HKSAR v. CHOI WAI LUN

[English Translation – 英譯本]

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)

________________________

JUDGMENT

1.  The special situation in this appeal is that the Secretary for Justice is the appellant instead of the respondent (for the understanding of this judgment and to avoid unnecessary confusion, I will refer to the appellant as the prosecution and the respondent as the defendant).  The prosecution appeals by way of case stated[1].

2.  The defendant was charged with one count of indecent assault[2], and was acquitted after trial before Deputy Magistrate Peter Hui Shiu-keung. The prosecution applied for a review hearing on 5 April 2016.  The magistrate affirmed his decision.

3.  The prosecution now appeals to the Court of First Instance by way of case stated on the following questions of law arising from the hearing of the present case and asks for guidance: -

(1) Based on the findings of fact in the present case, was the magistrate correct in applying the ruling in the English case of R v K[3] as the basis of the ruling in the present case?

(2) Was the magistrate correct in holding that the offence of indecent assault was not one of “absolute liability” in respect of the victim’s age?

Background and facts of the case

4.  PW1 was a girl who had just turned 13.  She posted on an adult website that she could provide sexual services and listed the prices. PW1 falsely claimed that she was 17 and sent a half-length photo to the defendant at his request.

5.  The defendant thought that PW1 was 17.  They met on the material day.  The defendant claimed that he did not suspect PW1’s age, so he took her to a guest house which charged hourly.  The defendant touched PW1 all over her body when they showered together and were in bed.  PW1 performed fellatio on the defendant.  PW1, aged 13, agreed to provide the defendant with sexual services.

6.  The magistrate opined that PW1 looked more mature than her actual age.  He also accepted that PW1’s clothing and hairstyle made her look even more mature.  The magistrate considered that it was possible that the defendant was not sure of PW1’s actual age; and therefore gave the benefit of the doubt to the defendant[4].

7.  The magistrate accepted the defendant’s submissions and ruled that the aforementioned English case R v K was applicable to the present case, that is, it would be a defence if the defendant believed that the girl was aged 16 or over. The magistrate did not accept that the offence in question was one of absolute liability.  Therefore, he acquitted the defendant.

The prosecution’s grounds of appeal

8.  Section 122 of the Crimes Ordinance reads: -

“ (1) … a person who indecently assaults another person shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years.

(2) … a person under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of this section.”

9.  In the present case, there is no dispute that PW1 had just turned 13 and that she consented to the defendant’s act of indecent assault.  Of course, PW1 did receive a “reward”.

10.  The prosecution submitted that the issue was whether the “presumption of mens rea” in the offence was removed by necessary implication or express provision that made it an “absolute liability offence”. If that is the case, the prosecution took the view that they need not prove that the defendant knew, believed or had reasonable suspicion that PW1 was under the age of 16.  On this basis, as PW1 cannot in law give consent to the defendant’s act of indecent assault, it follows naturally that the defendant has committed the offence of indecent assault.

11.  In summary, the prosecution put forward the following arguments to support their submissions that the offence in question is one of absolute liability: -

(1) Principles of statutory interpretation;

(2) Legislative history;

(3) The scope of application of the English case R v K;

(4) Purpose of reform to protect young girls;

(5) A coherent and rational legislative scheme;

(6) The “absurdity” derived from the case HKSAR v So Wai Lun of the Hong Kong Court of Final Appeal on the offence of “sexual intercourse with a girl under the age of 16” for the purpose of this case.

12.  Of course, Mr Wong, counsel acting for the defendant, disagreed.  The defence supported the magistrate in the application of the English case of R v K in the present case, and submitted that the “young man’s defence” under the English law was applicable to offences involving “unlawful sexual intercourse with a girl aged between 13 and 16”[5].

13.  The defence submitted that “the provision underlying the offence that ‘a person under the age of 16 cannot in law give any consent’ does not equate to absolute or strict liability”[6].

14.  The defence also submitted that indecent assault (section 122) and “unlawful intercourse with a girl under 16” (section 124) were two different offences, and therefore should not be mixed up.

15.  The prosecution and the defence did not ask for this appeal to be dealt with by the full court of the Court of Appeal.  Regardless, I believe that this case will not stop here.

Discussions on the grounds of appeal

16.  This appeal hearing is conducted by way of case stated in accordance with section 105.  The prosecution appeals against the trial magistrate’s ruling on the ground that it was “erroneous on a point of law”.

17.  The prosecution’s submission is that the indecent assault offence relating to the age of the victim is one of absolute liability, that is, the prosecution need not prove the defendant’s knowledge of PW1’s age at the material time.  As long as the prosecution successfully proved that the defendant indecently assaulted the girl, and that the girl was under the age of 16, then the defendant should be convicted.

18.  On this basis, the prosecution submitted that the magistrate’s application of the English case R v K (that is, it would be a defence to the offence if the defendant believed that the girl was older than 16), and the magistrate’s not accepting the offence as one of absolute liability, constitutes an error on a point of law.

19.  In response to my question, both the prosecution and the defence were of the view that there was no “direct” ruling in Hong Kong on whether the offence under section 122 was one of absolute liability or not[7].

20.  Section 19 of the Interpretation and General Clauses Ordinance, Cap. 1 states that “an Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

21.  The interpretation of an ordinance and the distinction of criminal offences involving strict liability and absolute liability was discussed in detail in Hin Lin Yee v HKSAR[8] and Kulemesin v HKSAR[9].  In HKSAR v So Wai Lun, where the offence of “sexual intercourse with a girl under 16” under section 124[10] was involved, both the Court of Appeal[11] and the Court of Final Appeal[12] provided in-depth and detailed analysis.  Having considered different points of view as to the law, the Court of Final Appeal agreed with the finding of the Court of Appeal and ruled that section 124 was an absolute liability offence, and that it was constitutional.

22.  Regarding the offence of indecent assault under section 122, the ordinance contains four subsections:

“(1) Subject to subsection (3), a person who indecently assaults another person shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years.

(2) A person under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of this section.

(3) A person is not, by virtue of subsection (2), guilty of indecently assaulting another person, if that person is, or believes on reasonable grounds that he or she is, married to that other person. (Replaced 90 of 1991 s. 7)

(4)  A woman who is a mentally incapacitated person cannot in law give any consent which would prevent an act being an assault for the purposes of this section, but a person is only to be treated as guilty of indecently assaulting a mentally incapacitated person by reason of that incapacity to consent, if that person knew or had reason to suspect her to be a mentally incapacitated person.”

Subsections (3) and (4) provide statutory defences.

23.  I am of the view that, certainly, the factors that the Court of Final Appeal and the Court of Appeal referred to in So Wai Lun in construing section 124 (the offence of unlawful sexual intercourse with a girl under 16) as an offence of absolute liability are equally applicable to the court’s analysis of the offence of indecent assault under section 122.

24.  After examining the rationales of inequality and arbitrariness against the proposition, the Court of Final Appeal opined that “Where the legislature has enacted an absolute offence, the courts will not strike down the offence merely on the basis of a view that it would be preferable for the offence to admit of a defence of belief or reasonable belief.  The time may come when the legislature amends s.124 to provide some such defence.”[13]

25.  The Court of Final Appeal also said that “Imposing absolute liability is a strong course which the law is generally if not always reluctant to take. …… The deterrent effect of the criminal law is not confined to deterring people from doing what they know is unlawful.  It also encourages them to take care to avoid what may be unlawful. …… In the context of s.124, care to avoid what may be unlawful and steering well away from the line between legality and illegality would add materially to the protection for young girls which the section provides.”[14]

26.  The Court of Final Appeal pointed out that “Having regard to the vital importance of protecting young girls, and in all the circumstances, we feel unable to say that imposing absolute liability for ‘unlawful sexual intercourse with a girl under the age of 16’ is arbitrary.  It is a choice constitutionally open to the legislature.”[15]

27.  In the appeal case of So Wai Lun, apart from the judgment of the Court of Final Appeal, at the Court of Appeal stage, Ma CJHC (as he then was) undertook an interpretation of strict and absolute liability offences and provided detailed guidelines.

28.  In that case, the Court of Appeal pointed out that whether an offence was an absolute liability offence ultimately depended on the interpretation and construction of the laws concerned.  Most criminal statutes contain the presumption of mens rea, but this presumption can be negatived either expressly or by “necessary implication”.  The Court of Appeal applied English authorities to point out that necessary implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to the legislature.[16] The existence of the mens rea presumption is reinforced when the relevant criminal offence is a serious one.

29.  The Court of Appeal also considered the English House of Lords case of R v K.  In that case, the English House of Lords ruled that the prosecution was required to prove that the offender knew the female victim was underage or of an age lower than that prescribed by the law.  The Court of Appeal distinguished R v K.  The Court of Appeal pointed out that when considering whether the presumption of mens rea is displaced or removed, it is necessary for the court not only to look at the actual wording of the particular statutory provision but also its context within the relevant statute and also the legislative history.[17]

30.  Naturally the Hansard of the legislature and the legislative history of the relevant provision can strengthen the point on whether the presumption of mens rea is displaced in a provision.

31.  The prosecution set out in its skeleton submissions the legislative history of the offence of indecent assault under section 122.[18]

32.  It started from section 46 of the Offences Against the Person Ordinance 1865, which provided for the offence of rape, abduction and defilement of women.  Offenders were to be imprisoned for a term not exceeding two years.  In 1897, the offence of “indecent assault upon a  female” was included in section 7 of the Protection of Women and Girls Ordinance.  The relevant offence was referred to as a “misdemeanour”.  A provision stating that consent of the girl under the age of thirteen years would be no defence was also included.  The term of imprisonment was also under two years.

33.  In 1934, the age of the girl for the defence concerned under the above ordinance was raised from thirteen years to sixteen years.

34.  In 1951, the offence of “indecent assault” was included in the Protection of Women and Juveniles Ordinance, Cap. 213.

35.  In 1977, the offence of “indecent assault” was moved from Cap. 213 to Part XII of the Crimes Ordinance, Cap. 200 to present it in a “modern form”.  The provisions of section 122 were based on section 14 of the English Sexual Offences Act 1956.  The term of imprisonment was increased to 5 years.

36.  Two defences were added to section 122, which took effect from 1978: the defence of married couples stated in subsection (3) and the defence of having reasons to suspect the girl to be “mentally incapacitated” as stated in subsection (4). At the same time, regarding the offence of “unlawful sexual intercourse with a girl between the age of thirteen and sixteen”, the legislature did not include the “young men’s (sic) defence” in the ordinance as a defence.

37.  In 1991, the legislature decriminalised homosexual acts in private between consenting adults, and extended the scope of protection to cover males, and the term of imprisonment for indecent assault was increased to 10 years.  The significant increase in the term of imprisonment was to reflect the fact that each indecent assault case was different, and the psychological trauma inflicted on the victim could sometimes be of little difference from that inflicted by the offence of rape.[19]

38.  As the Court of Final Appeal and the Court of Appeal had analyzed and examined in So Wai Lun, the legislative history of the offence of indecent assault under section 122 was to protect females, especially underage girls and mentally incapacitated persons.  Two defences are included in section 122 regarding the offence of indecent assault, and for both defences the offender has to “know” or “believe on reasonable grounds”.  In section 122(2), the legislature only stated that “a person under the age of 16 cannot in law give any consent”, unlike in subsection (4) concerning “mentally incapacitated persons”, in which it set out the provision “if that person knew or had reason to suspect” the woman to be mentally incapacitated.  I am of the view that the legislature clearly had a reason for not including phrases like “know” or “have reasonable ground to believe” in the provision concerning “persons under the age of 16”.  The legislature doubled the term of imprisonment from 5 years to 10 years and strengthened the criminal liability element of the offence of indecent assault, which can further support the notion that the legislature in fact intended the offence under section 122, by necessary implication, to be one of absolute liability.

39.  I am of the view that this necessary implication is also consistent with Part XII (Sexual and related offences) of the Crimes Ordinance, which involves 25 sexual offences. Among them, 7 involve age limits, including homosexual buggery, gross indecency and sexual intercourse, etc.  This reflects that the legislature has not provided a defence of consent by a girl under the age of 16.

40.  Regarding this point, I also have to point out that there was no evidence in the trial indicating that the defendant had requested to verify the date of birth of the girl in the present case by checking her identity document.  Of course, I also have to accept the magistrate’s description of the girl, including her build, hairstyle and level of maturity.  The girl also had lied to the defendant about her age.[20]

41.  On the other hand, the prosecution also pointed out that, if the offence of indecent assault under section 122 was not one of absolute liability, then a situation of unreasonableness and absurdity would arise since it was ruled in So Wai Lun that the section 124 offence (offence of having intercourse with a girl under the age of 16) was one of absolute liability.  The reason was that the maximum sentence for indecent assault is 10 years, whereas the one for the offence of “having sexual intercourse with a girl under the age of 16” under section 124 is 5 years.  The latter, being an absolute liability offence, carries a lighter sentence.  As a matter of common sense, the harm done by or the consequences of intercourse should generally be more serious than indecent assault. Therefore, in the case of the female victim also being under the age of 16, if indecent assault is not an absolute liability offence, unreasonableness or absurdity would result.

42.  I agree with the prosecution’s view regarding Hin Lin Yee v HKSAR[21] and Kulemesin v HKSAR[22]. And the Court of Final Appeal also had reformulated five modified alternatives to examine whether the presumption of mens rea had been displaced or relevant issues, so as to determine whether the relevant offence was one of absolute liability.

43.  nbsp;               The prosecution also criticised the magistrate for not comprehending adequately the English case of R v K, which was the result of the relevant English legislation not being part of a single, coherent legislative scheme but rather the consequence of a “ragbag”[23] of legislation.  The prosecution also pointed out that the magistrate did not thoroughly understand the essence of the judgments of the Court of Appeal and the Court of Final Appeal in So Wai Lun.

44.  The defence, on the other hand, maintained that the offences under sections 14(1)-(4) of the English legislation (Sexual Offences Act 1956) were basically identical to those under sections 122(1)-(4) in Chapter 200 in Hong Kong.  It also took the view that the facts of the English case R v K were basically identical to the facts of the present case.  The English House of Lords had held that the prosecution had to prove  mens rea, and the presumption of mens rea was not displaced.

45.  The judgment of R v K was delivered in July 2001, and it has been thoroughly considered and accepted to a certain extent by the Court of Final Appeal in Hong Kong in Hin Lin Yee, Kulemesin and So Wai Lun.  I do not agree with the magistrate’s statement that “So Wai Lun…is a case about the offence of having intercourse with a girl under the age of 16, which is different from the offence in the present case.  That case has its own unique legislative history.  Also, the court in that case did not make it clear whether the relevant legal principle is applicable to other age-based sexual offences, such as indecent assault"[24].

46.  Of course, I am of the opinion that the nature of the offence under section 122 is different from that under section 124, and comparatively speaking, the offence of unlawful intercourse under section 124 should be more serious than the offence of indecent assault.  However, I take the view that the thorough analysis in So Wai Lun and its handling of the relevant legal issues can indeed provide guidance and a basis for argument.

47.  The Court of Appeal has repeatedly made it clear in appeals on charges of indecent assault that indecent assault cases often vary greatly in facts and come with different levels of gravity.  This also explains why its maximum imprisonment has been doubled to 10 years, which is twice as much as that for “having unlawful sexual intercourse with a girl under 16” under section 124.  Section 122(2) deliberately includes the consent factor of a person under the age of 16 regardless of gender, which illustrates clearly the legislature’s protection of minors.  The Court of Appeal made it clear in So Wai Lun that R v K was distinguishable and not applicable to the section 124 offence.  In the same vein, the legislature added a defence to section 122(4) in relation to mental incapacity, but did not make similar provision in relation to persons under the age of 16.  This likewise reflects the legislature’s intent and policy to protect minors.  The Court of Final Appeal also established in So Wai Lun the principle that “The deterrent effect of the criminal law is not confined to deterring people from doing what they know is unlawful.  It also encourages them to take care to avoid what may be unlawful.”  It also stated that, “In the context of section 124, carefully avoiding what may be unlawful and steering well away from the line between legality and illegality would add materially to the pursuit of the paramount objective, namely to protect young girls.”[25]

48.  I am of the view that the same principle and definite objective are also applicable to the indecent assault offence under section 122.  And the relevant punishment under sections 124 and 122 also indicate the right direction of their corresponding offences being ones of absolute liability, which can avoid unreasonableness or absurdity.

Conclusion

49.  For the above reasons, regarding the questions of law put forward by the prosecution, I hold as follows:

(1) Was the magistrate correct in holding that the ruling made by the English House of Lords in R v K was applicable to the present indecent assault case?

Finding: The English case is distinguishable and not applicable to the present case of indecent assault.

(2) Was the magistrate correct in holding that the offence of indecent assault was not one of absolute liability in respect of the victim’s age?

Finding: Incorrect.

50.  Therefore, based on my relevant rulings in this case stated, I, by exercising the power under section 119(1)(d) of the Magistrates Ordinance, remit the case to the trial magistrate and direct that the defendant be convicted of the offence of indecent assault.

51.  I am also of the view that the magistrate has already heard the relevant evidence and the defendant should have had the opportunity to advance his mitigation, thus I direct that the magistrate shall pass an appropriate sentence after convicting the defendant.

52.  On the basis of my ruling and in response to the prosecution’s application, I also set aside the trial magistrate’s order for costs.

53.  In addition, since my ruling in this case stated will have a bearing on the defendant (the respondent) and the handling of similar cases in future, and I also believe that there will be subsequent developments in this case, therefore, if necessary, I shall make prompt arrangements to fix a date for matters relating to the present case.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.