HKSAR v. TSO KIN SHING

FAMC No. 20 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 20 OF 2014 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 284 OF 2013)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.  We dismissed this application for leave to appeal at the hearing and indicated we would hand down our reasons for doing so later, which we now do.

2.  In this case, the defendant (respondent to this application) was convicted after trial of two counts of rape of his girlfriend’s daughter, who was aged 11 and 13 at the dates of the two alleged rapes.  At the trial[1], he was unrepresented but he gave evidence on his own behalf.  He then appealed against conviction, represented by counsel.  The Court of Appeal allowed the appeal[2], quashed his convictions and ordered a re-trial.  There were four grounds of appeal: two raised by his counsel and two further grounds raised by the Court of Appeal itself.  The Court of Appeal held that all four grounds of appeal were made out, concluding that the convictions were therefore unsafe and unsatisfactory and that the proviso was not applicable.

3.  The application for leave to appeal by the prosecution was limited to only one of the four grounds of appeal on which the appeal was allowed.  At trial, the prosecution had made a closing speech after the defendant gave evidence.  The Court of Appeal raised the propriety of the prosecution doing so as a point on which they wished to be addressed, the defendant’s counsel not having raised this point as a ground of appeal.

4.  The Court of Appeal concluded that it was an irregularity for the prosecution to make a closing speech at the trial.  It also found that the other three grounds of appeal (that the Judge should have held a voir dire in respect of the defendant’s video-recorded interview; that the Judge did not give the defendant sufficient guidance and opportunity in making his closing speech; and that the Judge’s direction concerning the absence of DNA was inadequate) were also all made out and constituted material irregularities in the trial and that, since the proviso was not applicable, the convictions must be quashed.  However, as already noted, the Court of Appeal ordered a re-trial.

5.  The prosecution applied for certification of a point of law of great and general importance and for leave to appeal to the CFA on the question:

“Does the prosecution have the right to make a closing speech at a trial where an unrepresented defendant, apart from having given evidence himself, has also adduced evidence other than viva voce evidence as part of his defence case?”

The Court of Appeal refused to so certify[3] and the application was renewed to us.

6.  We were informed at the hearing by Mr Simon Tam SC, Senior Assistant Director of Public Prosecutions, that upon re-trial the defendant was convicted of the two counts of rape on 27 June 2014 and is due to be sentenced on 18August 2014.  As a preliminary matter, it is therefore important to note that, even if leave to appeal were granted on this ground, its outcome would be entirely academic to the defendant’s position.

7.  The point of law said to be involved in the proposed appeal arises from the principle that the prosecution has no right to make a closing speech unless an unrepresented defendant has given evidence and called (a) witness(es) at his trial (the Rule).[4]

8.  There is no dispute that the defendant here was unrepresented at trial and that he gave evidence himself.  The crux of the proposed appeal appears to depend on the question of whether the defendant’s production of various school reports in respect of the alleged rape victim as defence exhibits amounted to the respondent adducing evidence for the purpose of the Rule.[5] Those reports were amongst the unused materials supplied by the prosecution to the defence before trial.  The prosecutor asked the defendant whether he would use that material and the defendant answered in the affirmative.  Thus, the reports were adduced by the parties by way of admitted facts.  The prosecutor said this was done to assist the defendant but, in fact, the defendant did not cross-examine the victim on them nor did he refer to them in the course of his evidence.[6]

9.  It is contended by the prosecution that where a defendant is not legally represented, the prosecution has a full right to make a speech by way of summing up (and not just a speech by way of reply to particular evidence).  The prosecutor’s contention is that, by virtue of those reports being adduced into evidence, he had a right to make a closing speech after the conclusion of the defendant’s oral testimony and before the defendant made his own closing speech.

10.  The gravamen of the prosecution’s application for leave to appeal is that the Court of Appeal erred in that it is no part of the Rule that the prosecution’s right to make a closing speech is confined to the situation when a live witness is called for the defence as opposed to the situation when the defence adduces evidence in some other way.  It was contended that the Court of Appeal’s judgment introduces uncertainty into the law and that the law must be clarified.

11.  In addition to the proposed appeal being academic to the defendant’s position, it was not shown that there are other cases which would be affected by the outcome of this proposed appeal and we were not persuaded that it is a situation that is likely to be commonly encountered.  Mr Tam SC did not suggest otherwise to us.

12.  In any event, the nub of the debate is whether the Court of Appeal was right to say that, for the purpose of the Rule, the production of documentary evidence by way of agreed facts is not equivalent to a defendant calling a witness.[7] The Court of Appeal’s conclusion that the defendant did not adduce evidence independently of his own oral testimony, in the form of the reports, is essentially a fact-specific decision.  Although we would leave open in another case the question of whether the Rule is only ever satisfied where a live witness is called by an unrepresented defendant rather than by adducing evidence in some other way, we consider the Court of Appeal’s conclusion to be correct on the facts of this case.  It is to be recalled that the defendant: did not cross-examine any prosecution witness on these reports; did not refer to these reports in his own evidence; and, because of the Judge’s failure properly to assist the defendant as an unrepresented litigant, made no substantive closing speech.  That being the case there was all the less need for the prosecution to “reply” in relation to these reports at all.

13.  We read the closing speech which the prosecutor made at trial.  It could not properly be described as being limited to a “reply” in respect of the reports.  On the contrary, it was a fully-fledged closing speech summing up the evidence and making a strong case for conviction.  The sole reference to the reports was a passing reference to the fact that one of them records the victim having stolen something when she was in Form 1.  The prosecutor simply made the point to the jury that this was relevant to their assessment of her credibility but said no more.  Even assuming the prosecution was entitled to reply in the present case, the closing speech clearly went beyond permissible bounds.  As Cheung JA observed,[8] on the assumption the prosecution were correct as to the effect of the defendant’s introducing the reports as documentary evidence by way of agreed facts, fairness would have required the Judge to warn the defendant that, if he wished to proceed in this way, the consequence would be that the prosecution would be entitled to reply on those reports.  Mr Tam SC did not suggest otherwise in the present case.

14.  We were not persuaded by the submissions of Mr Tam SC that the Court of Appeal’s judgment introduces uncertainty into the law.  The Rule is well-settled. There is no good reason for the Court of Final Appeal to entertain an academic appeal as to the fact-specific question of the correctness of the application of the Rule itself, particularly since the defendant has been convicted on re-trial.

15.  For these reasons, the application for leave to appeal was dismissed.