HKSAR v. LEUNG KAM TING

CACC 33/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 33 OF 2008

(ON APPEAL FROM HCCC NO. 227 OF 2007)

----------------------

----------------------

-----------------------------------------

REASONS FOR JUDGMENT

---------------------------------------

Hon Tang VP (giving the reasons for judgment of the Court):

Introduction

1.  On 18 January 2008, the applicant was convicted after trial of rape (charge 3).  Earlier, on 9 January 2008, the applicant had pleaded guilty to charges of claiming to be a member of a triad society (charge 1), assault occasioning actual bodily harm (charge 2), and possession of dangerous drugs, i.e. ice (charge 4).

2.  On 22 January 2008, the applicant was sentenced to 7 years’ imprisonment for rape, to be served concurrently with the sentences (4 to 8 months) regarding the other offences.

3.  The applicant applied for leave to appeal against conviction and sentence in respect of the charge of rape.  He was represented by counsel on legal aid against conviction, but appeared in person on sentence.

Background

4.  The only issue at trial was whether the complainant (PW1) consented to sexual intercourse with the applicant. 

5.  At the time of the offence (2 July 2007), the applicant was 20 years old and PW1 was 17 years and 11 months.

6.  PW1 and the applicant met for the first time in person in May 2007.  They had had a relationship which included sexual intercourse at the applicant’s home.  However, by 30 June 2007, PW1 had decided to terminate the relationship, and that evening, PW1 told the applicant that she did not want to continue with the relationship, and she wanted to separate from him.  The applicant did not agree.  At one time he became so angry that he threw his mobile phone to the floor and said that his sworn brothers would come looking for her if she did not answer his telephone calls.  PW1 understood the applicant to be referring to the applicant’s triad associates.  She was not allowed to leave until 6 o’clock in the morning.

7.  In the early morning of 2 July 2007, PW1 sent the applicant several text messages to the effect that she wanted to sever the relationship.  In one such text message, PW1 said:

“I realize I am scare of you much more than I love you.”

8.  The applicant’s response included one where he said:

“If you force me to take this step, many persons will look for you.”

9.  These messages were followed by a series of long telephone conversations which culminated in the applicant’s asking her to meet him in person.  The applicant threatened to harm PW1’s family if she did not do so.  PW1’s evidence was that she was scared.

10.  So they met at the McDonald’s restaurant near the Mei Foo MTR Station.  They went to a nearby park.  When PW1 attempted to leave, the applicant assaulted her.  As the learned judge described it in the summing up:

“The force of the blows he struck to her she said had caused her to fall to the ground and her nose to bleed.”

The injuries were described by the learned judge as “not trivial” but “they were not severe”.  It is clear from the photographs that the injuries included a black eye and bruises on her nose.

11.  After the assault PW1 sat on the bench and cried.  The applicant then made a call on his telephone and said that he would arrange for others to gang rape her.  The applicant told PW1 that he was a member of “Hung-something Tong” and that if she was to separate from him, that this would mean that she did not give face to his “Tong”.

12.  PW1 tried to escape by getting into a taxi but the applicant forced her into the taxi and told the driver to take them to his home.  In the taxi the applicant spoke on the telephone to his then girlfriend, Yuen Wing-chi, who was asked by the applicant to talk to PW1.  Wing-chi told PW1 to do whatever the defendant wanted and not to provoke him further or she would be beaten up again.

13.  When they arrived at the lift lobby in the defendant’s home, they were met by Wing-chi, who gave the applicant a jacket, which she used to cover the bloodstains on her clothes.  PW1 said she was still crying when in the lift.

14.  At the defendant’s home, the defendant told Wing-chi to give PW1 a red T-shirt to put on, which she did.  Then PW1 was told by Wing-chi that the defendant wanted to speak to her in his room.  Wing-chi also warned her not to provoke the defendant, or she would be beaten up again.

15.  The summing up went on to say:

“She entered the bedroom and sat on the bed. The defendant was lying down. She told you that he apologised to her for what had occurred earlier that day. Having done that, he pulled her onto the bed and on top of himself. He told her to lie down and attempted to kiss her, and then he touched her, it would appear, intimately. She told him, ‘No,’ twice, she said, in a low voice, but nevertheless, notwithstanding that she said this in a low voice, she was sure that the defendant had heard her. She said at this time she was scared.

The defendant had sexual intercourse with her, before which he had forced her denim skirt up around her waist and removed her underpants. It was after this that she obtained a towel from the defendant and went to wash herself in the bathroom.”

Section 79B(4) of Criminal Procedure Ordinance, Cap. 221

16.  It was against such background that, on 24 December 2007, the prosecution gave notice of application for leave to use a video link under section 79B of the Criminal Procedure Ordinance, Cap. 221. 

17.  Section 79B(4) provides:

“(4)   Where a witness in fear is to give evidence in proceedings in respect of any offence, the court may, on application or on its own motion, permit the person to give evidence by way of a live television link, subject to such conditions as the court considers appropriate in the circumstances.”

Under section 79B(1):

“‘witness in fear’ means a witness whom the court hearing the  evidence is satisfied, on reasonable grounds, is apprehensive as to the  safety of himself or any member of his family if he gives evidence.”

18.  The grounds given in support were:

“(a)    The witness is a ‘witness in fear’ within the meaning of section 79B(1) of the Criminal Procedure Ordinance, Cap. 221;

(b) The witness is the alleged victim of the subject charges (1) to (3);

(c) The defendant had allegedly claimed himself to be a member of a triad society. The defendant had allegedly assaulted the witness before she was raped by the defendant on the same day;

(d) The witness is apprehensive about her own safety if she gives evidence;

(e) The witness is also suffering from post-trauma psychological problem;

(f)  The witness is at present receiving treatment from a clinical psychologist;

(g) The witness will have to give evidence of, and to be cross-examined on the sexual offence in great details. Having regard to the age of the witness, it is submitted that to do so in formal court setting would be too stressful for her in light of the nature of the offence and the allegations.”

19.  The application went before Saw J on 4 January 2008.  The matter was adjourned for evidence to be submitted after the learned judge said there was no evidence before him that the complainant was a witness in fear within the meaning of section 79B:

20.  The evidence came in the form of an affirmation by PW1 which was filed on 7 January 2008.  In the affirmation she said:

“…    After the incident, I was afraid of meeting any body with appearance similar to LEUNG.  I would panic and feared of being hurt by this unknown person.  Since mid August 2007, I started receiving psychological treatment from Tuen Mun Hospital.  I was found to suffer from ‘Adjustment Disorder’…

After I was informed that I am required to give evidence against LEUNG in open court regarding the incident of ‘rape’, I am in extreme fear that LEUNG will take revenge. I also feared that LEUNG will take actions to endanger my own as well as my family members' safety as LEUNG had applied violence on me before. In addition, if I am to see LEUNG when testifying in an open court, I am not confident whether I can give evidence in a calm and undisturbed manner. I therefore respectfully ask for arrangements be made for me to testify via television link.”

21.  The hearing resumed on 8 January 2008.  The learned judge gave his Ruling on 9 January 2008 and we have been supplied with the transcript.  The learned judge concluded that PW1 was a witness in fear, that there would not be undue prejudice to the applicant, if he were to make the orders sought, which he did.

22.  It is clear from the Ruling that the learned judge was of the view that to permit evidence to be given via a video link was rare and exceptional and that before he should do so he must consider the interests of the applicant, which included a right to confront and see the witness against him, which is an incident of the right of the accused to be present at his trial and of the right to a fair trial.

23.  Mr Davies, who appeared for the applicant, submitted that the learned judge’s exercise of discretion was wrong.  With respect, we do not agree.  It is obvious from the learned judge’s careful ruling that he had taken all relevant matters into consideration.  On the evidence before him and in the circumstances of this case, he was plainly right that the witness was a witness in fear. 

24.  Mr Davies submitted that, although PW1 said that she was afraid that the applicant might take revenge against her or her family members if she testified against him, there was no suggestion that he had tried to contact her or her family members while waiting for trial directly or indirectly, nor were PW1 or her family members ever threatened in any way.  By the time of the trial, the applicant had been in custody for over 6 months. 

25.  He submitted that, in any case, it would not have been made any difference to her safety should she be required to be testified in open court.  She was well-known to the applicant and giving evidence by video link would not provide her with any protection.

26.  He submitted that, on the authorities, it is clear that a witness must demonstrate to the court that she would be exposed to real danger in order to be permitted to testify by video link.  He referred to the Australian case of R v Goldman [2004] VSC 40. 

27.  But, as Mr Davies accepted a witness in fear may not be in any actual danger and that her fear may only be that of meeting her assailant face to face.  This was such a case.

28.  On the evidence, we are sure that the learned judge was right in concluding as he did that the applicant was a witness in fear.

29.  The learned judge went on to say:

“… The defendant, in my opinion, will not be in any way forensically disadvantaged by reason of the fact the witness will give her evidence by way of a televised video link. The defendant, his counsel, the jury, the people in the public gallery will all be able to observe the witness, hear the witness, gauge the witness’ response to questions in real time and with absolute clarity of sight and sound. That much is apparent from my observations of the operation of this system.

I see no real disadvantage arising from the granting of this application. There is, to my mind, no significant prejudice to the defendant by permitting the witness to give her evidence by way of a television link, and in the circumstances, therefore, this application is granted.”

30.  We are of the view that the learned judge was entitled to find that the disadvantage to the applicant was not significant and was outweighed by the need to protect PW1, who was a witness in fear.  As the learned judge has rightly pointed out he must consider not only the interests of the accused but also fairness to the prosecution and the witness.

Support person

31.  The second ground of appeal is that PW1 was allowed to be accompanied by a support person whilst giving evidence. 

32.  Practice Direction 9.5: Evidence by Live Television Link or Video-Recorded Testimony provides:

“7. Where the witness is a child or is mentally handicapped, a ‘support person’ may also be present with the permission of the court. That person should not be a witness in the case and should not have been directly involved in the investigation of the case. In the case of a mentally handicapped witness, the ‘support person’ should be someone with some understanding and expertise related to the nature of the handicap. In all cases, the judge must warn the ‘support person’ not to prompt or seek to influence the witness in any way. (See also: R v Chan Wai [1994] 2 HKCLR 75).

8.  There should normally be no need for any person other than the witness and the court usher to be inside the CCTV witness room in a case where the witness is in fear.”

33.  Mr Reading SC for the respondent accepted that normally no support person would have been deployed.

34.  However, the notice of application dated 24 December 2007 clearly stated that it was proposed that PW1 should be accompanied by a support person, whose details would be supplied later.  The details were supplied on 10 January 2007 by letter, together with the grounds for believing that the support person should accompany the witness.  Those grounds were:

“a) she is not a witness in the case;

b)  she was not involved in the investigation of the case; and

c)  she is engaged by the Social Welfare Department to be a Support Person”

35.  No objection was taken at trial to the presence of the support person.  Mr Davies submitted that, since it is not known what the support person might have done whilst present in the room where PW1 gave evidence, one cannot be satisfied that nothing improper had been done.

36.  But we have no reason to believe anything improper had been done.  Mr Davies said the video link showed that a support person was in the room with PW1.  No doubt if anything had been said by the support person that would have been picked up.  We see nothing in this case to require us to disturb the conviction of the applicant on this basis.

The summing up

37.  The 3^rd and final complaint concerns the summing up of the learned judge at page 19 where he said:

“You will recall the first witness in the case was (PW1), and her English name, you will remember, is Emily, and it was she who gave her evidence by way of the television link. You might recall at that time I indicated to you that when a person does give evidence that way, it is not an uncommon thing, and it should not in any way be regarded as a reflection upon the defendant.

Having seen her give her evidence in this way and be cross-examined, you may feel that the process was, in reality, very little different from her having giving evidence in the witness-box here. Certainly you might think that in the circumstances, the clarity of the picture and the clarity of the audio was such that after a while you lost any sense of the fact that she was not actually in the room here.”

38.  Mr Davies had no objection to the 1^st paragraph of the summing up.  He, however, took issue with the 2^nd paragraph in particular where the learned judge said to the jury that they might feel that there was very little difference between her giving evidence in the witness box and giving evidence on video link. 

39.  We see nothing wrong with the observation of the learned judge.  It was in any event an expression of opinion by him, and as he had made clear in his summing up, the jury could disregard any view that he might have expressed unless they happened to agree with him.

40.  So, for the above reasons, we dismissed the application for leave to appeal against conviction.

Sentence

41.  As noted, the defendant was sentenced to 7 years’ imprisonment.  As the learned judge said, the offence was aggravated by the earlier violence and threats which were made to PW1.  She was also forced by him to return to his home where she was kept for over 3 hours, and throughout she was in fear of him.

42.  In the circumstances, we cannot agree that the sentence was manifestly excessive.

43.  The applicantasked for an adjournment to prepare for his application.  He told us that, although notice of the hearing was given as long ago as July 2008, he was unable to prepare for the application, because he did not know how, but he thought that with an adjournment, he might be able to obtain the assistance of his parents to do so.  We were not satisfied that this was a good reason for an adjournment.  Moreover, since we did not believe that there was any real prospect of the application for leave to appeal against sentence being successful, we refused an adjournment.