HKSAR v TSE HOI-PAN, DOMINIC

HKSAR v TSE HOI-PAN, DOMINIC

The judge held that broad inquiry into complainant's prior sexual history was excluded by s.154 and its protective purpose, but limited cross-examination was permitted because the accused's defence directly contested penetration; questions confined to whether the complainant had ever had sexual intercourse before the alleged event, when she last had intercourse if relevant, and why she believed the accused penetrated and ejaculated, were sufficiently relevant that excluding them would be unfair to the accused.

Citation
HKSAR v TSE HOI-PAN, DOMINIC
Parties
Prosecution: HKSAR; Accused: Tse Hoi-pan, Dominic
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 August 2006
Case Number
HCCC18/2006
Procedural Posture
Criminal Rape (s.118(1) Crimes Ordinance) / Ruling on Application Under S.154 During Trial (cross Examination of Complainant)
Outcome
Limited leave granted to cross-examine the complainant on narrowly defined topics; broader, open-ended inquiry denied.
Legal Topics
Rape, Admissibility of Prior Sexual History, Section 154 Crimes Ordinance, Cross Examination Limits, Fair Trial Balancing, Proportionality
Source Language
EN
Criminal Law Evidence Sexual Offences Rape Admissibility of Prior Sexual History Section 154 Crimes Ordinance Cross Examination Limits Fair Trial Balancing +1 more

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Parties

HKSAR

Prosecution

Tse Hoi-pan, Dominic

Accused

Procedural Posture

Criminal Rape (s.118(1) Crimes Ordinance) / Ruling on Application Under S.154 During Trial (cross Examination of Complainant)

Legal Issues

  1. 1 Whether s.154 permits cross-examination on complainant's prior sexual history in the circumstances
  2. 2 Whether exclusion of such evidence would render the trial unfair to the accused
  3. 3 Whether limited questioning about penetration and ejaculation is relevant to the issue of consent and to the accused's defence of non-penetration

Ratio Decidendi

The judge held that broad inquiry into complainant's prior sexual history was excluded by s.154 and its protective purpose, but limited cross-examination was permitted because the accused's defence directly contested penetration; questions confined to whether the complainant had ever had sexual intercourse before the alleged event, when she last had intercourse if relevant, and why she believed the accused penetrated and ejaculated, were sufficiently relevant that excluding them would be unfair to the accused.

Court Disposition

Limited leave granted to cross-examine the complainant on narrowly defined topics; broader, open-ended inquiry denied.

Orders

  • Leave granted to ask whether the complainant had ever had sexual intercourse prior to the alleged rape.
  • If the answer is affirmative, leave granted to ask when she last had sexual intercourse prior to the date of the alleged rape.