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Following is the speech by the Secretary for Justice, Ms Elsie Leung at the Workshop on a World Free of Violence against Women today (Saturday):

Ladies and Gentlemen, good morning to you all. I am extremely happy and honoured that the Equal Opportunities Commission has asked me to participate in this event and has given me an opportunity to speak on the topic of "Legal Strategies to end Violence Against Women". In the short time available to me, I wish to focus on a single aspect of our criminal law where I believe reform can make a positive contribution to the fight against violence on women. I am referring to the current requirement for corroboration in sexual offences.

The current law

At present, there are a number of laws which provide protection to women against violence. The major ones are -

(a) Crimes Ordinance, which deals with sexual and related offences; and

(b) Offences Against the Person Ordinance, which among other things, deals with homicide, assaults, child abuse, forcible taking or detention of persons, unlawful abortion etc.

The Domestic Violence Ordinance was also enacted to deal specifically with domestic violence. Under the Ordinance, the court may grant injunctions on application by a party to a marriage or a cohabitee to restrain the other party from molesting the applicant or exclude the other party from a specified area which may include the matrimonial home.

The Crimes Ordinance was also amended to transfer from the former Protection of Women and Juvenile Ordinance sexual and related offences and to increase penalties for certain of such offences. In particular, the amendments raised the maximum imprisonment term for incest with women between the age of 13 to 16 from seven to 20 years as this group of women are more vulnerable.

But more needs to be done. We must ensure that the criminal justice system treats women complainants in sexual offence cases fairly. This is necessary not only so that justice is done in cases that come before the court, but also to encourage female victims to come forward and report violence committed against them. We must send a signal to the community at large that violence against women is not a domestic affair to be connived at nor condoned.

Unfair rules

There is one aspect of the current law which people may think operates unfairly against women. There are special rules relating to the evidence given by victims in sexual offence cases. These rules are called the corroboration rules. Although the rules also apply in cases where the victims of sexual offence cases are male, as we all know the majority of victims in sexual offence cases are female.

Let me first explain the background. As a general rule, a judge or jury may decide a case upon the unconfirmed evidence of a single witness or document. The rule applies both to civil and criminal cases and regardless of whether the evidence in support of the case is agreed or disputed. For example, a judge may decide that a defendant is guilty of an offence on the basis of what one witness has said in Court.

However, in relation to sexual offences special rules relating to corroboration apply. What is corroboration? Corroboration, in layman's terms, means support or confirmation. But in relation to the law of evidence, corroboration has a very technical meaning. It means credible, independent testimony which affects the accused by connecting or tending to connect the accused with the alleged offence. The testimony must implicate the accused. It must confirm or tend to confirm that the accused committed the crime.

The rules

What are these special corroboration rules? For some sexual offences, for example: procuring a person by threats or intimidation to do an unlawful sexual act; procuring a person to become a prostitute; procuring a girl under 21 to have unlawful sexual intercourse, etc. the requirement for corroborative evidence is mandatory. This means that if there is no evidence capable of amounting to corroboration, the judge must withdraw the case from the jury, or dismiss the claim, as the case may be. This is so even if the judge or jury may have no doubt in their minds that the accused had committed the crime. And if a woman alleged that she has been forced into prostitution and it is clear that there is no corroboration of her complaint, the case will not even get to court.

In respect of evidence given by a complainant in other sexual offences, the trial judge must give a warning of the dangers of acting on the evidence if it is uncorroborated. The absence of such a warning will be a ground of appeal and for setting aside a conviction. The warning must be given even if the judge and the jury are of the view that there is no reason for doubting the truthfulness of the complainant.

The judge must also explain the reasons for the warning. What are those reasons?

Justifications

The courts have long been cautious about relying on the testimony of victims of sexual offences.

An early presumption existed in medieval times against relying on the testimony of a woman bringing an allegation of rape. She had to prove that while the offence was recent she had raised the "hue and cry" in neighbouring towns and shown her injuries and clothing to men. An alleged failure to do so could be raised as a defence.

More recently, a complainant's evidence has traditionally been regarded as peculiarly susceptible to fantasy or fabrication, motivated by frustration, spite or remorse. It was perceived that there is an inherent danger arising from the fact that sexual allegations are simple to make but difficult to refute. There is said to be an additional danger that the complainant as a witness may derive so much sympathy that the jury or judge does not dispassionately analyse the accuracy of her evidence.

The assumption underlying the corroboration rules is that evidence given by complainants in sexual offence cases is inherently unreliable and must therefore be supported by other independent evidence. I am sure you will all agree that this is not fair. And as the majority of the victims of sexual offences are in fact women, this is especially unfair to women. It has been suggested that the realization or the perception of women victims that their evidence will not be acceptable on its own has deterred many a victim from pressing charges.

It is of course ideal if there can be independent corroboration. However, as a matter of reality, serious sexual offences such as rape are rarely conducted in front of independent witnesses. More often than not, such attacks would only be mounted when the aggressor is sure that he is not observed and no one would be around to come to the rescue of the victim. Corroboration from an independent witness is often only available as an exception rather than the rule. What else would then amount to corroboration?

What amounts to corroboration?

Serious physical injuries or torn clothing may, sometimes, corroborate an allegation of lack of consent. However, where a defendant simply denies that he has had intercourse, then such injuries or torn clothing would not be sufficient to corroborate an allegation that that particular defendant is the rapist, because they do not directly implicate that particular person, unless of course, a "Lewinsky's skirt" is available. And such evidence may not be available. A victim may remain passive out of fear of physical harm or simply because she had been too shocked to react, and thus sustained no serious physical injuries. Needless to any, the absence of such injuries does not necessarily mean that she had consented to the intercourse and that she lied when she alleged rape. However, as the law presently stands, her evidence would be considered suspect if it is not corroborated.

Should we change the law?

I do not want to present a one-sided view of the law. Some lawyers consider that the abolition of the corroboration rules in this area would unfairly erode a defendant's rights. It is my view that there are sufficient safeguards in place to protect the rights of a defendant. The whole purpose of the proposed amendments is to ensure that evidence given by victims in sexual offence cases is accorded the same treatment as evidence given by complainants in other kinds of cases. This would ensure that the categorisation of complainants as victims in sexual offence cases does not automatically attract a different standard.

The rights of a defendant are already very well protected by the general obligations of a trial judge in directing the jury and to ensure a fair trial. A judge is under a duty not only to remind members of the jury of the evidence, but also to use his experience and judgment to assist them to assess and to make sense of it. The judge has a particular duty to put the defence case to the jury. The duty entails, in respect of doubtful prosecution evidence, the exercise of his judgment to warn the jury of possible reasons why they should not rely on any particular piece of evidence, or ways in which they should scrutinize or test it before relying on it.

The corroboration rules in respect of sexual offences have already been abolished in England, Canada, most of the Australian States and New Zealand. Judges of the Court of Appeal in Hong Kong have also queried the continued existence of the rules in respect of sexual offences in Hong Kong. [HKSAR v Kwok Wai-chau (Cr. App. 502/97. dated 5.6.1998)]

Having considered both sides of the question very carefully, the Government intends to propose amendments to the existing law to abrogate the application of the corroboration rules to sexual offence cases. The Bill is likely to be introduced into the Legislative Council in June this year. The proposal may be controversial, and I hope that I can count on your active support.

The Department of Justice has prepared a detailed Information Paper on the subject, copies of which are available here today. If you are interested, please take a copy. Any comments you may have on it would be warmly received.

Whether a society will, in the long run, be free from violence, depends on many factors. It will take much effort and goodwill from all sectors of the society. Giving the victims of crimes of violence an equal opportunity to see justice done is a first and important step in the right direction.

End/Saturday, March 20, 1999

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