HKSAR v. Lee, Chun Hang Wisdom

HCMA 486/2023

[2024] HKCFI 2843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 486 OF 2023

(On appeal from WKCC 3888/2022)

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D E C I S I O N

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1.Both parties had expressed their views and presented their arguments by way of several letters sent to me between 16 August and 16 September 2024. Both parties proposed that this application should be heard and decided in English to which I agreed.

2.As the background, the appellant was convicted of one count of indecent conduct towards a child under 16, contrary to section 146(1) of the Crimes Ordinance, Chapter 200, (hereinafter referred to as the “Offence” ), and was sentenced to 18 months’ imprisonment. He lodged notices to appeal against both the conviction and the sentence.

3.Regarding the appeal against conviction, Ground 1 concerned the defence of honest and reasonable belief that the child was or over 16 years of age.

4.Arising from a different and unrelated case, the Secretary for Justice, pursuant to section 81D of the Criminal Procedure Ordinance, Chapter 221, has recently referred to the Court of Appeal for its opinion on two questions of law. The first question was about the mental requirement in relation to the age element of the Offence and whether an accused can put forward the defence of honest and reasonable belief that the child was or over 16 years of age (CASJ 1/2024 refers). A hearing date has yet been fixed.

5.Now, both the appellant and the respondent agreed that the first question of law under CASJ 1/2024 was highly relevant to the determination of the said Ground 1 and applied for this magistracy appeal be adjourned to a date to be fixed pending the judgment of that CASJ 1/2024.

6.In addition to the above, the appellant made an application for me to exercise my power under section 118(1)(d) of the Magistracy Ordinance, Chapter 227, to reserve the said Ground 1 for the consideration of and to be argued before the Court of Appeal, at the same time of the hearing of the said CASJ 1/2024, to this the respondent objected.

7.Very briefly, the main reason for the appellant’s application was that the appellant had an apparent interest in the outcome of CASJ 1/2024 and that he would suffer serious prejudice if not permitted to present his views and arguments in that hearing.

8.The respondent on the other hand took the view that such referral was unnecessary as the relevant point of law will eventually be considered by the Court of Appeal and that the ordinary and appropriate course was simply to adjourn the hearing of this magistracy appeal pending the decision of the higher court. It was also submitted by the respondent that the said section 118(1)(d) did not empower a judge to order or direct any point so reserved under section 118(1)(d) to be heard together with a pending case before the Court of Appeal.

9.Having considered the parties’ arguments and in the circumstances of this case, I agree that it is in the interest of justice and also as a matter of fairness that the appellant when now so wished should be permitted to participate and present his argument in CASJ 1/2024 in relation to the said question of law relating to the defence of honest and reasonable belief for the Offence. Then it would be for the Court of Appeal to decide on whether they would exercise their powers under the said section 118(1)(d) to hear and determine Ground 1 of this appeal or remit the matter to the judge hearing this magistracy appeal with their opinion or decision or make any such other orders as they seem fit.

10.I therefore make the following orders or directions:

(a)  The hearing of this appeal, HCMA 486/2023, is to be adjourned to a date to be fixed, pending the judgment of the Court of Appeal in CASJ 1/2024.

(b)  Ground 1 of HCMA 486/2023, namely whether the trial magistrate erred in ruling that the defence of honest and reasonable belief that the child was or over 16 years of age was not applicable for the offence of indecent conduct towards a child under the age of 16 years, be reserved for the consideration of or to be argued before the Court of Appeal, pursuant to section 118(1)(d) of the Magistrates Ordinance, Chapter 227.

(c)  The respondent shall within the next seven days bring to the attention of the Court of Appeal, with his stance as well as that of the appellant, the said referral of G round 1 of HCMA 486/2023 for direction on whether the two cases should be heard together.

(d)  The appellant’s bail be extended on the same terms until the next hearing of HCMA 486/2023 or any other order of the Court.

Mr Tang Ming-chung Kelvin, SPP and Ms Yuen Lok-heng Michelle, PP of the Department of Justice, for the respondent

Mr Benson Y M Tsoi, SC and Mr Chase C M Pun, instructed by Francis Kong & Co, for the appellant