HKSAR v. LEE KIN SAN

[English Translation - 英譯本]
CACC 111/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 111 OF 2006

(ON APPEAL FROM HCCC 351 OF 2004)

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REASONS  FOR  JUDGMENT

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Hon Cheung JA (giving the Reasons for Judgment of the Court):

Appeal against Sentence

1. The Applicant faced 5 charges, three of which (Charges 1, 2 and 4) were of unlawful sexual intercourse with a girl under 16, contrary to section 124(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong (“the Ordinance”); and the remaining two (Charges 3 and 5) were of buggery with a girl under 21, contrary to section 118D of the Ordinance.

2. The Applicant was convicted on all the charges after trial before Deputy High Court Judge Poon and jury and was sentenced to 4 years’ imprisonment.  Deputy Judge Poon sentenced him to 18 months’ imprisonment for each of Charges 1, 2 and 4 (the unlawful sexual intercourse charges) and 3 years’ imprisonment for each of Charges 3 and 5 (the unlawful buggery charges).  The sentences for Charges 3 and 5 were to run concurrently whereas 4 months of the sentence for each of Charges 1, 2 and 4 were to run consecutively to the other sentences, making a total of 4 years’ imprisonment.  The Applicant now applies for leave to appeal against sentence out of time.

The Facts

3. At the material times, the victim involved in the 5 charges was a girl aged 15 and the Applicant was aged 19.  On 18 December 2003, they had their first sexual intercourse (Charge 1).  Thereafter, between 1 March and 30 April 2004, they had sexual intercourse once and anal intercourse once (Charges 2 and 3).  Later, on 26 July 2004, they had sexual intercourse once and anal intercourse once (Charges 4 and 5).  They had their first sexual intercourse 4 days after their acquaintance.

The Ordinance

4. Section 118D of the Ordinance states that: “A man who commits buggery with a girl under the age of 21 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.”

5. Section 124(1) of the Ordinance states that: “… a man who has unlawful sexual intercourse with a girl under the age of 16 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years”.

The Applicant’s Arguments

6. Mr. David Ma, Counsel for the Applicant on assignment by the Free Legal Service Scheme of the Hong Kong Bar Association, submits that according to Leung v. Secretary for Justice [2006] 4 HKLRD 211, anal intercourse between homosexual men should be regarded as equivalent to vaginal intercourse between heterosexuals.  On this basis, anal intercourse between a man and a woman was also a form of sexual intercourse between them, and therefore, the maximum penalty of life imprisonment prescribed by section 118D for the offence of buggery is grossly disproportional to the one of 5 years’ imprisonment prescribed by section 124(1) for the offence of unlawful sexual intercourse.

7. However, Mr. Ma does not intend to challenge the constitutionality of the penalty under section 118D.  He only asks that the sentence imposed for the offence of buggery be equivalent to that imposed for unlawful sexual intercourse.  He submits that Deputy Judge Poon erred in saying that the section 118D offence was far more serious than the section 124(1) offence.

Leung v. Secretary for Justice

8. In Leung v. Secretary for Justice, the issue before the Court of Appeal (Hon Ma CJHC, Woo VP and Tang JA (as he then was)) was whether section 118C of the Ordinance was contrary to the Basic Law and the provisions on equality in the Hong Kong Bill of Rights.

9. Section 118C provides that:

                   A man who ―  

(a)   commits buggery with a man under the age of 21; or

(b)   being under the age of 21 commits buggery with another man,

                        shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.

10. The Court of Appeal held that section 118C was discriminatory against homosexual men.  The Court pointed out that for heterosexuals, the form of sexual intercourse open to them was “vaginal intercourse”, but the only form of sexual intercourse available to homosexual men was anal intercourse.  At law, anal intercourse was a form of sexual intercourse, and therefore section 118C, which rendered anal intercourse between homosexual men an offence, was discriminatory against those people.

Discussion

11. Although the aforesaid case dealt with the issue of anal intercourse between homosexual men, the Court of Appeal did point out that anal intercourse at law defined as a form of sexual intercourse, and this definition can also apply to anal intercourse between a man and a woman.  The cases cited in Leung v. Secretary for Justice show that the law supports rather than rejects such an interpretation: see paragraph 47 of the judgment therein.

12. The common law system is a dynamic legal system, characterized by its ability to adapt to changing circumstances and its flexibility in interpreting established legal principles so that they can apply to the actual situation in question.  Even if the maximum penalty prescribed by the Ordinance for a certain form of sexual intercourse is higher than that for another form of sexual intercourse, as the current legal definition of sexual intercourse encompasses various forms of intercourse, the court should not increase the sentence merely because the offence in question is buggery.  The court should determine an appropriate sentence in light of the facts of the particular case and, in the process, take into account factors such as: whether there is a wide age gap between the defendant and the victim; whether the defendant is in a position to control the victim’s mind or direct the victim in her acts, e.g. being her employer, teacher or relative; whether the defendant has exerted an intangible influence on the victim, thereby obtaining her consent to have anal intercourse with him; and whether the defendant inflicted violence on the victim or made her feel unwell or hurt during the anal intercourse.

13. We consider the sentence of 18 months’ imprisonment imposed by Deputy Judge Poon on the Applicant for the offence of unlawful sexual intercourse to be appropriate.  Regarding the sentence for the offence of buggery, we are of the view that none of the factors mentioned in paragraph 13 (sic) above existed in the present case.  The present case does not involve the victim being seduced by an older man into having sexual intercourse.  The Applicant and the victim were of a similar age, and the victim had a lot of boyfriends before her acquaintance with the Applicant.  In these circumstances, the sentence for the offence of buggery can in our view be the same as that for unlawful sexual intercourse, i.e. 18 months’ imprisonment.  It has to be pointed out that the judgment of Leung v. Secretary for Justice was handed down after Deputy Judge Poon imposed the sentence in question.  

14. Pursuant to sections 124(1) and 118D of the Ordinance, even where a girl under 16 consents to have sexual intercourse or a girl under 21 consents to have buggery, the person who has sexual intercourse with her still commits the relevant offence.  The objective of section 124(1) is to protect underage girls as they are only physically mature but not mentally so.  The law has to protect these girls who do not know how to protect themselves.  As for section 118D, leaving aside the dispute arising from the difference between the age of 21 as prescribed by the section and the age of 18 being the statutory age of majority, those who enjoy protection under the Ordinance certainly include young girls who do not know how to protect themselves.

15. The victim in the present case was only 15 at the material times.  Although she did not mind having sexual intercourse with the Applicant, she certainly had to be protected by the law.  The two of them had also done other acts, for example, the Applicant had dripped some melted wax onto the girl’s body and inserted a hard object into her anus.  Although there is no evidence to show that these acts were forced upon the girl or had injured her, we must adhere to the principle that underage girls should be protected.  In light of this, and taking into account the Applicant’s clear record, we hold that the total sentence should be 2½ years’ imprisonment.

16. We grant leave to the Applicant to appeal against sentence out of time and, treating the hearing of the application as the appeal, we allow the appeal and vary the total sentence to 2½ years’ imprisonment with the individual sentences varied as follows: the sentence for each charge shall be 18 months’ imprisonment.  The sentences for Charges 1, 2 and 4 are to run concurrently.  The sentences for Charges 3 and 5 are also to run concurrently, but 12 months thereof are to be served consecutively to the 18 months for Charges 1, 2 and 4, making a total term of 2½ years.

17. We consider it necessary for the Secretary for Justice to conduct a review on the current discrepancy between section 118D and section 124(1) as soon as possible.