R v. LAM CHI KEUNG

Magistracy Appeal
No. 1015 of 1996

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H E A D N O T E

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Unsworn evidence of child. Sections 3 and 4 of the Evidence Ordinance, Cap. 8. Not necessary to inquire into competency but usually necessary to bring home to the witness the importance of telling the truth. See R v Hampshire [1953] 3 WLR 260.

Sections 3 and 4 above consistent with Article VII(5) of the Letters Patent and ICCPR Articles 2.1, 14.1 and 26.

The Live Television Link and Video Recorded Evidence Rules made pursuant to s.79D of the Criminal Procedure Ordinance, Cap. 221 considered.

IN THE COURT OF APPEAL

1996, No. 1015
(Magistracy Appeal)

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court):

On 3 July 1996 the appellant was convicted of four offences of indecent assault on a girl then aged 12 years. These offences took place in May and June 1995. He appealed to the High Court but on 24 October 1996, Bokhary J reserved the appeal to this Court under s.118(1)(d) of the Magistrates Ordinance, Cap. 227.

The facts

1. The appellant and the young girl lived next door to one another. She alleged that on four occasions in May and June 1995 when she visited his home to play with a young child, he indecently assaulted her by touching her breasts and her vagina.

The trial

2. A video-taped interview with social workers was accepted as the evidence-in-chief of the girl. In this evidence, she established that on those four occasions she was indecently assaulted by the appellant on both her breasts and vagina. At trial she gave evidence by video link. After the tape was played to her to remind her of her evidence, she was cross-examined. In cross-examination it was demonstrated that when she reported these matters, her accounts had varied and were inconsistent with her evidence in the video-taped interview. At the conclusion of the hearing, the magistrate convicted on each count and gave ex tempore reasons for the verdicts.

3. The issue for the magistrate's decision is set out by him at 76L-M of the transcript:

"The evidence-in-chief of the victim, PW1, was presented on a video cassette. If what she said in there is true then that describes the offence of indecent assault occurring on four occasions, but of course, the burning question in the case is: is what she said there true? And I'm sure it was true."

He then assessed the witness, considered the defence and the suggestions why the girl was lying - one of which had not been put in cross-examination. He dealt with the discrepancies in the accounts which she had given to Miss Shum, Miss Ho (the school teacher and the social worker) and on the video tape. He assessed the defendant's evidence, taking into account his good character.

4. An issue on identity was raised in submissions but not in evidence. The magistrate considered this. Finally, having warned himself that it was dangerous to convict in the absence of corroboration, he concluded:

"The quality of the evidence from both sides, taken against all the circumstances of the case here, makes me sure that that girl was telling the truth, that this defendant did act as she described. Consequently, the prosecution have discharged the burden of proof upon him, I am sure of guilt in each of these four cases and I convict."

The appeal

5. The appellant takes four points:

(i) That the magistrate made no specific findings as to what conduct by the defendant constituted the indecent assault in each case;

(ii) That the magistrate failed to determine whether the girl was competent to give evidence;

(iii) That he failed to have any proper regard to the inconsistencies in the complainant's evidence; and

(iv) That in breach of s.79C(2) of the Criminal Procedure Ordinance (Cap. 221) the magistrate admitted into evidence the video recording of the interview as evidence-in-chief of the complainant in the absence of evidence or agreement that the social worker who conducted the interview was employed by the Government.

The failure of the magistrate to specify which acts constituted indecent assault

6. Through his counsel Mr Ross, the appellant submits that it was incumbent upon the magistrate to clearly specify what conduct of the defendant he found to constitute each indecent assault. As a simple proposition this cannot be faulted.

7. He urges that as the magistrate did not set out the facts he found, and then asked and answered the general question:

"Is there an underlying bedrock of truth? And I was sure there was,"

he failed in this regard. However, when the reasons are read in full, it is quite clear that the magistrate accepted that the girl's specific allegations in the video interview had been made out. This is the basis of his finding. The allegations are specific and this ground must fail.

Was it necessary for the magistrate to determine whether the girl was competent to give evidence in the sense that the child understood what it meant to tell the truth and was capable of giving intelligible testimony?

8. Prior to 28 July 1995 s.3(a) of the Evidence Ordinance (Cap. 8) imposed a statutory duty upon the court to test the competency of a child witness. From that date, the provision was repealed. Sections 3 and 4 of the Ordinance now provide:

"3. The following persons only shall be incompetent to give evidence in any proceedings -

(a) (repealed)

(b) persons of unsound mind, ...

4. Evidence given by children

(1) In this section, 'child' means a person under 14 years of age.

(2) A child's evidence in criminal proceedings shall be given unsworn and shall be capable of corroborating the evidence, sworn or unsworn, given by any other person.

(3) A deposition of a child's unsworn evidence may be taken for the purposes of criminal proceedings as if that evidence had been given on oath."

9. The girl was under 14 years at trial. It is submitted that there was a material irregularity in that the magistrate failed to enquire into and determine whether the girl's evidence ought to have been admitted. The following reasons are urged:

(1) That in spite of the repeal of s.3(a) above, it remains the magistrate's duty to inquire into competency before allowing a child to give evidence and he did not do so. Alternatively, he started an inquiry on competency and failed to complete it in that the girl was never asked whether she had told the truth during the video interview.

(2) Citing R v Hampshire [1995] 3 WLR 260 at 265D - Mr Ross says that the magistrate ought to have brought home to the child the importance of telling the truth and he failed to do so.

10. Finally, it is submitted that if there is no duty upon the magistrate to inquire into competency, or to bring home to a child witness, the importance of telling the truth, then ss.3 and 4 of the Ordinance (insofar as they relate to a child) must be struck down as contrary to the Letters Patent Article VII(5) and the International Covenant on Civil and Political Rights Articles 2.1, 14.1 and 26.

Inquiry into competency

11. The United Kingdom legislation also provides that the child's evidence shall be given unsworn but there is an additional provision that :

"A child's evidence shall be received unless it appears to the court that the child is incapable of giving intelligible testimony." (s.33(a)-2A(Criminal Justice Act 1988))

This seems to require that the competency of a child witness be judged in the same way as any other witness. But as Mr Ross points out - the Hong Kong legislation appears to provide that even a child who is unable to give intelligible testimony is competent if otherwise of sound mind. However, this last point did not arise at trial and cannot arise now. This witness was of sound mind and capable of giving intelligible testimony. Clearly, a child witness is to be regarded as competent at least unless the contrary is shown.

Telling the truth

12. As a child is unsworn, it is usually necessary for a judge to bring home to such a witness the importance of telling the truth, but how this is done is a matter for the judge (see R v Hampshire above). In the present case the magistrate explained to the witness the procedure before she was to give evidence on the video link and then said:

"Now we are going to ask you questions. It is very important you tell the truth, and we would be saying things up here in English and they are going to be interpreted by CC and then you will have to say something in Cantonese."

At the end of the explanation the witness said she understood. There was a break for lunch. Immediately after lunch the magistrate said:

"Good afternoon. I am going to carry on now and you will remember that you got to tell the truth."

To this, the witness said "Yes".

13. The necessity to tell the truth was brought home to this witness.

14. Mr Ross correctly points out that the magistrate never questioned the witness as to the truth of her statements during the video interview, but this was the whole focus of the inquiry under cross-examination. This question could have been asked but the answer would have been a mere formality.

15. It is important to re-state the thinking behind this amendment to the law allowing a child to give unsworn evidence. It is now accepted in leading common law jurisdictions that a small child may be able to give an intelligible and accurate account of what has happened to him even though he may not be able to explain the importance of telling the truth. On the other side of the coin, an older child may be able to satisfy a judge that he understands the importance of telling the truth without being deterred from telling lies.

16. In the result the position is this. Sections 3 and 4 of Evidence Ordinance require a child's unsworn evidence be received whether or not the child would otherwise have been competent. Even if a child is unable to articulate the importance of telling the truth his evidence is still admissible. If a child is of sufficient understanding it is wise for the judge to bring home to him the importance of telling the truth. However, this is a matter in the judge's discretion. Even if he fails, the child's evidence would not per se be inadmissible. Under the Evidence Ordinance a child who is unable to give intelligible evidence is not per se ruled incompetent - although the likely duty of the judge would be to ensure that no weight be given to give such evidence.

Consistency with the Letters Patent

17. As an alternative, Mr Ross submits that ss.4(1) and (2) of the Evidence Ordinance ought to be struck down as contrary to the Letters Patent Article VII(5) and the International Covenant on Civil and Political Rights (ICCPR) Articles 2.1, 14.1 and 26.

18. Article VII(5) of the Letters Patent provides:

"The provisions of the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United nations on 16 December 1966, as applied to Hong Kong, shall be implemented through the laws of Hong Kong. No law of Hong Kong shall be made after the coming into operation of the Hong Kong Letters Patent 1991 (No.2) that restricts the rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with that Covenant as applied to Hong Kong."

19. Article 2(1) of the ICCPR provides against discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The suggestion is that the effect of the two sub-ss. is to treat witnesses over 14 years of age less favourably than those under that age on the basis that those over 14 are at risk of being prosecuted for perjury in contrast to those under 14.

20. With respect this argument is not engaged on behalf of the appellant. This application is concerned not with the infringement of the child's rights but the appellant's.

21. Turning to those, Mr Ross submits that the provisions of ss.4(1) and (2) deprive the appellant under Article 14.1 and Article 26 of the ICCPR of his right to equality before the court and therefore a fair trial. The point taken is that he is liable to conviction on unsworn evidence of an incompetent child whereas the majority of accused only risk conviction on sworn evidence of competent witnesses. The relevant parts of the two Articles provide as follows:

"Article 14

1. All persons shall be equal before the courts and tribunals. ...

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

22. Without question, the abolition of the formal rule pertaining to child witnesses is a justified step to improve the quality of the trial by focusing on the weight to be given to the child's account and easing the decision-making process. But does this involve discrimination on one of the convention grounds? Of those specified, only "other status" is relevant and with the greatest respect to the submissions put forward, such discrimination is not made out.

23. But what amounts to being equal before the court and equal before the law?

24. All those accused of offences against children face the prospect of conviction on unsworn evidence. But those accused of a crime against a child face possible conviction on unsworn evidence whereas a person alleged to have committed the same offence against an adult does not. However, it is difficult to argue that the administering of the oath and the threat of prosecution for perjury is likely to make a child's evidence for that reason more credible. It seems to us that the proper focus on "equality" is the criminal standard of proof. The appellant - as all others - faces conviction only if the offence is proved beyond reasonable doubt. Sworn or unsworn, child or adult, it is the weight of the admissible evidence which determines the result. As we have already pointed out, an unsworn child may accurately describe events without any concept of truth let alone an understanding of perjury. An older child or adult may fully understand the concept of truth and may comprehend the sanctions for perjury and yet tell a pack of lies. Equality before the court in these circumstances rests not upon the rules for the admissibility of evidence but on the standard of proof.

25. For these reasons we are satisfied that the provisions of ss.4(1) and (2) of the Ordinance do not infringe Articles 14.1 and 26 of the ICCPR and they are provisions which accord with the Letters Patent Article VII(5).

Did the magistrate fail to have proper regard to the inconsistencies in the complainant's evidence?

26. It is suggested that the magistrate failed to properly evaluate the complainant's evidence and take into account the inconsistencies. Clearly he needs to demonstrate that he has evaluated the evidence. But it is not necessary for him to detail every inconsistency and conflict in his reasons for verdict. These do show that he was alive to the inconsistencies and was concerned to examine them. This is demonstrated by the passage at 77M-U but there are others:

"In cases like this, of course, they are never easy given the age of the victims, the nature of the allegation, the story that has got to be told and there will always be weaknesses in the evidence, and there are here and the defence rightly draws attention to discrepancies between what she said to Miss Shum, the schoolteacher, in June and what she said to the social worker, Miss HO, in December. I am alive to the fact that Miss Shum says that the complaint was of the breast being stroked and not the private parts down below; that the allegation then was two occasions, not four; that it was suggested by PW1 that one of the occasions, it happened in her home and not his. Likewise, in the interview Miss HO had with PW1, PW1 only talked of one occasion and spoke of the address being 914 and not 911.

The question I have to ask myself, bearing these contradictions and things in mind is: does this indicate to me that it is possible that she is not telling the truth for whatever reason? And the answer is, they don't."

27. There is no substance in this ground of appeal.

Should the magistrate have excluded as inadmissible the video recorded testimony of the child accepted as her evidence in chief?

28. This ground was added after the appeal had been reserved to this Court. The tape recording was exhibited as Exhibit P1. An application for its admission had been made and granted before the trial under the Live Television Link and Video Recorded Evidence Rules made pursuant to s.79D of the Criminal Procedure Ordinance Cap. 221.

29. The point taken is that the video interview allowed into evidence did not comply with ss.79C(1) and (2) of the Ordinance. The provision is that in proceedings of this nature "a video recording ... 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." By sub-s.(1) "adult" means (a) a police officer; (b) a social worker ... who is employed by the Government."

30. It was said that there was no evidence in the case that the social worker who conducted the interview was "employed by the Government". Therefore, Exhibit P1 was not admissible in evidence because otherwise it was hearsay and it was necessary that the conditions for admissibility were strictly complied with.

31. However, in the event the application for leave to tender the video recording in evidence made in compliance with Schedule 2 of the Rules shows that the persons present while the recording was made included:

"Female CHANG LAM Sook-yee, aged 32 years
Social Work Officer,
Child Protection Service Unit (12) East Kowloon."

This document became available thanks to the research of Mr Cross QC who appears for the Crown. It demonstrates that the point taken is invalid. From her appointment and address, it is clear that this lady social worker was in fact employed by the Government. The video recording was admissible.

32. For the reasons we have attempted to set out, this appeal is dismissed.