HKSAR v. HUNG SZE HO

HCCC 21/2023

[2024] HKCFI 625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 21 OF 2023

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REASONS FOR DETERMINATION
ON PRELIMINARY QUESTIONS OF LAW

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1.  In this trial, the Defendant faced two charges:-

(1)  “Indecent conduct towards a child under the age of 16 years”, contrary to Section 146(1)  of the Crimes Ordinance, Cap 200 (“1^st Count”); and

(2)  “Homosexual buggery with a man under the age of 16 years”, contrary to Section 118C(a)  of the Crimes Ordinance, Cap 200 (“2^nd Count”).

2.  Before the trial, in relation to the two charges, the defence raised preliminary questions of law in relation to sections 118C and 146 of the Crimes Ordinance, Cap 200. The questions are as follows: 

(1)  Whether the “Kulemesin alternatives” apply to s. 118C, i.e. homosexual buggery with or by man under 16?  In particular, does the third alternative apply such that it would be a defence if the defendant can on the balance of probabilities prove an honest and reasonable belief that X was aged 16 or more? (“Question 1”)

(2)  Whether the “Kulemesin alternatives” apply to s. 146, i.e. indecent conduct towards a child under 16?  In particular, does  the third alternative apply such that it would be a defence if the defendant can on the balance of probabilities prove an honest and reasonable belief that X was aged 16 or more? (“Question 2”)

3.  On behalf of the defendant, Mr Franco Kuan and with him, Mr Ivan Suen relies on the decision of CFA in HKSAR v Choi Wai Lun [2018] HKCFA 18 (“Choi Wai Lun”)  and submits that the third alternative basis of criminal liability which was first laid down in the case of Hin Lin Yee v HKSAR (2010)  13 HKCFAR 142 and later re-formulated in Kulemesin v HKSAR (2013)  16 HKCFAR 195 (“Kulemesin”)  should be applicable to the above two questions.

4.  In Kulemesin, the five possible bases of criminal liability alternative are stated as follows:

(1)  Mens rea presumption persists and the prosecution must prove knowledge, intention or recklessness as to every element of the offence (1^st Alternative);

(2)  The prosecution need not set out to prove mens rea, but if there was evidence capable of raising a reasonable doubt that the defendant might have acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, liability would not attach, he must be acquitted unless the prosecution proved beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief (2^nd Alternative);

(3)  The presumption has been displaced so that prosecution need not prove mens rea but that the accused has a good defence if he can prove on the balance of probabilities that he acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, he would not be guilty of the offence (3^rd Alternative);

(4)  The presumption has been displaced and that the accused is confined to relying on the statutory defences expressly provided for, the existence of such defences being inconsistent with the second and third alternatives mentioned above (4^th Alternative); and

(5)  The presumption is displaced, and the offence is one of absolute liability (5^th Alternative).

5.  In Choi Wai Lun, the CFA held that an offence contrary to s 122 (1)  of the Crimes Ordinance, Cap 200 i.e. indecent assault is not an offence of absolute liability and after considering the five possible bases of criminal liability as re-formulated in Kulemesin, it was held that the 3^rd Alternative was applicable to the offence. It was therefore a defence to consensual conduct amounting to indecent assault on an under-aged girl if the defendant held an honest and reasonable belief that the girl was aged 16 or above.

The Two Questions before me

6.  I note that in relation to the two offences with which the defendant is charged, both s. 118C and s. 146 offences are age-related sexual offences and it is clear that the purpose of these two offences is to protect the under-aged person and the purposes of these two offences, like the effect of the deeming provision in s. 122(2), is to expressly deprive person under the age of 16 of the capacity to consent.  It operates to makes an indecent conduct towards such a person or a buggery with such a person unlawful even though the evidence clearly establishes that there was consent in fact.

7.  Applying the analysis of Choi Wai Lun in relation to s. 122, similarly in the present two offences that are fallen to be decided, the age of the victim therefore form part of the actus reus of the offence and thus engages the presumption of mens rea.

8.  In deciding that the presumption of the mens rea is displaced in respect of indecent assaults on persons under the age of 16, Ribeiro PJ observed that:

“   38… .  The long-standing approach of our courts has been to implement such protection by construing age-related sexual offences as requiring potential defendants to take care “to avoid what may be unlawful and steering well away from the line between legality and illegality”, holding that this “would add materially to the protection for young girls” provided for by the relevant statute.  Some of those decisions were arrived at before the development of intermediate bases of liability and led to conclusions in favour of absolute liability, indicating the force of that policy.  The existence of intermediate options does not affect its continuing vitality.  The statutory purpose would plainly be compromised if the presumption of mens rea is not dislodged in respect of the girl’s age and the prosecution were required to disprove, beyond reasonable doubt, any claim made by the defendant that he honestly believed that she was aged 16 or over. ”

9.  For the same reason, I see no reason why the presumption of the mens rea should not be displaced in respect of both s. 118C and s. 146 offence.  The question to be decided is only “displaced by which Kumelesin altenative?”.

Question 2

10.  In my analysis, I shall first deal with the interpretation of s. 146 since for Question 2, as it is now common ground between the parties that the 3^rd Kumelesin alternative should apply to Count 1 following the decision in Choi Wai Lun.  Mr Michael Arthur prefaced his submission by conceding, on behalf of the prosecution, to the argument by the defence in relation to the s. 146 offence.

11.  In support of their argument, the defence relies on the wordings of s. 146(2)  which is a similar deeming provision of s. 122(2)  and which also has the effect to eliminate the consent as an ingredient from the actus reus and mens rea of the offence.  Also, the statutory maximum sentence upon conviction for both offences on indictment is imprisonment for 10 years.

12.  After careful consideration, as a matter of statutory interpretation, I find both s. 122 and s. 146 offences are so similar after examining the statutory language, the nature and the subject-matter of the offence, the legislative purpose and the statutory intent of the two offences and I come to the conclusion that based on the reasoning of Choi Wai Lun, the 3^rd Kulemesin alternative should likewise apply to an offence under s. 146.

13.  In other words, it should be a defence to indecent conduct towards a child under 16 if D2 proves on the balance of probabilities that he honestly and reasonably believed that X was aged 16 or more.

14.  The answer to Question 2 is “Yes”.

Question 1

15.  As to Question 1, in relation to s. 118C offence, Mr. Arthur contends, on behalf of the prosecution, that the 5^th Kulemesin alternative should apply in relation to the age element of the offence whereas Mr. Kuan and with him, Mr. Suen, both argue, on behalf of the defendant, that the 3^rd Kulemesin alternative should also be equally applied to an offence under s. 118C.

16.  In his submission, Mr. Arthur only relies on the Court of Appeal’s decision in So Wai Lun v HKSAR (2006)  9 HKCFAR 530 in which it was held that the offence under s. 124 of the Crimes Ordinance (i.e. “unlawful sexual intercourse with the girl under the age of 16”)  is one of absolute liability.  The prosecution contends that it is still a binding decision on the lower courts in Hong Kong.

17.  By comparing the nature of s. 124 and s. 118C offence, the prosecution submits that “buggery with a man under the age of 16” is comparable to “unlawful sexual intercourse with a girl under the age of 16” in that both offences involve intercourse and buggery is just a particular form of sexual intercourse.

18.  It is further submitted by Mr Arthur that the age of consent at the benchmark of 16 should be respected.  The defence of honest and reasonable belief in relation to the age of the victim is contrary to the statutory purpose and the legislative intent of the offence.

19.  In his submission, Mr. Arthur, however, made no mention of the CFA decision in Choi Wai Lun at all. In fact, in that case, Ribeiro PJ held when discussing absolute liability that:

“   41.  Absolute liability is primarily imposed for what are essentially regulatory offences rather than serious criminal offences, and then only where some useful purpose (such as encouraging preventive safety measures)  may be served by the imposition of such liability. As was made clear in Hin Lin Yee and Kulemesin, before concluding that an offence is one of absolute liability, it is necessary to consider whether the statutory purpose can sufficiently be met by construing it as laying down a less Draconian, intermediate form of liability.  Absolute liability should only be resorted to if the answer is in the negative.” (emphasis added)

20.  It should be noted that no doubt s. 118C is exactly a serious criminal offence.

21.  In so far as the validity of the Court of Appeal’s decision in So Wai Lun is concerned, Ribeiro PJ observed that: -

“   47.  the Court of Appeal’s judgment in So Wai Lun was delivered before the recognition of intermediate bases of liability (in Hin Lin Yee and Kulemisin)  … once the Court of Appeal held that the presumption of mens rea was displaced, it concluded that the offence was “accordingly” one of absolute liability.  It was a decision reflecting the stark choice then available between full mens rea and absolute liability.”

22.  It is important to note that Ribeiro PJ actually had expressed the following observation that:

“   48.  If that case (So Wai Lun) had been decided today, the Court would have proceeded to consider whether the statutory purpose of the offence could be sufficiently met by construing section 124 as laying down an intermediate mental requirement in place of full mens rea.  It seems entirely possible that a different conclusion would have been reached since the Court was much troubled by its having to decide in favour of absolute liability.  This was because its decision logically meant that an offence under section 123, (i.e. “unlawful sexual intercourse with a girl under the age of 13”)  is punishable by life imprisonment, ought also to be construed as one of absolute liability.”

23.  Based on the recent development of the cases and especially the reasoning of CFA in Choi Wai Lun, it follows that the position and the reasons adopted by the prosecution in Question 1 is now questionable and may even be untenable.

24.  In terms of statutory language, I can see that both s. 118C and s. 124 (1)  are also strikingly similar.  Unlike s. 122 and s. 146 where a deeming provision in relation to consent is created, s. 118C directly prohibits a male to commit buggery with a male under the age of 16 whereas s. 124 (1)  prohibits a man who has unlawful sexual intercourse with a girl under the age of 16.  Both sections operate directly to make the prohibited acts as an offence even though the evidence clearly establishes that there was consent in fact.  If anything, the only difference between the two provisions is the gender and that is why the defence submits that if I were to conclude that the third Kulemesin alternative be applied to s. 124, the same approach should be adopted in relation to s. 118C to reconcile the two provisions in a gender-neutral way.

25.  In Choi Wai Lun, the Court of Final Appeal was also of the view that the third Kulemisin alternative passes the rationality and proportionality test in that it strikes a reasonable balance between the societal benefits promoted and the inroads made into the constitutionally protected presumption of innocence and that it does not place an unacceptably harsh burden on the individual.

26.  Considering the matter in the round, all the above-mentioned offences may be different, but they are all age-related sexual offences under the Crimes Ordinance, Cap 200 with a very similar legislative intent and purpose.  Absent any express provision to the contrary, I do not see why a different approach has to be adopted to interpret different provision especially when the statutory language of the provisions are so similar.

27.  Based on the reasoning of Choi Wai Lun, if the third Kulemisin alternative is to be applied to s. 124, based on the statutory language of s. 118C which is analogous to s. 124, both offences should equally be construed as having displaced a full mens rea with an intermediate mental requirement (being the third Kulemesin alternative)  especailly because s. 118C is a serious criminal offence so that it is less draconian.  It is also more consistent with the view expressed in Choi Wai Lun that a balance has to be struck between the imposition of a reverse onus and the defendant’s right to be presumed innocent.

28.  In other words, it follows that I agree with the defence submission that it should be a defence to (consensual)  homosexual buggery if the defendant proves on the balance of probabilities that he honestly and reasonably believed that X was aged 16 or more.

29.  The answer to Question 1 is “Yes”.