PRACTICE DIRECTION – 9.5
EVIDENCE BY WAY OF LIVE TELEVISION LINK
OR VIDEO RECORDED TESTIMONY
1. These procedures cover applications for leave to call evidence by way of :
(a) live television link (under s.79B) where the witness is :
(i) a child;
(ii) a mentally incapacitated person;
(iii) a complainant; or
(iv) a witness in fear
as specified in sections 79A and 79B of Cap. 221; or
(b) video recorded testimony (under s.79C) in the case of a witness who is either a child or a mentally incapacitated person;
and are to be read in conjunction with the Live Television Link and Video Recorded Evidence Rules (Cap. 221J) made under s.79D.
2. Cases involving any of the witnesses referred to in paragraph 1 above (“the Witness”) would be given priority for listing purposes.
3. If hearings are held to determine applications under s.79B, they are to take place in chambers.
4. Where the court grants leave to admit a video recording under s.79C but directs that a part of the recording is to be excluded, the party applying to have the recording admitted is responsible for the editing of the video tape in accordance with the court's directions. The edited copy together with the amended transcript should then be supplied to the court and to all parties in the proceedings in advance of the trial.
5. On the day of trial, in order to avoid any additional stress being suffered by the Witness, there should be no postponement except in the most exceptional circumstances. All preliminary issues that might otherwise delay the start of the trial should have been dealt with in advance or, alternatively, notified to the parties concerned and to the court, at least seven days before the commencement of trial so that arrangements can be made to obviate the Witness coming to court on days or at times when it is unlikely that the Witness will be needed.
6. Whenever the Witness gives evidence, a court usher will be present to :
(a) operate the audio-visual facilities (AV) in the witness room;
(b) explain to the Witness what to do and where to sit;
(c) ensure there is no improper communication between the Witness and the supporting person (if any); and
(d) supervise in a general way so that the Witness is properly looked after.
7. Where the Witness is a child, a mentally incapacitated person or a complainant referred to paragraph 1 above, 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 witness who is a mentally incapacitated person, the “support person” should be someone with some understanding and expertise related to the nature of the incapacity. 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 AV witness room in a case where the witness is in fear.
9. The judge will ensure that :
(a) no intimidating practices are adopted in the course of questioning;
(b) no inappropriate language is used having regard to the age and mental capacity of the Witness; and
(c) that breaks are offered or given to the Witness at regular intervals, if appropriate.
10. Where a defendant is not represented and wishes to ask questions of the Witness, the judge in his discretion may permit :
(a) the screen to be switched off on the monitor in the AV witness room allowing only the defendant's voice to be heard by the Witness; or
(b) the questions to be channelled through another person (including the judge),
if the judge feels that the impact of cross-examination will be too inhibiting or threatening to allow the Witness to answer freely.
11. The judge will decide whether gowns and/or wigs should be removed while a child or a mentally incapacitated person gives evidence.
12. Where a witness who is in fear is to give evidence, it will be the responsibility of the police to arrange for the security of the witness at court and, if special arrangements are to be made which encroach upon the normal working arrangements at court, the court must be given advance notice of what is proposed so that a course of action can be agreed.
13. Where it is believed that the safety and security of the court is itself in jeopardy as a result of the presence of a witness in fear, it will be the responsibility of the police to ensure that no risks are taken.
14. This Practice Direction supersedes the previous Practice Direction 9.5 dated 27 August 2015.
15. This Practice Direction shall take effect on 20 April 2018.
Dated this 16th day of April 2018.
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( Andrew Cheung ) |