Hong Kong courts urged to better protect witnesses in sex offence cases, after judge orders woman to face alleged attacker

Last November, magistrate ordered removal of screen set up in court between defendant and woman he was accused of molesting

Order sparked concern among lawyers and those helping victims of sexual offences, who note many jurisdictions grant ‘vulnerable individuals’ automatic rights

Hong Kong’s judiciary has been urged to do more to protect complainants in sexual offence cases, after a magistrate ordered the removal of a screen set up in court between a man and the woman he was accused of molesting.

At West Kowloon Court last November, Magistrate Pang Leung-ting revoked the prosecution’s application to use the screen, saying there was a “right to confrontation” between the woman and a football coach, Wong Chi-wai, who was on trial for indecent assault.

Wong was acquitted on March 15 of molesting his female subordinate three times in 2021. The magistrate rejected the woman’s testimony, saying he believed she used to be in a complicated relationship with the man.

But his order to remove the screen sparked concern among lawyers and those helping victims of sexual offences.

Lawmaker Doreen Kong Yuk-foon said the ruling was wrong, as the witness was put under great distress and unable to make an “effective statement” in court.

She said the judge’s order was also “completely based on the defendant’s perspective”.

“How about the witness?” said Kong, a lawyer and member of the Legislative Council’s panel on administration of justice and legal services.

“Witnesses in sexual offences are commonly known as ‘vulnerable individuals’ in many jurisdictions, which grants them automatic rights to be protected when they testify in court.”

She said the United Kingdom’s Law Commission released a consultation paper, “Evidence in Sexual Offence Prosecutions”, last May to explore the possibility of granting special measures to vulnerable witnesses without having to apply for them.

She said Hong Kong’s judicial system should follow suit and pledged to raise the issue with the Legco panel.

In Hong Kong, special measures to protect witnesses in sexual offence cases are stipulated in the Practice Direction, a set of guidelines issued by the judiciary. It was last revised in 2018, two years after Legco’s legal panel discussed improving witness protection.

A Legco document detailing the panel session from 2016 showed lawmakers aimed to empower courts to protect complainants “from the embarrassment ... and the anxiety arising from the need to physically face the assailants during the trial”.

Aside from allowing such witnesses to testify from behind a screen, the panel at the time left the door open for “appropriate alternative legislative measures that can achieve the same aim of protecting complainants in sexual offences”.

It proposed allowing witnesses to testify from another location via a live video link.

Under the current guidelines, the prosecution should apply for the screen to be used, and the defence has the right to object to it before the trial.

Wong’s case was at the pre-trial stage last year when the presiding magistrate granted the prosecution’s request for the screen.

But at the subsequent trial, Pang revoked the earlier ruling after Wong’s lawyer argued the defendant had a right to see the person who had accused him.

After the case ended, the judiciary replied on March 19 to Post inquiries and said it had received 465 applications to use the screen from 2019 to last year. There were 520 requests for witnesses in sexual offence cases to use a special passageway to the court, and 341 requests for other support.

“All the applications were approved,” it said.

Asked how many successful applications were later revoked by the trial judge, it said: “The judiciary does not maintain statistics on the type of screen allowed in individual cases.”

Doris Chong Tsz-wai, executive director of the Association Concerning Sexual Violence Against Women, recalled how there was no special protection in the past, when she was a counsellor accompanying women victims of sexual harassment to court.

“About 10 years ago, there was no screen, no secret passageway, nothing offered to the witness,” she said. “They struggled so much before going to court.”

She said much had improved for witnesses in recent years, as most of her NGO’s clients had been allowed to testify from behind the screen.

“Those measures are essential to let them testify without worries,” she said.

Chong was concerned that the recent order to remove the screen would have a “ripple effect” and deter victims of sexual offences from making police reports for fear that their identity might not be protected in court.

Legal practitioners should be aware of the power they had in court, and how that could affect women testifying as victims of alleged sexual harassment or assault, she said.

She hoped more training would be given to them to help them better understand the mental state of witnesses in such trials.

Lawyer Michelle Wong Lap-yan, who has handled sexual offence cases, said the decision to use the screen was entirely a matter of judicial discretion – which meant it was up to the judge or magistrate, based on the principle of ensuring a fair trial and open justice.

She said the court had an obligation to establish an environment for the witness to testify without being distressed by the defendant or the reactions of those in the public gallery.

“The trial would not be fair if a witness was not able to testify effectively,” she said.

Expecting sexual assault victims to describe what they went through in open court was “quite inhumane”, she said.

But once a complaint proceeded to the trial stage, she added, a woman seeking justice had no choice but to steel herself to face the adversarial court setting.