D v. Director of Public Prosecutions

HCAL 88/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 88 OF 2015

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DECISION

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1.On 2 July 2015, I granted an application for an order of anonymity for the applicant in an application for leave to apply for judicial review in relation to the decision not to prosecute by the Director of Public Prosecutions of offences that she alleged were committed against her of indecent assault by her employer.

2.In granting the anonymity order, I said that I would provide brief reasons for my decision which I now do. 

3.Mr Gerard McCoy, SC and Ms Emma TC Tsang, appeared for the applicant in this application.  Mr McCoy submitted that the right of, and protection afforded to, a complainant of a specified sexual offence not to be identified is conferred automatically, by virtue of section 156 of the Crimes Ordinance, Cap 200 (the Ordinance). 

4.Section 156 reads:

“(1) Subject to subsection (9)(a), after an allegation is made that a specified sexual offence has been committed no matter likely to lead members of the public to identify any person as the complainant in relation to that allegation shall either be published in Hong Kong in a written publication available to the public or be broadcast in Hong Kong except as authorized by a direction given in pursuance of this section.

(2) If, before the commencement of a trial at which a person is charged with a specified sexual offence, he or another person against whom the complainant may be expected to give evidence at the trial applies to a judge for a direction in pursuance of this subsection and satisfies the judge-

(a) that the direction is required for the purpose of inducing persons to come forward who are likely to be needed as witnesses at the trial; and

(b) that the conduct of the applicant's defence at the trial is likely to be substantially prejudiced if the direction is not given,

the judge shall direct that subsection (1) shall not, by virtue of the accusation alleging the offence aforesaid, apply in relation to the complainant.

(3) If after the commencement of a trial at which a person is charged with a specified sexual offence a new trial of the person for that offence is ordered, the commencement of any previous trial at which he was charged with that offence shall be disregarded for the purposes of subsection (2).

(3A) A direction that subsection (1) shall not apply in relation to such complaint or such matter as is specified in the direction may be given, where it is necessary for the purpose of seeking information which may lead to the arrest of a person responsible for an alleged specified sexual offence, or is for any other reason in the public interest-

(a) by a police officer of the rank of Senior Superintendent or above, where the complainant consents in writing to such a direction being given; or

(b) by the Secretary for Justice in any other case,

and notice of any such direction shall be published in the Gazette.

(4) If at a trial at which a person is charged with a specified sexual offence the judge or, as the case may be, the District Judge, magistrate or juvenile court, is satisfied that the effect of subsection (1) is to impose a substantial and unreasonable restriction upon the reporting of proceedings at the trial and that it is in the public interest to remove or relax the restriction, the judge or, as the case may be, the District Judge, magistrate or juvenile court, shall direct that subsection (1) shall not apply to such matter relating to the complainant as is specified in the direction; but a direction shall not be given in pursuance of this subsection by reason only of an acquittal of a defendant at the trial.

(5) If a person who has been convicted of an offence and given notice of an appeal to the Court of Appeal against the conviction, or notice of an application for leave so to appeal, applies to the Court of Appeal for a direction in pursuance of this subsection and satisfies the Court-

(a) that the direction is required for the purpose of obtaining evidence in support of the appeal; and

(b) that the applicant is likely to suffer substantial injustice if the direction is not given,

the Court shall direct that subsection (1) shall not, by virtue of such allegation of a specified sexual offence as is specified in the direction, apply in relation to a complainant so specified.

(6) Subsection (5) shall apply in relation to a conviction of an offence tried summarily as mentioned in section 155(3), and, in so applying for references to the Court of Appeal there shall be substituted references to a judge and the reference to notice of an application for leave to appeal shall be omitted.

(7) For the purposes of this section an allegation of a specified sexual offence is made if-

(a) it is made to a police officer; or

(b) a complaint is made to or an information is laid before a magistrate alleging that a person has committed a specified sexual offence against the complainant; or

(c) a person appears before a magistrate or a court charged with a specified sexual offence against the complainant; or

(d) a person is committed for trial at the Court of First Instance on a charge alleging a specified sexual offence against the complainant; or

(e) an indictment charging a person with a specified sexual offence against the complainant is preferred before the Court of First Instance,

and references in this section to an allegation of a specified sexual offence shall be construed accordingly.

(8) In this section-

broadcast (廣播) means a broadcast by wireless telegraphy of sound or visual images intended for general reception;

complainant (申訴人), in relation to an allegation of a specified sexual offence, means the person against whom the offence is alleged to have been committed; and

written publication (書刊) includes a film, a sound track and any other record in permanent form but does not include an indictment or other document prepared for use in particular legal proceedings.

(9) Nothing in this section-

(a) prohibits the publication or broadcasting, in consequence of an allegation of a specified sexual offence, of matter consisting only of a report of legal proceedings other than proceedings at, or intended to lead to, or on an appeal arising out of, a trial at which a person is charged with that offence; or

(b) affects any prohibition or restriction imposed by virtue of any other enactment upon a publication or broadcast,

and a direction in pursuance of this section does not affect the operation of subsection (1) at any time before the direction is given.”

5.A specified sexual offence is defined under section 117(1) of the Ordinance and means “any of the following, namely, rape, non-consensual buggery, indecent assault, an attempt to commit any of those offences, aiding, abetting, counselling or procuring the commission or attempted commission of any of those offences, and incitement to commit any of those offences”. 

6.In this case the applicant made a complaint to the police alleging that she had been indecently assaulted by her employer on various occasions. 

7.Section 156(7)(a) makes it clear that an allegation of a specified offence is made if it is made to a police officer and therefore the right and protection offered by the section is conferred from that moment on. 

8.Under the regime that is in place by section 156, a complainant of a sexual offence is protected from identification and that this right subsists until a court order is made in the circumstance as set out in the other subsections. 

9.Mr McCoy, in his application before me, sought the order for anonymity pursuant to section 156 but he also argued that the court in any event has the inherent jurisdiction to make such an order of anonymity.  See R v Socialist Workers Printers and Publishers Ltd & Anor ex parte AG [1975] 1 QB 637 and L v Equal Opportunities Commission & Ors [2002] 3 HKLRD 178 at pages 180G-181B.  In HKSAR v Chen Wei Li, CACC 402/2004, 16 March 2005, unreported, the Court of Appeal observed that the anonymity of the victim was necessary because identification of the victim would lead to great embarrassment and this had been rightly acknowledged to lead to the victim of such crime being reluctant to come forward.  This was a case involving a victim of blackmail but the principles as stated are apposite to sexual violent cases. 

10.In most cases, the purpose of protecting a complainant’s identity is to ensure that proper administration of justice is maintained.  As such, the guiding question in the resolution of an application for an anonymity order is whether the interests and due administration of justice are shown to so require it.  See Re BU [2012] 4 HKLRD 417 (CA) at paragraphs 31-35 per Stock VP (as he then was). 

11.The court has inherent jurisdiction to make orders of anonymity to safeguard the administration of justice by necessary measures to reassure potential witnesses.  The decisive feature of the cases in which the complainant’s identity is anonymised is that a witness had been victimised.  In addition, and of particular relevance to the present case, is the very nature of sexual offending is a degradation of the victim.  Although the principle that justice must be done openly is of central importance, and any qualification to that principle is only by appropriate measure and when the interests of justice so demand it.  See Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440; R v Kwok & Ors (2005) 158 A Crim R 160 (NSWCCA).

12.I agree with the submissions of Mr McCoy that the identity of the applicant is not intrinsic to the application at this stage and that the subsequent proceedings will be held in open court with no restriction on reporting (save for the anonymity order in relation to the applicant).  Of course this order is subject to any of the subsequent events which are identified in section 156 where the order may be lifted. 

Mr Gerard McCoy, SC and Ms Emma T C Tsang, instructed by Vidler & Co, Solicitors for the applicant