VI. Protection of child victims at trial
Child victims, especially victims of sexual abuse, are particularly vulnerable to the way in which the criminal justice system has traditionally operated, particularly at trial. It is, to put it mildly, an ordeal for the child victim of violence or sexual abuse to face his/her abuser in open court and be subjected to traditional forms of cross examination. Protection must be afforded to children in such situations if their best interests are to be protected. Articles 3 and 4 of the Convention are relevant here.
Article 3 of the Convention provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 4 of the Convention provides that “States Parties shall undertake all appropriate legislative, administrat ive, and other measures for the implementation of the rights recognized in the present Convention.” That involves devising procedures to enable child victims to give evidence in court in a way which allows substance and truth to prevail.
The Evidence Ordinance , Cap. 8 and the Criminal Procedure Ordinance , Cap. 221 provide some protection for children and juvenile victims of certain sexual or physical offences when they are giving evidence in court as prosecution witnesses. This is done by shielding them from the full rigour of the traditional trial format. These provisions recognise and attempt to reduce the trauma that child and juvenile victims of physical and sexual abuse face when giving evidence as prosecution witnesses. Inevitably this means some reduction in the rights of defendants, but these reductions are proportional and objectively justified in the interests of protecting children when giving evidence in court.
A. Affirmation by a child who is giving evidence in Court
Under section 4 of the Evidence Ordinance a child’s evidence in criminal proceedings must be given unsworn. A child for this purpose is a person under 14 years of age. The unsworn evidence of a child under 14 years of age shall be capable of corroborating the evidence of any other person whether that evidence is given sworn or unsworn. The common law system is sometimes criticised as placing too much reliance on procedural correctness. Section 4 of the Evidence Ordinance addresses this criticism with respect to the evidence given by children under 14 years of age: concentration is upon the substance of the child’s evidence in the context of the evidence as a whole. The question is whether or not the child’s evidence is worthy of belief to the standard required in the context of all the evidence in the case.
B. Special procedures for vulnerable witnesses
A new part, called Part IIIA , sections 79A to 79G , was added to the Criminal Procedure Ordinance (CPO) in 1995. Section 79B of the CPO enables a court, either on application or of its own volition, to allow a child, other than the defendant, to give evidence and be cross examined by way of a live television link. This is done where the offence is an offence of sexual abuse, or cruelty, or an assault on, or injury to or the threat of injury to,a person and this is done whether the offence is tried on indictment or tried summarily. An offence of sexual abuse is an offence against Part VI or Part XII , other than sections 126 , 147A and 147F of the Crimes Ordinance or an offence against section 3 of the Prevention of Child Pornography Ordinance . An offence of cruelty means an offence against section 26 or 27 of the Offences against the Person Ordinance . As a result, each of Hong Kong’s trial courts can allow a child to give evidence in these situations by way of a live television link.
For the purposes of section 79B (live television link), in a case of sexual abuse a child is a person under 17 years of age, and in a case where the section applies and it is not a case of sexual abuse, a child is a person under 14 years of age. A live television link is “a system in which a courtroom, and another room located in the same premises as the courtroom, are equipped with, and linked by, a closed circuit television system that is capable of allowing persons in the courtroom to see and hear persons in the other room and persons in the other room to hear, or see and hear, persons in the courtroom” .
Sections 79B and 79C of the CPO must be read together with the Live Television Link and Video Recorded Evidence Rules (LTLVRER), Cap. 221J which govern giving evidence through a live video link ( section 79B of the CPO ) and giving evidence by way of a pre-recorded video interview ( section 79C of the CPO ).
A witness giving evidence through a live video link will be in a separate room to persons in the courtroom. Those persons can see the witness through the visual link and the witness can see persons in the courtroom. With the leave of the court, the LTLVRER allows child witnesses to be accompanied by a support person when giving evidence through a live video link. That support person should not be a witness in the case or have been involved in the investigation of the case.
In cooperation with the police, the Social Welfare Department has established a witness support programme for child witnesses. These measures are designed to reduce the trauma of giving evidence and to create some separation between the child and the defendant. Suggestions have been made that the defendant may be prejudiced as the television link weakens the impact of cross examination. This point was discussed in the court case R v. Chan Bing For . The Court of Appeal there accepted that the common law principal of ‘eyeball to eyeball’ confrontation had been diluted and that there were sound reasons for this with vulnerable witnesses.
Sections 79C and 79D of the CPO allow a pre-recorded video record of an interview of a child witness to come into evidence in criminal trials for specified offences provided leave is obtained from the court. Applications to use a pre-recorded video interview are governed by the LTLVREO . The child is interviewed by a police officer or by a social worker or clinical psychologist employed by the government ( section 79C(1) ).
A child for the purposes of sections 79C and 79D is, in an offence of sexual abuse, a person under 17 years of age, or if under that age when the video recording was made, is under 18 years of age at the time of trial. Where the offence is an offence of cruelty or involves an assault, injury or threat of injury, a child is a person under 14 years of age, or a person who was under that age when the video recording was made, and is under 15 years of age at the time of trial.
Provided leave is obtained, the video recording becomes evidence of any fact stated in the recording upon which the child could have given direct oral evidence. The recording stands as evidence in chief. The child is called as a witness by the party putting the recording into evidence. The child may not be questioned in chief on any matter which in the court’s opinion has been adequately dealt with in the recording. After the recording has been shown the child can be cross examined, usually through a live television link. An application for leave to use the pre-recorded interview during a trial will normally accompany an application to give evidence through a live television link.
Applications to use a pre-recorded video interview as evidence in chief at the trial must be accompanied by the recording it is proposed to use. The notice of application must include: the name of the defendant and the offence or offences charged; the name and date of birth of the witness in respect of whom the application is made; the date on which the video recording was made; a statement that, in the opinion of the applicant, the witness is willing and able to attend the trial for cross-examination; a statement of the circumstances in which the video recording was made; and the date on which the video recording was disclosed to the other party or parties.
As the purpose of these provisions is to lessen the trauma of the child giving evidence, applications for leave to give evidence through a live television link, and applications to use a pre-recorded video interview, will normally be granted unless the witness will not be available for cross examination or the interests of justice require the recording to be excluded.
“Interests of justice” is a vague term. In deciding whether or not to allow the recording to be used the court carries out a balancing exercise. The interests of protecting the child witness, and the public interest in ensuring that persons who are guilty of the offences covered by the procedure are convicted, are balanced against the interests of the defendant in defending the charge. In that balancing exercise, the court will consider the circumstances under which the recording was made. Care must be taken when interviewing the child to avoid leading questions (questions which contain the answer within the question) or which suggest what must have happened rather than ask for information about what happened.
Similarly the court will be alert to any suggestion that the child has been coached or is being prompted during the interview. The court has the power to direct that a part of the pre-recorded record should be excluded in the interests of justice. In that event the original recording will be edited in accordance with Practice Direction 9.5 Evidence by Way of Live Television Link or Video Recorded Testimony .