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As is commonly known among practitioners, the rules on corroboration in sexual offences in Hong Kong were abolished in 2000. However, it is noticeable, from a practitioner’s point of view, there has been no apparent sign of a decrease in the number of appeals in the last decade in such cases tried, inter alia, on the ground that the judge had failed to warn himself/herself or the jury of the lack of such supporting evidence. It is therefore worthwhile to review the development of the law in this area in order to better appreciate the current position from a practical perspective. This article will explore the law on corroboration by asking: What were the initial motivations for establishing the rules in the first place; what were the criticisms of the rules, which ultimately led to their abolition in other common law jurisdictions and eventually in Hong Kong; and, finally, what impact the abolition has had on the rights of defendants in sexual offence cases?
What is corroboration?
Corroboration is evidence that confirms or strengthens the accuracy of existing evidence in a material particular. Such evidence in these particular cases can be oral from witnesses, admissions by the accused, or material such as fingerprints or DNA. In criminal cases, it mustconfirm or tend to confirm the guilt of the accused. As a general principle of the law of evidence, a defendant can be convicted on the uncorroborated evidence of a single credible witness, provided that the ‘trier of fact’, whether a judge alone or a jury, is satisfied beyond reasonable doubt of his/her guilt.
However, in certain categories of cases, corroboration rules were established. Judges were required to specifically warn the jury of the dangers of convicting on the uncorroborated evidence of a single witness, and to explain to the jury what can, and cannot, in law, amount to corroborative evidence. Such corroboration rules were traditionally required in three types of cases involving the evidence of: (i) accomplices; (ii) the ‘complainant’ in sexual offences; and (iii) children.
In Hong Kong, the corroboration rules for alleged accomplices were abrogated by s 60 of the Criminal Procedure Ordinance (Cap 221) in 1994 and, for children, by amendments to s 4A of the Evidence Ordinance (Cap 8), effective from 28 July 1995. The corroboration rules in respect of sexual offences, which will be the focus in this article, remained in force until 30 June 2000 when it was abolished by s 4B of the Evidence Ordinance.
Historical reasons for corroboration rules
The evidence of complainants in sexual offences has been regarded as peculiarly susceptible to fantasy or fabrication and is, at times, motivated by jealousy, grudge or vengeance: R v Henry (1969) 53 Cr App R 150. The rules were therefore developed to combat the perceived dangers arising from these concerns.
The corroboration rules were justified and developed through a line of authorities reflected and summarised by Salmon LJ (ibid, at 153):
“[T]here is no magic formula or mumbo jumbo required in a direction relating to corroboration. What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone ... The judge should then go on to tell the jury that, bearing that warning well in mind, they have to look at the particular facts of the particular case and if, having given full weight to the warning, they come to the conclusion that in the particular case the woman or girl without any real doubt is speaking the truth, then the fact that there is no corroboration matters not at all; they are entitled to convict.”
Another rationale was to prevent judges or juries from losing objectiveness in their evaluation of evidence because of sympathy for the complainants. An information paper for the Legislative Council Panel on the Administration of Justice and Legal Services issued in March 1999 reviewed these historical reasons for the corroboration rules.
Criticisms of the corroboration rules
Since their inception, the corroboration rules have been criticised on various grounds. The corroboration rules were said to work particularly to the disadvantage of victims of sexual offences. Although obviously not gender specific, it is an undeniable fact that the majority of ‘victims’ in such cases are female. Concerns were voiced by the Equal Opportunities Commission, in its submissions to the Bills Committee on Evidence (Amendment) Bill 1999, to the effect that the existence of the corroboration requirement therein was in some way discriminatory against women in general, and to complainants in sexual cases in particular. The assumption that a woman may make false allegations motivated by fantasy or the other oft-quoted reasons, with their implications of untrustworthiness, was said to be insulting.
In a speech given by Ms Elsie Leung, the then Secretary for Justice, in February 1999, the rules were said to be inflexible and unfair, especially when they were required irrespective of the particular facts of the case or the perceived reliability of the complainant’s evidence, as the law required that a standardised warning be given in all circumstances. Furthermore, in a meeting of the Bills Committee on Evidence (Amendment) Bill 1999 held in May 2000, it was commented that a jury might consequently be confused on the occasions when the complainant’s evidence is strong enough to stand on its own, without independent evidence, but where a warning was nonetheless given.
The rules were also criticised for being complex: see Leung Chi Keung v HKSAR  HKCU 1283 at  per Li CJ (as he then was). The concept of what types of evidence do or do not constitute corroboration might sometimes be difficult for a lay jury (and, unfortunately, but commonly, both counsel and judges) to grasp.
Further complications arising from the nature of the defence case also affected the way in which the principles of corroboration applied. A simple example is where a defendant admits to having sexual intercourse but denies that it was non-consensual (a very common defence to a rape allegation); traces of semen found on the complainant or at the scene would ‘corroborate’ an allegation of sexual intercourse or contact but would not corroborate the allegation of lack of consent, whereas bodily injuries such as scratches or bruising, or torn clothing, could.
A further criticism of the rules was the fact that they were an exception to general principles and considered to be a glaring anomaly, and contrary to the interest of justice. For example, in R v Cheung Shu Wai  2 HKC 174, the defendant was alleged of raping a 10 year old girl and was convicted after trial and a jury. During the trial, a witness testified that the defendant had told him about having sexual intercourse with the complainant. The defendant appealed on the ground that the trial judge erred in treating the evidence of that witness as corroboration of the complainant’s evidence. The conviction was ultimately quashed even though the Court of Appeal judges thought it was unlikely that the jury would have believed a 10 year old girl would have consented to sexual intercourse with the defendant:ibid, at 178. Although evidence which adds to or supports other evidence can amount to corroboration, it was nevertheless held that the witness’s evidence was only sufficient to prove intercourse but insufficient to corroborate rape: ibid.
Similar comments in the UK Law Commission Report on Corroboration of Evidence in Criminal Trials (Law Com 202, CM 1620) suggested that the rules regarding corroboration were widely regarded as confusing and unnecessarily restrictive. Many convictions were overturned because trial judges failed to comply with the technical requirements of the rule when summing up or directing themselves.
Abolition of the corroboration rules
The continuing evolution of the corroboration rules in sexual offences eventually led to their abolition in a number of common law jurisdictions, including the United Kingdom where the rules in such offences were abolished by s 32 of the Criminal Justice and Public Order Act 1994, thereafter removing what had become a mandatory requirement to give the warning in respect of the complainant’s evidence simply because a witness fell into that category. Judges, however, retain the discretion to give special warning to a jury before acting on the unsupported evidence of a witness in any class of case, if so considered appropriate and necessary. In other common law jurisdictions such as New Zealand, the corroboration rules were abolished in 1985 in relation to sexual offences, and in Canada in 1987.
In Hong Kong in September 1995, provisions for the abolition of corroboration in sexual offences were included in an Evidence (Amendment) Bill and were going to be introduced to deal with mutual legal assistance in criminal matters. However, the Administration ultimately did not seek resumption of the second reading of the Bill because the matters relating to mutual legal assistance had been dealt with by the Mutual Legal Assistance in Criminal Matters Ordinance (No 87 of 1997). The part relating to the abolition was, therefore, not pursued. The proposal for abolition was given new impetus in 1998 and was reignited again in 1999, leading to their abolition. In HKSAR v Kwok Wai Chau  3 HKC 354, the CA observed (at 362) that:
“We wish to add before leaving this matter that we are unable to understand why the requirement for corroboration of the evidence of a complainant in a sexual offence has not been done away with in Hong Kong. It was abrogated in 1994 in the United Kingdom. That this has not been done in Hong Kong is, in our view, inexplicable.”
Effect of the abolition
An information paper published by the HKSAR Government in March 1999 provides that, despite the various criticisms, the corroboration warning to the jury was ‘an essential safeguard for the defendant’. Concern was expressed in a subsequent information paper published in June 1999 that abolishing the rules would unfairly erode a defendant’s rights, and some suggested that judges should still be required to give a clear warning to juries of the danger of convicting on the complainant’s uncorroborated evidence, unless they have good reasons not to. Given the opposition, it was, perhaps, unsurprising that after the abolition, appeals continued to be brought on the ground that corroboration warnings should nevertheless have been provided.
Shortly after the corroboration rules’ abrogation in the UK, two applications for leave to appeal against convictions for indecent assault were heard by the CA in R v Makanjuoloa; R v Easton  3 All ER 730. It was argued that the judge should have, in his discretion, given the full corroboration warning notwithstanding its abolition. The basis of this was that the underlying rationale of the common law rules could not just disappear overnight. The CA dismissed such contentions on the basis that because the rules had been abrogated by statute, any attempt to reimpose the same, albeit by way of a quasiapplication of the same warning requirement under a different label, was against policy: ibid, at 732 per Lord Taylor CJ.
In Makanjuola (at 733), Lord Taylor CJ summarised the post-abolition position in these terms:1. Section 32(1) (of the Criminal Justice and Public Order Act 1994) abrogates the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant of a sexual offence, simply because a witness falls into one of those categories.2. It is a matter for the judge’s discretion what, if any, warning, he/she considers appropriate in respect of such a witness as indeed in respect of any other witness in whatever type of case. Whether he/she chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised, and the content and quality of the witness’s evidence.3. In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestions by cross-examining counsel. 4. If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question be resolved by discussion with counsel in the absence of the jury before final speeches.5. Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge’s view of the evidence and his/her comments as to how the jury should evaluate it rather than as a set-piece legal direction.6. Where some warning is required, it will be for the judge to decide the strength and terms of the warning. It does not have to be invested with the whole florid regime of the old corroborationrules. 7. Finally, the CA will be disinclined to interfere with the judge’s exercise of his/her discretion save in a case where that exercise is unreasonable in the Wednesbury sense: see Associated Provincial Picture Houses v Wednesbury Corporation  1 KB 223.
Makanjuola has been followed in Hong Kong in numerous cases: see, for example, R v Chu Ip Pui  HKLRD 549 at 552; HKSAR v Li Kam Shing  HKCU 1033 at ; Leung Chi Keung v HKSAR  HKCU 1283 at ; and HKSAR v Khan Arshed  4 HKC 409 at 415-16.
In HKSAR v Chan Sau Man  3 HKLRD 593, the CA rejected the argument that the trial judge had erred by failing to give a corroboration direction. Counsel for the applicant (at 596) submittedthat although the rule that a jury should be ‘warned of the danger of convicting without corroboration had been abrogated’, ‘the old rule that a warning had to be given should not entirely be rejected’. He relied on Lord Taylor CJ’s comment in Makanjuola, that:
“Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness’s evidence, the circumstances of the case and the issues raised ... Where, however, the witness has been shown to be unreliable, he or she may consider it necessary to urge caution.” (emphasis added)
Such an argument was rejected by the court (at 599):
“There was, as (the applicant’s counsel) acknowledged, no requirement to give any specific warning to the jury about their approach to the complainant’s evidence. This was a straightforward case where the complainant’s evidence, the accuracy of her evidence and her veracity, on the central issue stood alone. The judge had meticulously pinpointed all the areas in the evidence where her account was materially disputed and had invited the jury to look at her evidence with care. In the circumstances, the judge was perfectly entitled, in the sensible exercise of his discretion, to adopt this course.”
It follows that without the mechanical rules of corroboration, a judge has wide discretion in deciding how to sum up a case. Although it was suggested in Makanjuola that if there is an evidential basis for suggesting the evidence of a witness may be unreliable, it may be appropriate for the judge to warn the jury to exercise caution in dealing with such evidence, however, the judge is no longer obliged to give a full warning on uncorroborated evidence. A study of recent cases (for example, HKSAR v Yeung Hin Kwong Stevens (HCMA 604/2008, 28 November 2008) and HKSAR v Chan Hoi Tat  HKCU 1998) would suggest that it is now not even necessary for the judge to ‘meticulously pinpoint all the areas in the evidence where [the witness’s] account was materially disputed’ as suggested in Chan Sau Man above.
In Chan Hoi Tat, the CA dismissed the applicant’s appeal against conviction on various indecent assault charges on the ground, inter alia, that the trial judge failed to direct himself on the danger of acting on the unsupported evidence of the complainant.
The CA found that although the trial judge’s reasons for verdict did not set out the differences and/or inconsistencies drawn to the attention of the complainant during cross-examination, thecomplainant had given her an explanation as to why there were such differences or inconsistencies and the trial judge accepted her explanation: ibid, at . Further, the CA added that: “The judge is a very experienced judge. He does not have to spell out the danger in accepting [the complainant’s] unsupported evidence in this case, when the need to corroborate was abrogated long time ago”: ibid, at .
Are defendants in sexual offence cases adequately protected notwithstanding the abolition of the rules?
While some commentators have expressed concerns that abolishing the corroboration rules would unfairly erode a defendant’s rights, some also suggest that abolishing the rules has simply put the evidence of complainants in sexual offences on par with that of witnesses in other cases. Notwithstanding the abolition of the rules, the overriding rule which requires judges to put the defence fairly and adequately remains unchanged.
Unlike the mechanical requirement of the corroboration rules, such an overriding rule is unbiased because it is specific to the facts of a case, and applies only where there is material to suggest that a particular witness’s evidence may be tainted by improper motive rather than a mere ‘mechanical’ categorisation of the witness into a particular group.
All in all, the status quo of defendants in sexual offence cases remains unchanged despite the abolition of the rules. Whilst at times a judge’s wide discretion can lead to a certain lack of clarity, and defendants facing sexual allegations, no doubt, may feel inadequately protected, if the courts in Hong Kong lay down more specific and definite rules, this would defeat the purpose of the abrogation of the rules in the first place.
We must, therefore, leave the burden with our judges and defence counsel to safeguard the rights of the defendants in such cases to ensure fair justice for all.
Shirley Cornelia HungBarrister-at-LawLiberty Chambers
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