香港特別行政區 v 李雪菁 [2024] 6 HKC 884, [2024] HKDC 1238
Osmond Lam and Velda Yau represented the defendant in 香港特別行政區 v 李雪菁 [2024] 6 HKC 884, [2024] HKDC 1238.
The defendant was prosecuted of one charge of fraud and allegations included that she was not ordinarily residing during the time period of the charge at the address that she stated to be her residence at the time when she applied for private tenancy allowance from her employer. Ms J was a foreign domestic helper working at the residence of the defendant’s parents during the time period of the charge. The prosecution intended to rely on the testimony of Ms J to prove that the defendant was ordinarily/primarily residing at the residence of the defendant’s parents during the relevant time period. As Ms J had returned to Indonesia, the prosecution applied to the court under s 79I of the Criminal Procedure Ordinance (Cap 221) for the taking of the evidence of a person outside Hong Kong (ie Ms J) by means of a live television link.
Held, allowing the application:
(1) Under s 79I(2) of the Criminal Procedure Ordinance (Cap 221), an application had to satisfy the conditions set out therein before it could be granted. The consideration that it would not be in the interests of justice to grant the permission also had to cover the defence’s consideration of whether it would not be in the interests of justice for the prosecution to make the application if it had been made with serious delay (paras 14, 18).
(2) If the prosecution were to make the application, they would inevitably have to do it after the application deadline. This was because at the time the case was transferred to the District Court, Ms J’s future departure from Hong Kong was unforeseeable. The crucial point, therefore, was simply when the late application should have been made by the prosecution as far as reasonably practicable. The prosecution could not have made the present application lightly without first delivering the witness summons to Ms J. Ms J only intended to return to Indonesia in October, which was more than 10 months before the original trial date. It was incumbent upon the ICAC to know whether Ms J would return to Hong Kong to give testimony at the trial, and not to make the present application to the court lightly simply because she intended to return to Indonesia in October. The prosecution and the ICAC officers took reasonable steps to bring the present application to the court at the earliest possible time, which was after 23 May 2024, after the prosecution had obtained a written reply from Ms J. It was not the case that there were numerous delays and missed opportunities on the part of the prosecution (paras 44-46, 55).
(3) As to the defence’s concern about the difficulty of prosecuting relevant witnesses if they committed perjury, as explained by the prosecution, the difficulty of prosecution would be equally likely to arise in the circumstances raised by the prosecution (ie Ms J giving testimony by means of a live television link) as in the circumstances raised by the defence (ie arranging for Ms J to come to Hong Kong to give testimony) (paras 75, 79).
(4) The court, the prosecution and the defence would not be denied the right and opportunity to observe the expressions and gestures of the witness when she gave evidence by means of video testimony. Both the prosecution and the defence were able to observe through the camera the questioning and answering procedures of the other side. Under the principle of fair trial, the defendant’s right to a fair trial was not undermined by the use of video testimony (paras 77-78).
(5) The court was convinced that it was sufficient to arrange for a court-approved Indonesian/punti language interpreter to travel to Indonesia to take on the role of supervising the setting during Ms J‘s testimony. By having an interpreter who understood the local language and was able and willing to answer under oath both before and after Ms J testified questions from the court about the setting in which the testimony was provided, the court would be able to see whether the testimony was given without duress at the location (paras 100, 102).
(6) In respect of the above arrangement, since the court imposed the condition under r 6 of the Live Television Link (Witnesses outside Hong Kong) Rules (Cap 221L), in the absence of any other statutory provision stipulating when the costs of the present application were to be determined, the provisions in the Costs in Criminal Cases Ordinance (Cap 432) should be followed (para 103).
(7) Paragraph 8 of Practice Direction 9.9 merely indicated which party made the arrangements for the live television link, and had nothing to do with the costs. Nor did the phrase ‘directly to meet their charges’ in para 9 necessarily meant which party ultimately bore the costs. The relevant practice direction applied to applications by either the prosecution or the defence. As the prosecution had pointed out, if the defence applied for a witness giving testimony overseas by live television link and there were expenses incurred by such an arrangement, there was no reason why the defendant should be precluded from claiming such expenses as costs against the prosecution if the defendant was ultimately acquitted. This would be clearly contrary to the long-standing principle of costs (ie the principle that an acquitted defendant should be entitled to their costs) and was definitely not the intention in formulating para 9 of Practice Direction 9.9 (paras 105, 107).
(8) Having regard to the spirit of para 8 of Practice Direction 9.9, it was the duty of the party concerned to make all arrangements necessary for or incidental to ensuring that the proceedings proceed smoothly and effectively. Therefore, the court imposed the condition that the prosecution would be responsible for arranging and paying upfront so that the proceedings could proceed smoothly and effectively (para 108).
[The above is excerpted from the headnote to the report in HKC.]
