HKSAR v. A.F.

HCCC 79/2026

[2026] HKCFI 5716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 79 OF 2026

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REASONS FOR RULING ON THE USE OF TELEVISION LINK

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Introduction

1.The prosecution made an amended application for PW1 (“X”) to give evidence by way of live television link pursuant to s.79B(4A) of the Criminal Procedure Ordinance, Cap. 221 (“CPO”) as a complainant of a specified sexual offence.  The defence opposed the amended application, pointing out that no proper basis had been established for the exercise of judicial discretion in the prosecution’s favour.

2.Upon hearing the respective submissions of the prosecution and the defence on 20 July 2026, I ruled against the prosecution’s application and directed that a screen be used to shield X from the public gallery when giving evidence, together with the use of a special passageway for her to access the courtroom.  These were my reasons.

Th amended application

3.The Defendant faced one count of “rape”, contrary to s.118(1) of the Crimes Ordinance (Cap. 200).  It was alleged that on 22 May 2024 he raped X, a schoolmate in the same secondary school.  X was 15 years old at the material time.  The matter was reported to the police in April 2025.  

4.The prosecution’s applications for leave to use television link and to tender X’s video recording in evidence under ss.79C and 79B CPO on the ground that X was a “child” as defined under s.79A CPO were granted by Barnes J on 27 March 2026.  Meanwhile, case was set down for trial in October 2026.  X would be 18 years of age by the time of the trial, and no longer a “child” as defined in s.79A.  Hence the ss.79B and 79C application would no longer be applicable.  An amended application under s.79B(4A) for X to use television link was filed by the prosecution on 21 April 2026. 

5.By a notice of opposition dated 29 April 2026, the defence opposed to the prosecution’s amended application.

Prosecution’s Submissions

6.Under s.79B(4A) CPO, if a complainant is to give evidence in proceedings involving a specified sexual offence, the court may, on application or on its own motion, permit the complainant to give evidence by way of a live television link, subject to any conditions the court considers appropriate in the circumstances.  “Complainant” and “specified sexual offence” have the meaning given by ss.156(8) and 117(1) of the Crimes Ordinance (Cap. 200) respectively.

7.On behalf of the prosecution, council-on-fiat Mr Adonis Cheung submitted that X’s ability to give evidence would be impeded due to the nature of the offence and formal environment in the presence of her assailant, the Defendant.

8.Mr Cheung submitted that the legislative history and intent underlying s.79B(4A) demonstrated that the subsection was intended to expand the court’s protection of victims of specified sexual offences, to shield them from embarrassment, indignity and anxiety of having faced their assailants at trial.

9.Mr Cheung referred to the Official Record of Proceedings (Wednesday 11 April 2018) of the speech of Mr Dennis Kwok, the then-Chairman of the Bills Committee of the Statute Law (Miscellaneous Provisions) Bill 2017 (Ord. No. 17 of 2018) in which subsection (4A) was added to s.79B CPO: -

“Members of the Bills Committee agree that the court should have the requisite powers in appropriate cases to protect [a complainant or witness of a sexual offence] from the embarrassment or ordeal of being exposed to public sight, any indignity of treatment, and the anxiety arising from the need to physically face the assailants during the trial.”

10.Mr Cheung relied on a witness statement obtained from X on 14 July 2026 in which she applied, inter alia, for “the use of a screen to shield me from the public gallery while I am giving evidence; or in accordance with S.79B of Criminal Procedure Ordinance, Cap. 221, permits me to give evidence by way of a live television link, during which only the Court, prosecution and defence (including the defendant) could see me giving evidence via live television link.”  X stated that the reasons for requesting the protective measures were: -

(a)  “Due to the background and nature of the case, I am a complainant of a specified sexual offence, and have the right and wish to be protected by the court from any distress and embarrassment in the public eye and from any treatment that could cause damage to my dignity, which may affect the integrity of my testimony.”

(b)  “I am worried and in fear to give evidence in open court proceedings, I therefore wish to give evidence by way of a live television link.”

11.Mr Cheung said the nature of the offence and the age of X were factors in favour of granting the application: -

(a)  As a complainant of a specified sexual offence, X ought to be treated with understanding, fairness and dignity.  She would no doubt be more anxious and embarrassed to testify in the same room as the defendant.  She should be spared the trauma of being close to her alleged assailant again.

(b)  The prosecution’s previous ss.79B and 79C applications were granted on 27 March 2026.  The amended application was required because X would turn 18 years of age at the time of the trial.

(c)  The defendant would not be disadvantaged because the defendant, his counsel, the jury, the people in the public gallery would all be able to observe the witness, hear the witness, gauge the witness’ response to questions in real time and with absolute clarity of sight and sound: HKSAR v Leung Kam Ting [2009] 3 HKC 269.  In any case, “[t]he fact that an accused may suffer some forensic disadvantage does not mean such an order should be refused.”: HKSAR v See Wah Lun [2011] 2 HJKRD 957.

Defence’s Submissions

12.The following grounds were put forward in the Defendant’s notice of opposition: -

(a)  The grant of leave under s.79B(4A) is a matter of judicial discretion.

(b)  That discretion falls to be exercised in the interest of justice, bearing in mind the Defendant’s fundamental rights to confront his accuser.  It is rare and exceptional to permit the giving of evidence by live television link in common law.

(c)  On the present materials, no proper basis has been established for the exercise of that discretion in the prosecution’s favour because: (i) X was neither a “child” nor a “witness in fear” for the purpose of s.79B; and (ii) there was no evidence that X would suffer any stress, fear or pressure other than what would ordinarily be experienced by witnesses giving evidence in open court.

(d)  In any event, the use of a screen shielding X from the public gallery, together with a separate passageway, would afford sufficient protection.

13.On behalf of the Defendant, Mr Bruce Tse, SC and Ms Manalie Chan submitted that s.79B(4A) CPO does not create any automatic right/entitlement to live television link.  It establishes a discretion only which must be exercised having regard to the long-established common law principle that a defendant in a criminal trial is entitled to confront his accuser and see him in the eye: R v Taylor [1995] Crim. L.R. 253.  In HKSAR v Chow Ho Yin (2020) 23 HKCFAR 1, the Court of Final Appeal recognized that “[t]he presence of the accused may also place psychological pressure on witnesses to tell the truth, enhancing public confidence that justice has been done.”

14.It was contended that X’s 14 July 2026 statement did not give any specific difficulty in giving evidence in court beyond a bare and belated assertion of being “worried and in fear” which was generic assertions of a kind applicable to virtually every complainant in every prosecution for a sexual offence.  There was no evidence of any threat, intimidation or apprehension as to X’s safety, and there was no psychological, psychiatric, medical or social welfare material capable of distinguishing X from other complainants in similar cases.  X’s assertion fell short of the rare and exceptional circumstances required for the adoption of live television link. 

15.Mr Tse submitted that the prejudice to the defendant was neither theoretical nor trivial in a case of this nature.  The credibility of X would be the central issue.  It would only be fair for the Defendant and his legal team to see and observe X’s demeanour face-to-face and vice versa during her cross-examination: HKSAR v Wu Kwan Shing [2025] HKCFI 4644.

16.Acknowledging that X’s legitimate interests as a witness ought to be protected, Mr Tse stressed the lack of case-specific explanation as to why presently available protective measures would be inadequate.  Those measures (use of screen and special passageway) would adequately address any genuine concern as to embarrassment or discomfort on X’s part, while leaving intact the Defendant’s right to have his accuser give evidence in the courtroom and to test the evidence in the ordinary way.  Moreover, it had been X’s own case that either a screen or a live television link would meet her concerns.

Consideration

17.A defendant is entitled to confront his accuser and see him in the eye.  However the right to confront the witness is not absolute.  It is subject to statutory intervention and can be curtailed if the interests of justice so required.  Nonetheless it is rare and exceptional to adopt the live television link approach.  In exercising the discretion, a judge should carefully consider all the relevant circumstances.The court must conduct a balancing exercise, bearing in mind the interests of the defendant on one hand and the public interest of protecting the witness from unnecessary fear, anxiety or embarrassment arising from the need to physically face the assailant during the trial: HKSAR v See Wah Lun [2011] 2 HKLRD 957. 

18.The present case was alleged to have occurred in May 2024 when X and the Defendant were schoolmates in the same secondary school.  They remained to study in the same school when a report was made to the police in April 2025.  Throughout this period X could see the Defendant in the school.  There was nothing to suggest that it had caused any stress or apprehension suffered by X.  In her video recording to the police, there was also no mention of any fear or concern about seeing the Defendant whatsoever.

19.More importantly, in her 14 July 23026 statement which was specifically taken to support the prosecution’s amended application under s.79B(4A), X expressly elected either for the use of a screen to shield her from the public gallery or to give evidence by way of a live television link.  Clearly her main concern was members of the public in the courtroom rather than the sight of the Defendant himself. 

20.Having considered all the matters raised in counsel’s submissions, the interests of the Defendant, the interests of X including her attitude about the use of a screen to shield her from the public gallery only, I considered that there was no rare and exceptional circumstances to justify the exercise of my discretion in favour of the prosecution’s amended application under s.79B(4A).

Conclusion

21.The prosecution’s amended application to permit X to give evidence by way of live television link was refused.  A screen shielding X from the public gallery would be used with special passageway arranged for her access to the courtroom.

Mr Adonis Cheung, Counsel-on-fiat, for the Prosecution

Mr Bruce Tse SC leading Ms Manalie Chan, instructed by Haldanes, for the Defendant