HKSAR v. CHOI WAI LUN

HCMA 620/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 620 OF 2016

(ON APPEAL FROM KCCC NO 388 OF 2015)

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D E C I S I O N

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Background

1.  The applicant was charged with one count of indecent assault and was acquitted by Deputy Magistrate Hui Shiu-keung.  The Prosecution was aggrieved by the verdict and applied to case state the decision of the Magistrate under section 105 of the Magistrates Ordinance, Cap 227.  The case stated was heard on 20 June 2017 and the judgment was handed down on 31 July 2017 whereby this court ruled in favour of the Prosecution.  The applicant was not satisfied with the judgment, and on 28 August 2017 filed a Notice of Motion seeking a certificate to certify that points of law of great and general importance are involved.

2.  The applicant sought leave to have this application made out of time as it took time for the Director of Legal Aid to grant legal aid to the applicant. To that effect, an affirmation of the applicant’s solicitor was filed on 28 August 2017.

3.  The respondent did not object to the application for out of time despite the fact that the applicant was in breach of the Practice Directions.  I granted leave for the application be made out of time.  I also allowed the applicant to file the Notice of Motion together with the proposed questions in English, despite the fact that the trial and the appeal was heard in Chinese.

Brief facts of the case

4.  Through an adult website, the under-aged girl [PW1] offered sex services with a fee schedule.  PW1 falsely represented that she was aged 17.  The applicant claimed that he believed so.  On the day they met, the applicant said he did not have any doubt about PW1’s age.  The applicant took PW1 to a hostel wherein they took a shower together and PW1 had oral sex with the applicant.  PW1 consented to all these acts.

Points of law to be certified

5.  The proposed questions of law of great and general importance as amended and submitted by the applicant are as follows:

(1) Whether an offence contrary to section 122(1) and (2) of the Crimes Ordinance (Cap 200), taken together, is an offence of absolute liability when the alleged victim is a person under 16 years of age?

(2) Whether an accused charged under section 122(1) of indecently assaulting a person who was under 16 years of age can legally put forward a defence that the person in fact consented and the accused genuinely believed that he/she was 16 years of age or over?

(3) Whether in a prosecution under section 122(1) where the alleged victim is a person under 16 years of age, the prosecution is required to prove absence of genuine belief on the part of the accused that the person was 16 years of age or over?

6.  The respondent did not object to the main theme of the questions so posed, but submitted that for points (2) and (3) above, section 122(2), in addition to subsection (1), should be inserted, to which counsel for the applicant objected.

Consideration

7.  The questions so raised by the applicant are apparently of great and general importance.  The respondent raised no objection to the application.

8.  I take the view that these questions and the whole issues will be canvassed and decided in the context of the case, whether subsection (2) is inserted or not, and do agree that the questions so posed involve points of law of great and general importance.

Conclusion

9.  I grant leave to issue a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) in relation to the three questions raised by the applicant.