HKSAR v. LAM CHI KEUNG

FAMC No. 12 of 1997

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 12 OF 1997 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA 1015 OF 1996)

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D E T E R M I N A T I O N

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Litton, Permanent Judge:

1. This is the Appeal Committee's determination.

2. There is before us an application, made well out of time, for leave to appeal against conviction by a magistrate on four charges of indecent assault, contrary to s122(1) of the Crimes Ordinance, Cap 200. The first matter to consider is whether an extension of time should be granted to enable the application to proceed.

3. The offences are alleged to have occurred in May and June 1995. It is alleged that the applicant, then a man in his 30s, indecently assaulted a 12-year-old girl who lived next door at a housing estate in Tseung Kwan O; this occurred on four occasions when she went to the applicant's home to play with a young child.

4. The applicant was tried at the Eastern Magistracy and was convicted on 9 July 1996. On 10 October 1996 his appeal was reserved by Mrs Justice Verina Bokhary to the Court of Appeal pursuant to s118(1)(d) of the Magistrates Ordinance. The appeal was heard by the Court of Appeal in December 1996 and judgment was given on 29 April 1997 dismissing the appeal and confirming the convictions on the four charges. It was not until 5 September 1997 that a notice of motion was taken out on the applicant's behalf seeking a certificate from the Court of Appeal, pursuant to s32(2) of the Court of Final Appeal Ordinance, Cap 484, that there were questions of law of great and general importance for the Court's determination. This was dismissed on 22 October 1997. Over six weeks later, on 10 December 1997, the application to certify under s32(3) of the Court of Final Appeal Ordinance was lodged, together with the application for leave to appeal, and these are the matters to be entertained by us now, if an extension of time be granted.

5. The issue before the magistrate Mr Line was straight-forward: whether on all the evidence he was satisfied that the four charges of indecent assault were established. Procedurally, what happened was this: Prior to the hearing of the charges on 8 July 1996, the complainant had been examined by Madam Cheung Lam Shuk-yee, a social worker employed in the Children Protection Services Unit of the Social Welfare Department, and this was recorded on video tape. On an application made under s79C of the Criminal Procedure Ordinance a magistrate at Eastern Magistracy Mr Wright had given leave, without objection from the applicant, for the video recording to be given in evidence. Accordingly, at the commencement of the hearing on 8 July, the video recording was formally admitted by agreement and marked as Ex. 1. A transcript was produced and marked as Ex. 3, and the translation Ex. 3A. The magistrate then explained to the complainant the importance of her telling the truth and she was cross-examined by counsel for the applicant. The applicant testified in his own defence, but he turned out to be a poor witness: One reason he advanced for the complainant, then aged 12, making false allegations against him was that she had indicated that she loved him and wanted him for a boy-friend but he rejected her: In other words, that false allegations were made against him by a 12-years-old girl scorned in love. But none of this was put to the girl in cross-examination by his counsel: An omission which the magistrate took pains to ascertain was not accidental.

6. After a carefully conducted trial the applicant was convicted.

7. Despite the fact that the question of an extension of time is our first concern, we have looked carefully at the so-called points of law of great and general importance as set out in the notice of motion dated 10 December 1997. The first point is formulated in a tortuous manner. But clarified by counsel it reads thus:

"Whether it was in the discretion of the magistrate to determine whether the child witness was competent to give evidence in the sense that he had brought home to her the importance of telling the truth and if so whether this was properly done".

We have difficulty in understanding the question. It is in any case academic: It does not arise in this case because the magistrate did in fact bring home to the witness the importance of telling the truth: He told the girl twice that it was important that she should tell the truth. As the Court of Appeal said (p5 of its judgment): "The necessity to tell the truth was brought home to this witness." Counsel says the magistrate should have gone further and said words to the effect: "You must tell the truth, the whole truth and nothing but the truth". We would unhesitatingly reject this submission. It is unarguably bad.

8. The second point of law seeks to challenge the constitutionality of s4(1) and (2) of the Evidence Ordinance: The Court of Appeal has dealt comprehensively with this point in its judgment. The point is not remotely arguable.

9. The third point of law seeks to impeach the procedure adopted in the magistracy whereby Mr Wright, before the hearing, gave leave under s79C(2) for the video recording to be given in evidence. He was not, as it happened, the trial magistrate. Mr Line was the trial magistrate. As Mr Line made no separate order allowing the evidence to be given under s79C(2), it is said that the evidence was inadmissible in law. The argument put by Mr Ross, counsel for the applicant, runs thus: The "trial" had started when, on 27 May 1996, Mr Wright gave leave for the video-recording to be given in evidence. It was his duty to continue with the "trial". If another magistrate took over the conduct of the trial, it was the duty of the second magistrate to consider admissibility afresh; as Mr Line, the second magistrate, never did that, there was a gross irregularity at the trial. In our judgment, the point cannot help the applicant. If, technically, the "trial" had, under the statutory scheme, started with Mr Wright's ruling, the point taken on the applicant's behalf is nevertheless academic for this reason: Mr Line made no ruling because he had before him a statement of admitted facts, signed by counsel under s65C of the Criminal Procedure Ordinance, which formally admitted the facts constituting the "chain of evidence relating to the ... video-tape" which, as mentioned earlier, was produced by agreement as Ex.1. This inevitably meant that the facts making Ex. 1 admissible had also been agreed. In these circumstances Mr Line would unquestionably have exercised his discretion to admit the video-recording if the law had required him to exercise an independent judgment afresh. Moreover, we are not satisfied that Mr Ross's point on the construction of the statutory scheme is arguable. As is clear from the definition section, s79A, the "court" referred to in section 79C(2) includes a magistrate: any magistrate. The statutory scheme for video recorded evidence pre-supposes that the application is made before the hearing: see Rule 4(2)(d) of the Live Television Link and Video Recorded Evidence Rules. Rule 4(7) provides for the application to be determined by a magistrate with or without a hearing. But whether there be a hearing or not, the scheme contemplates that the determination of admissibility would be made some time before the date fixed for hearing the charge. This facilitates the efficient conduct of the trial. Obviously, the determination of a magistrate before the hearing on admissibility would not preclude the trial magistrate from looking at the matter afresh if circumstances should change: The most obvious being where there has been a postponement of the trial date and the witness has in the meanwhile come of age.

Lastly, the point is put in this way:

"Whether the contents of a notice made pursuant to Schedule 2 of the Live Television Link and Video Recorded Evidence Rules (Cap 221) can be evidence sufficient to show that PW1 [the victim] was interviewed by a social worker employed by the Government, in order that a video tape of the interview could be given in evidence".

10. The point is said to arise because of the way the Court of Appeal had dealt with the applicant's objection in that court. The objection was to the admissibility of the video recording, Ex. 1, and was put thus: The video recording was not admissible because it had not been proved that the requirement of s79C(1) of the Criminal Procedure Ordinance had been complied with: That is, that the interview had been conducted by "a police officer" or "a social worker or clinical psychologist ... employed by the Government". It was said in the court below that there was no evidence that the person conducting the interview was, as alleged, a social worker employed by the Government. The Court of Appeal dealt with the point in this way:

"... 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 CHAN 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."

11. It is now said that the Court of Appeal erred in law because a statement of fact in a notice served under Schedule 2 cannot, per se, establish that fact as proved in a criminal court. It is, counsel says, a pure out-of-court statement.

12. Whether this point, arguably, be right or wrong, it is entirely academic, and cannot possibly affect the outcome of an appeal. As mentioned earlier, there was before the magistrate a statement of admitted facts which says:

"(1) That the interview between the child Leung Ting-chi and the Social Worker Madam Cheung Lam Shuk-yee conducted at the Child Abuse Investigation Unit, Regional Crime Unit, Kowloon East on 27.12.95 was video-recorded by DPC 6631 Leung Ka-chi.

(2) The chain of evidence relating to the said video-tape which is hereby produced as Prosecution Exhibition No. 1."

13. The "chain of evidence" agreed as having been established must, by necessary implication, include the facts specified in s79C making the video recording admissible in evidence. That was the only possible basis upon which Ex. 1 came to be agreed as admissible.

14. There is nothing whatever in the notice of motion dated 10 December 1997 which persuades us that an extension of time should be given to enable an appeal to proceed. We therefore do not grant an extension of time. In so concluding we deplore the leisurely manner in which the matter came to us for determination, and reiterate the point that time limits are there to be observed.

15. The notice of motion of 10 December 1997 - thirteen pages of it - does not bear the signature of counsel. But from Mrs Fanny Yu's affirmation of 12 December 1997, para 10, it appears that it was settled by counsel. If so, it should have been signed by counsel who then takes personal responsibility for ensuring that points of law of great and general importance have been put forward for consideration. Regrettably, there are none in this case.

Representation: