HKSAR v. MAK HOI CHING also known as MAK CARMEN KA MAN and MAK KA MAN

DCCC 1193/2018

[2020] HKDC 543

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1193 OF 2018

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RULING ON PROSECUTION’S APPLICATION

FOR USE OF SCREEN AND SPECIAL PASSAGEWAY

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Introduction

1.  The defendant (Miss Mak) in this case was the ex-cohabitee of the complainant (Mr X).   It was alleged that Miss Mak had on several occasions wounded Mr X with intention to do him grievous bodily harm on various body parts including burning his penis with a hair dryer, banging his head against the wall, pouring boiling water on his thighs, cutting him with scissors and pouring chili oil onto the wounds on his chest.  Further, it was alleged that Miss Mak had threatened Mr X’s family, especially his elderly grandmother in order to control him and prevent him from disclosing the violence [1]. The prosecution’s opening depicts an abusive and coercive domestic relationship between Miss Mak and Mr X. 

2.  The defence had no objection to the anonymity order granted by the court before.   

3.  The prosecution is now applying for Mr X to give evidence behind a screen so that he is shielded from view by the defendant and members of the public gallery.  Also, an application is also made for Mr X to enter and leave the court building without going through the public channel.

Prosecution’s application for a screen

4.  In support of the application, the prosecution supplied a copy of Mr X’s statement dated 3 July 2020 in which the request for a screen and a special passageway to be provided was made.

5.  The reasons stated therein were that should the defendant or people from the public gallery see Mr X, he would feel pressurized and thus would not be able to give evidence efficiently.   He also stated that he did not want his court attendance to affect his life and work in the future in anyway.

6.  Mr Raffell, prosecutor on fiat told the court that Mr X reiterated his pressurized feeling this morning towards both Miss Mak and members of public.   Having said that, he was still prepared to give evidence without the screen should the court refuse the application.

7.  The prosecution submitted that Mr X, although being an adult male, was no different to any other witnesses in fear or vulnerable witness in domestic violence case in that Mr X had been subject to physical and mental abuse and intimidation over a period of time by a previous close partner.

8.  It is submitted that the court had a discretion on this issue and there would not be any prejudice or unfairness, particularly this is a single judge trial where defence counsel had ample opportunity to confront the accuser and take instruction from the accused.

Objection by the defendant

9.  The defendant opposes the application on the basis that it will deprive her from her right to confront the accuser as well as her fundamental right to a fair trial.   It was also contended by the defence that the right of a defendant to confront the accuser should only be denied in rare and exceptional circumstances and the present case does not fall into such category.

Consideration of the application

10.  In HKSAR v Shamsul Hoque [2], Zervos J (as he then was) said at paragraph 12 that:

“… the court had the common law power, and the duty to regulate its proceedings, and in particular the manner in which witnesses might give their evidence, when it is necessary to meet the requirements of justice in a particular case.” [3]

11.  In Hampson v HM Advocate [4], it was recognized that there were witnesses who would be placed at an unfair disadvantage by the normal procedure, and on that account were regarded as vulnerable and in need of special measures to protect them and the courts under the common law may authorize exceptions from the normal procedures.   It was held that the enactment of legislation to further cater for certain categories of witnesses by authorizing special means for the taking and giving of evidence did not limit the continuing common law power.

12.  There is no dispute that the present matter is pre-eminently one for the discretion of the court.   The two main issues for the court to consider when exercising the discretion are:

(1)  whether the defendant will be deprived of a fair trial; and

(2)  how much the principle of open justice is compromised.

13.  It is of note that the defence had fairly raised no objection to allow the complainant being anonymous in the charge and throughout the trial.  It was observed by Zervos J (as he then was) in the case of Shamsul Hoque (supra) at paragraph 23(2) that:

“The principle of open justice is engaged when a witness is screened from the public. There is a limited restriction to the public nature of the proceedings and the courts will have to balance that limited restriction against the rights of a witness, taking into consideration the nature of the evidence to be given by the witness and the effect it will have on him or her in giving such evidence, and that this is necessary in order to achieve the due administration of justice.” [5]

14.  The more significant concern in the application is Mr X in the present case being shielded from the defendant.  The right to confront the accuser is undoubtedly engaged when a witness is screened from the defendant.   It is generally viewed that any prejudicial effect will be cured by an appropriate direction to the jury.   The effect should be further alleviated when the case is tried before a professional judge alone like the present case.   The fact that the defendant is duly represented can also reduce the prejudice, if any, when confronting the witness.

15.  In HKSAR v Lee Ming Tee and another [6], the Court of Final Appeal made it plain that:

“… it is only in very unusual circumstances that a court can properly be satisfied that a fair trial is ‘impossible’. The ‘fairness’ achievable is judged in practical and not absolute terms.” [7]

Furthermore, a fair trial involves fairness to the defendant, the witnesses and the public.   The right of victims and witnesses are recognized and are important considerations in the criminal trial process.   It is part of court’s function to regulate its proceedings and to employ appropriate measures to ensure that a witness’s ability to give effective evidence is not affected and this will serve the public interest to encourage generally witnesses to come forward to testify in criminal trials.

16.  Having considered all the circumstances and analyzed as the above, I am of the view that the defendant’s right to a fair trial is not jeopardized by addressing the reasonable concerns and anxieties of Mr X in the present case and I therefore grant the application made by the prosecution for the use of screen and special passageway.

17.  I would like to emphasize here that the order granting the prosecution’s application should not be in any way viewed as a preference over Mr X’s evidence which will be given subsequently in the trial.