FAMC No. 8 of 1998
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 8 OF 1998 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC No. 283 OF 1997)
|CHIM HON MAN
|HONG KONG SPECIAL ADMINISTRATIVE REGION
|Chief Justice Li, Mr Justice Litton, PJ and Mr Justice Bokhary, PJ
Date of Hearing: 9 July 1998
Date of Determination: 9 July 1998
D E T E R M I N A T I O N
Mr Justice Bokhary, PJ:
1. On 1 April last year, following a trial which commenced on the 24th of the previous month, this applicant was convicted (by a majority of 5:2) on two counts of raping his stepdaughter in the family home almost eight years earlier when she was only nine years old. The victim (as we shall refer to this girl) was born on 1 March 1980. The first count charged a rape on a date unknown between 14 and 31 July 1989, while the second count charged a rape on a date unknown between 1 and 15 August 1989.
2. The sole evidence against the applicant was the uncorroborated testimony of the victim. She made no complaint of the rape to anyone until speaking to a school friend some five years later in 1994. According to the victim, her long silence was the result of the applicant having told her not to tell anyone of what he had done to her.
3. Testifying in his own defence, the applicant denied having had any sexual contact with the victim. And he suggested that her allegations against him might have been instigated by her elder sister with whom he was on bad terms.
4. Having failed to persuade the Court of Appeal to quash his convictions, the applicant now seeks our leave to appeal to the Court of Final Appeal.
5. Taking them from his notice of application, the three grounds of appeal which the applicant hopes to advance before the Court of Final Appeal are:
"1. The Court of Appeal erred in law in holding that the evidence in cross examination of [the victim] was not wrongly received in evidence by way of live television link, when at the time of cross examination [the victim] was not under 17 years of age.
2. The Court of Appeal erred in holding that the second count of rape against the Applicant should have been left to the jury for their verdict when there was no evidence on which a reasonable jury properly instructed could find to a criminal standard of proof that the Applicant had sexual intercourse with [the victim] between 1st August and 15th August 1989.
3. In the alternative, the Court of Appeal erred in holding that the incidents of sexual intercourse claimed by [the victim] were indistinguishable, so precluding
(a) the Prosecutor being required to elect upon which offence during each period of each count the trial should have proceeded; and
(b) the Learned trial Judge from directing that the jury could only convict on a count of rape if the members of the jury each found that the same rape had occurred during the period of the count."
6. The point which underlies the first ground was not taken at the trial, presumably because nobody saw the point. But where, as here, there would be no evidence at all on which to convict if the point turns out to be a good one, such an application as this one cannot turn on a failure to take the point earlier.
7. As for the circumstances relevant to this ground, they are as follows.
8. At the trial the victim's evidence-in-chief took the form of four videotaped interviews of her between January and August 1996. She was aged 15 at the beginning of the interview period but turned 16 in the course of it.
9. Those video recordings were given in evidence pursuant to s.79C of the Criminal Procedure Ordinance, Cap. 221 ("the Ordinance").
10. As for the victim's cross-examination, it was by live television link. In other words, it took place in a room other than the courtroom but was shown live on television in the courtroom. This cross-examination took place on 26 March 1997. By then the victim had attained the age of 17 (which she did on the 1st of that month). There was no re-examination.
11. Evidence by live television link is dealt with by s.79B of the Ordinance, subsection (2) of which provides that:
" Where a child, other than the defendant, is to give evidence, or be examined on video recorded evidence given under section 79C, in proceedings in respect of -
(a) an offence of sexual abuse;
(b) an offence of cruelty; or
(c) an offence which involves an assault on, or injury or a threat of injury to, a person and the offence is triable ?
(i) on indictment; or
(ii) either summarily or on indictment,
the court may,...