Read the full judgment text of FACC 000003/1998 on BabelCite. This FACC judgment was delivered on 29 January 1999 before Chief Justice Li, Litton PJ, Ching PJ, Bokhary PJ and Sir Anthony Mason NPJ.
Criminal law – sexual offences – rape of a child – admissibility of evidence – video-taped interviews under Part IIIA of the Criminal Procedure Ordinance (Cap 221) – unsworn evidence – live television link – Special Procedures for Vulnerable Witnesses – single transaction rule – duplicity – specimen or representative counts – whether evidence of multiple acts may be led in proof of a single count charging one offence – whether an exception exists for child sexual abuse cases where the complainant cannot differentiate the offences – sufficiency of trial judge's directions – corroboration warning – unsafe and unsatisfactory verdicts – stepfather charged with two counts of rape of his 9½-year-old stepdaughter between 14 July 1989 and 15 August 1989 in a rented rooftop room in Kwun Tong – four video-taped interviews recorded in 1996 admitted under s.79C – complainant cross-examined by live television link under s.79B – no medical evidence, no corroboration – complaint first made in 1994 – trial judge directed jury to convict if satisfied of at least one rape in each of the two specified periods based on evidence of about ten acts of sexual molestation over the one-month span. First issue: whether the unsworn video-taped interviews were admissible – held: s.79C(2) permits a video recording of an interview between an adult and a child to be given in evidence with the leave of the court; s.79C(7) treats statements in the recording as if given in direct oral testimony, making it unnecessary for the child to be sworn or to adopt the statements (following R v Day and R v Sharman). Second issue: whether the complainant's evidence by live television link was properly admitted at age 17 – held: s.79B(2) read with s.79C and s.79A(a)(ii) permits a child under 18 who is to be examined on a s.79C video recording to give evidence by live television link, supporting the Bills Committee view of 19 July 1995. Third issue: whether evidence of multiple acts of rape is admissible to prove a single count of rape, and whether the convictions should be quashed – held: there is a general common law principle, affirmed in S v The Queen (1989) 168 CLR 266, that confines the prosecution to proof of one offence as the basis for a single conviction; the Court declined to follow the New Zealand specimen count practice in R v Accused and the developing English exception, and held that no such exception should be recognised in Hong Kong; the practice of drawing counts alleging offences 'on an occasion other than that alleged' in the previous count could have been used; the convictions must be quashed. Fourth issue: whether the video-taped interviews should have been excluded for leading questions – held: no objection was taken at trial; persistent questioning did not result in material answers being elicited by leading questions; alterations in the complainant's answers rendered her evidence susceptible to critical comment but did not warrant exclusion. Fifth issue: whether the trial judge's directions were adequate – held: the trial judge erred in failing to direct the jury that they must be unanimous as to a particular act of rape in each period, and in failing to remind them of the accused's difficulty in meeting old, unspecific charges, and weakened the corroboration warning. Sixth issue: whether the verdicts were unsafe and unsatisfactory – held: yes, on the cumulative effect of the procedural errors and the frailty, inconsistency, lack of specificity and absence of corroboration of the complainant's evidence; the proviso was not applied. Outcome: appeal allowed; convictions on both counts quashed; appellant discharged from custody; no new trial ordered because the prosecution evidence could not sustain a conviction.
Legal issues: Admissibility of unsworn video-taped interviews under s.79C Criminal Procedure Ordinance · Admissibility of complainant's evidence by live television link under s.79B · Admissibility of evidence of multiple acts of rape to prove single counts of rape · Quashing convictions based on evidence of multiple offences · Reception of video-taped interviews containing leading questions · Adequacy of trial judge's directions to the jury · Whether convictions were unsafe and unsatisfactory
Outcome: Appeal allowed; convictions on both counts of rape quashed; appellant discharged from custody; no retrial ordered because the available evidence could not sustain a conviction.