The Legal And Procedural Balance of Protective Measures in Sexual Offence Trials

19th Edition - Criminal Justice & Legal Insights Crime Series: Part 5 The Legal and Procedural Balance of Protective Measures in Sexual Offence Trials Hong Kong’s criminal justice system in 2026 is navigating a complex intersection of procedural innovation and substantive reform. On one hand, the Courts (Remote Hearing) Ordinance (Cap. 654) has established a statutory framework for the use of technology in Courtrooms, while excluding criminal Trials from default remote application. On the other hand, the government is consulting on reforms to sexual offence laws, including a proposed statutory redefinition of consent as agreement given “freely and voluntarily.” These developments have heightened the importance of protective measures for vulnerable witnesses. Screens, safe passage, and live television links are no longer viewed as ancillary accommodations; they are integral to the presentation of testimony in cases where credibility is central. The judiciary’s approach reflects a stance of principled caution, built on three foundations: • Physical Courtroom Standard – Schedule 1 of Cap. 654 excludes criminal trials from the remote‑hearing framework, thereby preserving in‑person testimony as the default mode for criminal Trials (non-Trial criminal matters can be remote under Cap. 654, e.g., bail applications, PTR, CMC, mentions, applications for directions, appeals). • Statutory Safeguards – Part 5 of Cap. 654 imposes penalties against unauthorised recording or interference, reinforcing the integrity of proceedings. • Judicial Discretion – Section 9 of Cap. 654 sets out the statutory factors the Court must consider before admitting remote evidence, ensuring transparency and reviewability. Debate continues over whether remote testimony dilutes credibility assessment or whether default protective measures should be introduced for complainants. A potential strategy is to hold hearings in camera (closed Court) under section 123 of the Criminal Procedure Ordinance, without screens but with safe passage, to balance dignity with confrontation rights. As Hong Kong moves toward a statutory definition of consent rooted in sexual autonomy, the procedural framework will be tested. This proposed 'freely and voluntarily' standard places the complainant's actual agreement at the forefront of the legal inquiry. The current model prioritises probative quality and fairness in the adversarial process, anchoring testimony within the solemnity of the Courtroom while cautiously integrating technology. Check out the full newsletter for detailed analysis and legal insights: https://lnkd.in/gUQTCjSG