CHIM HON MAN v. HKSAR

FACC No. 3 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 1998 (CRIMINAL)

(ON APPEAL FROM CACC No. 283 OF 1997)

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J U D G M E N T

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Chief Justice Li :

1. I have read the judgment of Sir Anthony Mason NPJ and agree with it.

Mr Justice Litton PJ :

2. I also agree.

Mr Justice Ching PJ :

3. I agree with the judgment of Sir Anthony Mason, NPJ.

Mr Justice Bokhary PJ :

4. I concur in the judgment of Sir Anthony Mason NPJ.

Sir Anthony Mason NPJ :

5. The appellant was convicted by majority verdict of a jury (5 to 2) of two counts of rape after a trial before Mr Justice Chan in the High Court. An appeal against the two convictions was dismissed by the Court of Appeal. The appeal to this Court was brought from the order of the Court of Appeal dismissing the appeal to that Court. At the conclusion of the argument on the appeal this Court allowed the appeal, set aside the convictions and discharged the appellant from custody, stating that the reasons for the decision would be published later. What follows is a statement of my reasons for participating in the decision.

The indictment and the circumstances out of which it arose

6. The first count in the indictment alleged that the appellant "on a date unknown between the 14th day of July 1989 and the 31st day of July 1989" at his home raped his stepdaughter Wong Man-ling. The second count was in identical terms save that the date in the particulars of the offence charged was expressed as "on a date unknown between the 1st day of August 1989 and the 15th day of August 1989".

7. The complainant Wong Man-ling was born on 1 March 1980 and was 9 1/2 years old when the alleged offences were committed. She was then living with her mother and her stepfather, the appellant, who had married her mother in July 1988. They were living in a rented room at the rooftop of a building in Kwun Tong. It was a small room and there was only one bunk bed and some simple furniture. Wong Man-ling slept on the upper bunk. The mother and the appellant slept on the lower bunk which was a double bunk.

8. The prosecution's case, based on video-recorded interviews of the complainant which were admitted into evidence, was that when the mother was pregnant with the complainant's younger sister, while the complainant was at home on school summer vacation and the mother was at work, the appellant repeatedly raped the complainant on the double bunk during the period between 14th July 1989 and 15th August 1989. The complainant was unable to differentiate in any significant way between any of the particular acts of rape. It seems that in aggregate there were about 10 occasions in that time span when the appellant sexually molested her and that on the first few occasions rape did not take place because the appellant was unable to effect penetration. According to the complainant's account, sometimes these acts took place on consecutive days and sometimes only on every other day. The complainant's recollection of these events was far from being precise, a matter to which I shall return later.

9. She made no complaint about these occurrences until she spoke to a school friend in 1994, some 5 years later. She then told her elder sister and a social worker and finally her mother, after being persuaded by the school friend to do so. Even then, it was the mother not the complainant who first raised the question whether the appellant had molested her. The complainant told her mother that she did not want the matter mentioned to the appellant because she was scared and did not want to break up the family. The mother reported the matter to the police.

10. The complainant's failure to mention the matter to anyone before speaking to her friend in 1994 was said to be due to a combination of ignorance of the significance of the appellant's conduct, her unwillingness to share her problems with other members of her family, her apprehension and her desire not to break up the family. It seems also that she wanted to forget about the events.

The trial

11. The complainant's evidence was not corroborated by independent testimony. There was no medical evidence, no evidence of injury, apart from pain sustained by the complainant and no evidence of blood or other stains on the bedclothes or clothing. There was no admission by the appellant who denied the allegations and gave evidence contradicting the complainant's evidence. The appellant's case was that there was a "frame-up" on the part of the complainant who, influenced by her elder sister, reacted against discipline imposed by the appellant.

12. Notwithstanding the fact that the indictment contained two counts only of rape, the prosecution presented evidence of the various acts of sexual molestation without consent, including evidence that penetration took place except on the first few occasions when penetration was not effected. The evidence was led on the footing that the jury was asked to find that in each of the two periods one act of rape occurred, without being asked to identify the particular occasion when it occurred. The learned trial judge put the prosecution case to the jury in this way :

"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.

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.

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."

13. The complainant's evidence-in-chief consisted of four video-taped interviews recorded between January and August 1996 when she was 15 and later 16 years old. The video-tapes were received in evidence pursuant to s. 79C of the Criminal Procedure Ordinance, Cap. 221, ("the Ordinance") without objection by counsel for the appellant. Sections 79A, 79B and 79C form part of Part IIIA of the Ordinance, the heading of which is "Special Procedures for Vulnerable Witnesses".

14. No particulars were sought or given of the offences charged. The contents of the recorded interviews were made known, however, to the appellant's lawyers in advance of the trial.

15. The complainant was cross-examined at the trial from a room outside the court room via a live television link. The cross-examination by way of live television link took place in consequence of an order made by Gall J on 22 November 1996, pursuant to s. 79B of the Ordinance, permitting the complainant's evidence to be given in that way. When Gall J made this order the complainant was 16. By the time she gave evidence at the trial at the end of March 1997 she had just turned 17. That is a matter of some significance by reason of the terms of the definition of "child" which is contained in s. 79C.

16. The learned trial judge shortly summarized the evidence and stated the issues for the consideration of the jury. He told the jury that there was no independent corroboration of the complainant's evidence and warned them of the danger of convicting on such evidence in a case involving an allegation of the commission of a sexual offence. Despite that warning, his Lordship instructed the jury, as he was bound to do, that it was entitled to bring in a verdict of guilty if it was satisfied beyond reasonable doubt of the elements necessary to establish the offence charged in the indictment. As will appear, a question arises as to the sufficiency of the directions in the light of the way in which the complainant's answers were elicited in the interviews and in the light of the frailty of her recollection.

17. Counsel for the appellant at the trial did not take any exceptions to the directions given to the jury by the trial judge; nor did he seek any further directions.

The Court of Appeal

18. In refusing leave to appeal, the Court of Appeal rejected the three grounds of appeal which were advanced on behalf of the appellant. The first ground was that the complainant's evidence in cross-examination by way of live television link was inadmissible because it was not authorized by ss. 79A and 79B of the Ordinance, the complainant having just turned 17 when she was cross-examined. The second ground was that the trial judge should have directed the jury to acquit on the second count of rape as there was no evidence satisfying the criminal standard of proof that sexual intercourse took place in the period specified in the second count. The third ground arose from the nature of the prosecution case in leading evidence of more than one rape in relation to each of the two counts. The appellant contended that the prosecution should have been called upon to elect as to the particular offence which was to be the subject of each count and that subsequently the judge should have directed the jury that it could only convict if the members of the jury were individually satisfied as to the commission of the same offence. After rejecting these grounds, the Court of Appeal concluded by saying that the convictions were in no way unsafe or unsatisfactory.

Grant of leave to appeal

19. On July 1998 the Appeal Committee granted leave to appeal to the Court of Final Appeal on the basis that there was an arguable case of substantial and grave injustice arising from the grounds of appeal argued in the Court of Appeal and from the way in which the video-taped interviews were conducted. In granting leave, the Appeal Committee noted that the Court of Appeal had certified on 8 May 1998 that its decision that the order of Gall J, made on 22 November 1996 allowing the complainant to give evidence by way of live television link, was not spent was a matter of great and general importance. The Appeal Committee accepted that view of the matter.

Grounds of appeal

20. The grounds of appeal argued in this Court, in the order in which it is convenient to deal with them, rather than in the order in which they were argued, were as follows :

(1) that the complainant's evidence-in-chief (the video-taped interviews) was unsworn;

(2) that the complainant's evidence by live television link was erroneously admitted into evidence;

(3) (a) evidence of some ten acts of rape was inadmissible in proof of two counts each alleging one act of rape; and

(b) that the convictions should be quashed because each was based on evidence of multiple offences;

(4) that because the complainant's answers in the video-taped interviews were elicited by leading questions and suggestions, the interviews should not have been received in evidence or should have been the subject of special directions by the trial judge;

(5) (a) that the trial judge's directions in relation to the way in which the prosecution sought to make out its case were erroneous and inadequate; and

(b) that the trial judge should have directed the jury with respect to the frailty of the interview evidence and the danger of convicting on it;

(6) that the verdicts were unsafe and unsatisfactory.

1. The unsworn video-taped interviews

21. The appellant submitted that, before the interviews were received in evidence, the complainant should have been sworn and asked to adopt the truth of her statements in the interviews. Her adoption of those statements, it was argued, was a condition of their admission into evidence. Section 4(1) of the Evidence Ordinance, Cap. 8, provided at the relevant time that the evidence of a child under 14 years of age in criminal proceedings shall be given unsworn. The corollary, so the argument runs, is that a person who is 14 or over that age shall give evidence either on oath or affirmation.

22. The answer to this submission is that s. 79C(2) of the Ordinance expressly provides that, where in the proceedings to which it applies (the trial in this case being such a proceeding),

"a video recording has been made of an interview between an adult and a child who is not a defendant and the interview relates to any matter in issue in the proceedings, the video recording may, with the leave of the court, be given in evidence."

Subsequent sub-sections of s. 79C make it clear that it is the video recording that is received into evidence. Thus, sub-section (4) provides that where a video recording is tendered in evidence under the section,

"the court shall grant leave to admit the recording"

subject to certain exceptions or qualifications one of which is that

"it appears that the child ... will not be available for cross-examination" (s. 79C(4)(a)).

23. Sub-sections (6) and (7) are destructive of the appellant's argument on this point. Sub-section (6) provides that where a video recording is admitted

"(b) the child ... shall not be examined in chief, save with the leave of the court, on any matter which, in the opinion of the court, has been dealt with in his recorded testimony"

(emphasis added).

24. Sub-section (7) goes on to provide that, where a video recording is given in evidence,

"any statement made by the child ... which is disclosed by the recording shall be treated as if given by that witness in direct oral testimony ..."

The effect of this sub-section is to give to the statements in the recording the same effect they would have if given in evidence on oath or affirmation, thus making it unnecessary for the child to be sworn and to adopt the statements in the recording.

25. It should also be noted that sub-section (7), though requiring that the child shall be called to give evidence, contemplates that the child will be called, after the video recording has been admitted into evidence, "by the party who tendered the recording in evidence". In other words, the recording is already in evidence and has evidential effect before the child is called to give evidence.

26. It follows that s. 79C makes the video recording admissible and gives evidential effect to the statements which it records as if those statements had been given by the witness in direct oral testimony, without the need for the witness to be sworn or to give oral evidence adopting the statements. Section 79C may be seen as providing for an exception to the general rule that only oral testimony on oath or affirmation may be admitted in a criminal trial. That is the view which has been taken of comparable legislation in England (R v Day [1997] 1 Cr App R 181; R v Sharman [1998] 1 Cr App R 406). A more accurate view of the operation of section 79C is that it makes the video recording admissible as evidence and then provides that a statement made by the child in the recording shall have the same effect as if given in direct oral testimony.

2. The complainant's evidence by live television link

27. Section 79B(2) provides

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

(a) an offence of sexual abuse;

...

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".

28. Section 79A provides that in Part IIIA, unless the context otherwise requires -

" "child" means a person who -

(a) in the case of an offence of sexual abuse -

(i) is under 17 years of age; or

(ii) for the purposes of section 79C, if the person was under that age when a video recording to which section 79C applies was made in respect of him, is under 18 years of age; ..."

Section 79A also contains definitions of "live television link", "offence of sexual abuse" and "video recording" but no question arises in relation to these definitions or their application to the circumstances of this case.

29. The appellant submitted that, when s. 79B(2) is read with the definition in s. 79A of "child", the sub-section does not permit a child who is 17 to give evidence or be examined by way of a live television link. The Court of Appeal answered this argument by saying that, as the complainant was under 18, she fell within paragraph (a)(ii) of the definition of "child".

30. The definition contained in paragraph (a)(i), with its age limit of under 17, applies throughout Part IIIA, except to the extent that paragraph (a)(ii) makes different provision "for the purposes of section 79C", which deals with the reception in evidence of video recordings.

31. The effect of paragraph (a)(ii), with its extension of the age limit to under 18, is that s. 79C is to be read with that definition in mind. Section 79C does not in terms provide when it is that the determination that a person is a child is to be made. Paragraph (a)(ii) seeks to answer that question in providing that "child" means a person who

"... if the person was under that age" [i.e. 17] "when a video recording to which section 79C applies was made in respect of him, is under 18 years of age."

So when s. 79C(2) is read with this part of the definition, a recording is admissible if the child was under 17 when the interview was made and is under 18 when the recording is tendered in evidence, subject to the statutory qualifications.

32. When s. 79C(6)(a) provides that

"the child ... shall be called by the party who tendered the recording in evidence,"

it must be read likewise as applying to a child under 18. Sub-section (6)(a) does not, of course, specify the manner in which the child shall be called to give evidence, that is whether in court or by live television link. That is a question to which s. 79B(2), not s. 79C, is addressed. As paragraph (a)(ii) of the statutory definition is not expressed to apply to s. 79B, the consequence might appear to be that Part IIIA did not authorize the reception of the complainant's evidence by live television link.

33. The answer to this apparent difficulty is to be found in s. 79B(2) which is directed, in part, to serving the interests of s. 79C. Section 79B(2) provides for the way in which a child may give evidence in discharge of the obligation imposed by s. 79C(6)(a), namely that, where a video recording is admitted, the child "shall be called". In that situation, namely "where a child ... is to be examined on video recorded evidence given under s. 79C", s. 79B(2) authorizes the court to permit the child "to give evidence or be examined by way of a live television link". The conferral of this power on the court is, accordingly, "for the purposes of s. 79C", because an exercise of the power will provide for the way in which an obligation imposed by that section is to be discharged. The reference in s. 79B(2) to "child" in the context of "is to be examined on video recorded evidence" and in the context of "to...be examined by way of live television link" is clearly a reference to a "child" as defined for the purposes of s. 79C, that is, as defined by s. 79A(2)(ii).

34. This reading of s. 79B(2) entails one unusual consequence, namely that the word "child", where appearing in s. 79B(2), bears different meanings, according to whether a child is "to give evidence" or "be examined on video recorded evidence". In the first case, "child" means under 17; in the second, it means under 18. The ordinary rule is that a word should prima facie bear the same meaning in the same section. Here, s. 79A makes specific provision for a different result.

35. The interpretation which I favour is entirely consistent with the recorded view of the Bills Committee on the Criminal Procedure (Amendment) Bill which in its final form was enacted as Part IIIA. Hansard of 19 July 1995 page 5518 contains the following passage :

" The Bills Committee has also considered the practical aspects of giving evidence by live television link. Members agree that there should be a provision to clearly spell out that cross-examination and re-examination will occur through the live video-link for a person who has given pre-trial evidence via a video-tape and that the court will decide whether the child witness can give evidence by way of a live television link."

(emphasis supplied)

36. It is unnecessary for us to deal with the Court of Appeal's conclusion that the order made by Gall J giving leave to give evidence by television link was not spent. On the interpretation which I give to s. 79B(2), that order was not spent. I would not, however, consider that the existence of an order giving leave for a child under 18, who is to be examined on a video recording, to give evidence by live television link would provide justification for taking that course after the child attains the age of 18.

3 (a) Was the evidence of multiple acts of rape admissible?

(b) Should the convictions be quashed because they were based on evidence of multiple offences?

37. As each count in the indictment charged a single act of rape, the indictment was not bad for duplicity, as it would have been had each count charged more than one act of rape : see Archbold's Criminal Pleading Evidence and Practice, 1998 edition, page 50. There was accordingly, no basis on which the indictment could be quashed.

38. On the other hand, the facts alleged or the evidence led may disclose what has been described as a "latent ambiguity" in the indictment : see Johnson v Miller (1937) 59 CLR 467 at 486, per Dixon J. Such an instance of latent ambiguity will arise when the prosecution leads evidence of the commission of more than one offence in proof of the one offence charged. In many cases the problem can be avoided by an appropriate amendment or by the giving of particulars which sufficiently identify the particular act charged in a way that will distinguish it from any other acts of which the prosecution intends to lead evidence or by election to proceed on a particular act alone. In the present case, the prosecution took none of these steps because the complainant was largely unable to distinguish any one of the incidents from the others except in terms of the appellant's inability to effect penetration on the first few occasions.

39. Two important and controversial questions arise. The first is whether it is a principle of the common law that, where a count in an indictment alleges one specific offence, it is not open to the prosecution to lead evidence of a number of acts which amount to the act charged and then to invite the jury to convict on any one of the acts led in evidence. The second question is whether the principle, if it exists, admits of an exception when the prosecution evidence shows that the offence was committed as part of a course of conduct and that the evidence does not enable more particularity to be given than an allegation that the conduct occurred over a specified period of time.

40. The questions are important by reason of the emergence of cases of repeated sexual abuse of children where the complainant is unable to give evidence which distinguishes one offence in a series from the others in that series. The questions are controversial by reason of the practice which appears to have developed in New Zealand and is developing in the United Kingdom of presenting "specimen counts", of which the counts in the present indictment may be regarded as instances, and because there are conflicting decisions of the High Court of Australia and the New Zealand Court of Appeal on the question.

41. The facts in S v The Queen (1989) 168 CLR 266, the decision of the High Court of Australia, are, for relevant purposes, not unlike the present case. There an indictment charged the father with three counts of carnal knowledge of his daughter then aged between 14 and 17. Each count charged one act of carnal knowledge on a date unknown within a specified period of 12 months. The three periods were 1 January 1980 to 31 December 1980, 1 January 1981 to 31 December 1981 and 8 November 1981 to 8 November 1982. The prosecutor did not identify the specific acts the subject of the counts; nor did he make an election to proceed on one act in each count. Although there were practical difficulties in particularizing one or all of the offences, it was not clear that it was wholly impossible to do so; see page 288. The complainant gave evidence of two specific acts of intercourse but her evidence did not link either with any one of the specified periods. She also gave evidence of numerous further acts over a period of two years until she left home in November 1982. She could not remember details or frequency other than that it occurred "every couple of months for a year". Objection was not taken at the trial to the generalized evidence of intercourse between the father and the complainant. The accused was convicted on each count.

42. The Court, applying Johnson v Miller, held unanimously that in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the Crown cannot lead evidence that is equally capable of referring to a number of occasions, anyone of which might constitute an offence as described in the charge and invite the jury to convict on any one of them. Concern was also expressed that the jury may not have been satisfied as to commission of any particular offence (at 276-277, 283, 287-288) and about the later availability to the accused of a plea of autrefois convict or autrefois acquit in relation to offences disclosed by the evidence (at 276-277).

43. In the result the Court held by majority (with Brennan J dissenting) that the course followed at the trial involved a substantial miscarriage of justice within the meaning of s. 689 (1) of the Criminal Code (W.A.) and that the convictions should be quashed. The Court ordered a new trial because it was thought that there might be some means of overcoming some or all of the difficulties which had been identified.

44. On the other hand, in R v Accused [1993] 1 NZLR 386, the New Zealand Court of Appeal held that the practice of presenting specimen counts was established in New Zealand and was not confined to sexual abuse cases but extended to cases in which a course of conduct was alleged. In that case, it was held that the relevant specimen counts, which charged sexual offences against children, were unobjectionable in that the prosecution evidence did not enable more particularity than that the conduct alleged occurred a number of times over quite a long period. The Court declined to follow S v The Queen.

45. Very recently, in R v P [1998] 3 NZLR 587, the New Zealand Court of Appeal distinguished R v Accused. In R v P, the appellant was convicted on a "representative" (specimen) charge of rape. The appeal was allowed on the ground that each of the various acts relied upon by the prosecution from which it invited the jury to find one act of rape was able to be addressed as an individual incident. Accordingly, the indictment should have been framed to contain six specific counts of rape. The consequence was that the appellant had been

"deprived of the right to have each of [the] specific allegations tested separately under the criminal process according to law"

(at page 590).

The Court, in acknowledging that the practice of framing specimen charges may be appropriate where a course of conduct is alleged and the prosecution evidence does not enable more particularity to be given than that the conduct occurred on occasions over a specified period of time, pointed out (at page 590) that the statutory provisions relating to the framing of indictments must be observed. One of the relevant provisions, s. 329(6) of the Crimes Act 1961 (NZ), provided that

"Every count shall in general apply only to a single transaction".

46. This provision is in material respects the same as s. 492(1) of the Canadian Criminal Code which has been interpreted as allowing the prosecution to present evidence of a series of offences : see R v Hulan (1970) 1 CCC 36; R v Selles (1997) CCC (3d) 435. This interpretation rests on an expansive interpretation of the words "single transaction", an interpretation which has not been adopted in the United Kingdom, and on the proposition that the statutory expression "in general" allows for the recognition of exceptions to the generality of the prescribed rule.

47. The Indictment Rules, Cap. 221, sub. leg. C, applicable in Hong Kong, which are modelled on the English Indictment Rules, take a different form. Rule 2(2) provides

"Where more than one offence is charged in an indictment, the statement and particulars of each offence shall be set out in a separate paragraph called a count ...".

Rule 3(1) then provides

"... every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence with which the accused is charged describing the offence shortly, together with such particulars as may be necessary for giving reasonable information at to the nature of the charge".

48. These Rules govern the framing of the indictment and do not in terms purport to regulate the way in which the prosecution may present its case on an indictment which is so framed as to comply with the Rules. However, it is of some significance that, in Director of Public Prosecutions v Merriman [1973] AC 584, the English Rule on which Rule 2(2) was based was described by Lord Morris of Borth-y-Gest (at page 593) as "a general rule". Moreover, Lord Diplock noted (at page 607) that it had always been applied

"in a practical, rather than in a strictly analytical way for the purpose of determining what constituted one offence".

49. The rule against duplicity contributes to a fair trial by enabling the accused to know the charge he is called upon to answer and the jury to found its conviction upon the specific offence charged. Once this is recognised, it is but a short step to the companion principle, affirmed in The Queen v S, following Johnson v Miller, which in turn was based on Parker v Sutherland (1917) 116 LT 820; 86 LJKB 1052, that confines the prosecution to the proof of one offence as the basis for a conviction of a single offence charged in a count in an indictment.

50. This principle serves the same general purposes as the rule against duplicity. Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence, for example, an alibi, he may have to the offence charged and to subject a complainant's evidence to searching scrutiny by reference to the surrounding circumstances. An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others. The degree of unfairness or embarrassment may vary according to the circumstances. If the prosecution case is based on evidence of many offences in an extended period of time the unfairness may be considerable.

51. The principle also plays a part in preserving the notion of a separate trial for a separate offence. In so doing, it enables the jury to focus on the single offence proved as the basis for a conviction of the offence charged and it encourages the jury to apply the criminal standard of proof to the evidence of that offence. In the event that the jury is invited, as it was here, to find the commission of at least one offence from evidence of multiple offences, there is either a risk of want of unanimity as to the same offence or a willingness to find guilt from the very frequency of the offences suggested by the evidence. The risk arises because the focus of the jury may be directed from the particularity of a single offence to the generality of the evidence of multiple offences.

52. Another purpose served by the principle is to secure certainty in the conviction or the acquittal, thereby making available a plea of autrefois convict or autrefoisacquit to a subsequent prosecution for the same offence. The risk of uncertainty in the conviction, arising from the way in which the prosecution case was presented here, for the purpose of such a plea would not appear to be significant. For the reasons given by Brennan J in S v The Queen (at pp 271-272) it is inconceivable that the prosecution could discharge the onus of showing that a subsequent charge for an offence in a relevant period of time was other than for an offence for which he had been convicted or acquitted previously.

53. Although the purposes served by the principle do not all have equal force, the considerations relating to fairness and proper jury deliberation have very strong force and support the general principle upheld unanimously in S v The Queen. That decision denies the suggestion that there is an exception or qualification which permits a prosecution for sexual abuse of a child to be presented on the basis of a specimen count when the complainant is unable to be precise as to the date, time and place of the particular offences of which complaint is made, is unable to distinguish between them and the offences extend over a long period of time.

54. It seems that this practice of using specimen counts has been countenanced by the English courts, so long as the occasions to be proved in evidence are particularised adequately and the prosecution case is not "overloaded" so as to subject the accused to unfairness : see R v Evans [1995] Crim LR 245; R v Rackham [1997] 2 Cr App 222, especially at page 226 where R v Farrugia, The Times January 18, 1988, is discussed; see also R v Shore (1989) 89 Crim App 32; R v Funderbunk [1990] 2 All ER 482.

55. The developing English practice, which amounts to an exception or qualification to the general principle, arises from an acknowledgment that an insistence on the general principle may preclude effective prosecution of those who are guilty of sex offences against children. If there is no relevant exception to the general rule the result may be that a prosecution cannot be conducted successfully when the complainant's evidence falls into the category just described.

56. In R v Rackham Ian Kennedy J cited (at 226) a passage from the judgment of Rougier J in R v Evans [1995] Crim LR 245, a case of persistent and multifarious abuse of a child where the complaint was of lack of particularity in an indictment. In the passage cited, Rougier J said

"... in these cases, when a child has allegedly been abused on many occasions, over a lengthy period, it is quite unrealistic to expect that child to be particularly specific as to precise dates or places under the sanction that if, owing to the very multiplicity of offences, coupled with the lapse of time and failing memory caused by a natural desire to put the experience behind him, he cannot do so, his abuser is immune. To hold otherwise would be a charter for those commit this sort of offence."

57. In Evans, the Court of Appeal (Criminal Division) quashed a conviction on a count which alleged indecent assault between December 1988 and June 1990 which was based on detailed evidence of multiple indecency of different kinds. An application for further and better particulars was refused by the trial judge notwithstanding the vagueness of the original particulars. The Court quashed the conviction because the prosecution should have given particulars specifying at least "the type of conduct" (original emphasis) alleged and because the directions given were inadequate in that they did not bring home to the jury the need to be satisfied as to the same act having taken place. The conviction was not quashed on the ground that the jury was invited to find the commission of one offence from evidence of a number of offences.

58. Although s. 9(3) of the Criminal Procedure Ordinance, Cap. 221, provides that

"the practice and procedure in all criminal causes and matters ... shall be, as nearly as possible, the same as the practice and procedure from time to time and for the time being in force for similar cases in England",

that provision is necessarily subject to the requirements of substantive principles of law. If, as I conclude, there is a general principle which precludes proof of more than one offence as the basis for the conviction of the single offence charged, s. 9(3) cannot require the Hong Kong courts to depart from that substantive principle of law.

59. It is difficult to craft an exception to the general principle which would strike the right balance between ensuring that the principle does not provide a charter of immunity to offenders where a complainant is unable to differentiate between offences and providing adequate safeguards to an accused person. Archbold suggests (1998 ed. page 49) that in cases where differentiation is impossible, an indictment may be drawn to include a number of counts, each, apart from the first, alleging "on an occasion other than that alleged [in the previous counts]". That course can be pursued where the series of offences is alleged to have been committed over a relatively short period of time. It is a course which might have been adopted in the present case and it would have provided an answer to the problem. Although that approach would not have resulted in the giving of particulars or of more specificity in the complainant's evidence, it would have resulted in the jury's attention being focused on the individual acts alleged and the evidence relating to those acts, without any departure from the general principle.

60. For this reason, I do not regard the present case as one which falls within an exception to that principle, even if it were appropriate for this Court rather than the legislature to recognise a category of cases as constituting such an exception.

61. I conclude therefore that, in allowing the trial to proceed without confining each count to a single act of rape, there was an error of law. This must result in an order quashing the convictions, subject to the consideration of the other grounds of appeal and the possible application of the proviso.

4. The way in which the complainant's evidence was led

62. The appellant's submission that the recordings should have been edited to omit answers to leading questions and suggestions cannot be accepted. No relevant objection was taken or application made by counsel for the appellant at the trial.

63. There were recordings of four separate interviews extending over several months at which the complainant was questioned by a female detective and a female social welfare officer. The questioning was very persistent but it did not, in my view, result in the eliciting of material answers by means of leading questions. In any event, as the recordings were of interviews, it would not be right to insist that leading questions should not be asked, though recordings of interviews which reveal leading questions may be subject to adverse comment when received in evidence at a trial. The persistent questioning did, however, result in the complainant altering her answers. At first she could not remember how often acts constituting rape took place. After giving different answers, she later said that it occurred "about 10 times". Initially she said that the offences occurred within one or two weeks, a period which subsequently extended to a month. Again, after initially denying that she saw the appellant's penis, she said subsequently that she had seen it on one occasion. The alterations in the complainant's evidence, along with her lack of detailed recollection and the lapse of time rendered her evidence susceptible to critical comment.

64. The four separate interviews were, to a significant extent, repetitive and offered the opportunity, not ordinarily available to a witness in examination-in-chief, of elaborating, refining and strengthening the complainant's evidence. But this does not mean that the recordings should not have been received in evidence.

5. The trial judge's directions

65. The learned judge instructed the jury that they must be satisfied according to the criminal standard of proof that there was at least one rape during each period and that they were separate charges to be considered separately. The judge pointed out to the jury the danger of convicting on evidence which lacked independent corroboration, though the strength of the caution was weakened by the statement that the jury might not think that the absence of corroboration was surprising in view of the long lapse of time. His Lordship also dealt with the appellant's defence that it was a "frame up" on the part of the complainant who was led astray by her elder sister and may have rebelled against discipline by the appellant.

66. There are, however, two aspects of the directions which call for comment. His Lordship did not instruct the jury that, in order to convict the accused on both counts, they must be satisfied that he committed the one particular act of rape in each of the two periods specified in the indictment. Nor did his Lordship instruct the jury to the effect that the absence of particularity with respect to the individual incidents alleged to have occurred so long ago made it difficult for the accused to meet the charges. In England, it is customary for a trial judge to remind a jury of the accused's difficulty in meeting old charges : see Rackham, at page 227. The giving of the last-mentioned direction is an important element in ensuring fairness to the accused in cases involving old charges, especially when there is little particularity. Had either direction been given, it might well have had an impact on the jury's consideration of the issue.

6. Unsafe and unsatisfactory

67. The comment just made is relevant to the question whether the convictions were unsafe and unsatisfactory within the meaning of s. 83(1)(a) of the Criminal Procedure Ordinance. The way in which the case was presented, the absence of critical directions, together with the frailty, the uncertainty, lack of specificity and inconsistency of the complainant's version of events, coupled with the absence of any corroboration whatsoever, inevitably led to the conclusion that the convictions were unsafe and unsatisfactory and there was no basis for applying the proviso. The convictions were, accordingly, quashed. Because the evidence available to the prosecution could not sustain a conviction, a new trial was not ordered and the appellant was discharged from custody.