HKSAR v. LAM KENNETH

[English Translation - 英譯本]

DCCC 1625/2025

[2026] HKDC 678

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1625 OF 2025

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Ruling

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1.  Pursuant to section 79B of the Criminal Procedure Ordinance, Cap. 221 (“the Ordinance”), the prosecution applied for the witness in the present case, X, to give evidence to the court by way of a live television link on the following grounds:

(1)  “Indecent assault” is a specified sexual offence provided in section 117(1) of the Crimes Ordinance, Cap. 200, and the witness is the complainant of the subject offence.

(2)  Section 79B(4A) of the Ordinance applies.

(3)  Given the nature of the offence, the witness will feel under pressure to give evidence in a formal court setting and in the presence of the defendant.  It is in the interests of justice to permit the witness to give evidence and be cross-examined on all charges by a live television link at trial.

2.  The application was opposed by the defence that:

(1)  Testifying by way of a live television link shall be adopted only in “rare and exceptional circumstances”.  The present case falls outside the scope of such circumstances.

(2)  The defendant’s fundamental rights to a fair trial and to confront the witness would not be outweighed simply on the ground that the witness will feel under pressure to give evidence in court.

(3)  The witness is a mature adult, any “stress-related concerns” can be properly addressed by giving evidence behind a screen and the use of special passageway.

Legislative Intent of Section 79B and Applicable Legal Principles

3.  Section 79B(4A) of the Criminal Procedure Ordinance, Cap. 221 provides: “If a complainant is to give evidence in proceedings involving a specified sexual offence, the court may, on application or of its own motion, permit the complainant to give evidence by way of a live television link, subject to any conditions the court considers appropriate in the circumstances.”

4.  According to the speech of the then Attorney General on the First Reading of the Criminal Procedure (Amendment) Bill 1995, the legislative purpose of the special procedures was to provide greater protection for vulnerable witnesses in proceedings and to ensure that vulnerable witnesses in criminal cases could give evidence without fear and without suffering from emotional distress.  It was intended by such arrangement to allay vulnerable witnesses’ anxiety arising from giving evidence in court, and more particularly, to spare them the trauma of being close to the abuser again.  Official Record of Proceedings of the Hong Kong Legislative Council, 19 April 1995, at pages 3154 and 3156.

5.  Subsequently, the Statute Law (Miscellaneous Provisions) Ordinance 2018 (Ord. No. 17 of 2018) added section 79B(4A) to the Criminal Procedure Ordinance. This introduced the definitions of “complainant” and “specified sexual offence” under section 79B(1) and further clarified the legislative intent that complainants of the “specified sexual offence” should be afforded protection.  The Statute Law (Miscellaneous Provisions) Bill 2017 was introduced into the Legislative Council by the Secretary for Justice.  Upon resumption of the debate on the Second Reading, the then member of the Council Mr Dennis Kwok spoke in his capacity of the Chairman of the Bills Committee on the Statute Law (Miscellaneous Provisions) Bill 2017 (at page 8461) that:

“The Administration seeks to add new provisions to section 79B of Cap. 221 to confer on the court a discretion, on its own motion or upon application, to permit a complainant of specified sexual offences to give evidence in proceedings by way of a live television link.

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The Administration has explained that whilst it is possible that a complainant of sexual offences can be a ‘witness in fear’, and hence be covered by the existing section 79B, it is not necessarily so.  The Administration has advised that a complainant or witness of a sexual offence, though not ‘in fear’ as defined in the current legislation, ought nonetheless to be treated with understanding, fairness and dignity.  Members of the Bills Committee agree that the court should have the requisite powers in appropriate cases to protect them from the embarrassment or ordeal of being exposed to public sight, any indignity of treatment, and the anxiety arising from the need to physically face the assailants during the trial.”

6.  It is a matter within the discretion of the court to permit a witness to give evidence by way of a live television link, depending on the circumstances.  However, an accused is entitled to the fundamental right to a fair trial, which includes confronting the witness.  The court should consider the interests of the accused.  An application made under section 79B shall be permitted only in rare and exceptional circumstances and shall not be deemed as a practice.  (HKSAR v See Wah Lun [2011] 2 HKLRD 957).

Grounds of Objection by the Defence

7.  The defence argued that the prosecution failed to put forward any “rare and exceptional circumstances” in the present case that required the arrangement of a live television link for the witness to give evidence.  There was no reason either for the witness to be afraid of retaliation by the defendant.  It was not claimed by the prosecution that the witness was a “witness in fear” save from the bare allegation that this would be a “stressful” experience for her.  In the statement dated 14 July 2025, the witness simply requested for a screen and special passageway.

8.  The defence also submitted that the court must consider and balance the interests of the defendant.  It was only a bare allegation of the prosecution that the witness would feel under pressure to give evidence in a formal court setting, which is, however, a feeling commonly shared by almost all complainants testifying in criminal or civil cases.  Moreover, the witness is an adult who will turn 39 when she appears in court to give evidence in March next year, she should be capable of testifying in court in normal circumstances.

9.  There was no objection from the defence to the arrangement of special passageway and a screen, or to the witness giving evidence behind the screen for her to be shielded from view by members of the public and being accompanied by a support person.  However, the defence considered that she should not be screened from the defendant.

10.  The defence cited HKSAR v See Wah Lun [2011] 2 HKLRD 957 and HKSAR v Leung Kam Ting [2009] 3 HKLRD 476 and contended that the defendant has the rights to a fair trial and to confront the witness.  In those two cases, the prosecution made the “section 79B application” on basis that the victims were witnesses in fear, and the use of a live television link to give evidence was respectively described by the Court of Appeal as “rare and exceptional”.  The defence believed that the present case did not belong to “rare and exceptional circumstances” and the witness should not be permitted to give evidence via a live television link.

Prosecution’s Response

11.  The prosecution informed the defence as directed that the witness, prior to her employment with the defendant, had worked as a domestic helper for two other employers in Hong Kong from February 2016 to February 2019 and from December 2019 to February 2022.  Furthermore, the witness made a witness statement on 25 March 2026 setting out her concerns about giving evidence in a formal court setting and the reasons why she wished to give evidence by way of a live television link:

a.  She has been experiencing considerable psychological stress and trauma since the incident.  She came to Hong Kong to work alone and has no relatives here.  She is afraid that similar incidents may happen again, and this has prevented her from taking up any work.  She does not wish to see the defendant directly when giving evidence in court.  She explained that it would make her feel under great pressure and fear upon seeing the defendant again and thereby affect the completeness of her testimony;

b.  As this is her first experience of court proceedings, she wishes to be accompanied by a support person when giving evidence so that she can testify at ease;

c.  She appreciates that a screen could be put up in court to shield her from view by members of the public and that special passageway could be arranged for her.  However, she still wishes to give evidence by way of a live television link.  If she is required to testify in a formal court setting, it will inevitably cause distress to her.

12.  The prosecution agreed with the defence that in See Wah Lun and HKSAR v Leung Kam Ting, it was described by the Court of Appeal as “rare and exceptional” for giving evidence by way of a live television link. But the prosecution also pointed out that the Court emphasized in other cases that courts should not only focus on the phrase “rare and exceptional”, the overarching principle remains that it is the court’s duty to endeavour to see that justice was done and that the system operates fairly: fairly not only to the defendants but also to the prosecution and also to the witnesses.

13.  The prosecution cited HKSAR v Shamsul Hoque [2014] 6 HKC 395 which concerned an application for use of a screen to separate the witness from members of the public and use of special passageway.  The Court of First Instance pointed out that criminal proceedings involved striking a balance among the interests of the accused, the victim and the public.  Among the various rights, it would be the rights of a victim to give evidence without fear and anxiety and be treated with respect and understanding throughout the criminal proceedings.

14.  The prosecution also cited HKSAR v Nayab Amin [2020] 2 HKLRD 1051, [2020] HKCA 196, in which the Court of Appeal highlighted that it was the right of an accused to a fair trial, but a fair trial did not mean a perfect trial free from possible detriment or disadvantage of any kind or degree to the accused.  So long as a trial did not amount to an unfair trial, within the limits of imperfection, the court must do what it could to ensure that trial would be as fair as it could make it, to avoid or minimise prejudice to either parties.

15.  The prosecution submitted that although the witness was an adult, she had a special background of having left home to work in Hong Kong as a domestic helper.  With no relatives in Hong Kong, she would have to wait for the trial date (which is currently fixed for 16 to 19 March 2027) alone and to give evidence in court against the defendant (her former employer).  The immense pressure she faced would be completely understandable.

16.  The prosecution also submitted that Charge 4 was not a “specified sexual offence” provided in section 117(1) of the Crimes Ordinance, but in view of the legislative intent of section 79B, if certain parts of a vulnerable witness’s testimony were deprived of the protection afforded by section 79B, it would be to a large degree contrary to the legislative intent of the relevant provisions.  Therefore, in interpreting the statute law, the “purposive approach” should be adopted to arrive at an interpretation that would be consistent with and fulfil the legislative intent.

17.  The prosecution further submitted that the key words of the provisions were the expression of “in proceedings involving”.  It clarifies that the proceedings to which the Ordinance applies may involve at the same time offences other than the specified offence.  The protection afforded by section 79B is for the purpose of providing vulnerable witnesses with adequate safeguards against anxiety, distress and trauma.  A broad interpretation of section 79B clearly reflects the legislative purpose.  The prosecution suggested that the witness should be permitted to give evidence by way of a live television link in respect of all four charges (Charges 1 to 4).

Defence’s Response to Prosecution Arguments

18.  The defence contended that in the statement dated 14 July 2025, the witness only mentioned the need for a screen and the arrangement for special passageway, there was no mention of the need to give evidence by a live television link.  It was doubted that the prosecution took a statement from the witness only on the following day upon receiving the defence’s grounds of objections, in which the witness mentioned for the first time that she had been experiencing considerable psychological stress and trauma since the incident and requested to give evidence by a live television link.  The defence considered that obtaining supplemental supporting evidence in this manner was unfair to the defendant.  In any event, there was no medical or psychological evidence in support.

19.  The defence opined that whether the witness had relatives in Hong Kong or not was irrelevant.  There was no immigration restriction imposed on the witness, nor was it compulsory for her to stay in Hong Kong alone.  Under the arrangement of the Labour Department, the defendant’s wife paid the witness $12,380, with flight ticket fare for return to Indonesia inclusive, upon termination of the contract.  The witness could go back to Indonesia and return to Hong Kong in March next year to give evidence.

20.  The defence cited the case HKSAR v Wu Kwan Shing HCCC67/2023 and reiterated that the defendant had the right to confront the witness.  In that case, the victim and the defendant were acquainted.  The issues of the case were consent and their credibility.  The Court of First Instance took the view that there were no “rare and exceptional circumstances”.  The defence believed that the witness and the defendant were likewise no strangers to each other.  Even if a screen was used, she should not be screened from the defendant.

My consideration

21.  Both parties agreed in their written submissions that the witness should be permitted to give evidence by way of a television link only in “rare and exceptional circumstances”.  It was not claimed by the prosecution that the witness was a “witness in fear”.  In my view, whether the arrangement for the witness to give evidence at trial is in the interests of justice should take into account the overall circumstances: the nature of the offence, the facts of the case, the relationship between the witness and the defendant, the personal background/circumstances of the witness and the interests of the defendant.

22.  It is naturally the witness’s own choice on whether she will go back to Indonesia before the trial and return to Hong Kong next year to give evidence.  However, in any event, the witness is a foreign domestic helper and the defendant is her former employer.  Although the witness had worked as a domestic helper for other families in Hong Kong before the incident, her ties with Hong Kong remain tenuous.  The witness and the defendant are not well acquainted.  The incident occurred about 6 weeks after the witness had come to Hong Kong to take up the employment, and it took place at the premises where she lived and worked.  The present case is not a typical case of indecent assault.  The witness is far away from home with limited community care and support despite being a mature adult.  The defendant is the more powerful one of the two.  I accept that in such “rare and exceptional circumstances”, it is in the public interest to save the witness from having unnecessary pressure by providing her with a suitable environment to give evidence.

23.  The witness made a witness statement on 14 July 2025 requesting to be screened from the defendant and members of the public.  It is not known whether the option of giving evidence by way of a live television link was offered to her back then, but the request she made at that time serves as proof that it was her wish to avoid seeing the defendant directly when giving evidence in court.  The then request of the witness was to be screened from the defendant and members of the public and not merely to be shielded from view by members of the public when giving evidence.  It was a brief statement with no reasons offered.

24.  In another witness statement made by the witness recently, it was stated that she had been experiencing considerable psychological stress and trauma since the incident.  She appreciated that a screen could be put up in court to shield her from view by members of the public and that special passageway could be arranged for her.  However, she wished to be accompanied by a support person when giving evidence and to give evidence by a live television link so that she could testify at ease.  If she were required to testify in a formal court setting, she worried that it would inevitably cause distress to her.  The witness explained that it would make her feel under great pressure and fear upon seeing the defendant again and thereby affect the completeness of her testimony.

25.  As the complainant, the witness is required to testify in a foreign court on how she was indecently assaulted with the assistance of an interpreter.  It is natural and understandable that she will feel under immense pressure and fear.  I agree that all complainants in cases of indecent assault will feel under pressure to give evidence, but obviously, the witness will feel under much greater pressure when compared with a local resident facing the same situation.  Even if a screen is erected in the courtroom, it goes without saying that the witness testifying in a foreign court will still feel under immense pressure.  The public interest would be served if the witness is able to give evidence without being affected by such immense pressure.

26.  I see no prejudice to the defendant arising from the witness testifying by a live television link.  The defendant and his legal representative, like everyone else in the courtroom, will be able to observe the witness and hear the witness in real time.  His legal representative will be able to cross-examine the witness directly over the monitor.  The defendant’s right to a fair trial will not be undermined by such arrangement.

27.  Given the relationship between the witness and the defendant in the present case, the nature of the offences and the alleged facts of the case, I am satisfied, on reasonable grounds, that the witness will still feel under immense pressure to give evidence in a formal court setting even if a screen and special passageway are arranged for her, and her testimony will be affected thereby.  Moreover, I agree that if the testimony concerning Charge 4, which is in relation to Charges 1 to 3, is deprived of the protection afforded by section 79B, it will be substantively contrary to the legislative intent of the relevant provisions.

28.  On the other hand, I must consider whether an unfair trial will be caused to the defendant for the witness to give evidence by a television link on all charges.  As stated above, when the witness gives evidence by a television link, everyone in court will be able to observe her demeanour and hear her voice and tone in real time. It is no different from the situation where the witness appears in court to testify at the witness box.

29.  In view of the above, I accept that permitting the witness to give evidence by way of a live television link strikes a balance between the interests of all parties. It is also in the interests of the administration of justice. The fairness of the defendant’s trial will not be compromised.

30.  For the reasons above, I allow the prosecution’s application.

Translated by the Court Language Section of the Judiciary and vetted by  Mr P Y Lo, Barrister-at-law.