SO WAI LUN v. HKSAR

FACC No. 5 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

 FINAL APPEAL NO. 5 OF 2005 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 39 OF 2004)

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J U D G M E N T

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Chief Justice Li:

1.  I agree with the joint judgment of Mr Justice Bokhary PJ and Mr Justice Chan PJ.

Mr Justice Bokhary PJ and Mr Justice Chan PJ:

2.  Two lines of argument have been put forward by Mr Philip Dykes SC for the appellant.  The appeal is against a conviction for unlawful sexual intercourse with the girl under the age of 16, contrary to s.124 of the Crimes Ordinance, Cap. 200.  This section reads:

“(1) Subject to subsection (2), 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.

 (2) Where a marriage is invalid under section 27(2) of the Marriage Ordinance (Cap. 181) by reason of the wife being under the age of 16, the invalidity shall not make the husband guilty of an offence under this section because he has sexual intercourse with her, if he believes her to be his wife and has reasonable cause for the belief.”

3.  Initially the complaints raised by Mr Dykes on the appellant's behalf included a complaint of an infringement of his presumption of innocence as guaranteed by art. 87 of our constitution the Basic Law and art. 11(1) of the Bill of Rights as entrenched by art. 39 of the Basic Law.  Eventually, however, the complaints advanced were of inequality and arbitrariness.

First line of argument: inequality

4.  Shortly stated the first line of argument put forward on the appellant's behalf is that s.124 is unconstitutional because, for the act of both, it criminalises the conduct of the male to the exclusion of the female.  This, it is argued, deprives the male of the equality before the law guaranteed by art. 25 of the Basic Law and art. 22 of the Bill of Rights as entrenched by art. 39 of the Basic Law.  

5.  Article 25 of the Basic Law provides that “[a]ll Hong Kong residents shall be equal before the law”.  And art. 22 of the Bill of Rights provides:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

6.  The essence of the complaint under the first line of argument is inequality.

Circumstances of the case

7.  Before the second line of argument put forward on the appellant's behalf can be properly understood, it is necessary to say something about the circumstances of the case.  These are, shortly stated, as follows.  On 28 July 2002 the appellant, then aged 25, had sexual intercourse with a girl then aged 13.  That led to his being charged under s.124 with unlawful sexual intercourse with a girl under the age of 16.  He was tried in the Magistrate's Court. 

8.  Following legal submissions, the magistrate (William Ng, Esq) ruled that it would be a defence if the appellant were to prove on a balance of probabilities that he did not know and had no reason to suspect that the girl was under the age of 16. 

9.  The appellant then gave evidence in support of this defence.  And the magistrate found that the appellant had proved on a balance of probabilities that he did not know and had no reason to suspect that the girl was under the age of 16.  On that finding of fact and on the view of the law reflected in his ruling, the magistrate acquitted the appellant.

10.  Dissatisfied with the magistrate's ruling on the law, the prosecution appealed against the acquittal by way of case stated.  The questions posed in the case stated were:

“(1) WHETHER I was correct in holding that for a charge of unlawful sexual intercourse with a girl under the age of 16 pursuant to section 124 of the Crimes Ordinance, it is a defence if the defendant proves on a balance of probabilities that he did not know and had no reason to suspect that the girl was under the age of 16.

 (2) WHETHER I was correct in holding that for all age-based sexual offences, it is a defence if the defendant proves on a balance of probabilities that he did not know and had no reason to suspect that the person was under the prescribed age.

 (3) WHETHER I was correct in acquitting [the defendant] in this case.”

11.  The Court of Appeal (Ma CJHC, Stuart-Moore VP and Lunn J), to whom the appeal had been referred by the High Court, allowed the appeal to: (i) answer questions (1) and (3) in the negative and (ii) remit the matter to the magistrate with a direction to convict and pass an appropriate sentence.  Question (2) was not answered (because the parties accepted, and the Court of Appeal held, that it did not arise on the facts of the present case).

12.  Pursuant to the remitter and direction, the magistrate convicted the appellant.  He sentenced the appellant to four months' imprisonment suspended for two years.

Second line of argument: arbitrariness

13.  We turn now to the second line of argument put forward on the appellant's behalf, which would arise if the first line of argument put forward on his behalf were to fail. 

14.  Mr Dykes says that if the first subsection of s.124 could be construed in isolation, then, even without resort to any constitutional right or freedom, the offence under the section would fall to be regarded as one of strict, but not absolute, liability.  So it would be a defence for the accused to prove on a balance of probabilities that he believed that the girl was aged 16 or older.  Alternatively and at worst from the accused's point of view, it would be a defence for him to prove on a balance of probabilities that he reasonably believed that the girl was aged 16 or older. 

15.  But the first subsection of s.124 does not stand in isolation.  And Mr Dykes concedes that, as a pure matter of statutory construction, s.124's legislative history and its second subsection leads inescapably to the conclusion that the offence under the section is one of absolute liability.  However, moving beyond pure statutory construction, he argues that there are constitutional guarantees which force a defence upon s.124.  This is, he argues, a defence to be made out by the accused on a balance of probabilities consisting of belief or, at worst from the accused's point of view, reasonable belief that the girl was aged 16 or older. 

16.  Absolute liability under s.124 is, Mr Dykes argues, not only harsh but harsh to no useful purpose since the criminal law does not deter people from doing what they believe to be lawful.  That is the essence of the second line of argument put forward on the appellant's behalf.  We will examine this argument in due course.  But first we will look at the  constitutional rights and freedoms invoked for its purposes.

17.  These are rights and freedoms which the Basic Law enumerates and ones which, through art. 39, it incorporates by entrenching the Bill of Rights.  They are: (i) freedom of the person and freedom from arbitrary or unlawful arrest, detention or imprisonment under art. 28 of the Basic Law; and (ii) the right to liberty and security of the person and freedom from arbitrary arrest or detention under art. 5(1) of the Bill of Rights. 

18.  Article 28 of the Basic Law provides:

“The freedom of the person of Hong Kong residents shall be inviolable.

No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.”

And art. 5(1) of the Bill of Rights provides:

“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

19.  The essence of the complaint under the second line of argument is arbitrariness.

Complaint of inequality

20.  The complaint of inequality leveled against s.124 is, as we have said, that for the act of both, the section criminalises the conduct of the male to the exclusion of the female.  Dealing with equality, Bokhary J (as he then was) said this in R v. Man Wai-keung (No. 2) [1992] 2 HKCLR 207 at p.217: 

“Clearly, there is no requirement of literal equality in the sense of unrelentingly identical treatment always. For such rigidity would subvert rather than promote true even-handedness. So that, in certain circumstances, a departure from literal equality would be a legitimate course and, indeed, the only legitimate course. But the starting point is identical treatment. And any departure therefrom must be justified. To justify such a departure it must be shown: one, that sensible and fair-minded people would recognise a genuine need for some difference of treatment; two, that the difference embodied in the particular departure selected to meet that need is itself rational; and, three, that such departure is proportionate to such need.”

That was said in the course of holding that a statutory provision was inconsistent with the Bill of Rights because it took away the power to award costs to the defence whenever a retrial is ordered. 

21.  We turn now to the decisions of the United States Supreme Court in Michael M v. Superior Court of Sonoma County 450 US 464 (1980), of the Supreme Court of Canada in R v. Nguyen (1990) 59 CCC (3d) 161 and of the Supreme Court of Ireland in CC v. Ireland [2006] IESC 33. 

22.  Michael M's case concerned California's statutory rape law.  That law defined unlawful sexual intercourse as “an act of sexual intercourse with a female not the wife of the perpetrator, where the female is under the age of 18 years”.  Thus males but not females were made criminally liable.  By a 5:4 majority it was held that the law did not violate the equal protection clause of the fourteenth amendment of the United States Constitution.

23.  Nguyen's case concerned s.146(1) of the Canadian Criminal Code.  That section provided that every male person who has sexual intercourse with a female person who is not his wife, and is under the age of 14 years, whether or not he believes that she is 14 years of age or more, is guilty of an indictable offence and is liable to imprisonment for life.  It was however subject to a requirement, laid down elsewhere in the legislation, that the accused must be older than the complainant.  Four sections of the Canadian Charter of Rights and Freedoms were considered, namely, sections 1, 7, 15 and 28 which provide:

“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

·····

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

·····

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

·····

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”

24.  As to liberty, all seven judges held that s.146(1) of the Code infringed s.7 of the Charter.  Five of them held that s.146(1) of the Code was not, while two of them held that it was, saved as a reasonable limit under s.1 of the Charter.

25.  Then, as to equality, four judges held that s.146(1) of the Code did not infringe s.15 of the Charter.  Three judges held that s.146(1) of the Code did infringe s.15 of the Charter but was saved as a reasonable limit under s.1 of the Charter.  None of the judges treated s.28 of the Charter as relevant.

26.  CC's case concerned s.1(1) of Ireland's Criminal Law (Amendment) Act 1935.  That section provided:

“Any person who unlawfully and carnally knows any girl under the age of fifteen years shall be guilty of a felony, and shall be liable on conviction thereof to penal servitude for life or for any term not less than three years or to imprisonment for any term not exceeding two years.”

Michael M's and Nguyen's cases were discussed, but the decision in CC's case did not turn on equality.  It was held that the form of absolute liability provided in s.1(1) of the 1935 Act was, in all the circumstances, inconsistent with the Irish Constitution.  And - in a strongly worded judgment which we bear in mind even more on the question of arbitrariness than on that of inequality - it was declared that that subsection was inconsistent with the provisions of that constitution.

27.  We have examined the reasoning behind the majority and minority views in Michael M's case.  And we have examined the reasoning in Nguyen's case, both for the view that equality was not infringed and for the view that it was infringed but justifiably so.  Various considerations were canvassed.  These included: the problem of teenage pregnancies; not criminalising the female's conduct because that might deter her from reporting the matter; the legislature's role in resolving issues engaging society's code of sexual morality; and the extent to which it was for the legislature to form a view on issues such as whether the initiative in these matters is generally taken by the male, often older than the female, sometimes very considerably so.

28.  Considerations of that kind are ones which the legislature are entitled to take into account and weigh.  In our view, the legislation under challenge, while it departs from identical treatment, is justified by reference to genuine need, rationality and proportionality.  It does not violate the equality guarantees of the constitution.  In so holding we are not deferring to the legislature.  Rather are we acknowledging the legislature's proper role.

29.  Accordingly the complaint of inequality fails.

Complaint of arbitrariness

30.  We now turn to consider the complaint of arbitrariness.  The essence of this complaint lies, as we have indicated, in Mr Dykes's argument that absolute liability under s.124 is not only harsh but harsh to no useful purpose since the criminal law does not deter people from doing what they believe to be lawful. 

31.  Arbitrariness was the basis of the constitutional challenges which this Court adjudicated upon in Lau Cheong v. HKSAR (2002) 5 HKCFAR 415.  Two laws, one a rule of common law and the other a statutory provision, were attacked as unconstitutional for arbitrariness. 

32.  The common law rule was the one that intent to cause grievous bodily harm i.e. really serious injury sufficed for murder.  And the statutory provision was s.2 of the Offences Against the Person Ordinance, Cap. 212, which lays down a mandatory sentence of life imprisonment for murder. 

33.  It was held that neither the “grievous bodily harm” rule nor mandatory life imprisonment for murder were arbitrary; and both were pronounced constitutional.

34.  In arriving at those conclusions the Court in Lau Cheong's case examined what arbitrariness entails.  This was done at pp 434C – 436B.  The Court noted what the United Nations Human Rights Committee said in Hugo van Alphen v. Netherlands (Communication No. 305/1988, 23 July 1990), Official Records of the General Assembly, 45^th Session, Supplement No. 40 (A/45/40) para. 5.8.  Dealing with art. 9(1) of the International Covenant on Civil and Political Rights with which art. 5(1) of the Bill of Rights is identical, the Committee said “that ‘arbitrariness' is not to be equated with ‘against the law', but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability”.

35.  The Court also referred to this statement of Lord Cooke of Thorndon delivering the advice of the Privy Council in Fok Lai Ying v. Governor in Council [1997] HKLRD 810 at p.819G:

“The expression ‘arbitrary interference' can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provision, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.”

36.  After a careful consideration and full appreciation of what arbitrariness entails, the Court held in Lau Cheong's case that neither the “grievous bodily harm” rule nor mandatory life imprisonment for murder were arbitrary and that both were constitutional. 

37.  Where the legislature has enacted an absolute offence, the judiciary 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.  Additionally or alternatively, the legislature may enact that it be a condition of a prosecution being brought that the accused is older than the girl, which appears to be the position in Canada. 

38.  Those and other legislative possibilities and permutations are matters fit for future public consultation and debate.  But the question before the Court is whether, as things now stand, it is arbitrary for unlawful sexual intercourse with a girl under the age of 16 to be an absolute offence. 

39.  Imposing absolute liability is a strong course which the law is generally if not always reluctant to take.  But it is not a course which the law is never willing to take whatever is to be achieved by it.  We are unable to accept Mr Dykes's argument that absolute liability under s.124 would have no deterrent effect.  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.  This idea is captured in the expression, used in the Noise Control Authority v. Step In Ltd (2005) 8 HKCFAR 113 at p.120H, “steer well away from the line between legality and illegality”.  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.

40.  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.

41.  Accordingly the complaint of arbitrariness fails.

42.  We will turn in a moment to the matter of penalty, Mr Paul Harris SC for the respondent having said that it would be unjust to pass a sentence of imprisonment, whether immediate or suspended, on a person who is morally blameless in that he believed the girl to be aged 16 or older.  Before turning to penalty, we mention this.  At one stage of the argument Mr Dykes said that on the basis of absolute liability the stigma of a conviction would of itself be degrading.  But when asked if he submitted that such a conviction would amount to “degrading treatment” within the meaning of and as prohibited by art. 3 of the Bill of Rights, Mr Dykes said that he would be loath to so submit.  He did not proceed to so submit, and we say no more on the point. 

Penalty

43.  In the light of what Mr Harris said about penalty, Mr Dykes indicated that, if this appeal against conviction were to fail, his client, on whom the magistrate passed a suspended sentence of imprisonment, would go to the High Court for leave to appeal against sentence out of time.  Under s.118(1)(d) of the Magistrates Ordinance, Cap. 227, it would be open to the High Court to direct that such an appeal be argued before Court of Appeal.  Of course, Mr Dykes observed, none of that would be necessary if, in the event of this appeal against conviction failing, the Secretary for Justice were to apply to the Court of Appeal under s.81A of the Criminal Procedure Ordinance, Cap. 221, for a review of the sentence on the ground that it is manifestly excessive.

44.  It is obviously undesirable in the circumstances for us to say anything more about penalty, and we refrain from doing so. 

Conclusion

45.  In the result, we hold that s.124 of the Crimes Ordinance is constitutional even though the offence thereunder is one of absolute liability.  The constitutional challenge on which it is based having failed, we would dismiss this appeal against conviction. 

Mr Justice Ribeiro PJ:

46.  I agree with the joint judgment of Mr Justice Bokhary PJ and Mr Justice Chan PJ.

Sir Anthony Mason NPJ:

47.  I agree with the joint judgment of Mr Justice Bokhary PJ and Mr Justice Chan PJ.

Chief Justice Li:

48.  The Court unanimously dismisses this appeal against conviction.