Court Visit Report
18th May 2022
HKSAR v. MA WANG FAI VINCENT (馬宏輝)
In HKSAR v. Ma Wang Fai Vincent (Case No.: DCCC 920/2021), the Defendant, a male staff at a childcare shelter, was charged with two counts of indecent assault. The victim, an Indian girl who was 9 years old at the time and identified anonymously as “X”, provided in her testimony that the Defendant had kissed her on the lips and touched her private parts, all without her consent. The Defendant denied the charges.
In a rather dramatic turn of events, Lin J has advised the charges to be dropped on day 3 of the trial. Lin J reasoned as such: while X was able to provide a clear picture of what transpired during the examination-in-chief, she was extremely emotional during the cross-examination on day 2. Lin J believed that the defence counsel made the reasonable decision to end the questioning there; but without the opportunity for the defence to make their case, X’s testimony was insufficient to secure a conviction, considering that the standard of proof in criminal cases is one of “beyond reasonable doubt”. Lin J thus concluded that the sole option here is to drop the charges, though it was emphasized that this does not mean that X is untrustworthy or that the indecent assault did not happen. Lin J also made several comments to X throughout the trial commending her bravery.
The Adversarial Nature of a Courtroom
This case again highlights that courtrooms are very much not victim-friendly. The accusatorial nature of a cross-examination and the general aggressive mood of a courtroom forces victim-survivors to relive traumatic memories, and it is not so difficult to imagine why X in this case, now only still 12 years of age, became so distressed.
Furthermore, if the victim-survivor giving evidence appears too calm, such demeanor might be challenged by the defence as too “rehearsed” or “fabricated”; if the victim appears too emotional, then the judge, such as the one in this case, actually finds it impossible to continue the court proceedings, resulting in a decision that allows the perpetrator to walk free. While the judge here has repeatedly assured X (and likely her father, too, when other journalists and members of the public were asked to leave the courtroom) that “she has been very brave”, it appears that there is a serious defect in the official avenue for justice that makes it almost impossible for sexual abuse victim-survivors to realistically partake in.
The Defence’s Case
During the trial, Lin J has repeatedly cut short the defence’s cross-examination of a representative from the childcare shelter, who served as the prosecution’s witness. However, the questioning nevertheless revealed that staff recorded instances of X and other girls at the shelter touching each other inappropriately, and would watch romance dramas on a laptop provided to her (though the witness does not believe these dramas contain any explicitly sexual content). The Defence also presented to X her own paintings with the words “I love Vincent uncle [the Defendant]” written on it, and accused her of having romantic feelings for the Defendant. This was especially concerning because one wonders how appropriate it is to paint a then 9-year-old child as a promiscuous figure, and whether it convincingly absolves the Defendant’s actions. It was also exactly this line of questioning, rife with gender-coded myths, that renders X so distressed to the point where it is no longer possible for her to continue.
The Conundrum of Criminalizing of Sexual Abuse
Sexual abuse is, by nature, often a private act and difficult to be corroborated by a third party, which makes it hard to reconcile with established rules in criminal law. In a case like this, when the price to pay in order to preserve a rigorous administration of justice is to let the perpetrator go free without any consequences whatsoever, advocates should ponder how the judicial system can make things easier for victim-survivors, but also look beyond to alternative avenues of justice.
1. “兒童暫托所職員否認非禮 9 歲印裔女童 女童稱事後覺得自己是「壞孩子」”, The Witness (16 May 2022) <https://thewitnesshk.com/%e5%85%92%e7%ab%a5%e6%9a%ab%e6%89%98%e6%89%80%e8%81%b7%e5%93%a1%e5%90%a6%e8%aa%8d%e9%9d%9e%e7%a6%ae9%e6%ad%b2%e5%8d%b0%e8%a3%94%e5%a5%b3%e7%ab%a5-%e5%a5%b3%e7%ab%a5%e7%a8%b1%e4%ba%8b%e5%be%8c%e8%a6%ba/>
2. “兒童暫托所職員涉非禮女童案 辯方稱女童曾畫畫示愛 女童哭泣指現已不喜歡”, The Witness (17 May 2022) <https://thewitnesshk.com/%e5%85%92%e7%ab%a5%e6%9a%ab%e6%89%98%e6%89%80%e8%81%b7%e5%93%a1%e6%b6%89%e9%9d%9e%e7%a6%ae%e5%a5%b3%e7%ab%a5%e6%a1%88-%e8%be%af%e6%96%b9%e7%a8%b1%e5%a5%b3%e7%ab%a5%e6%9b%be%e7%95%ab%e7%95%ab%e7%a4%ba/>
3. “涉非禮女童 兒童暫托所職員無罪釋放 官指事主作供激動 無法毫無疑點定罪”, The Witness (18 May 2022) <https://thewitnesshk.com/%e5%85%92%e7%ab%a5%e6%9a%ab%e6%89%98%e6%89%80%e8%81%b7%e5%93%a1%e6%b6%89%e9%9d%9e%e7%a6%ae%e6%a1%88%e3%80%80%e5%ae%98%e4%b8%8b%e4%bb%a4%e6%92%a4%e6%8e%a7%e3%80%80%e6%8c%87%e7%84%a1%e6%b3%95%e6%af%ab/>