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Hksar v Shamsul Hoque

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date17 June 2014
Year2014
Judgement NumberHCCC379/2013
Subject MatterCriminal Case
CourtHigh Court (Hong Kong)
HCCC379/2013 HKSAR v. SHAMSUL HOQUE

HCCC 379/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 379 OF 2013

___________________

BETWEEN
HKSAR
v
SHAMSUL HOQUE

___________________

Before: Hon Zervos J in Chambers
Date of Hearing: 6 June 2014
Date of Ruling: 13 June 2014
Date of Reasons for Ruling: 17 June 2014

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REASONS FOR RULING

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Introduction

1. The defendant in this case stands accused by the complainant of having raped her and is about to go on trial before a jury in the Court of First Instance. The complainant has previously been granted an anonymity order pursuant to s 156 of the Crimes Ordinance, Cap 200, and is to be referred to as “X”.

2. An application has been made by the prosecution for the complainant to enter and leave the courtroom without going through the public gallery and to give her evidence behind a screen so that she is shielded from view by members of the public gallery. The defendant opposes the application for the screen on the basis that it will be prejudicial to him.

Prosecution application for a screen

3. The prosecution submit that the complainant suffers from emotional distress and post-traumatic stress order, and is worried and feels under great pressure about giving her testimony in front of members of the public. It is submitted that the complainant’s evidence is embarrassing and sensitive and by testifying before the eyes of the public this could add considerable stress to her, and intimidate her, and inhibit her as she recounts intimate details in court. The prosecution submit that the proposed arrangements will not cause any prejudice to the defendant, and in any event, any concerns can be allayed by a direction from the judge to the jury that the screen has been put up to spare the witness of having to recount intimate details while members of the public watch on and that they should not hold that against the defendant in any way.

Cases on screens

4. It is worthwhile examining the trilogy of cases that are commonly referred to when addressing, or more particularly when opposing, the use of a screen by a witness when giving evidence. The cases go back some 20 years and were concerned with initially a child, and later an adult, giving evidence behind a screen that separated him or her from the defendant. These cases must be understood in light of the fact that they dealt with a situation where the defendant could not see the witness who gave evidence against him. They therefore engaged the issue of the right of an accused to confront his accuser.[1] This does not apply when the screen is used to shield the witness from the public and not the accused.

5. The first case is R v X, Y and Z (1990) 91 Cr App R 36 where the English Court of Appeal were concerned with a complaint that the use of a screen with a child witness would act in a prejudicial way to the defendants in the trial. It was suggested that the jury might have been readily influenced and unfairly prejudiced against the defendants by seeing the screen there, and that the jury might think that there was a suggestion that the persons in the dock had already in some way intimidated the child who was going to give evidence. The Court rejected the complaint by acknowledging that a fair trial meant fair to all: the defendant, the prosecution and the witnesses. In that case, the three defendants were charged with serious sexual offences against a number of young boys and girls. The Court observed from experience that in such cases children were shown to be reluctant to give evidence, and that cases in the past had collapsed because the children were unwilling or, unable to speak as to the facts about which they were expected to speak. At trial, a screen was erected in court so as to prevent the child witnesses from seeing or being seen from the dock. It was on this basis that the Court considered the issue and rejected there was prejudice to the defendants. The Court stated:

“ The learned judge has the duty on this and on all other occasions of endeavouring to see that justice is done. Those are high sounding words. What it really means is, he has got to see that the system operates fairly: fairly not only to the defendants but also to the prosecution and also to the witnesses. Sometimes he has to make decisions as to where the balance of fairness lies. He came to the conclusion that in these circumstances the necessity of trying to ensure that these children would be able to give evidence outweighed any possible prejudice to the defendants by the erection of the screen.

The Court agrees with him in that view. We do not think, even without the warning which the learned judge did give to the jury, that any sensible jury could have been prejudiced against any defendant by the existence of this barrier between the witnesses and the dock. But at the outset of the trial the judge said this:

‘ Do not allow the mere presence of the screen in any way to prejudice you against any of the defendants. The purpose of the provision of those screens is in an endeavour to prevent children from being intimidated by their surroundings. I think you can understand yourselves, those of you who have young children, to have to come in front of a court of this sort is bound to be a matter which is somewhat frightening perhaps and certainly not an experience they enjoy. Do not hold that fact against any of the defendants. You will decide the case on the evidence, that is to say that which is said before you and the documents which are placed before you.’

…

We take the view that we do not need authority to confirm us in the view that what the learned judge here did in his discretion was a perfectly proper, and indeed a laudable attempt to see that this was a fair trial: fair to all, the defendants, the Crown and indeed the witnesses.”[2]

6. The second case is R v Cooper and Schaub [1994] Crim LR 531, where the English Court of Appeal at that time observed that the use of screens had been confined to child witnesses but there had been occasions when such protection had been afforded to adult witnesses. This case is commonly relied on to oppose an application for the use of a screen but it needs to be read in light of subsequent decisions. The Court stated that the use of a screen was prejudicial to the defendant even where an appropriate direction was given and went on to emphasise that the decision for the use of a screen for a witness was within the discretion of the judge but should only be used in the most exceptional cases where an adult was giving evidence. Given the reliance placed on this decision, I set out the relevant part of the judgment of the court given by Farquharson LJ where he states:

“ The provision of such screens had become more frequent during the past few years. Generally speaking the point was to protect the witness from any form of eye contact or sense of presence of the person charged.

Such cases had, generally, been confined to children giving evidence but screens had been used with adults.

Undoubtedly a judge had a discretion whether he would allow such a protective unit to be put in place. It was his duty to ensure that justice was done. If that could not be achieved without the witness having some form of protection, it was appropriate for the judge to make the necessary order, see R v X Y and Z ((1989) 91 Cr App R 36).

While one could see the risk that might arise where children were concerned, they might be inhibited or overawed in court, such protection was not obvious where a witness concerned was adult.

There could be little doubt that the use of screens was prejudicial to the accused person, even where a jury was properly warned not to make any assumptions adverse to that person about the presence or use of the screen. The very fact that screens were being employed suggested to a jury that there was need for the witness to be protected in some way from any contact, even only visual contact, with that person. He was to some extent at a disadvantage in as much as such protection was, at any rate, considered to be desirable.

Accordingly, in their Lordships’ judgment it should only be in most exceptional cases that such apparatus should be used when an adult was giving evidence. By no means every case of rape or prosecution for sexual offences should involve the use of screens.

The present case involved a woman aged 21 having to give evidence of an exceptionally unpleasant kind, involving multiple rape. The judge gave the jury the necessary warning. The decision was undoubtedly very much in the judge’s discretion and it was impossible to say that the discretion was exercised unlawfully or in a way which could not reasonably be supported.”

7. The third case is R v Foster [1995] Crim LR 333, where at trial a screen was used to separate the witness from the defendant. The English Court of Appeal explained that the comments in Cooper and Schaub were not intended to depart from the test in X, Y and Z, namely that is was the judge’s duty to endeavour to see that justice was done. The Court held that a warning to the jury not to read anything adverse to the defendant into the fact that the witness was giving evidence from behind a screen resulted in no real danger of prejudice to the defendant. In the commentary to the case, it was clear that the underlying concern of the courts was the impact this would have on the right of confrontation, and the case of R v Taylor and Crabb [1995] Crim LR 253 was referred to where the prosecution sought a witness to give evidence anonymously. In that case, the Court agreed that “the...

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