R. v. Chan Bing for

CACC000468/1996

IN THE COURT OF APPEAL

1996, No. 468
(Criminal)

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Coram: Hon Power, Ag C.J., Liu and Mayo, JJ.A.

Date of hearing: 14 February 1997

Date of judgment: 28 February 1997

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J U D G M E N T

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Liu, J.A.:

1. The applicant faced a charge of unlawful sexual intercourse with a girl under 16, and another for her indecent assault. These charges arose from an alleged incident at his home in Room 3, 11th floor, Block D, Greenland Garden, Tuen Mun, on 24 October 1995. The applicant was convicted on both charges. He seeks leave to appeal against his convictions.

2. The alleged victim (Yeung) had just turned 15 at the time of the trial. She was 14 on the day of the alleged incident. She practised karate in a Tuen Mun school in which the applicant was one of the coaches. Yeung was striving for a good grade in a coming karate competition to be held in November 1995. Upon enquiry made by Yeung, the applicant suggested that she could have extra private tuition in a Tuen Mun park. Yeung contacted the applicant by telephone and she was told to go to his home instead.

3. In her statement, Yeung said that both suggested taking extra tuition at the home of the applicant. But under cross-examination, she maintained that she told the police that it was the applicant who took the initiative. In her examination-in-chief, Yeung told the court that she followed up with the applicant's suggestion to practise in a park by telephoning him at his home. And she said: "I fixed a time and he asked me to go to his home." Mr Egan, counsel for the applicant conceded that it was far from being clear who, in fact, was the instigator.

4. Yeung went to the applicant's home on two occasions for practising karate prior to 24 October 1995. On these previous occasions, family members of the applicant were present, and nothing untoward happened. In the afternoon of 24 October 1995, Yeung again presented herself at the residence of the applicant for the third time for karate practice. On this occasion, the applicant was alone at home. I do not propose to repeat the sordid details but the allegations were that on this third occasion, the applicant indecently assaulted Yeung and had sexual intercourse with her.

5. Ground 2 of the applicant's Grounds of Appeal challenged Yeung's conversation with a school social worker, Ms Ng, over 24 hours after the alleged offences as a recent complaint. The complaint was certainly not immediate and was confined to the second charge of indecent assault. There was no evidence of distress either during the commission of the alleged offences or at any time thereafter. Yeung enjoyed a good relationship with her mother. Between mother and daughter, sex had been touched upon, particularly as regards her association with boys. Yet Yeung did not choose to talk to her mother but complained to Ms Ng over 24 hours later, and her complaint related solely to indecent assault. In more ways than one, Mr Egan for the applicant was critical of Yeung's evidence. The judge was alive to these criticisms. The law does not strictly confine a recent complaint to one made at the very first opportunity. Suffice it for a recent complaint to be made at an opportunity which reasonably first presents itself after an offence. Naturally, the availability of a person regarded by a victim as a proper person for making a complaint is material. It is a factor to be taken into account for testing the reasonableness or otherwise of the time within which a recent complaint was made. The trial judge made reference to a basic rule attributable to R v. Ernest Wardman Wilbourne (1917) 12 Cr. App. R 280 that a complaint which might have been made to others before it was made to the witness giving evidence of it is not per se inadmissible. In the circumstances before him, the trial judge was able to admit the complaint made to Ms Ng on the next day as a recent complaint of the offence in the 2nd charge. There is no substance in Ground 2.

6. In Ground 3 of the applicant's Grounds of Appeal, it was submitted that the judge failed to pay proper regard to various aspects favourable to the applicant. Mr Egan relied on the absence of any evidence of distress, the omission of sexual intercourse in the details related to Ms Ng, and Yeung's previous inconsistent statement made in her recent complaint that she drank the applicant's semen from a cup. But in Yeung's evidence, she told the court that she was induced to ingest the applicant's semen from his penis. Mr Egan sought to make much of the trial judge's failure to deal specifically with the impact of these matters. Counsel also invited this court to focus on the absence of any recent complaint in respect to the offence in the 1st charge as well as his attack mounted on the six separate aspects of Yeung's evidence. From his Reasons for Verdict, it cannot be fairly said that the trial judge lost sight of these matters. As to the so-called glaring inconsistency in the consumption of semen, the Judge's conclusion was not strictly dependent on the resolution of the two different versions. There was evidence regarded by the trial judge as credible to support the convictions. Ground 3 fails.

7. In Ground 4, in the light of all the matters he had canvassed counsel asked the court to attach importance to the absence of corroboration of such grosteque allegations against a man of the applicant's previously good character, his happy family relationship and his devotion to his work. Counsel submitted that there must be a lurking doubt in the prosecution case and that the convictions were accordingly unsafe and unsatisfactory. I have perused the transcript with care. I do not find, in my feel of this case, any lurking doubt. On the evidence, the trial judge clearly came to the right conclusions. Ground 4 cannot succeed.

8. Lastly, I turn to Ground 1 which was based on the judge's order for Yeung's evidence to be taken via live television link or close circuit television (CCTV) under section 79B of the Criminal Procedure Ordinance Cap. 221. It was common ground that Yeung was a child within the meaning of section 79B(2) and that the offences charged were of a sexual nature falling within its sub- paragraph (a). The only disagreement between the applicant and the Crown lay in whether judicial discretion under section 79B would have to be exercised on properly adduced evidence as to the nature of the offences charged, the condition of the alleged victim and the adverse effect on the alleged victim in a confrontational setting. Mr Egan contended that this had to be established by evidence, such as a psychologist's report.

9. As to whether the common law recognised a right to what is often described as the "eyeball to eyeball" court confrontation, opinion remains divided. See the Irish case of Algernon White v. Ireland and the Attorney General and the Director of Public Prosecutions JR 158 of 1993 (Kinlen J's judgment was delivered on 21 December 1993), p. 12. But it is a long-established principle that at least an accused person enjoys a procedural right to test the evidence of his accuser as a witness and confront him in person. Has this "right" been diluted or displaced by statute? In England, the courts have, since 1991, seen fit to dispense with this traditional evidentiary and procedural requirement in certain categories of cases, including young persons victimised in sexual offences. Hong Kong has now followed suit. For CCTV under s. 79B Cap. 221, our legislature "is to be presumed to have enacted the legislation in the public interest and, in matters touching upon the work of the Courts, to further the ends of justice." See R v. Moke and Lawrence [1996] 1 NZLR 263 at p. 268 lines 32-34. In s. 79B(2) of the Criminal Procedure Ordinance is found a clear sign to change the rules of evidence and the procedure of the court for minimising the stress to a child witness. In the wider interests of justice, an accused's usual right to confront his accuser is liable to be restricted by the section. The use of CCTV may be invoked by either a party or by or on behalf of a witness. See Live Television Link and Video Recorded Evidence Rules made under s. 79D of the Criminal Procedure Ordinance, rule 3. The court may also on its own motion initiate CCTV. See s. 79B(2). The court is expressly empowered to determine an application for CCTV without a hearing, unless it otherwise directs. See Live Television Link and Video Recorded Evidence Rules, rule 3(5). The Practice Direction issued on 13 February 1996 directed that hearings of an application under s. 79B(2) be in chambers. This regime is designed to dispense with, upon the exercise of the court's discretion, the right to confront a witness. It would entail a balancing operation on the material placed before the court, so that the court's discretion may be exercised to advisedly restrict this right, wholly or in part, under s. 79B(2). The section was enacted to protect a young child in sexual offences. The long-established procedure of having the physical presence of a child witness in court should generally yield to such a statutory protection. Discretion should be favourably exercised in the case of a sexual abuse child victim unless the court is otherwise persuaded that protection would not be necessary or a fair trial could not otherwise be attained . The court may simply act on the age of the child, the nature of the offence and the nature of the allegations, such as those disclosed in the Crown's opening. The application need not be fortified by other evidence, such as a social welfare or psychologist report.

10. In this case, the court had sight of the psychologist's report in the possession of the prosecution. As in the case of X, Y & Z (1990) 91 Cr App R 36, at p. 40, it is " a little difficult to see in any event what else [the psychologist, if called,] could have done unless to reiterate what [she] had already put in the written communication." Mr Egan, counsel for the applicant did not request or press for the calling of the psychologist. The judge ascertained from Mr Egan that there was nothing in his instructions to suggest Yeung as being very different from an ordinary 15-year old. The judge could not detect anything in Yeung's statement drafted by the police as reflecting her maturity or other personal characteristics. Mr Egan failed to make good his Bill of Rights argument. The judge imposed conditions for the applicant to seek demonstrations. No application was so made.

11. In R v. Hui Yat-fan, a rape prosecution (case No. 100 of 1996), at the Pretrial Review on 3 July 1996, Gall, J refused to order CCTV. The judge left open an option for the Crown, at a later stage, "to call evidence in support of the application from any source which [was] relevant and pertinent to the exercise of [his] discretion, in the interests of justice." In the absence of evidence from the defence, Gall, J.'s discretion could have been readily exercised only on the age of the witness, the nature of charge and the nature of the allegations as provided by the prosecution. The ruling of Gall, J may perhaps be explained by the prosecution's exclusive reliance on the alleged rape victim's personal and whimsical preference. Even so, the Judge cautiously reserved the right to re-apply on more material than "what [he had] before [him] at [that] moment." But insofar as the Judge purported to call for further evidence in support of the prosecution's application for CCTV, I find myself at variance with his ruling.

12. In this case, the trial judge had exceeded what was basically required of him by launching an enquiry into the contents of the psychologist's report, the witness' statements taken by the police, defence counsel's views and Mr Egan's instructions, if any, on the witness. The applicant could have no cause for complaint.

13. Counsel's contention under Ground 1 is also without merit. In any case, the applicant had suffered no prejudice. I would dismiss his application.

Power, Acting C.J.:

14. I agree.

Mayo, J.A.:

15. So do I.

Power, Acting C.J.:

16. The application is dismissed.

Representation:

Mr Derek Pang, SACP - Crown Prosecutor for the respondent

Mr Kevin Egan - inst'd by M/s Ho, Tse, Wai & Partners for the appellant