HKSAR v. WONG KA KI

CACC 60/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 60 OF 2012

(ON APPEAL FROM DCCC 974 OF 2011)

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REASONS FOR JUDGMENT

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Hon Line J (giving the reasons for judgment of the court):

1. This is an application for leave to appeal against a conviction on 18 January 2012 for procuring another person to do an unlawful sexual act by false pretences, contrary to section 120 of the Crimes Ordinance Cap 200, and also for leave to appeal the sentence of four and a half years’ imprisonment.

2. On 12 September 2013 we allowed the application for leave, treated the application as the hearing of the appeal and quashed the conviction, saying we would give our reasons later.  This we now do.

3. The trial took place before Deputy District Judge So in the District Court.  The only witness to give evidence was the alleged victim, referred to as Miss X, who was at the time a sixteen and a half year old schoolgirl.

4. The particulars of the charge read thus:

“On the 26 May 2011, in Hong Kong, procured a girl X to do an unlawful sexual act with himself in Hong Kong, namely unlawful sexual intercourse, by falsely pretending or representing to X that by doing such unlawful sexual act:

(i) His vehicle displaying registration mark JU 735 would be repaired; and

(ii) harmful substance would be released from his body.”

5. The charge arose from events on 26 May 2011 when Miss X was lured by the appellant to board his lorry after which he drove her to a secluded spot where on the promise of money and the pretext of repairing defects to the lorry, he had her remove her clothes and perform various acts of lewdness which eventually culminated in her agreeing to sexual intercourse.

6. The judge did not find that Miss X took part in the sexual intercourse because she believed the vehicle would be repaired.  She had said in cross‑examination that such was not the case.  However, he did find (at paragraph 42 of the Reasons for Verdict) that she agreed to sexual intercourse because she believed the appellant’s claim that harmful substances would be released from his body.

7. The first ground of appeal claims that the judge wrongly concluded that the appellant had made a false representation to Miss X and that Miss X had believed that misrepresentation.

8. The ground is based upon clear evidence from Miss X to the effect that the appellant had explained, and she understood, that by “the release of harmful substance” he was referring to ejaculation.

9. It is thus that particular (ii) of the false pretences (“harmful substances would be released from his body”) alleged no more than a representation that sexual intercourse would result in or aid ejaculation.

10. It appears to us that the submission is well founded.  Telling Miss X that sexual intercourse would result in ejaculation was not false and it did not procure her to have sexual intercourse.

11. Is the conviction saved by the finding made by the judge that the representation was coupled to a claim that the release of harmful substances/ejaculation would restore strength to the appellant’s legs and so enable him to drive and so allow her release?  This was the way counsel for the respondent put his case when asked in argument to say what the operative deception was.

12. There was no application to amend the charge.  The falsity is different.  In the face of the charge as it stood, the appellant elected not to give evidence.  Accordingly, we are of the view that the conviction cannot be saved by looking for support on the basis of different falsity.  If the charge had included this extra dimension then we have no doubt that there would have been cross‑examination directed to examining the claim that ejaculation could restore power to the legs.  The case for the defence was conducted on the narrow basis that the prosecution had failed to establish their particularised false pretences or representations.  The cross‑examination was limited to that.

13. Further, the judge made it clear in his findings that Miss X “agreed to the eventual sexual intercourse for she knew as long as harmful substance be released from the appellant’s body, the appellant can drive her home.  This was the only thing she wanted.  She did not want money any more.  She just wanted to go home.  She made it clear to the appellant.  Appellant knew it.  Appellant used it.” (47E).  Indeed in re‑examination she said “I wanted to go home so I did it”.  Of course, his promise to release her after sexual intercourse was never shown to be false as that is what happened.

14. Given that Miss X had spent three and a half hours in the applicant’s lorry, was naked and without access to her clothes, had lost her desire for money, felt shameful and had done things she found to be nauseating, it is not surprising that the judge found it was her desire to go that led her to agree to the sexual intercourse.  The evidence revealed that when she had told the appellant that she did not want the money anymore and just wanted to go home, he had replied “I also want to let you go.  But you have to give it to me first.”

15. It appears to us that the agreement to sexual intercourse had little or nothing to do with any belief by Miss X about detoxification by ejaculation leading to renewed vigour in the legs, but had everything to do with ending her frightening and wretched situation.  It also appears to us that the appellant should have been charged under section 119 of the Crimes Ordinance with procuring another, by threats or intimidation, to do an unlawful sexual act.  Counsel for the respondent conceded that was so.

16. A submission of no case was made and it commenced on the simple basis that there was no deception.  It went on to deal with other matters, but nonetheless both the prosecutor and the Judge were put on notice of the point.  It was with considerable dismay that we see from the transcript that the simple point evaded them.  Better was to be expected.

17. In a similar vein we were not impressed by the application made to us, following our decision to quash the conviction, to order a retrial on an indictment charging the appellant with procuring another, by threats or intimidation, to do an unlawful sexual act contrary to section 119 of the Crimes Ordinance.  The terms of section 83E of the Criminal Procedure Ordinance Cap 221, the source of this court’s power to order a retrial, simply does not allow it.  The respondent’s remedy, if they seek a trial now charging that offence, is to go for trial of it.  There is no necessity for an order of retrial as the appellant was never in jeopardy of conviction under section 119.  We point this out to explain the limit of this court’s power and not to express any view as to whether such a course should be undertaken.  It is not a matter for us.

18. The application then turned to asking for retrial of the original section 120 offence, with the prospect of asking the trial Judge to amend the particulars.  We refused it.  We contemplated that, even making all due allowances for naivety, a claim that the sexual intercourse was related to some true belief in the restorative power of ejaculation to a leg condition when the appellant had so recently been able to drive the lorry, was amenable to challenge as being a false pretence or representation that procured the sexual intercourse, when the witness was most likely to agree that the true reason she submitted to it was her desire to get away from the lorry and the appellant.  We bore in mind, although it was not determinative, that the appellant had served almost two years of his four and a half year sentence, concerning which the respondent had indicated no opposition to the claim that it was excessive.

19. We did not lose sight of the fact that there was unchallenged evidence of appalling behaviour by the appellant.  Nonetheless, we acceded to the application that he have his costs here and below, to be taxed if not agreed.  The costs of the appeal were conceded.  We awarded the costs of the trial as fault lay entirely with the prosecution. The submission of no case told them that their particulars were not made out by evidence and should have told them that they had the wrong charge.  A moment’s clear thought would have prompted an application for amendment.  This was not a technicality, but a fundamental and obvious failure to prosecute a serious case properly.