Care home abuse case may prompt reforms to city’s criminal evidence rules
Top prosecutor has said that next phase of reform plan on the admissibility of hearsay evidence in criminal courts could begin by the end of the year
Hong Kong’s prosecutions chief has revealed that legal reforms could soon be on the horizon in light of a recent case where a former nursing home boss walked free after being accused of sexually assaulting a mentally disabled woman in his care, despite strong evidence against him.
Director of Public Prosecutions Keith Yeung Kar-hung SC said the Department of Justice is preparing a working draft bill to launch a consultation on the admissibility of hearsay evidence in criminal courts, to prevent the same situation from arising again.
If passed, the change to the admissibility of such evidence could mean the accused in the recent case, Cheung Kin-wah, former director of Bridge of Rehabilitation Company, could face new charges over the incident.
Yeung said one recommendation in the draft proposal is to grant courts discretionary powers to admit hearsay evidence from a complainant who is unfit to be a witness because of his physical or mental condition, on the condition that the court is satisfied with the reliability of the evidence.
The Department of Justice came under fire earlier this month over its decision to withdraw the prosecution against Cheung, who had been accused of unlawful sexual intercourse with a mentally incapacitated person, who was unfit to testify.
Judge Stanley Chan Kwong-chi said it was “the luck of the defendant but a misfortune to the victim or society” that prosecutors had no choice but to drop the case, despite the strong evidence collected by police – six pieces of tissue paper that contained his semen and a mixture of bodily fluids from him and the victim.
“If we nonetheless pressed ahead with the prosecution, we did not have a reasonable chance of success,” Yeung explained. “It would be against the law, against the Prosecution Code, against the advice of the specialist psychiatrist, and would adversely affect the chance of recovery of the complainant — none of these we would like to see.”
In his first public appearance to comment on the case, Yeung said the withdrawal of the case was solely based on the consideration of the evidence and the health of the woman, who is suffering from post-traumatic stress.
Yeung said the department had carefully considered if the prosecution could proceed without the live court testimony of the complainant, as required by law.
But when prosecutors examined the video evidence that allegedly captured the incident, they found that the recording did not have a clear image.
Prosecutors were also not able to obtain evidence on how the complainant’s DNA came to be mixed with Cheung’s semen in the tissues found at his office.
“If the department were of the view that the balance of evidence was enough to prove any case against the defendant, we surely would not have withdrawn the prosecution,” Yeung said. “I emphasise this, and I repeat.”
He said the accusation involved in the case was very serious. “In the future, if there are changes in evidence or any other aspect, if upon review, the evidence or law at the time allows a fresh prosecution, we will definitely consider it,” he said.
The draft reforms, proposed in 2009 by the Law Reform Commission, will begin consultation at the earliest by the end of the year.