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Expert Insights

27 July 2022

Family law and criminal law, never the twain shall meet? Alas they do meet

Criminal activity can affect the proceedings of family court in many ways. The nature of relationship breakdown and divorce, as well as disputes over the children and finances arrangements, means that family proceedings often leads to the need for criminal advice, and vice versa.

When clients find themselves in both the criminal and family law system, this can add another layer of complexity and pressure.

Lisa Wong is joined by Giles Surman and Tanie Toh of Plowman Chambers to share their views on these two distinct areas if the law, as well as the practical challenges they face in handling the cases with overlapping issues.

Transcript

Lisa Wong: Good afternoon everyone, welcome to today’s webinar.

I am Lisa Wong and I am a Family Law Practitioner and a Partner at Charles Russell Speechlys. I’m your host and moderator today. Now today’s webinar is on family law and criminal law. As a Family Law Practitioner, it is not surprising to see criminal law and family law crossing over and overlapping from time to time. This is mainly because when relationships break down, people are in distress and emotionally charged and many things could happen in that situation and unfortunately, one of the things that we family lawyers often come across is criminal behaviour. Sometimes it could happen during the divorce proceedings and sometimes it is a trigger to the divorce. Either way, it means that family proceedings sometimes lead to the needs for criminal advice and vice versa. When a client finds themselves in both criminal and family law systems, this usually adds another layer of compacity and pressure. They might think that the same legal standard and procedure applies to both family law and criminal law. Even with family lawyers and criminal lawyers, they might have different views of the same incident from their own perspectives. So, it is essential to seek appropriate legal advice from lawyers with relevant experience when one is caught in both areas of law at the same time.

So we are very happy to have Mr Giles Surman and Ms Tanie Toh joining us today to share with us their knowledge and experience on this topic. Let me briefly introduce our speakers today. Mr Giles Surman is a very accomplished and experienced advocate with a strong practice in heavily contested matrimonial and criminal matters. His matrimonial practice involves all financial and children related matters arising from the breakdown of marital and other relationships. Giles criminal practice ranges from commercially oriented crimes to violent crimes to sexual offences and to drugs. Ms Tanie Toh’s civil practice focusses primarily on contested matrimonial matters, commercial disputes and judicial review. Her criminal practice involves court appearance for the prosecution and for the defence relating to general crime, commercial crime with related matters and ancillary criminal matters.

So before we start, here are a few housekeeping matters to bear in mind. Today’s webinar is made up of two parts. The first part consists of presentations from each our speakers, which is going to be very interactive I was told. We will then have our panel discussion and the Q&A session and during the webinar, all of you are on mute with camera off. So, if you would like to ask any questions, please type your questions in the question functionality on your screen which, I was told, is on the right hand side of the panel on your screen. We will aim to answer your questions at the end of the session, but please feel free to send your questions anytime through the question functionality box on your screen. Please also note that we are recording this session and it will be made available on our website after the programme. I am sure you have heard enough from me, so may I now invite Giles to start the talk. Over to you Giles.

Giles Surman: Good afternoon everyone and thank you for joining us. The science imparting or trying to impart some information about matrimonial and criminal matters, I think our main function for Tanie and myself this afternoon is to keep you awake as you sit at your desk and eat your lunch. We noticed as people were signing onto the seminar that there was a great rush with about one minute past one, because I think everybody came back from the Pret or the coffee shop downstairs in their respective buildings. So welcome to the talk. I am sorry that this is remote and that we are not all in the same room. I think all of us are so tired of COVID and the restrictions, that we can’t wait to get back into one room together, so that when we deliver these sorts of talks, they can be more interactive. There’s nothing like having a group of you in the room where you can ask questions, we can see the body language and we know when we’re boring you and we need to move on. So we’ll just have to guess some of that this afternoon, but as Lisa was just saying, please do type in your questions and we’ll do our best to try and cover those in the Q&A at the end and we have also had a discussion with Lisa that if anything particularly pertinent comes up, in terms of a question as we go along, then we will try and deal with it straightaway.

Okay, let’s move onto the first slide. Right quick overview of what we are going to discuss over the next 45 minutes to an hour. Common matrimonial matters, we are going to be talking about the issues that come from breaking up marriages, alleged criminal behaviour and what I describe very sadly as the nuclear warfare button, where there is alleged sexual abuse against children of a marriage by one or other of the partners, one or other of the parents. We want to highlight, Tanie and I some fundamental differences between the matrimonial and criminal law, which the next bullet point and I think it’s very important that these differences are highlighted. We’ll come to it, but for the time being, be aware that you’re going to lose control of the litigation once you introduce a third party and you always need to be aware of the consequences of any action that you take, not just the immediate consequences, but 2, 3, 4 steps down the line and the impact that introducing a criminal element to the matrimonial dispute will have and then finally, the bullet point, we’ll just talk about some criminal procedure. Alright let’s have the next slide. Okay, common matrimonial matters. I mean, I’ve seen a list of participants for this, I know that some of you who are listening to this are matrimonial practitioners, but quite a number of you are not, so forgive me if I’m trying to pitch this somewhere in the middle.

Common matrimonial matters can be really broken down into, essentially two things. You’ve got children, there are any children of the relationship or the marriage and the finances. With respect to children, as you can see on the slide there, we’ve got issues of custody, care and control, where the children are going to live, who’s going to be the principal carer or is care going to be shared between two parents. Where are the children going to be educated, how are they going to be educated. We used to, some time ago now, have some arguments over the way in which religion would be introduced to the children sides, that seems to have died away now, but the last bullet point under children there, the issue of relocation. In other words, the issue of moving children from one jurisdiction to another, from Hong Kong to another jurisdiction has become much more common over the last two or three years. Principally, as a result of COVID restrictions, changes to people’s perception of the quality or otherwise of being educated in Hong Kong. Relocation just an inside is a very very thorny issue, because it’s one of those issues which is almost always binary, in other words, it’s black or it’s white. The children cannot live and be educated in two different places. They’re either in Hong Kong, or wherever your jurisdiction is, or they are overseas and so relocation is a very difficult issue and in fact over many years of talking to Judges about this, and having sat briefly as a family court Judge myself, I think it’s fair to say that relocation is one of the most difficult issues that the Judges have to decide, I think, we’ve heard that. Alright, moving onto finances. Once there is clarity about what the finances are, then you both just break it down into three things. What are we going to do with the assets at the end of the marriage? What, if any, maintenance should there be flowing from one spouse or partner to the other? If any, then how much for how long? And then thirdly, children’s maintenance. How much does it cost to house, feed, educate, move these children around and who is going to pay. Is it all going to be one party, or the other or there’s going to be some sort of shared meeting your expenses. So those are the issues that we are dealing with.

Alright Lisa let’s go to the next slide. Right breaking up marriages, very unfortunately and I’m sorry about what’s written in the top left hand corner here, breaking up marriages, it should have been managing fall out or something. What’s absolutely core and fundamental part of what we do at all stages is try and reduce the areas for a dispute. There can be extensive and expensive fallout from the breakdown of relationships. A couple of things that we always bear in mind, first of all, the adults in the room. Well if they really want to go on an extensive and expensive battle between themselves, well we’ll try and stop that or curve the excesses of it, but we should always try and remove the children from the worst aspects of the disputes. What are the possible solutions then to avoiding disputes. So let’s just turn over the page and the next slide. Mediation, FDR stands for Financial Dispute Resolution. CDR stands for Child Dispute Resolution. In many jurisdictions now, including ours here in Hong Kong, mediation has grown enormously in popularity. Some of it driven by the courts, you know, wanting to cut the waiting lists and so on. Some of it driven by the courts with a genuine desire to find alternative methods of litigating this. I think everybody recognises that shoehorning matrimonial disputes, family disputes into a thirteenth century adverse area or court system is really not ideal. Litigation as we all know, by its very nature tends to drive people to the extremes and what we should be looking for of course is some sort of negotiated compromise and so on, what often to say to people in mediation is that if you’re here for mediation and you’re looking for a solution that you’re going to be happy with where you’re in the wrong place. What you’re looking for is something that you can live with and that is workable.

Lisa Wong: Yes.

Giles Surman: If you want perfection, I’m afraid you’re going to be sadly disappointed.

Tanie Toh: So Giles, can I ask you this. As an experienced mediator and also being in the family courts and the criminal courts, so basically with three different roles. If a client comes to you and says look, my partner has actually assaulted me and worse so accessed my phone, took compromising photographs of me and another person, I want to stop this. What sort of advice would you give to this client in those circumstances, especially when there is mediation that is a possible end, what sort of advice would you give?

Giles Surman: Well I think that’s a very good question, because it’s the sort of scenario that quite often comes up, where relationships have broken down. Somebody has done something terribly unwise and ill-advised and then what steps should be taken. I think, we’re going to come on in a moment to the criminal procedure and the mechanics of it just briefly, don’t worry, we’re not going to give you a law lecture on it, where just going to walk you through it. I think the advice is always to…. let’s explain what you could do. You could write off to court, to the matrimonial court and seek some sort of injunction, so that comprising photographs are not distributed, or not provided to an employer for example. You could write off to the matrimonial courts and get some sort of injunction about asking somebody from the matrimonial home, or restricting their time with the children, or denying them access to the children. You can do those things or, of course, you could go and make a report to the investigating authorities and the start of a potentially criminal text. You can explain those but you’ve got to explain the consequences of each of those actions, not just the immediate consequences of, well here’s the mechanics, we’ll go to court, we can do this, we’ll file an affirmation and we make a report to the Police, but what are the much longer term consequences in terms of if you start resignation in this way, how is that going to affect relationships, is that going to make potential later compromise less, or more likely? How is that going to affect your negotiated position if you won’t put it in that way. So I think the key answer to it is be aware that each and every step that you take is going to have consequences that could take some time to come out, but could be quite damaging, but just be aware, it doesn’t mean you don’t act, it’s just that you’ve got to be aware.

Tanie Toh: And certainly is it obviously to ascertain what your client wants and needs. If it’s about revenge, then possibly some time needs to be taken to think twice about it, especially giving an informed greeting and informed decision about what are the consequences and later, we’ll talk about the lack of control when your client says no, I have to go and make a report. I am the alleged victim, so therefore he needs to suffer, or she needs to suffer. But it’s all about having all of this sort of knowledge and advising the client on those aspects and the reason why we actually brought up this was because, there was in fact a success story between a client of ours and it was a case in which everything could have been dealt with very easily, via mediation, without going to the Family Court for an injunction and without actually making a report, but obviously every case is different and every facts are different, so this was at least one of the success stories in which we have managed and that was where we had just been a mediator right, so that was very successful.

Giles Surman: Alright, okay. Let’s go onto the next slide if we may. Alleged criminal behaviour. As you can imagine, there is… and this is really the core now of the talk. Matrimonial disputes, criminal law they intertwine sadly. Somebody asked me the other day, is it becoming more common that matrimonial and criminal matters are sort of occurring together. We were discussing this and I think it’s anecdotally, I think they probably are on the increase. It is very difficult for us to give an accurate answer to that, because I think by the very nature of what our practice is, we tend to get the ones where there is potential crossover. Just looking at this slide for a moment. Where you get the problems and this will come as I am sure, no surprise to anybody out that, but just working clockwise round that diagram for a moment at the top, you’ve got frayed tempers. If you think about it, everybody that has got a stressful and full-time, full job, they’re stressed. They are also managing a fraying relationship. They may in addition to that, have young children or children that they are managing. Over the last few years, they may even be working from home, certainly in the context of Hong Kong, often relatively modest accommodation. Everybody’s on top of each other and so you can see that you’ve a tinder box of potential problems. Criminal damage, this comes up where people start throwing things at each other, damage to cars. I mean over the years we’ve had instances where a very upset spouse took a pair of scissors to all of her soon to be ex husband’s suits and cut off the right arm of all his beautiful handmade suits. Trying to explain that later, was a little bit difficult, but that was obviously an action that she thought was appropriate at the time. Damage to cars, either accidental or deliberate. It is sometimes difficult to tell the difference, you know, people are upset, they’re angry, they’re not focussing. Was it a car accident or was it a deliberate smashing up of the soon to be ex spouses’ beloved motorcar, who knows. Working round Assault. Sadly the assaults don’t only involve the adults in the relationship. They can also sometimes involve the children. In surprising ways. Not just where a child is, to use an unfortunate phrase, collateral damage to an incident, but actually where older teenaged children are getting involved in either the suspects in an assault, you know, a young man 16/17 year old son takes the side of his mother and is assaulting father. These things unfortunately do happen and how does one manage that. Finance related crimes. Again, it’s sort of quite contextual in the sense that certainly in Hong Kong, we have a number of people here who run small, or even larger sized businesses where both parties to the marriage, husband and wife are involved in running it and so both have knowledge, intimate knowledge of the way that the company works. They decide on the breakdown of the marriage that actually they might report things to the tax and revenue authorities or to the anti-corruption authorities, or to the commercial crime bureau. Obviously you would need to explain to the client the potential consequences of taking any of those actions. Just before I finish on this slide, the other thing that’s becoming much more common in what we’re dealing with, obviously Social Media or the Social Media platforms to the way that people are communicating now. I mean, often arguments are no longer just in a domestic situation where they’re shouting and screaming at each other and throwing a few pots and pans, but it’s then taken onto, either their private electronic communications, email, WhatsApp, WeChat or even worse, it becomes a full blown public row on one of the public social media platforms, you know, Instagram, Facebook and so on and one of the things again that we often find ourselves saying to clients is just be very careful and be aware of the consequences of your action. I think again, it’s one of the fundamental messages that we try and get across is that you’re angry, you’re upset, you may… and you have to be careful about this, have lost your sense of proportion because of the final part of that slide, the drugs and alcohol and you have to try and bring them back on track and remind them gently about appropriate and sensible behaviour, for their own best interests and just on drugs and alcohol, one of the things that I think we’ve seen recently is that if individuals have a predisposition for using drugs or alcohol as a crutch and they’ve done it on say business trips and that’s been their outlet, the quarterly partners meeting in some lovely exotic part of the world and they can let rip there, they don’t have those outlets any more and they’re all at home, all stuck together. So you need to be aware of that.

Tanie Toh: And certainly I think on this aspect, when you’re stuck together as partners and emotions are high, there is more and more commonly now, accessing your partner’s mobile phone as we have said before. It is a common thread nowadays and we just have to be aware as family law practitioners, it is a crime. In the sense that currently there are legislations on this and in Hong Kong, at least specifically, the Law Reform Commission has actually put out a consultation paper on Cyber Law crimes and there will be harsher sentences and we just have to be aware of it, when our clients actually tell us, look I’ve actually accessed my partner’s phone, look at these photos, he’s been cheating. So on and so forth. So we just have to be aware of this sort of criminal alleged, well criminal behaviour that may creep up in the family law regime.

Giles Surman: Right let’s have the next slide. The nuclear warfare button. If there are allegations of sexual abuse against children by one of the parties to the marriage by one of the parents, this can destroy everything. It’s a very difficult place to come back from. Perhaps I’ll speak a little bit more about this later and hand over for the time being to Tanie, but just before I do that, the next slide is something I mentioned right at the beginning that an important fundamental difference is that if you think about most aspects of matrimonial law or family law are private law matters… most of it, not all and therefore the parties to the proceedings have control over it. Once you’re in the public law side and once you’re on the criminal law side, you are at the behest of the investigating authorities, the prosecuting authorities and it takes on a life of its own and you are giving up a large amount of control. Right. On that note, I’ll hand over to Tanie who I will try not to interrupt, only if it’s nothing sensible.

Tanie Toh: Right thank you Giles and good afternoon everyone. So having the next slide, I will talk about an overview in terms of what would be covered in my presentation. First of all, as matrimonial lawyers, there will two scenarios in which your clients may come to you with criminal aspect in it. The first one would be when your client says I am the alleged victim and second of all, the second bullet point is that if your client is then a suspect or an alleged perpetrator. So the third bullet point is just about the key things when this happens. We have to be alert and alive to the differences between the two, being the matrimonial side and also the criminal side because in terms of the two areas, you’re up against different people, it’s a different animal. For example, in the criminal side, your opponents, plural, would be the Law Enforcement Agency and also the Prosecution. So in a matrimonial side, normally it’s just your opponent or possibly the bench, but in the criminal side, you have the bench and also the Law Enforcement Agencies and also the Prosecution, so there is an added factor in those. Moving onto the next slide. So this is the scenario where you get a phone call, or you meet your client and your client tells you she has been assaulted or there are other things, for example, there are threats made by their partners. So the main thing really is, what should you do and what could be done. So, the main thing that has to be really thought out is to ascertain your client’s concern. As I mentioned previously, is it about revenge to try to make a report, so the partner would be in the system, in the criminal system, or is it that your client just wants the matter to be stopped. So would it be a matter in which will be the Family Court to take out an injunction, a
non-molestation order, an ouster order or just a restraining order. So these are matters in which, on a practical level, that has to be sorted out between the client and you. Initial instructions on that matter would be very helpful, because it could just be that anger at that moment, but if you step back, things actually aren’t that bad and maybe certain ways in which you could deal with it, let’s say for a mediation. So in order to ascertain that, one has to be aware of the consequences if your client says yes, I have to make a report with the Police. Certain things have to be really carefully thought out. First of all, if that step is to be taken, then there will be the lack of control because once you make a report at the Police Station, then the authorities would be investigating and then subsequently, if there are sufficient evidence, the matter will be brought to the Department of Justice and then possibly charges will be made. So I will also talk about that in the next slide, but things that we have to be aware of when your client says we are going to go to the Police Station. First of all, at the Police Station, it’s not only your client and you there. There will be a lot of people, it will be very busy, you’re be waiting around. So what should we do as lawyers to facilitate the whole process? The main thing would be in those circumstances you’re thinking really like a prosecutor, you’re trying to assist the prosecution in getting a successful conviction. So a witness statement will be something in which your client will be giving. One of the things that would be helpful, at least for the Police or the Law Enforcement Agency is to possibly have a draft witness statement. With a draft witness statement, the good thing is that story between your client and you have been well thought out and all the evidence is prepared, for example, in a domestic violence situation, is there sufficient evidence to support the injury for example, photographs and also medical reports. So these are matters in which we have to be aware of and alive to. If the client says oh well, the assault happened last night. So the main thing is really are there photographs? Is it a fresh wound? So we have to be aware of that and also, if your client hasn’t taken the photograph, try not to, as their lawyers, to take the photograph because in the criminal side, the prosecution will have to prove the chain of the evidence, which is that the evidence itself hasn’t been tampered. So if, as a lawyer, you have been taking the photographs, you may be a witness in the criminal trial.

Giles Surman: But if I can just interrupt there, you know, just looking at the list of people who are attending, I notice there are a few paralegals, so this comment is for you which is, get your paralegal to take the photographs, because if then they are called as a witness that’s fine. But Tanie would you, if you’re client says right I’m going to make a report, I want to go into the Police Station, would you help them draft a witness statement before you went to the Police Station.

Tanie Toh: I think that’s a very good idea.

Giles Surman: And in addition to that would you take photographs of the injuries, if any, for example, get a medical report, would you do that sort of thing.

Tanie Toh: Yes certainly. Before you go to the Police Station, that would b e very helpful, not only to the Police, but also to yourself as well.

Giles Surman: So really, you’re doing as much of the Police or whichever investigating body you go to, you’re doing as much of their job as possible.

Tanie Toh: Yes, certainly.

Giles Surman: Okay.

Tanie Toh: Moving onto the next slide. So for this slide, this is the second scenario in which I’ve mentioned. This is when you get a call from your client saying I have the Law Enforcement Agencies right at my door, what should I do. This sort of situation is where basically your client is now a suspect. There are allegations or complaints made against him or her and we have to be careful what your client says, because in this sort of spectrum, the Law Enforcement Agencies are not your friend. I mean, the main thing and the reason why I say this, is because we have a tendency, even as lay clients or even as possibly a matrimonial law, because it’s so different to try to explain ourselves. Try to give our side of the story, because we want the other party to understand us, but then in the criminal law side, what happens is that the Law Enforcement Agency is in fact just doing their job. Their job is to investigate into the complaints made and they would want you to speak and the vital, the key issue really is when your client is a suspect, there is a right to silent and this right to silent is very important, because under a caution statement, when your client goes to the Police Station, gives his side of the story under caution, anything said could be used against him in the criminal trial and an admission by your client, as a suspect, by itself could be something in which the Prosecution could successfully get a conviction. So there is no point to help the authorities where in fact they are against your client. So the main thing is, when you get that phone call, there are situations where the Law Enforcement Agency may just say I would like to invite you to the Police Station so a caution statement can be done. Second of all, there are situations where there are in fact search warrants. One thing that we have to be aware of when the Law Enforcement Agencies have a search warrant is that it’s basically a permission by law for them to go into the premises and also to cease any documents, or any items on the search warrants to be used as evidence. So the main thing is, as the legal representative, the first thing is that to tell your client and also the Law Enforcement Agency that you’re on their way. The main thing is because with the search warrants, there could be errors on there. First of all, it might be useful to be aware of two cases, one of which is Keen Lloyd, that is a case about search warrants and how the content of itself of the search warrant is in fact not valid, so that is something in which lawyers have to be aware of and also, the case of Sham Wing Kan, that’s authority about search warrants required for mobile phones. So if the Law Enforcement Agencies are, say for instance, the Police says to your client, oh can you give me your password so I can access your mobile phone… so the answer would be……

Giles Surman: Absolutely not. No way.

Tanie Toh: No way, get a search warrant.

Giles Surman: Tanie you mentioned onside cautioned interviews. So a suspect is arrested, he’s read his rights, you have the right to remain silent but anything you do say may be taken down and used in evidence. Could a Defendant be convicted on a confession alone without any other evidence?

Tanie Toh: Yes they could.

Giles Surman: So could there be a situation then, well let’s say a wife makes an allegation of assault by her husband. Husband is arrested, he makes a confession and later the wife does not want to pursue the matter and says I want to drop it. Could that individual still be convicted just on their confession.

Tanie Toh: Certainly, and I think the family dynamics in terms of domestic violence is that in the heat of the moment, a spouse or a partner may make a report, but then they think twice and say, look I just don’t want to proceed because we’ve got a family, we’ve got children, I do not want to be a witness and they are not compellable witnesses. So, in those circumstances if your client in fact had had a confession statement done, he could be, or she could be convicted solely on that. So, I think that is really sometimes when we are on both sides and we go to the criminal court and we in fact see the result being there is a conviction and it goes to sentencing and for example, certain reports are called for, for example, community service reports or probation reports, you see a spouse actually saying I did not… it was a heat of the moment, I understand that and it’s already too late, so that’s really the key message that we wanted to… one of the key messages that we want to bring across which is the lack of control once your client makes the report and he or she may try her best to not make herself available as a witness, but what’s done is done.

Giles Surman: And that right to silence that we have been talking about, is that an absolute right to silence.

Tanie Toh: In Hong Kong yes.

Giles Surman: And could an individual be criticised for exercising that right to silence?

Tanie Toh:Not in Hong Kong.

Giles Surman: Right, okay. Sorry that wasn’t prepared. Just for those of you that operate in other jurisdictions, I mean, we are fortunate in Hong Kong, we still have that absolute right to silence. In other jurisdictions in England and Wales for example, it’s gone since I think it’s 1994 the Criminal Justice Act 1994, where they amended the right to silence to make it effectively that you have the right to silence, you don’t have to say anything, but anything that you later rely on in your defence, which you do not mention now, that can be commented upon and criticised. We are in the pre-1994 world of an absolute right to silence thankfully. Right sorry Tanie.

Tanie Toh: Also another aspect is about possibly the effect it has on a person or a partner when criminal proceedings are instigated, are started, because say for example, if the partner, if the spouse is in fact charge with a criminal offence, it in fact may affect the employment situation, because as I understand from Giles, that a lot of the employment contracts do have a term stating that. If criminal charges are laid against you, you will have to inform the company. So this may have a big impact on a situation where between two husband and wife, the husband is the sole breadwinner and it may affect the whole family as a unit financially.

Giles Surman: I think on the employment, I’m not an employment lawyer, but some of you out there maybe or you may have worked in this area, I think we’ve moved over the last 20/25 years where employment contracts were more frequently if you are convicted or something. They’ve moved now to if you are charged with something. Somebody told me, I personally haven’t seen it, but somebody told me that there was a clause if you are arrested, then you’ve got to tell the employer.

Tanie Toh: Yeah, so even one step further away from conviction. So the earlier start date which is arrest, charge and conviction, it seems like there maybe shift that the company should be informed, even earlier on about situations involving criminal aspects.

Giles Surman: I mean I think the other thing, I mean you know, Tanie mentioned consequences of actions and employment is obviously one. The other one is this. Just think about this for a moment. Somebody makes a complaint of whatever nature, but a criminal complaint against the other parent. Fast forward to the Family Court, there’s now a dispute about where the children should live, what is in the children’s best interest. It can be very useful cross examination material for us to say the following thing to somebody in the witness box. You’re here, you made a report to the Police about your husband or your wife, you wanted them criminally prosecuted, you would or should have been told that the consequences of that are that they might go to prison. Do you think it’s in the best interests of your children to have their father or mother sent to prison. Did you really think that that was in their best interests. Now, so you can see how we can turn these things around, so all actions as always have consequences.

Tanie Toh: Yes, yes. Okay just in terms of conviction. If a conviction has been secured and the one of the spouses have a conviction, it also affects employment, immigration possibly and if the spouse is in fact an SFC licence holder, then it also may affect the SFC situation. So moving onto the next slide. So in this slide we have four boxes. This really highlights the difference between the Family Law courts and also the Criminal Law courts. So in terms of venue, there are three venues. There would be the Magistrates Court, there would be the District Court and the High Court, but in family, there is only the Family Court. Also if we look at the top right hand corner, type of judicial officers, they are more hard edged, they are doing trials every day, they hear the story every day, so they’re a bit less sympathetic and also burden and standard of proof. It’s always the Prosecution that has to prove beyond reasonable doubt, of course there are certain situations where the defence would have to raise the evidential burden for their defence, but mainly, it’s the Prosecution that has to do the main job and everything of proving. So it’s a completely different animal and fourthly, likelihood of compromise, plea bargains and bind overs. For those who are not too familiar with the criminal law aspect or who are non lawyers, basically in a matrimonial context, you could always have comprises. You could always try to negotiate. It could be as early as even before a petition has been issued. You can enter into mediations and all sorts of different types of negotiations. It could be without prejudice meetings between lawyers, so it’s very different, but with the criminal side, once the Department of Justice decides to lay charges, that’s where the negotiation could start but in rather limited circumstances and it’s a situation where it’s for the Department of Justice to make the decision, or the authorities.

Giles Surman: Yeah and if I can just chip in there on that bottom right hand slide. The likelihood of compromise goes down markedly once somebody is charged with a criminal offence. Not only a compromise in the matrimonial side, diminishes enormously and the likelihood of compromise in the Criminal Courts use a very very narrow window. Frankly over the last four or five years the Department of Justice has become ever less amenable to bindings over and Tanie will just explain in a moment exactly what binding over is so that you understand, but pre-bargaining is something that’s very difficult in our system, it’s not like the US, we don’t have a formalised plea bargain system and if you’re relying on the good officers of the Department of Justice, I’m afraid that, you know, they’re doing their job and the room for compromise is very small, right binding over.

Tanie Toh: Yes so a bind over is basically it’s a promise that you will abide by the terms and there are no criminal convictions. It’s not a criminal convictions, it’s basically a promise or an undertaking that you would not breach any criminal offences within a certain period and that’s basically the situation. But also bind overs are for very special circumstances, so it’s not something that, in a murder case, that you can get a bind over.

Giles Surman: Alright good, thank you very much. Let’s have the next slide Lisa. Right I said I would come back to this briefly. Children and alleged sexual abuse. I make no apology for repeating the line that this is really the nuclear warfare button. The third rail of relationship or family breakdown and by the third rail, it’s that phrase that comes from underground railways, where you’ve got the two rails on which the train rides and then the third rail which carries the electricity to drive the train. You touch that, you’re dead. If there is an allegation of sexual abuse, then it is a very very difficult case indeed to come back from. The person, the parent who is making the allegation would, one assumes, have made it on a good basis and will genuinely believe that something, you know, sexual interference, sexual abuse has been taking place and very difficult ever to persuade them otherwise, whatever happens. The individual who has been accused of sexually interfering, remember that they’re not just being accused of sexually interfering with children which is the probably, in given the current social dynamics and social moors of where we are is probably the most serious criminal offence that you could be alleged to be involved in. If you think about it, anybody who is alleged to be sexually interfering with children are just completely ostracized. Not only are they likely to lose all of their friends, their jobs, it’s terribly damaging to their extended family relationships. It’s a very difficult place to come back from. Very briefly, there are special procedures around intervening children, I’m not going to bore you with the black letter law, but if you are the parent who says I think that my children are being sexually interfered with, then it’s very important for us as lawyers to explain to them and make sure that they understand what the procedures are. Their children will be interviewed by the Special Child Protection Unit, normally trained Police Officers who have special training not to lead children, we have special genital dolls that are introduced to the children, so that they can explain their events that happened. This is all recorded on video and then those video records of interviews are used as the child’s evidence in chief at trial. The child of course has to be made available for cross examination, there are special rules around that as well, but this is a very difficult place to return from. Is it common that the allegations are made? Unfortunately not. Does it happen? Absolutely yes. It is more common amongst parents or amongst step-parents, perhaps there’s a second marriage and there’s been introduced a stepfather or stepmother, yes I think it’s probably slightly more common in those circumstances but fortunately, it’s not common, but it’s something that we do come across and it’s probably one of the darkest areas of our practice, either as a purely criminal practitioner prosecuting or defending child sex cases and as a matrimonial practitioner dealing with this, either representing the individual parent who’s making the allegation, or representing the parent who is the alleged perpetrator of sexual abuse. These are very very difficult things to deal with and that’s why I’ve chosen this side, that staircase that goes on forever. Right okay, good, Lisa back to you.

Lisa Wong: Okay, thank you. Thank you Giles and Tanie for this wonderful sharing. I am sure we’ve all learned a lot today on the criminal side of things, as well as on the family side of things and also on a bit of mediation. Now before we go onto our Q&A, there are a couple of questions that I would like to discuss, or I would like the panel to discuss about it. First of all, you’ve mentioned many times about consequences of the actions, of the spouses, what they do and whether they report it to the Police and also we’ve also heard that the potential impact on their immigration status on their employment status, on their relationship issues between the family. Now what about children? Can we briefly talk about what’s the impact on children regarding this criminal behaviour, violence. What about if a teenager is caught in the middle and has become a suspect, what will happen to the child? Is there something that we can share on this?

Tanie Toh: Okay, let’s assume the impact in a situation where the parents are getting a divorce and the impact on the child. First of all, I think relevant to our discussion would be the children would always be caught in the middle, there’s no doubt about it when the criminal behaviour alleged is by the parent. So they will be caught in the middle. Let’s not talk about the sexual abuse, just between the adults. They would be caught in the middle in the sense that the emotions would be very high, because you would have one parent going into the Criminal Court and also going to the Family Court. If the parent is not sensible enough, they would… there is a tendency for parents to tell a child what is going on and it does affect the relationship between the child and the other parent, who alleges to be the victim. That’s one aspect of it and in respect to of the second aspect, which is if there is a teenage child, a teenager in the matrimonial context which is where they are getting a divorce, what sort of affect would that have?

Giles Surman: Yeah, I can just pick it up from there. On the more positive side, could I just say this. In our experience, children are much more adaptable, flexible, accommodating than often adults give them credit for. I think the old story about the parents saying to a child, we’ve got some news for you, we have decided to separate, the children sort of look at each other and go “oh we knew that was coming” and “we could see that coming”, so children are much more perceptive, adaptable, flexible than we often give them credit for, that’s the first thing. The second thing is that obviously as we were saying at the beginning, it’s important that the children are kept out of the dispute totally, or as much as possible. That’s not easy, because they know that things are going on and equally, it’s unwise to tell the children nothing at all and keep them completely in the dark because then they just worry if they have no information, then they get more worried and more concerned. There are various ways that the children can be helped, it can be agreed between the parents to provide a child or the children with psychological help, much less common is psychiatric help. I did one trial, I think it was last year or the year before where everybody had a psychologist and one or two had a psychiatrist, each of the parents, the two or three children. So I said to the Judge at one time “everybody else has got one of these mental health professions, I need one as well dealing with this lot”. So coming back to the core of your question, consequences yes, be aware of the consequences for the individual making the report to the criminal report, be aware of the individual at the receiving end of that ending up as a suspect. Also be aware of the consequences on the children, either directly or indirectly.

Tanie Toh: I think also one aspect is how much drama in terms of perception it could be. When the parent, who has the care and control of the children has Policemen at their door, that’s just something in which a lot of people wouldn’t have thought about. When they open the door the Policemen are there and you’ve got young children. That is something in which the client who is actually making the report has to think about and of course we’re not saying that no report shouldn’t be made, but as in when there are alleged criminal behaviour, there should be reports made, but it’s just dialling it back and bit and actually thinking ahead and the possible consequences if the situation does touch upon a divorce and criminal side.

Lisa Wong: Why thank you, that’s very helpful. Now my second questions to you two is you’ve mentioned that mediation helps in a divorce situation and we’ve also discussed and you’ve also mentioned that a lot of the times when there’s criminal behaviour and there’s a report to the Police, it will be out of control for the parties. So in family proceedings, in a divorce proceedings when there’s criminal reporting, criminal behaviour reported to the Police, would you still advise the parties to attend mediation, because potentially, one of the spouses is going to be witness in a criminal proceedings. So can they still mediate? Should they still mediate?

Giles Surman: Alright I’ll go to this one. Again it’s probably because of my background and the nature of my practice that quite a significant minority of the matrimonial mediations that I do involve allegations of criminal behaviour by one or other party. The question is, can it still be mediated. The short answer is yes. The longer answer is, it’s more difficult and you’ve got a third party, namely the Law Enforcement Agency looking at the situation, and possibly one of the parties has been charged and so you’ve got to be much, much more careful about the parties coming to any sort of agreement, because they may not be able to honour it, because actually it’s out of their hands, it’s with the third party, prosecutions department. The other thing that you have to be alive and aware of, of course is that, and you remind your clients of this always, but especially where there’s a criminal element that mediation is absolutely confidential, because there’s a right to silence by the accused and so you can have situations where the person who’s made the complaint, let’s assume that it’s domestic abuse scenario and the person says in mediation “well all I want is an acknowledgement that this went on and an apology”. Well you can give in mediation, because it’s all confidential, but you cannot write it into the mediation agreement, because it’s an aggregation of the suspects, the Defendant’s absolute right to silence, because as you know, what’s said in the mediation, stays in the mediation, but any written agreement can be taken outside and usually is made into a court order. So if there’s an acknowledge and an apology, question can you then use that as an effective confession in a criminal trial.

Tanie Toh: And I suppose one more issue would be assuming it was a domestic violence sort of situation, we just have to be aware of whether the suspect has a bail condition that they can’t approach the prosecution witness, being the spouse. I mean these are something that we have to be aware of. If they were to be seated in the same room, so I think that somethings also.

Giles Surman: Yeah that’s right. That’s a very good point in fact. It came up, I think it was last year, one of the bail conditions was you cannot contact directly or indirectly any prosecution witness. Well first, the prosecution witness was in that case, I’ll say the wife. You can’t sit around this table and have a mediation you’ve got to go back to court.

Lisa Wong: Yeah and we do come across that situation quite a lot. I am aware of the time and it’s after 2 now, so let’s go onto our Q&A session then. Right first question from the audience is that, I’m going to read it out. Is it wise for a client to have a separate firm representing them in criminal proceedings, assuming my firm represents them in family proceedings?

Giles Surman: Okay Tanie over to you.

Tanie Toh: I would say there isn’t any conflict of interest, in the sense that if your client will be saying the same thing in the criminal side and the family side, I don’t see any conflict of interest. I think that’s really the crux of it anyway if separate legal representation is required. The benefit of having it all in one firm is that we have the most updated news and it’s not funnelled through your client and there maybe a mix up of the messages, or what has happened in the criminal court, so that would be added advantage, so long as there’s no conflict.

Giles Surman: Yeah I agree with all of that and I would add to that the key word “experience”. I think all of us and looking down the list of participants in this seminar, we’ve all got different areas of experience and there’s nothing that can substitute experience in a particular field of practice. 80%, 90% of the time you don’t need to call on all of that depth of experience providing those 20% of situations and they sometimes come up very very quickly, suddenly and without any warning, then you need to draw on all of your experience, so the question is, is it wise to have a separate firm represent, no, for all the reasons that Tanie has given. Yes, if your firm is not experienced in dealing with the criminal law, it’s not an area that you cover.

Lisa Wong: Thank you, I hope that answered your question. Next question is, can the authorities make or force a witness in a criminal matter to testify? Giles, Tanie?

Giles Surman: Yeah a very very good question. The short answer is yes, with one exception that husbands and wives are not compellable witnesses as against one another. They actually are now in most other jurisdictions, but they’re not in Hong Kong. So, the short answer is yes, if you’ve given a witness statement and you’ve now changed your mind and you don’t actually want to pursue the case, they can issue you a Summons, they can force you into the witness box, they can force you to testify. Whether they will or not is a different question, but if the question is can they, yes they can, unless you’re a husband and wife.

Lisa Wong: Tanie anything to add?

Tanie Toh: No, spot on. 100 marks for that.

Lisa Wong: Okay, alright next question. Can the authorities make or force, it must be a follow up question from the last one, a vulnerable witness, for example a child to testify in a criminal matter.

Giles Surman: Go on you go for it.

Tanie Toh: No you go for it.

Giles Surman: Okay, so just coming back to what I was saying earlier, so there are special procedures around vulnerable witnesses. The vulnerable witnesses includes children. The other vulnerable witnesses are mentally handicapped, or mentally challenged individuals and those who need a witness protection programme. They are also vulnerable witnesses. So when a child is interviewed as a witness, they are usually interview via the special unit and their evidence, their witness statement is recorded on video. That becomes their evidence in chief and when you go to trial, that’s simply put into the CD player and video recorder and they press play and the rules are that the Prosecution cannot ask them any additional questions to that, without leave of the court. So that’s their evidence in chief. Then, they are subject to cross examination. Not quite in the usual way, they will do it by live CCTV link. They won’t physically be in the court room, they’ll be in a special room elsewhere in the court room and there are certain rules around what questions you’re allowed to ask and so on. Can they force a child to give evidence? Well, again the short answer is yes they can, of course, it’s easier in the sense that all they need to do is to put the disc or the video into the machine, but you can’t do that unless the child is there and able to undergo cross examination. Again the answer is yes, but it’s unlikely that the authorities would force a child to testify, unless they thought that the child had been subjected to pressure not to testify, basically, to use a very old fashioned word, they have been nobbled, they have been got at and pressurised not to testify. Then they might push it, they might force it yeah.

Lisa Wong: I see. Yeah I think that’s very clear and very useful to know. Right I think we only have time for one last question which I am going to read out. Given your talk, is it actually that common for there to be both matrimonial and broadly related criminal proceedings. Who’s going to start first?

Giles Surman: You are

Tanie Toh: I would say, in the grand scheme of things, possibly the two colliding, it’s not as common, but I think given the area that Giles and I practice, we see it quite commonly.

Giles Surman: Yeah.

Tanie Toh: And I think in terms of the way you see it, which is it is quite common for at least solely in matrimonial cases where one party would be saying at one stage in our lives, he or she has hit me. That amounts to assault. So if we look at that sort of aspect, yes in terms of family law, there are a lot of these sort of allegations that would creep up, but in terms of the two going in parallel, I think it is not as common, but then to have the knowledge about it is very important, because first of all there are bound to be situations where your client would say.. I would like to make a report, or this has happened, or I would like to take out an injunction, so on and so forth. So I think it does come up more commonly in terms of the advice kind of stage, but whether it follows through to the very end, maybe a different matter.

Giles Surman: Yeah, I think and I agree with that, that’s it’s fortunately not that common. I think it’s more common for us, but it’s not that common, but I think it has become the norm, we are seeing it more frequently and it’s not just us now, talking to our other friends at the bar, our solicitor friends and just exchanging experiences, I think it sadly is becoming more common, especially over the last few years, for the reasons that we outlined earlier in the talk related to changes and the nature of work, being at home, children being off school and so on.

Lisa Wong: Right okay, that’s a very good answer. Looking at the time now, I think it’s time for us to wrap up. The past hour or so has gone really quickly. Thank you very much Giles and Tanie for spending your time with us over lunch and I hope the audience did enjoy this webinar and benefitted from it and I think the key taken away from this webinar from the two of you is that before you act, or report to the Police in relation to criminal behaviour in matrimonial proceedings, think twice. Think about the consequences and also if you’re caught in that situation, seek appropriate legal advice from experienced practitioner as soon as you can. So thank you again Giles and Tanie, I think this is the end of our webinar and it’s time for everybody to get some lunch.

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