HKSAR v. LEE KWOK WAH FRANCIS

[English Translation – 英譯本]
CACC 30/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 30 OF 2011

(ON APPEAL FROM HCCC NO. 183 OF 2010)

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BETWEEN

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J U D G M E N T

Hon Cheung JA (giving the judgment of the Court):

1.  The applicant was indicted on seven counts of sexual offences.  After trial before D. Pang J sitting with a jury, he was found guilty of five of the counts and was sentenced to eight years’ imprisonment.  He applies for leave to appeal against both conviction and sentence.

The Five Convictions

2.  Four of the five counts of which the applicant was found guilty concerned a girl X, who was under the age of 16. Three of these counts, namely the 1^st,, the 3^rd and the 5^th counts, alleged that the applicant had sexual intercourse with X, a girl under the age of 16 years, contrary to sections 124(1) and 153P(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong (“the Ordinance”).  Another count which involved X, namely the 6^th count, alleged that the applicant engaged in indecent conduct towards a child under the age of 16 years, contrary to sections 146(1) and 153P(1) of the Ordinance.  The remainder count, namely the 7^th count, was concerned with another girl under the age of 16, Y, and alleged that the applicant indecently assaulted Y, contrary to sections 122(1) and 153P(1) of the Ordinance.

Particulars of the offences

3.  The particulars of offence of the 1^st, the 3^rd and the 5^th counts were as follows:

1) The 1^st count: The applicant, on a day unknown between the 1^st day of September, 2005 and the 31^st day of March, 2007, being a Hong Kong permanent resident, at Fo Xin Hostel, No. 8 Xiang Shan Xin Street, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, had unlawful sexual intercourse with X.

2) The 3^rd count: The applicant, on a day unknown between 1^st day of September 2006 and 31^st day of July, 2007, being a Hong Kong permanent resident, at Bulangshan Nong Mao Market Reception House, Menghai County, Xishuangbanna, Yunnan Province, China, had unlawful sexual intercourse with X.

3) The 5^th count: The applicant, on a day unknown between the 1^st day of August, 2006 and the 31^st day of July, 2007, being a Hong Kong permanent resident, at Ren Ai Children Home, No. 20 Jinlong Road, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, had unlawful sexual intercourse with X, a girl under the age of 16 years.

4.  The particulars of offence of the 6^th count were that the applicant, on a day unknown between the 1^st day of January, 2006 and the 31^st day of August, 2007, being a Hong Kong permanent resident, at Ren Ai Children Home, No. 20 Jinlong Road, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, committed an act of gross indecency towards X.

5.  The particulars of offence of the 7^th count were that the applicant, on a day unknown between the 1^st day of August, 2005 and the 31^st of July, 2007, being a Hong Kong permanent resident, at Ren Ai Children Home, No. 20 Jinlong Road, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, indecently assaulted Y.

6.  The jury unanimously found the applicant guilty of the 1^st, the 3^rd, the 6^th and the 7^th counts.  In respect of the 5^th count, the jury found him guilty by a majority verdict, which was 5 to 2.

Sentence

7.  For the 1^st, the 3^rd and the 5^th counts, D Pang J imposed a sentence of four years’ imprisonment; for the 6^th count, one year and six months’ imprisonment and for the 7^th count, two years’ imprisonment.  One year of the terms of each count was to be served consecutively to the terms of other counts, making a total sentence of eight years’ imprisonment.

Persons involved in the case

8.  The applicant was a permanent resident of Hong Kong.  He set up the Ren Ai Children Home (“the Centre”) in Xishuanghana, Yunnan, on the Mainland, to take care of orphans and children who needed assistance. The applicant had the right to decide who could reside in the Centre and who could receive financial assistance, including assistance for enabling the recipient to receive education.  Twenty odd children were taken care of and provided for by the Centre.  The applicant visited the Centre about three times a year, and stayed there for one to two weeks each time.  When he stayed there he occupied a room on the 2^nd floor of the Centre.

9.  X was a child inmate of the Centre.  She was born on 1 April 1994. Y was born on 20 April 1992.  X was molested by the applicant at a time between 1 September 2005 and 31 August 2007 when X was 11 to 13 years old.  The incidents took place between the first term of X’s primary 5 school year and the second term of her primary 6 school year.

10.  Y was also a child inmate of the Centre.  She was molested at a time between 1 August 2005 and 31 July 2007.  The facts alleged by the prosecution were that the molestation took place during the second term of her primary 6school year when she was 15 years old.

11.  We adopt the summary of the prosecution case and the defence case as presented by Ms. Virginia Lau, Senior Public Prosecutor, representing the respondent, to which we supplement:

Prosecution case

1^st count

1) X (PW2) was video-interviewed by the police on 7 April 2009.  At that time she was studying in junior [secondary] 2.  The account she gave was that because she was a child of a poor family, she was sent by the government to the Centre when she was in primary 3.  Later, when she was in primary 5, the applicant began to provide her with bank cards, mobile telephones, MP3s and pocket money. Gradually she became used to it and accepted gifts and money without thinking about what consequences that would lead to.

2) One day at noon during the second term of X’s primary 5 school year, she went to the Centre.  She did not see the applicant.  Then she telephoned him to ask him to come back for lunch, but she learnt that he was with an old female inmate called Huiming [transliteration of 輝明]. Huiming asked X to go to Fo Xin Hostel, which was in the vicinity, to meet her.  When X got to the hostel, Huiming said that she was hungry and the applicant told her to go to buy some bread.  Huiming was away for a long time and still did not come back.  The applicant made use of this opportunity and had sexual intercourse with X in a room.  X said that the applicant forcibly removed her clothes.  She resisted and told him to go away but she was weaker than him in terms of physical power, so in the end he penetrated into her private parts. 

3^rd count

3) The applicant told three girls, namely X, Wang Zhilan and Y to join him to accompany an inmate called Jiao Jiao [transliteration of 嬌嬌] to her hometown.  Subsequently they stayed overnight at Bulangshan Nong Mao Market Reception House.  The applicant and the girls occupied the same room, in which there were three beds.  Wang Zhilan and Y each slept on one bed, while X and the applicant slept on the remaining one.  After supper, they came back and sat on the beds to watch television.  When Wang Zhilan and Y seemed to have gone asleep, the applicant touched X with his hands, took off her trousers and had sexual intercourse with her.  He did not use any condom.  He ejaculated on X’s belly and then cleaned himself with paper.  It seemed that the television was on when this was happening.  The applicant did not say anything and the sexual intercourse position was the man lying on top of the girl.

4) Wang Zhilan gave evidence that during the first night of their stay at Bulangshan, she saw that the applicant and X slept on the same bed and that some bodily movements, which appeared to be sexual intercourse movements, were going on under the quilt.

5^th count

5) The applicant and X had sexual intercourse also in the Centre.  [She] could not remember how many times there had been, or the circumstances in which the first time happened.  The occasion of which she had the clearest memory was that one day she went to the applicant’s room to play with the computer.  She played for a long time until one o’clock in the small hours.  The applicant, after cleaning his face and brushing his teeth, entered the room and locked the door.  He told X not to leave and asked her to stay and sleep with him.  X said she wanted to play a while longer, using that as an excuse for not doing what he said, but the applicant simply switched off the computer.  At last, X gave in to the applicant’s persuasion.  She stayed in the room and lay on the bed with the applicant, who kissed her mouth to mouth, caressed her, removed her clothes and made love to her, proceeding in the same position as usual, i.e. the applicant on top of X.  Finally, he ejaculated on X’s thigh.  Then [they] cleaned [themselves] and they slept together in the room until daybreak.  In the course of doing this, the applicant did not say anything.

6) X said that when the above happened, it was probably the second term of her primary 6 school year, and that the weather was a bit cold at the time.

6^thcount

7) Besides having sexual intercourse with X, when the applicant was having video chats with her on line, there were occasions on which the applicant told X to strip herself and also on which the applicant exposed his private parts to X and even masturbated himself, leading to ejaculation.  This happened two or three times in total.  On one occasion, other people were present and they saw images transmitted through the internet, showing what the applicant was doing.  In the Centre, only the applicant’s room was equipped with a computer.  When he was in Hong Kong and wanted to call the people of the Centre together for a meeting, he would telephone the Centre to ask them to switch on the computer so that he could talk with them.  X had a key to [the door of] the applicant’s room, so she could often enter the room to play and could also ask her friends to come to accompany her. One night during the first term of her primary 6 school year, X asked Y and Wang Zhilan to sleep with her in the applicant’s room.  On that occasion, X chatted with the applicant through the internet and what described above took place.  X and Yang Gaiying, the housekeeper of the Centre, each had a key to [the door of] the applicant’s room, but other people did not.

8) Both Y and Wang Zhilan gave evidence that on the night in question they saw that on the computer screen the applicant exposed his private parts to X.  Wang Zhilan and Yang Gaiying also said that they had seen X and the applicant going together into the bathroom to take a bath.

9) X said that she called the applicant sworn father and looked upon him as a benefactor because he had helped her.  The applicant went to the Centre three or four times a year; mostly at the time of the payment of school fees at the beginning of a school term.  According to X, sexual intercourse had taken place in the Centre for more than 10 times.  On some of these occasions the applicant asked X to stimulate his private parts by her hands or her mouth, but X helped him by using only her hands.

10) A forensic pathologist examined X on 8 April 2009 and found that her hymen had been completely torn in the past.  The condition of the tear showed that something, perhaps a penis, had definitely pierced the hymen, resulting in the damage.

7^thcount

11) Y moved into and lived in the Centre in 2005 when she was studying in primary 5 and she left there after primary 6.  Sometime between 7 and 8 p.m. one day during the second term of her primary 6 school year, when Y and Huiming were sleeping in the lower bunk of a bunk bed in a room on the second floor, the applicant suddenly entered the room and fondled Y’s breasts with his hands.  Y resisted but she was weaker in strength than the applicant.  After a while, he left on his own.

Defence case

12) The applicant gave evidence and he denied all these accusations.  He contracted poliomyelitis when he was one year old.  His legs became crippled and he needed supporting equipment in order to walk.  A doctor advised him to use a walking frame, but due to his sense of inferiority, he thought that the sight of his using it did not look nice, so he did not use it.  However, he had been using a walking stick for 20 years or so.  Without it his movements would have been much restricted and he would have become prone to fall or tumble because his left leg was completely strengthless.

13) During each visit to the Centre, he would stay for about two weeks; but more than half of the time would be spent on making visits outdoors.  He would take photographs and make reports about his visits.  After doing these, he would send emails to the sponsors and upload the information onto the internet.  After he returned to Hong Kong, he would store the photographs in the computer.  The dates and captions of the photographs were determined and designed according to the information contained in the files which were made for the purpose of keeping the photographs taken during each of his journeys; for example, the period during which he took Jiao Jiao to her hometown in Buhangshan was 4 to 6 May 2007.

14) The applicant claimed that he had never told any child in the Centre to go into the bathroom and stay inside together with him.  He said he had only asked some children in the Centre to bring some articles of everyday use into the bathroom to give them to him so that he could take a bath.

15) According to him, in September 2006 X, Y and Huiming were all in the Centre, but during the period in which the applicant visited the Centre two times (i.e. between November 2006 and February 2007) Huiming was gone.  As far as he knew, Huiming did not want to go to school, she wanted to look for a job instead.  As for X, she returned to her hometown upon completion of primary 6, because her academic performance was poor and she assaulted someone in the Centre.  The applicant did not really expel her from the Centre.  He just wanted her to go to Menhhai Secondary School to be a boarder, but X did not want to go there and she made her own decision to return to her hometown in Menghai.

16) He said that on one occasion Wang Zhilan and Y refused to give help to move some articles and were sternly reprimanded by him.  Apart from that, when Wang Zhilan was at the junior secondary education stage, she had poor academic results and her manners were bad.  For these reasons she was sent to a boarding school, but subsequently she returned to the Centre.  Similarly, after Y finished primary education, she was criticized by her teacher for her bad academic performance and was even told by her teacher that she should not go to school anymore.  It was only because the applicant interceded for her that she could continue to receive education.  Subsequently, however, Y chatted on the phone all day long and was scolded by the applicant.

17) Regarding the incident in Bulangshan Nong Mao Market Reception House, the applicant stated that according to the information stored in the computer files, the journey should have taken place from 2 to 4 May 2007.  As Jiao Jiao was only 7 years old, the applicant worried that he could not take care of her properly due to the difficulties he had in getting about.  He therefore asked the children in the Centre who would like to go with him.  The result was that X, Y and Wang Zhilan were willing to go with him.  It was a long journey and Jiao jiao’s home was not big enough to accommodate all of them, so the itinerary he worked out was that for two nights they would sleep in a hostel.  At night, he alone slept on the bed closest to the door, while the other two beds were allocated by the three girls themselves.  The activities for the following day were that they first went to a restaurant to have lunch and then to Jiao Jiao’s home to play. They returned to the hostel after supper.  Nothing happened on that night just as nothing happened on the first night.  They left early in the morning on the third day.

18) In the Centre, any bodily contacts the applicant had with the children were limited to those necessary in their daily life and in their games, and absolutely nothing more than that.  The computer in his room was used for two purposes: 1. To show, through its connection with the closed circuit TV, what was going on at the main door on the ground floor and in the sitting rooms on the two storeys; 2. To talk, chat or hold meetings with individual inmates or all the inmates through the video chatting function.  He denied he had ever used it to expose his private parts.  He protested that the Fo Xin Hostel incident was sheer fiction.  He said he had never been to that place and had not even heard of it.

19) The applicant explained that he gave more money to X than to others because he wanted to financially support the elder sister and other family members of X. He said another inmate, who was called Hui Zi, also had a bank card.  At the early stage of Yang Gaiying’s service at the Centre, he was not sure how long Yang Gaiying would work there, so he gave the bank cards to X and Hui Zi.  These two children were more senior in age and had a sense of responsibility.  He let them have the cards as a precaution against contingencies.  As for the keys to the door of his room, initially only Yang Gaiying had a key.  However, she was lazy and she just gave it to the inmates so that they could take turns to enter the room to clean it, and as a result the key was lost.  Subsequently, he had a number of duplicate keys made and X said she had one of them.

20) He said that the rent for renting a room at the hostel at Bulangshan was low, just 30 to 40 yuan per night, but he rented one room only.  He said the reason was that he had to take care of the children.

21) Lastly, the applicant claimed that starting from 2002 he had problems concerning erection. In 2004, he sought treatment as an outpatient.  In 2006, he was treated at the urological department.  Acting on the advice given by the doctor, he took Viagra, but it was too expensive and the side effect was too strong.  After discussion with his wife, he decided to stop using it.

22) Doctor Chan, the second defence witness, gave evidence that from March 2000 up to the present the applicant was a patient of the orthopaedics department of Pamela Youde Nethersole Eastern Hospital.  His medical history showed that due to poliomyelitis, both of his legs were weak, particularly the left leg, and that he had to walk with the support of a walking stick.  The result of the assessment of the strength of his left leg and right leg was respectively point 3 and point 4.  Point 3 meant that he was able to stand up to gravitation, i.e. he could walk.  Point 4 meant that he could resist some outside forces other than gravitation; for example, the doctor using his hand to obstruct his walking movement.  If he could completely kick away the doctor’s hand, that was point 5, which meant completely normal.

23) Dr. Chan said that when the applicant completely stood still, he could stand in that position for five to six minutes without the support of a walking stick; but that if he bent from the waist and in addition someone gave him a push, it would be very difficult for him to keep his balance; and that if he wanted to squat down, he would encounter even greater difficulties.

24) Dr. Chow, the third defence witness, testified that the applicant was referred by the Chaiwan Clinic in October 2004, that he came to the urological department of Pamela Youde Nethersole Eastern Hospital for treatment for the first time in March 2006, and that he was diagnosed as suffering from moderate degree erectile dysfunction.  The meaning of moderate degree was that he could not succeed in having sexual intercourse every time he wanted, but this did not mean that he failed every time.  He could, for example, be successful five times out of ten.  However, that was the result of medication.  Dr. Chow had no idea as to what his condition was before any medicine was prescribed for him or how he would perform without taking any medicine.  The medicine in question was actually Viagra.  Dr. Chow said that in all other aspects the applicant was normal; that is to say, there were no other reasons which led to his impotence except idiopathic causes.

Grounds of appeal

12.   The applicant put forward five grounds of appeal, of which grounds 2 and 3 are about matters of principle, in that ground 2 is about the constitutionality of the offences and ground 3 alleges that the applicant did not have a fair trial; while the other three grounds are about issues concerning the contents of each individual offence.

1) Ground of appeal 2: Unconstitutionality of the Offences

(1) Section 153P of the Ordinance

13.   Section 153P of the Ordinance provides that:

“153P Extra-territorial effect of sexual offence provisions listed in Schedule 2

Certain sexual offences committed against children outside Hong Kong; related arrangements and advertisements

(1) Where –

(a)  (i) a person who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong;

(ii) a body corporate that is incorporated or registered in Hong Kong; or

(iii) a body of persons, whether corporate or unincorporated, that has a place of business in Hong Kong,

commits any act outside Hong Kong; and

(b) the act –

(i) would have constituted an offence under any of the provisions specified in Schedule 2 had it been committed in Hong Kong; and

(ii) is committed in relation to a person under the age of 16 or in the case of an offence under section 123 or 140, under the age of 13,

then the person or body shall be guilty of that offence.

(2) Where any person or body of persons, whether corporate or unincorporated, commits any act outside Hong Kong that –

(a) would have constituted an offence under any of the provisions specified in Schedule 2 had it been committed in Hong Kong; and

(b) is committed in relation to a person who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong and is –

(i) under the age of 16; or

(ii) in the case of an offence under section 123 or 140, under the age of 13,

then the person or body shall be guilty of that offence.

(3) Where a defendant is charged with an offence that is an offence by virtue of subsection (1) or (2) and involves a sexual act done by him with or to another person, it is a defence for the defendant to establish that –

(a) at the time of the sexual act, there existed between the defendant and that other person a marriage that was valid, or recognized as valid, under the law of –

(i) the place where the marriage was solemnized;

(ii) the place where the sexual act was done; or

(iii) the place of the defendant’s residence or domicile;

(b) when it was solemnized, the marriage was genuine; and

(c) at the time of the sexual act, that other person consented to the sexual act.”

14.   The provisions listed in Schedule 2 include section 124 (i.e. intercourse with girl under 16), section 146 (i.e. indecent conduct towards child under 16) and section 122 (i.e. indecent assault) of the Ordinance.

(2) Background of the legislation

15.   Section 153P of the Ordinance originated from the Crimes (Amendment) Bill 1999, which was introduced into the Legislative Council on 7 July 1999 and eventually became law and was gazetted in 2003.  We set out below relevant passages quoted from the Legislative Council Brief submitted by the Security Bureau to the Legislative Council on 8 January 2002:

“General Background

United Nations Convention on the Rights of the Child (UNCRC)

3. Under Article 34 of the UNCRC, which applies to Hong Kong, children should be protected from all forms of sexual exploitation and sexual abuse. Enacting legislation which prohibits child pornography and child sex tourism will be a positive step to implement the UNCRC.

……

Child Sex Tourism

7. Sexual exploitation of children is known to have international dimensions. Child sex tourism, that is, arrangements which enable adults to travel from their home countries to other places, in particular less-developed places, to engage in sexual activities involving children, is known to exist around the world. A number of countries, including Australia, the United States and many European countries, have enacted specific legislation against child sex tourism.

8. Hong Kong, through regular liaison with overseas law enforcement agencies, has been maintaining a close watch on the problem and assisted in the investigation of a number of cases. However, the Crimes Ordinance does not prohibit local residents from exploiting children sexually in other places. Nor does it provide protection to local children who may be abducted outside the territory and become targets of child sex tours. Given the heinous nature of child sex tours and the need for joint international efforts, legal sanctions must be imposed on perpetrators who prey on local or overseas children. We therefore propose to introduce legislative amendments to provide extra-territorial effect to certain sexual offences under the Crimes Ordinance in respect of acts committed to children where the perpetrator or the victim has a nexus with Hong Kong.

……

Proposals relating to child sex tourism

22. We propose to extend the application of 24 sexual offence provisions of the Crimes Ordinance to acts committed outside Hong Kong, the provisions are set out in Annex B. In other words, these provisions will be given extra-territorial effect. At present, 14 of these provisions are applicable to victims of any age. Four provisions currently apply to victims under the age of 21. We propose that the extra-territorial effect will only be applicable to cases where victims are under the age of 16 under these 18 provisions. Four of the remaining six provisions have applicable age limit of the victims set under the age of 16 and the other two under the age of 13. For these six provisions, we do not propose any change to the applicable age limit.

23. We further propose that the extra-territorial effect should cover the persons and corporations referred to in sub-paragraphs (a) to (c) below insofar as they are the perpetrators of the relevant criminal act outside Hong Kong and the persons referred to in sub-paragraph (a) below insofar as they are the victims of the relevant criminal act outside Hong Kong –

(a) a person who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong;

(b) a body corporate that is incorporated or registered in Hong Kong; or

(c) a body of persons, whether corporate or unincorporated, whose principal place of business is Hong Kong.

24. Separately, we propose to create an offence for arranging or advertising child sex tours. The offence covers any message sent through the Internet, any other forms of electronic transmission or other means.

25. We propose that valid marriage between the defendant and the victim will be a defence to a charge for extra-territorial sexual offences under the Bill provided that the victim consented to the act.  We also propose that there shall be a defence for a person charged with publishing an advertisement for child sex tours if he did not have any reasonable cause to suspect it to be such an advertisement.”

16.   In addition, we also quote the contents concerning section 153P from the Paper for the Legislative Council House Committee meeting on 20 June 2003:

“The Bill

3. The Bill seeks –

(a) …

(b) …

(c) to extend the application of certain sexual offence provisions to acts committed against children outside Hong Kong and prohibiting the making of any arrangement relating to commission of those acts and advertisements for such arrangement.

……

Extra-territorial effect of sexual offence provisions listed in Schedule 2 of the Crimes Ordinance

52. The new section 153P of the Crimes Ordinance to be added by the Bill extends the application of 24 sexual offence provisions listed in the new Schedule 2 to the Crimes Ordinance to an act committed against a child outside Hong Kong if the defendant or the child has connections with Hong Kong. Valid marriage between the defendant and the victim will be a defence to a charge of extra-territorial sexual offences under the Bill provided that the victim consented to the act.

53. On the rationale for the proposed provisions, the Administration has explained that sexual exploitation of children is known to have international dimensions. Child sex tourism is known to exist around the world, and has inherent to it an extra-territorial element. Extra-territorial effect of the relevant offence provisions is essential for combating child sex tourism. Permanent residents and persons who ordinarily reside in Hong Kong, irrespective of their nationality, should be prohibited from engaging in the heinous acts of child sex tourism occurred outside Hong Kong. They should therefore be covered under the Bill.

54. Regarding the enforcement of the provisions, the Administration has explained that if a person who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong commits an offence under new Schedule 2 overseas, he could be arrested and prosecuted before Hong Kong courts when he returns to Hong Kong. In this situation, evidence/witnesses will be required from the place where the offence was committed. This may involve liaison at the law enforcement level and/or a formal request for mutual legal assistance. Depending on the circumstances, the perpetrator may be extradited and then prosecuted in Hong Kong.

……

57. The Administration has explained that the 24 offences are included because they relate more directly to sexual exploitation of children.  Other sexual offences, such as living on earnings of prostitution of others, keeping a vice establishment etc. are considered less directly relevant.  As the purpose of the proposal is to deal with a particular problem by extending the application of the existing sexual offences under the Crimes Ordinance, the Administration considers that efforts should be focused on the most directly relevant offences and the net should not be casted too wide.  Extra-territorial effect is therefore not proposed to be extended to offences which are not likely to be the principal offences committed by paedophiles.”

17.   Furthermore, in May 2003 the Security Bureau submitted the Administration’s Response to Submission by Law Society of Hong Kong dated 5.5.2003.  We set out the relevant parts in the Response below:

“……

9. In addition, under Article 3 of the Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (the Optional Protocol), each state party has to ensure, inter alia, that possession of child pornography be made an offence under its criminal law before it may comply with the Optional Protocol.

……

Extra-territorial effect of offences listed under Schedule 2

12. Sexual exploitation of children is known to have international dimensions. Child sex tourism, that is, arrangements which enable adults to travel from their home countries to other places, in particular less-developed places, to engage in sexual activities involving children, is known to exist around the world. Child sex tourism has inherent to it an extra-territorial element. Extra-territorial effect of the relevant offence provisions is essential for combating child sex tourism.

13. The Optional Protocol mentioned in paragraph 9 above also states that each state party should take measures to establish its jurisdiction over the relevant offences in the following cases:

(a) when the alleged offender is a national of that State or a person who has his habitual residence in its territory;

(b) when the victim is a national of that State.

14. Hong Kong, as a member of the international community, has a compelling interest to protect children and to join in the concerted efforts in combating sexual abuse of children.  We therefore propose to introduce legislative amendments to give extra-territorial effect to certain sexual offences under the Crimes Ordinance in respect of acts that relate to direct sexual exploitation of children, where the perpetrator or the victim has a nexus with Hong Kong.”

(3) United Nations Convention on the Rights of the Child

18.   Both parties agree that Article 34 of the United Nations Convention on the Rights of the Child applies to Hong Kong.  The Article reads as follows:

“Article 34

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral, and multilateral measures to prevent:

(A) The inducement or coercion of a child to engage in any unlawful sexual activity;

(B) The exploitative use of children in prostitution or other unlawful sexual practices;

(C) The exploitative use of children in pornographic performances and materials.”

However, the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (“the Optional Protocol”) is still not applicable to Hong Kong.

(4) Equality and non-discrimination

19.   Mr. Law, counsel for the applicant, argued that the Ordinance contravenes Article 25 of the Basic Law of Hong Kong, which guarantees that all Hong Kong residents shall be equal before the law, and violates the entitlement to rights without distinction and the right to protection against discrimination provided in Article 1(1) and Article 22 of the Hong Kong Bill of Rights of the Hong Kong Bill of Rights Ordinance, Cap. 383 Laws of Hong Kong.

Article 1(1):

“The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [cf. International Covenant on Civil and Political Rights Art. 2]”; and

Article 22:

“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. [cf. International Covenant on Civil and Political Rights Art. 26]”

(5)     Applicant’s argument

20.   The applicant accepted that the Legislative Council of Hong Kong has the power to legislate to extend our jurisdiction to places outside Hong Kong.  He complained that section 153P(1) of the Ordinance discriminates against him on account of his status as a Hong Kong permanent resident.  He submitted that the status of a Hong Kong permanent resident and the status of a person who ordinarily resides in Hong Kong are covered by the phrases “other status” and “national origin” in Articles 1(1) and 22 of the Hong Kong Bill of Rights.

21.   The applicant also invoked section 3 and section 25 [sic] of the Registration of Persons Ordinance, Cap.177 Laws of Hong Kong.  He said that a person’s status as a Hong Kong permanent resident or his status as a person who ordinarily resides in Hong Kong can be regarded as his immigration status or residential status and his national origin, and that this person’s status can be contrasted with the immigration status or residential status of another person who is present in Hong Kong but is neither a Hong Kong permanent resident nor a person who ordinarily resides in Hong Kong.

22.   According to section 3 of the Registration of Persons Ordinance, every person in Hong Kong unless exempted is required to be registered and to apply for the issue of an identity card under that ordinance.  Section 25 of that Ordinance [sic] stipulates that certain categories of people, so long as they retain the status and qualifications specified in that Ordinance [sic], are not required to register or apply for the issue of an identity card.  Such people include travellers and persons who do not remain in Hong Kong for more than 180 days.

23.   The last paragraph of Article 24 of the Basic Law provides that non-permanent residents of Hong Kong are “persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode”.

24.   The fundamental rights and duties of Hong Kong residents are governed by Chapter III of the Basic Law.  Pursuant to Article 24 of the Basic Law, residents of Hong Kong include permanent residents and non-permanent residents. Article 41 of the Basic Law makes it clear that persons in Hong Kong other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in Chapter III.

25.  The argument advanced by the applicant is that when a non-permanent resident or a person not ordinarily residing in Hong Kong commits the offences in question outside Hong Kong, he will not be punished under the laws of Hong Kong, but if a Hong Kong permanent resident or a person ordinarily residing in Hong Kong falls under the same situation, he will be punished under Hong Kong laws.  This, according to him, is a violation of Article 25 of the Basic Law, because among residents of Hong Kong, permanent residents and Hong Kong residents ordinarily residing in Hong Kong, when compared with other residents in Hong Kong, are not equal before the law.  He submitted that this also contravenes Article 1(1) of the Hong Kong Bill of Rights, because Hong Kong permanent residents and persons ordinarily residing in Hong Kong, due to their status, cannot enjoy the rights recognized in the Bill of Rights.  He further submitted that this is also against Article 22 of the Hong Kong Bill of Rights, because Hong Kong permanent residents and persons ordinarily residing in Hong Kong suffer discrimination as a result of their status; and that they are not treated equally before the law and are denied equal protection of the law.

(6) The case ofYau Yuk Lung

26.  In Secretary for Justice v. Yau Yuk Lung (2007) 10 HKCFAR 335 the Court of Final Appeal pointed out that equality before the law is a fundamental human right and is in essence the right not to be discriminated against (see paragraph 1 of the judgment).  The Court of Final Appeal expounded the legal principle that all persons are equal before the law without discrimination as follows:

1) In general, the law should accord identical treatment to comparable situations.

2) However, the guarantee of equality before the law does not invariably require exact equality.  Differences in treatment under the law may be justified for good reason.  To satisfy the justification test, it must be shown that:

(a) The difference in treatment pursues a legitimate aim; in other words, a genuine need for such difference must be established;

(b) The difference in treatment is rationally connected to the legitimate aim; and

(c) The differencein treatment is no more than is necessary to accomplish the legitimate aim.

3) Requirement (a) cannot be established from the mere act of legislative enactment (see paragraphs 19-21, 26-27).

4) Where the difference in treatment satisfies the justification test, the correct approach is to regard the difference in treatment as not constituting discrimination.  Unlike some other constitutional rights, such as the right of peaceful assembly, it is not a question of an infringement of the right which may be constitutionally justified. (paragraph 22)

(7) Respondent’s argument

27.  The respondent did not dispute the claim that a person’s status as a Hong Kong permanent resident ora person who ordinarily resides in Hong Kong can be regarded as his immigration status or his residential status and his national origin, but it disagreed that the applicant had been treated unequally or discriminated against.

(8) Our View

(i) Legitimate aim

28.  Section 153P(1) clearly draws a distinction between permanent residents and non-permanent residents, but the Court of Final Appeal had held that the giving of different treatments to different people might be justified for good reason.  According to the criteria set by the Court of Final Appeal, the respondent was required to show that the difference in treatment pursues a legitimate aim.

29.  In our judgment, it is patently obvious that section 153P(1) pursues a legitimate aim.  Even though the Optional Protocol is still not applicable to Hong Kong, in order to implement what is required under Article 34 of the United Nations Convention on the Rights of the Child, Hong Kong has an unshirkable duty to enact laws to protect children from sexual abuse.  In Hong Kong there is no shortage of laws for combating activities involving sexual abuse of children within our territory, but such activities do not take place just within Hong Kong, they also take place outside Hong Kong.  Sexual exploitation of children is known to have international dimensions.  It is common knowledge that there are adults who travel from their home countries to other places, in particular developing countries or less-developed places, to engage in sexual activities involving children.  It is therefore necessary to stipulate in the law that committing acts of sexual abuse against children outside Hong Kong is a criminal offence.  The applicant cited the direction on the obligations of State Parties under Article 2of the Convention on the Rights of the Child and submitted that it only requires the States Parties to enact laws to deal with sexual abuse against children within their own territories, but not laws with extra-territorial effect:

“States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”

30.  We consider that the applicant’s argument is a one-sided view. The use of the word “jurisdiction” in Article 2 does not mean that the duty of a State Party is limited to protecting children within its territory; on the contrary, the scope of its duty covers child abuse cases which happen outside its territory.  Section 153P(1) is targeted at paedophiles who sexually abuse children outside Hong Kong.  Its purpose is to prevent them from getting away unpunished by just returning to Hong Kong.  This point was clearly brought out in the documents submitted to the Legislative Council and referred to above. In other words, there was a genuine need for enacting section 153P.  In Canada, legislation similar to section 153P was enacted in accordance with the Convention on the Rights of the Child (See R v. Klassen 240 CCC (3d) 328).

(ii) Rational connection

31.  One of the criteria for satisfying the test is that the difference in treatment must be rationally connected to the legitimate aim.  We consider that the Ordinance also meets the requirement of rational connection.  A law which extends the jurisdiction to places outside Hong Kong must be subject to limitations; otherwise, the Hong Kong authorities would prosecute any person who sexually abuse any children outside Hong Kong.  Such kind of authority will be too wide.

32.  The limitations are set out in section 153P(1).  A person will be prosecuted only if one of the following two conditions is fulfilled :

(1) He is a Hong Kong permanent resident or he ordinarily resides in Hong Kong (section 153P(1)); or

(2) The victim is a child who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong (section 153P(2)).

33.  These two conditions restrict the scope of the extra-territorial jurisdiction of Hong Kong, therefore the distinction with reference to the status of persons provided for in the Ordinance is rationally connected to the legitimate aim.

(iii)    No more than is necessary to accomplish the legitimate aim

34.  If a person who is not a Hong Kong permanent resident or who does not ordinarily reside in Hong Kong sexually abuses children in any place outside Hong Kong, he can be punished under the laws of that place; or if the laws of his own country contain provisions similar to section 153P, he may also be punished under the laws of his own country after he returned home.  However, even if there are no similar provisions in the laws of this person’s country, it does not follow that a Hong Kong permanent resident or a person who ordinarily resides in Hong Kong suffers any discrimination.  On the basis of the above reason, such differential treatment is no more than is necessary to accomplish the legitimate aim.  We do not think that section 153P is in any sense discriminatory against a Hong Kong permanent resident or a person who ordinarily resides in Hong Kong.

(iv)    Proportionality test

35.  As a response to the 911 terrorist attacks, the U.K. government took a number of measures, including the enactment of the Anti-terrorism, Crime and Security Act 2001.  Section 23 of the Act provided for the detention of non-British nationals who were suspected to be international terrorists.  In A and others v Secretary of State for the Home Department [2005] 2 AC 68 the House of Lords declared that section 23 was incompatible with the prohibition against discrimination laid down in Article 14 of the European Convention on Human Rights (cf: Article 26 of the International Covenant on Civil and Political Rights).  The House of Lords held that section 23 failed to pass the proportionality test.  The criteria of that test are the same as those of the justification test propounded by the Court of Final Appeal.  The House of Lords’ reasons were as follows:

(1) It was stipulated in section 23 that a non-British national suspected to be an international terrorist might be detained, but such treatment was not applicable to a British national suspected to be an international terrorist;

(2) It permitted non-national suspects to leave the U.K.;

(3) It did not address the threat from U.K. nationals; and

(4) It was capable of applying to individuals who did not present that threat.

36.  For these reasons, the House of Lords held that section 23 did not rationally address the threat to security, that it was a disproportionate response and that it was not strictly required by the exigencies of the situation.  The section was declared to be incompatible with Articles 5(1) and (14) [sic] of the European Law [sic] on Human Rights.

37.  In that case, the House of Lords also dealt with Article 5(1) of the European Law [sic] on Human Rights, which provides that “Everyone has the right to liberty and security of person” (cf: Article 5(1) of the Hong Kong Bill of Rights).

38.  We do not think that this English case lends any support to the applicant’s arguments in this appeal.  Whether the criteria of a particular test are satisfied must be decided on the basis of the contents of the legislation in question.

2) Ground of appeal 3: media reports and fair trial

(1) Right to a fair trial

39.  The applicant complained that before and during the trial of this case there were massive coverage given by the media and vast amounts of discussion among the public, and that for this reason the right conferred on a defendant by Article 87 of the Basic Law and Article 10 of the Hong Kong Bill of Rights were encroached upon.  Article 87 of the Basic Law provides that “… Anyone … shall have the right to a fair trial by the judicial organs …”, and Article 10 of the Hong Kong Bill of Rights provides that “… everyone shall be entitled to a fair…hearing by a … independent and impartial tribunal …”.

(2) Directions given by D Pang J

40.  On 30 November 2010, during the trial of this case D Pang J was informed that this case was being reported by two local newspapers.  After the jury retired, he discussed those reports with the prosecuting counsel and the defence counsel. At that time the applicant was represented by another counsel, who did not apply for a stay of the trial on the ground that the media reports had rendered the trial unfair.  After discussing with counsel, D Pang J decided that he would give appropriate directions to the jury on those reports at the time when he should give directions to them.  On 14 December 2010, when Pang J gave directions to the jury, he said the following:

“ At this stage I shall tell you what evidence consists of. In the present case, evidence includes the testimonies given in court by all the witnesses, that is, including the defendant himself and his witnesses; the facts over which there is no dispute between the parties and which have been read out to you; and all the documents, sketches, photographs and tangible objects which have been produced as exhibits. Well, I have particularized for you what evidence is composed of, because you must make your decisions only according to the evidence; that is to say, you must consider all the evidence. As for those matters which have not been covered by any evidence, you must not guess or speculate. This is very important, ladies and gentlemen. It is extremely rare that every part and every link of a case is covered by evidence. You must accept this limitation. You must not fill in the gaps with your speculations. If you have heard, seen or read anything relating to this case outside this courtroom, you should disregard it, particularly the information on the newspapers and the internet. These reports and their contents should be no different from what you have heard in court but, for various reasons, they may contain opinions given from a certain angle, a matter that even the people who made these reports may not be aware of that themselves; not to mention there may be things which have nothing to do with this case and have not been tested by counsel in court; so you should never take any notice of these things; take no notice of them. This evening, you should not surf the internet to search. Those you saw previously, forget about them. Don’t take any notice of them. …”

(3) Applicant’s argument

41.  The applicant said that there were huge amount of reports in the press about the case, that such reports were presented in both written text and pictures and a great majority of them were published on the internet.  He submitted that notwithstanding D Pang J’s careful directions, the effects of those reports were that the prejudice formed in the jurors’ mind against the defendant could not be removed, nor could the risk that the prospect of a fair trial was adversely affected be eliminated.

(4) Legal principles

42.  In HKSAR v. Lee Ming Tee and another (2001) 4 HKCFAR 133, the Court of Final Appeal made the following comments about the legal principles applicable to questions about the effects of media reports on a trial:

1) In a society where the press is free it is inevitable that the reporting of crime will, in some sections of the media, be lurid and sensationalist, sometimes even at the risk of punishment for contempt.  The more heinous or shocking a particular crime, the more it is likely to be given notoriety and to receive potentially prejudicial reporting.  Jurors will therefore almost certainly have been exposed to some degree to such media coverage, prejudicial to the accused.

2) Reliance on the integrity of the jury and its ability to try the case fairly on the evidence, to put aside extraneous prejudice and to follow the directions of the judge is fundamental to the jury system itself.

3) There is good sense in regarding a jury, properly directed, as able to overcome prejudicial publicity in the vast majority of cases.  First, with the passage of time, any recollection that a juror may have of adverse publicity can be expected to fade, lessening its prejudicial effect.

4) Secondly, the jury may sensibly be credited with the ability to overcome any pre-trial prejudice because of the nature and atmosphere of the trial process itself. Whatever impression of the case members of the jury may have gained beforehand, at the trial, they are given direct, first-hand access to the actual evidence in the case, presented systematically and in detail, with live witnesses tested by cross-examination and exhibits tendered for inspection.  They are addressed as to the significance of such evidence by counsel on both sides and guided by the impartial summing-up of the judge.  Many jurors will already harbour a healthy scepticism about certain kinds of press reporting.  They can be credited with the intelligence to realise that whatever may have been reported, they are far better placed at the trial to make up their own minds on the evidence, with the help of the judge’s direction.

See pages 189 to 192B of the judgment of that case.

43.  The Privy Council held the same views in Montgomery v. H M Advocate (PC) [2003] 1 AC 641 at 673F-674G:

“ I am not persuaded that the judges in the court below were in error in their assessment of the effect of the publicity that has been given to this case and of the question whether, despite that publicity, the jury can be expected to act impartially. Recent research conducted for the New Zealand Law Commission suggests that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal: Young, Cameron & Tinsley, Juries in Criminal Trials: Part Two, vol I, ch 9, para 287 (New Zealand Law Commission preliminary paper no 37, November 1999). The lapse of time since the last exposure may increasingly be regarded, with each month that passes, in itself as some kind of a safeguard. Nevertheless the risk that the widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible. The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict.”

44.  The issue in that case was the defendants’ complaint that the extent of the media reports was such that it would be impossible for them to have a fair trial as required by Article 6.1 of the European Law [sic] on Human Rights.  The Privy Council considered that it was only by having regard to all the circumstances that a decision on this issue could be made, and that the circumstances included the following three matters:

1) the length of time since publication of the reports;

2) the focusing effect of listening to evidence over a prolonged period; and

3) the likely effect of the directions by the trial judge.

45.  The Privy Council held that under Article 6.1 of the European Convention on Human Rights the only issue to be addressed was the right of the defendant to a fair trial, and no assessment of the weight to be given to public interest (i.e. detection and suppression of crimes) came into the exercise, and that in this respect it might be said that the right conferred by the European Convention was superior to the common law right.

(5) Our View

46.  In this appeal, the applicant asked this Court to receive fresh evidence consisting of newspaper reports and articles on the internet about this case.  We refused to receive such fresh evidence.  Such evidence had not been produced when the case was before D Pang J and D Pang J had directed the jury that they should not search for this kind of information on the internet and that they should forget about and take no notice of the information they read and saw previously. The foundation of the jury system is that the jurors are required to follow instructions given to them by the judge.  Unless there is actual evidence that the jurors have not done what is required of them, the Court must make its decision on the basis that they have done so.  The applicant’s allegation that the jurors might have searched for information in disregard of D Pang J’s direction is groundless.  We reject his submission in this connection.

47.  Another complaint of the applicant is that D Pang J at first told the jury that they should disregard any information which they heard or read relating to this case outside the courtroom, but he added that such information and its contents should be no different from what they heard in court.  The applicant submitted that such direction could confuse the jury as to what the evidence consisted of.  In our view, what the applicant did was to quote D Pang J’s remarks out of context. When D Pang J’s directions are considered in their entire context; what he meant was that the jury should disregard those reports which had nothing to do with the case and had not been tested by counsel in court.  We do not agree that the applicant was deprived of the right to a fair trial.

3) Ground of appeal 4

(1) Specimen charges/uncharged acts

48.  The applicant’s fourth ground of appeal actually covers two areas:

1) The 5^th count and the 6^th count were specimen charges.  To put the defendant under trial for these two counts was unfair to the defendant, rendering the convictions therefor unsafe; and

2) D Pang J erred in admitting evidence concerning uncharged acts, in that the prejudicial effect against the defendant produced by such evidence outweighed its probative effect.

49.  The basis of these two arguments is in fact the same.  The applicant submitted that in the course of giving directions to the jury D Pang J had reminded the jury that X had said that in the Centre, which was the place where the sexual intercourse referred to in the 5^th count took place, the applicant had had sexual intercourse with her over 10 times, and that the occasion referred to in the 6^th count was not the only one on which images of the applicant exposing his private parts, even masturbating himself and ejaculating were shown through the webcam.

(2)     Legal principle

50.  (1) In Chim Hon Man v. HKSAR (1999) 2 HKCFAR 145 the Court of Final Appeal held that the prosecution could not make use of specimen charges, because there is a general principle that in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the prosecution cannot lead evidence that is equally capable of referring to a number of occasions, anyone of which might constitute an offence described in the charge and invite the jury to convict on any one of them.

 (2)  The Court of Final Appeal pointed out that this principle serves the same general purposes as the rule against duplicity.  Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence, for example, an alibi, he may have to the offence charged and to subject a complainant’s evidence to searching scrutiny by reference to the surrounding circumstances.  An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others.  The degree of unfairness or embarrassment may vary according to the circumstances.  If the prosecution case is based on evidence of many offences in an extended period of time the unfairness may be considerable.

51.  This principle was applied by this Court in the following three cases:

1) HKSAR v Chu Chi Wah (No. 2) [2010] 4 HKLRD 715;

2) HKSAR v Kwok Hing Tony [2010] 3 HKLRD 761; and

3) HKSAR v Chu Chi Wah (No. 1) [2010] 4 HKLRD 675.

(3)  Our View

52.  The three counts of unlawful sexual intercourse with a girl under the age of 16 years involving X took place in three different places.  The 1^st count took place in Fo Xin Hostel; the 3^rd count in the Bulangshan Nong Mao Market Reception House and the 5^th count in the Centre.  In addition, the 6^th count, namely indecent conduct, which involved X, also took place in the Centre.

53.  In our view, the overall conduct of the trial shows that the prosecution did not rely on specimen charges to establish their case against the applicant.  Before the trial began, D Pang J had already discussed with the prosecution and the defence how to handle specimen charges and uncharged acts.

54.  The prosecution’s opening submission concerning the 5^th count and the 6^th count was as follows:

“(4) The 5^th and the 6^th counts

The 5^th count is about an act of sexual intercourse between the defendant and X in the Centre. In fact, after X was raped by the defendant in Fo Xin Hostel, the defendant had sexual intercourse with X many times in the defendant’s room in the Centre. Between 2006 and 2008 the defendant went to the Centre from Hong Kong several times every year (in February, April/May, August and November respectively) to inspect. When he performed such acts, X did not resist because, having been molested so many times, she became used to it. Apart from that, the defendant gave her some presents, including MP3 player[s], T shirts and a bankcard under the defendant’s name, which enabled her to withdraw money from the bank.

The 5^th count occurred during the second term of X’s primary 6 school year (between 1 January 2007 and 31 July 2007). At that time the weather was rather cold. One day, around 0130 in the small hours, X was playing with the computer in the defendant’s room. The defendant entered the room and locked the door. Then he told X to sleep with him. X wanted to leave but the defendant did not agree. At his insistence, finally X had sexual intercourse with him in the room. The defendant did not wear a condom and he ejaculated on X’s thigh.

The 6^th count (between 1 January 2007 and 31 August 2007) was about what happened in the defendant’s room in the Centre [one day] between the second term of X’s primary 5 school year and the first term of her primary 6 school year. On that day, the defendant was in Hong Kong. He had given X the key to the door of his room so that she could use his room, including the computer in the room. At the material time X, Y and Wang Zhilan (PW8) were together playing with the computer in the defendant’s room. After they finished playing, Wang Zhilan and Y went to sleep first. At about 1 a.m. Wang Zhilan and Y woke up and saw X and the defendant chatting through the internet. The defendant, through the webcam, instructed X to take off her clothes and he himself also took off his clothes, exposed his private parts and masturbated himself.

On 7 April 2009 X was interviewed by Hong Kong police officers and she made complaints about what the defendant had done.”

55.  Although the prosecution mentioned that the applicant and X had had sexual intercourse many times in the Centre, they did not tell the jury that they could find the applicant guilty if they were sure that he had engaged in any one of those acts of intercourse.  The evidence adduced by the prosecution in respect of the 5^th and the 6^th counts was not imprecise and general, but was as clear and specific as the content of their opening submission.

56.  Furthermore, D Pang J told the jury that X had specific recollection about the guilty acts referred to in the 5^th count, and that at the occurrence of the 6^th count other people were present.  The directions he gave to the jury were as follows:

“ In the morning of the third day, all of them left Bulangshan. As far as X could remember, the time at which the Bulangshan incident happened should be earlier than what happened at Da Luo Town, because Da Luo Town was the place where she and the defendant had sexual intercourse for the last time. Alright, besides the incidents happened at Fo Xin Hostel, Bulangshan and Da Luo Town, did any other things happen? The answer is that something did happen in the Children Home, but she can’t remember how many times there were, nor could she remember the circumstances in which the first time happened. However, there is one occasion about which she has the clearest recollection: She went to the defendant’s room and there she played with the computer for a long while until one o’clock in the small hours. The defendant entered the room after washing his face and brushing his teeth. He locked the door and told her not to leave and asked her to stay and sleep with him. X said she wanted to play a while longer, using that as an excuse for not doing what he said, but the defendant simply switched off the computer. At last, X gave in to the defendant’s persuasion. She stayed in the room and lay on the bed with the defendant, who kissed her mouth to mouth, caressed her, removed her clothes and made love to her, proceeding in the same position as usual, that is, the defendant on top of her. Finally, he finished by ejaculating on her thigh. Then it was wiped with paper and [they] cleaned [themselves] in toilet. After that, they slept together in the room until daybreak. In the course of doing this, the defendant, again, did not say anything.

X said she can’t remember among all the incidents which happened in the Children Home which time the above incident was according to chronological order. She said whenever the defendant came to the Children Home he would stay there for one week and she would sleep with him on two or three nights. As to when did [they] happen, she could just describe it in a general way. It should be primary 6. In respect of this incident, she said it was during the second term. At that time the weather was a bit cold. X said that in the Centre when the defendant did not use a condom, he would ejaculate outside her body, like what happened on this occasion. She said she treated this incident in the same way as she treated all other incidents, that is, she had never told anyone about this sexual intercourse. The foregoing is about the 5^th count.

            Lastly, X said that besides having sexual intercourse with her, there were occasions on which the applicant told her to strip herself when he was having video chats with her on line.  The defendant had also exposed his private parts to X and even masturbated himself, leading to ejaculation.  This happened two or three times in total.  On one occasion, other people were present.  How did it happen?  In the Centre, only the defendant’s room was equipped with a computer.  When he was in Hong Kong and wanted to call the people of the Centre together for a meeting, he would telephone to the Centre to ask them to switch on the computer so that he could talk with them.  Further, X had a key to [the door of] the applicant’s room, so she could often enter the room to play; and if she didn’t want to be alone, she could ask her friends to come to accompany her.  In these circumstances, one night during the first term of X’s primary 6 school year, when Wang Zhilan was sleeping and when X was chatting with the defendant through the internet, what described above took place, but it is not clear whether Wang Zhilan had really fallen asleep.  This is the 6^th count.”

57.  D Pang J asked the jury to pay attention to X’s evidence:

“ As regards the incident about having sexual intercourse in the defendant’s room, actually she had mixed things up. 1 mean the truth is that it was the defendant who was continuously playing with the computer. After that, he made her stay overnight there. Why did this incident leave such a deep impression in X’s mind? X said there was no special reason. She said she could remember it and that’s why she remembered it.”

58.  The Da Luo Town incident referred to in the directions above was the subject matter of a charge of which the applicant was acquitted.

59.  D Pang J also gave detailed directions to the jury in relation to the uncharged acts:

“ The 5^th point, you will remember that the six counts which involve X are only so-called specimens. Why is it? It is because X claimed that she had had sexual intercourse with the defendant as many as 10 to 20 times in total, at least more than 10 times; and that the occasion mentioned in the 6^th count was not the only occasion on which he exposed his body through the webcam, right? In addition, there were the bath-taking incidents which some people said they saw that but X denied, right? Well, in that case, you must be careful. First of all, the acts which have not been included in the charges in the indictment have no evidential value at all unless, unless what, unless you are sure that they did happen. Secondly, even if you are sure that they did happen, these actscan only be used to explain one thing, and the thing is why is it that within the period of time involved in this case, X did not resist sexual contacts with the defendant and she even became used to them. Furthermore, this is the third point, you should never simply rely on this kind of evidence and then come to the conclusion that the defendant did commit offences of a similar nature, or the conclusion that the defendant is the sort of person who will commit the offences which he is charged with in the present case. Moreover, this is the 4^th point, you should never simply rely on this kind of evidence and then stop thinking and just casually find the defendant guilty of the charges in the indictment. On the contrary, you should carefully consider each count one by one. What I have said is about what the uncharged acts can be used for and what they cannot be used for. You must not have any confusion about this, alright?”

60.  Mr. Law relied on the comments made by the Court of Final Appeal in Chim Hon Man on page 165: The trial judge did not instruct the jury to the effect that the absence of particularity with respect to the individual incidents alleged to have occurred so long ago made it difficult for the defendant to be convicted of [sic] the charges.  The giving of this direction is an important element in ensuring fairness to the defendant in cases involving charges concerning acts that occurred long time ago, especially where there is little particularity.  Mr. Law argued that in the present case D Pang J did not give any direction similar to the above direction.  We do not agree with this argument, because D Pang J did give the jury directions along these lines:

“Firstly, our experience tells us that for various reasons, sometimes the victims of some criminal cases really made false accusations; and, it may be easy to make false accusations but to refute them is difficult; and this applies to any defendant no matter how innocent he is.

Secondly, in the final analysis, it cannot be denied that X, Y and Wang Zhilan were of tender age, especially during the early period. Is there any possibility that they could not tell right from wrong, and for some reasons they said something irresponsibly, resulting in Ms. Shum making a report to the police, and the matter then went out of control? You have to consider this.

Thirdly,    every offence in this case was allegedly committed three years or more than three years ago.  You must take into account the disadvantages which the defendant may suffer as a result of this fact; for example, would he forget something which could have been in his favour?  Another example: If these incidents had not happened so long ago, could he have been able to prove that he was not present at the scene?  When you consider these factors, you should put yourself in his position in order to see whether it would affect your verdict.”

61.  We do not think that the applicant has put forward sufficient grounds for appealing against the convictions in respect of the 5^th count or the 6^th count.

4) Ground of appeal 5

(1) Elements of the charge of unlawful sexual intercourse

62.  The applicant submitted that the jury was not entitled to find him guilty of the 1^st count.  His reason was that X gave evidence that he did not penetrate into her private parts or that she was not sure whether he did penetrate into her private parts, therefore based on such evidence the jury could not possibly be sure that he did penetrate into her private parts.

(2) D Pang J’s directions

63.  As to the question of whether the applicant did penetrate into X’s vagina, D Pang J carefully recapitulated X’s evidence to the jury:

“Evidence-in-chief of X

...... To put it simply, X said that the defendant removed her clothes by force, that is to say, her outer garments and her two pants — the outer pants and the underpants were pulled down and away from her body.  She resisted and told the defendant to go away, but her strength was weaker than the defendant’s.  As for the defendant himself, he did not take off his upper garments.  He just pressed one of his hands on X and removed his trousers with the other hand.  Then he inserted his penis into X’s private parts.  However, that was X’s first time, so (I quote) it was very tight and it could not get into her; but X immediately added this: The defendant should have been successful in getting into her body, and after that he moved his body up and down, which caused her great pain.  X went on to say that upon entry into her body, the defendant kissed her and put his hand underneath her bra and fondled her breasts.  To sum up: X said that the defendant at that time did not wear any condom.  However, she was not able to tell how deep into her body he entered or how long the whole process lasted.  It was a little longer than one minute but less than two minutes.  Furthermore, X said that she did not see how the applicant’s body moved at the moment of his entry into her body.  However, when the defendant finished, withdrew and wiped that part of the body with paper — she saw this part of the process.  At that moment, the defendant told her not to tell anyone about this.  .....”

X under cross-examination

Following that, it was the Fo Xin Hostel incident.  According to X, before it happened, she did not expect that such thing would happen; but when the defendant began to remove her clothes, she did not put up much of a resistance, so not all what she said in the video recording is true.  However, there’s one thing and that is when the defendant was about to penetrate into her, she tried to push him away.  Why?  Because, after all, it was her first time, so she felt great pain; and for that reason the duration of that intercourse was very short; at most it was one to two minutes.  On this basis, the defence asked her, “You said you were not willing.  The only reason for your saying so was that you felt pain, but not because you resisted the defendant making love to you, right?”  X’s answer was: “I don’t know.”  The defence asked her another question: “Finally the defendant stopped.  Was it because you felt pain?”  X said, “Should be so, I’m not sure.”  The final remark of the defence was: “The defendant could not penetrate into your body, and that’s because you felt pain.”  X said, “I agree, that should be so.”  As for the contraceptive pill which later appeared, X confirmed that the defendant did not force her to take it.  He just gave it to her.  X knew that it was a contraceptive pill because the defendant told her that it was. …..

Re-examination of X

…… As regards the Fo Xin Hostel incident, X further clarified her evidence by saying that before the defendant stopped his actions he did try to get into her body slowly, and that in the course of doing so he might have so-called shaken his body.  It’s for this reason that she gave similar description in the video recording.  However, the thing which X had the clearest recollection was pain.  As to whether the defendant did penetrate into her, she could not give a clear answer.”

64.  D Pang J also gave directions to the jury about the alternative count for the 1^st count, i.e. attempted unlawful sexual intercourse:

“ Lastly and finally, please pay attention to this. The 1^st count of this case is treated in a special way. You have heard what the prosecution said, that is, if you are sure that X’s evidence is true, that is to say, you are sure that she and the defendant had sexual contacts in Fo Xin Hostel; but because X felt pain, you are not sure whether the defendant’s penis did enter into her vagina; you are not sure whether there was even the slightest degree of entry. Then, after finding the defendant not guilty of the charge of having unlawful sexual intercourse with a girl under 16, you have to go on to consider whether he was guilty of the alternative count: attempting to have unlawful sexual intercourse with a girl under 16, although it is not written on the indictment. To attempt means that at the time in question the defendant intended to have sexual intercourse with X and with that intention in his mind he did something, and what he did was more than mere preparation for having the sexual intercourse. The only thing he had not done was to complete the sexual intercourse. If you are sure that this was what happened at that time, you can find the defendant guilty of attempting to have unlawful sexual intercourse with a girl under 16. Let me give you an example: if the defendant did insert his penis into X’s private parts, it may be regarded as an act more than mere preparation for the sexual intercourse, even though X pushed him away because she felt pain. If he repeatedly tried to do that, it would be even more likely that he had fulfilled the condition. It is for you to decide whether that was what happened. You think about it yourselves.

65.  Finally, the jury unanimously found the defendant guilty of the 1^st count.

(3)     Our View

66.  We consider that the jury’s verdict shows that they believed that the applicant did penetrate into X’s vagina.  This was a finding of fact made by the jury. They personally heard X’s evidence and saw her demeanour when she was giving evidence.  Although on the face of it some parts of her evidence was inconsistent with other parts, she maintained that the applicant’s actions of assaulting her private parts made her feel pain.  In our judgment, the jury was entitled to find that the applicant’s penis did penetrate into X’s vagina on the basis of her evidence.

67.  The applicant submitted that according to The Sexual Offenses Act 2003 of the U.K., vagina includes vulva, but that there is no similar definition under the laws of Hong Kong, and that therefore even if the applicant succeeded in penetrating into the vulva, that did not constitute sexual intercourse.  We do not accept this argument.  The fact that under the laws of U.K., vagina is defined as including vulva does not mean that under the existing laws of Hong Kong, the penetration of the penis of a male person into the vulva of a female person is not sexual intercourse.  In Hong Kong, the law is that “intercourse shall be deemed complete upon proof of penetration by the penis only”.  (Archbold Hong Kong 2012 paragraph 21-2).  According to the 25^th edition of Stedman’s Medical Dictionary, the definition of vagina is “the genital canal in the female, extending from the uterus to the vulva”.  As pointed out on page 467 of Smith & Hogan Criminal Law (10^th edition), to prove sexual intercourse, the slightest penetration will suffice.  In the case of vaginal intercourse any penetration of the female genitalia is enough at common law.  It is not necessary for the prosecution to prove that the vagina in its proper anatomical sense is penetrated.

5) Ground of appeal1

(1) Y's age

68.  The time period relevant to the 7^th court, which involves Y, was between 1 August 2005 and 31 July 2007.  Calculation made on this basis showed that Y was less than 16 years old during the period in which she was sexually assaulted by the applicant.  Subsequent to that, D Pang J gave the following directions to the jury:

“ The above-mentioned view, this view of the prosecution, basically the defence do not object to it. However, there is one point, and that is Y said that Wang Zhilan was one grade more senior than she and X, and Wang Zhilan said that she herself was promoted to primary 6 after the Chinese New Year holidays in 2006. If calculation is made on the basis of that year, then the second term of Y’s primary 6 school year, that’s the time when she was allegedly indecently assaulted, at the latest it could be December 2007 or even January 2008. That means she was over 16. Why? Let me remind you. The forensic pathologist, who is an expert on matters about teeth, had made some calculations. According to his calculations, Y could have reached 16 by 6 October 2007. You have to take this point into account. But, however, assuming that she had reached 16, what does it matter? As I said before, the constituting element of indecent assault is that the victim does not consent to her being assaulted or touched. This is so unless the victim is younger than 16. Therefore, since Y herself said that she was not willing to be touched by the defendant — she did say so, didn’t she — it seems that whether she was 16 or not is not a problem. The only problem is whether you believe what she said. ……

…… Miss Y reiterated that this incident occurred during the second term of her primary 6 school year.  She remembered that because during that period, she thought of leaving the Centre, the Children Home.  However, when the defence asked her further questions, she said that actually she could not remember clearly matters about time.  What she was sure about was that Wang Zhilan was one grade more senior than sheandwhen Wang Zhilan went up to the next grade in school, that was when she went up to the next grade in school; so if Wang Zhilan was promoted to primary 6 after the Chinese New Year holidays in 2006, she would at the same time be promoted to primary 5.”

(2) Applicant’s argument

69.  The applicant submitted that in respect of the 7^th count, D Pang J erred in giving directions to the jury to the effect that whether Y had reached 16 was not a matter they needed to consider.

(3) Our View

70.  According to section 153P(1)(b)(ii) of the Ordinance, the offence in question should be committed in relation to a person under the age of 16.  We therefore agree that D Pang J’s direction to the jury to the effect that whether Y was 16 or not had nothing to do with the offence was a wrong direction.  However, we do not think this would affect the soundness of the conviction.

71.  The agreed facts stated that the forensic pathologist, who is an expert on matters about teeth, examined Y on 6 April 2009 and the result was that he confirmed that her age, i.e. Y’s age at the day of examination was 17 years old, subject to an adjustment of six months, plus or minus.  That means as at 6 April 2009, the oldest possible age of Y was 17½ years old.

72.  Y gave evidence that she was born on 20 April 1992, which was not challenged by the defence counsel, and this date is compatible with the opinion given by the teeth expert.  In our judgment, even though D Pang J gave erroneous direction as to a point of law, the jury was entitled to accept the evidence given by Y herself but not the evidence given by Wang Zhilan in order to come to their conclusion that when Y was indecently assaulted by the applicant she was under the age of 16 years.

Conclusion of the application for leave to appeal against conviction

73.  For the above reasons, we dismiss the application for leave to appeal against conviction.

Application for leave to appeal against sentence

1) Applicant’s arguments

74.  The applicant complained that the starting points used by D Pang J for the individual counts were manifestly excessive, that his order that one year of each of the sentences for the 3^rd, the 5^th, the 6^th and the 7^th counts was to run consecutively to the other sentences was too severe, and that insufficient consideration was given to the totality principle or the principle that where an offender is to serve multiple sentences for multiple offences, the overall sentence should not be excessive.  Moreover, he submitted that D Pang J erred in rejecting all the mitigating factors, particularly the factor that the applicant was a person with a positively good character.  At the time of the sentencing, the applicant was 49 years old.  He received education up to tertiary level and was a social worker by occupation.  He was enthusiastic about voluntary work and had provided his services to various institutions.  In his spare time he set up and ran the organization involved in this case.  The applicant considered that his having sexual intercourse with X was not illegal on the Mainland, because X at least was 14 years old and she consented to the sexual intercourse.

2) Our View

75.  We are of the view that the applicant failed to adduce admissible evidence in relation to applicable PRC laws either at the trial or during the appeal.  In HKSAR v Tsang Chiu Tak, CACC 386/2011, this Court gave the following guidelines about the sentencing principle for cases involving sexual assaults on children by adults:

“The Sentencing Principle

8. The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.

9. The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:

(1) The age difference between the defendant and the victim;

(2) The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(3) Whether the defendant had used threats or inducements to make the victim succumb;

(4) The number of occasions of committing the offences and the duration of the offences;

(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6) Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7) Whether the sexual abuses have caused physical or psychological trauma to the victim;

(8) Whether the offences have impact on the family members of the victim;

(9) Whether the defendant was involved in other inappropriate behaviour such as inviting other people to watch or take photos or videos of the offence he committed; and

(10) Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.

See HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, HKSAR V Ng Ka Kin(CACC 328/2010) and HKSAR v Lee Kwok Wai (CACC 199/2011).”

76.  D Pang J considered that the crimes committed by the applicant were extremely serious, and he enumerated the following factors:

(1) There was a huge age difference between he and either X or Y.

(2) X, in particular, was of very tender age.

(3) In the relation between the applicant and the two girl victims, there obviously was no love and affection in the sense of the love and affection between a girl and her boyfriend.  As far as X is concerned, perhaps she was well disposed towards him and was grateful to him.  However, the applicant had a wife and his daughters, who live permanently in Hong Kong. He assumed the status of sworn father in the Centre.  The first sexual intercourse between X and the applicant was not something which X expected to happen and it could even be said that it happened as a result of her falling into a trap set by the applicant.  It was definitely not the outcome of love and affection between a man and a girl.  Moreover, X was not the only victim in the present case or in the Centre.

(4) On the occasions when he committed the offences he did not wear a condom.

(5) On some occasions he committed the offences in the presence of other children.  This showed that he had reached the stage that he had absolutely no scruples about acting in the way he did.

(6) The purpose of setting up a children’s home must be to take care of the children, so that they can grow up in a safe environment; but what the applicant did was exactly the opposite.  In the case of X, the offences were committed over a rather long period of time; it was more than one year.  It is one of the most serious examples of breach of trust.

(7) Although X said in court that the goods and commodities she obtained from the applicant had nothing to do with the sexual relationship between she and he, the evidence showed that the benefits she received from the applicant were more than those received by others; for example, she had a bank card; she could freely go into the applicant’s room by using a duplicate key to play with the computer; and even her elder sister and her mother received financial assistance from the applicant.  All these could prove that the applicant intended to exchange these benefits for X’s cooperation.  That means what he had been doing was to corrupt the mind of the victim by material benefits.

(8) By committing the offences on the other side of the border the applicant damaged the reputation of charitable organizations set up by Hong Kong people on the Mainland.  Those affected were not confined to individual persons or a particular organization.

77.  Besides, the psychologist commented that the applicant was deeply affected by a sense of inferiority and that this resulted in his strong desire to manipulate others.  He said the applicant had no insight into his problems and was remorseless for what he had done in this case.  His risk of re-offending was estimated to be moderate to high.  This was a cause for concern.  However, D Pang J stated that this was not where his attention was focused on, but that in the report nothing in favour of the applicant could be found.

78.  In our view, D Pang J had sufficiently considered the circumstances of this case. We find that the starting points for the individual counts and the overall sentence are all appropriate and nothing is manifestly excessive.

Conclusion of the application for leave to appeal against sentence

79.  For the above reasons, we dismiss the application.