give evidence or be examined by way of a live television link, subject to such conditions as the court considers appropriate in the circumstances."

12. For the purposes of giving evidence by live television link in sexual abuse cases, "child" is defined by s.79A of the Ordinance as a person who "is under 17 years of age".

13. In regard to the first ground, the Court of Appeal certified on 8 May 1998 that a point of law of great and general importance is involved, saying this:

" This court has been asked to certify that its decision that the order of Gall J. made on 17th February 1997, allowing the victim to give evidence by way of live television link pursuant to s.79B of the Criminal Procedure Ordinance was not spent upon her reaching the age of 17 is a matter of great and general public importance. We are satisfied that we should so certify." (That contains an immaterial factual error in that the date on which Gall J gave permission for the victim to give evidence by live television link was in fact 22 November 1996.)

14. What is the time when it matters whether the witness is or is not a child? Is it the time when the witness's evidence is given (by live television link under s.79B or by the playing of a video recording under s.79C)? Or is it some earlier time (such as when permission to give evidence by those means is granted)?

15. The Court of Appeal having certified that a point of law of great and general importance is involved, we are content for the matter to go forward on appeal to the Court of Final Appeal.

16. We turn now to the second and third grounds. As formulated they are not easy to follow. Let us look however at the broad circumstances of the case to see whether or not it is reasonably arguable that substantial and grave injustice has been done.

17. As to what the prosecution's case was, this is what the trial judge said to the jury when summing up:

"The prosecution case is this: between 14 July and 15 August 1989 the defendant had raped the girl on a number of occasions, she said about ten times. But you may recall that the girl did not remember the exact dates or the number of these occasions. She also said that on the first few occasions, it seemed that the defendant did not enter her private parts. Hence, it is not clear how many times the defendant had raped the girl during this time."

18. The judge then dealt with how the prosecution framed that case, saying this:

"So, the prosecution has laid two charges, instead of ten, in relation to two periods of time, the first from 14 July to 31 July and the second from 1 August to 15 August 1989. It is the prosecution's case that there was at least one rape during each period."

19. And then the judge directed the jury thus:

"If you are satisfied that there was at least one rape during each period, you should convict the defendant of the two charges but these two charges are, of course, separate charges and you should consider them separately."

20. Was there evidence on which the jury could be sure that there was at least one rape in each charge period?

21. The Court of Appeal put it in very general terms, saying this:

"It is true that the evidence concerning the exact dates when sexual intercourse occurred was somewhat vague. This was hardly surprising in the circumstances of the case bearing in mind [the victim's] age at the time and the passage of time which has elapsed since the occurrences. What does however emerge from the evidence was that the conduct complained of was continuing conduct and that [the victim] was able to put limits to the commencement and discontinuance of it."

22. Arguably the Court of Appeal did not deal adequately with the difficulty here.

23. The evidence in support of the allegations of multiple rape was vague. So much so that the prosecution felt itself in the position where it had to charge two rapes, which was less than the number of rapes which it was really alleging. And each rape charged was charged as having occurred on an unknown date over a two-week period during one or both of which the applicant was alleged to have committed several rapes. Whether any conviction on charges so formulated is ever sustainable or sustainable on such directions as this jury received does, as it seem to us, merit more consideration than it has received below.

24. The way in which the video-recorded interviews were conducted, given that they later formed evidence-in-chief, also deserves further consideration. For those interviews seem to have proceeded by a mode of questioning which would not have been open to a prosecutor when leading evidence from a witness. And indeed it is also a matter worthy of further consideration whether any interview of a potential witness ought to proceed in the fashion revealed in the transcript of those video-recorded interviews. The danger of putting ideas into the mind of a possibly impressionable potential witness is always a matter for concern.

25. On the basis of an arguable case of substantial and grave injustice having been done as well as on the matters to which the certified point pertains, we grant leave to appeal to the Court of Final Appeal.

26. The Appeal Committee is of the view that this appeal raises matters of considerable importance which the Director of Legal Aid should instruct leading counsel to argue.

Representation:

Mr Phillip Ross (instructed by the Legal Aid Department) for the applicant

Mr A.E. Schapel (of the Department of Justice) for the respondent