HKSAR v. F.S.L.

[English Translation - 英譯本]

CACC 174/2022, [2025] HKCA 598

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 174 OF 2022

(ON APPEAL FROM HCCC NO. 251 OF 2021)

___________________

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JUDGMENT

Hon Pang JA (giving the Judgment of the Court):

1.FSL denied four charges of “indecent conduct towards a child under the age of 16 years”[1] (Charges 1, 4, 7, and 10 [hereinafter referred to as “indecent conduct”]), three charges of “inciting a child under the age of 16 years to commit an act of gross indecency”[2] (Charges 2, 5, and 8 [hereinafter referred to as “inciting indecency”]), and three charges of “cruelty to a child”[3] (Charges 3, 6, and 9 [hereinafter referred to as “cruelty”]). After trial, the jury found FSL guilty of Charges 1, 2, 4, and 5 by a majority of 7 to 2, and not guilty of the remaining charges. The trial judge (Alex Lee J) sentenced him to a total of four years’ imprisonment. FSL appealed partly on pure legal issues and applied for leave to appeal against conviction. Upon the direction of a single judge, the application and appeal were referred together to the full Court for consideration.

Background of the case

2.FSL is the father of the alleged victim child (“X”). He was accused of being involved in four incidents (“Incident 1”, “Incident 2”, “Incident 3”, and “Incident 4”). The first three incidents occurred at their home while FSL and X’s mother were still married.[4]  The fourth incident occurred in Macau, at a time when only FSL and X were present in a hotel room.

3.Charges 1 and 2 stem from Incident 1, which occurred on a certain day in 2016 when X was ten years old. Charge 3 is an alternative charge to these two charges.

4.Charges 4 and 5 stem from Incident 2, which occurred on a certain day in 2018, when X was twelve years old. Charge 6 is an alternative charge to these two charges.

5.Charges 7 and 8 stem from Incident 3, which occurred on a certain day in 2018, when X was twelve years old. Charge 9 is an alternative charge to these two charges. Charge 10 stems from Incident 4, which occurred on 28 December 2018 when X was twelve years old.

Details of the charges

6.Except for the dates and locations, the particulars of the offences of “indecent conduct” in this case are the same: “FSL, on _____, at ________, committed an act of gross indecency towards ‘X’, a child under the age of 16 years.” The particulars of the offences of “inciting indecency” are also the same: “FSL, on _______, _______, incited ‘X’, a child under the age of 16 years to commit an act of gross indecency towards him, the said FSL.”

Prosecution contention

7.The summary table prepared by the defence provides a concise overview of the prosecution’s allegations, their context, and the relevant timeline. All relevant information is taken from the two recorded interviews with X. The Court has reproduced the relevant portions below after making modifications deemed necessary for this appeal:

Uncharged conduct
On a certain day in 2016, FSL and X were alone in the living room of their home. FSL closed the doors and windows, turned on the television, and projected a pornographic film for X to watch. While watching the film, FSL exposed his penis and masturbated in front of X. FSL asked X to ‘do it together’, but X refused. X found this ‘very perverted’, ‘uncomfortable’, and ‘did not want to watch’. This was the first incident of indecency. Subsequently, FSL repeated the above behaviour once a week. The pornographic films FSL played were not pixelated and were extremely revealing. While FSL was watching the film and masturbating, X was not allowed to leave the living room except to use the bathroom and had to remain in the living room with FSL.
Charge	Offence	Date	Allegation	Sentence
1	“indecent conduct”	Incident 1: On a day in winter 2016 after the first incident of indecency (when X was about 10 years old).	FSL and X were alone in the living room of their home. FSL once again closed the doors and windows, played pornographic films, and exposed his penis while masturbating in front of X.	23 months
2	“Inciting indecency”		FSL asked X, ‘Do you want to do it?’ X then also removed his pants and masturbated in front of FSL for the first time.	23 months
3	“Cruelty”			Not applicable
Uncharged conduct
Following Charges 1 to 3, similar indecent incidents occurred about once a week. By 2017, when X was attending the second semester of Primary Six, FSL began repeating the same act every day and frequently requested leave from school on X’s behalf. In addition to playing pornographic films and masturbating (including FSL masturbating and telling X to masturbate) in the living room at home, FSL had also taken X to the men’s restroom in a shopping mall to watch films and masturbate, and told X to watch a live streaming of FSL having sexual intercourse with X’s mother. X found such acts ‘very disgusting.’
Charges	Offence	Date	Allegation	Sentence
4	“Indecent conduct”	Incident 2: On a certain morning in 2018 (when X was about 12 years old).	FSL and X were alone in the living room of their home. FSL made X watch pornographic films but X was not too cooperative and did not want to masturbate. FSL masturbated himself.	23 months
5	“Inciting indecency”		FSL at the same time picked up a ‘rattan cane’ and threatened X. X was forced to comply and masturbated in front of FSL.	27 months
6	“Cruelty”			Not applicable
7	“indecent conduct”	Incident 3: On a certain evening towards the end of 2018 (when X was then about 12 years old).	There was a football league match on TV, which was ‘extremely intense’.X and FSL were watching the match in the living room, while his mother was sleeping in the bedroom. At around midnight, FSL suddenly closed the bedroom’s door, switched to playa pornographic film, and masturbated.	Not applicable
8	“Inciting indecency”		FSL also demanded that X masturbate. For fear of waking up his mother, X refused. FSL then demanded that X ‘crawl’ into a duvet cover and threatened him with an object resembling a kitchen knife, forcing X to comply.	Not applicable
9	“Cruelty”			Not applicable
10	“indecent conduct”	Incident 4: On 28 December 2018, during the Christmas holidays (when X was about 12 years old).	FSL took X to Macau without informing X’s mother of it. At a hotel in Macau, FSL played explicit pornographic films and exposed his penis in front of X while masturbating.	Not applicable

Defence position

8.The trial judge pointed out to the jury:[5]

“The defence case is that the defendant did not appear in court to testify. Nor did he call any witnesses. However, through the cross-examination of X, the defence argued that none of the incidents described by X actually occurred. It is also implied that X might have been influenced by his mother or her family members, causing X to dislike his father, and that X’s allegations against his father are fictitious and defamatory towards the defendant. This is a summary of the defence case.”

Directions on the law

9.This appeal primarily challenges two sets of directions made by the trial judge on the law.

10.The first set concerns the elements of Charges 1 and 4:[6]

“In this case, what exactly is the prosecution alleging? In this case, the prosecution alleges that the acts of gross indecency referred to in Charges 1, 4, and 7 involved the defendant exposing his genitalia to his son X while showing him a pornographic film, and masturbating in the presence of X, allowing him to see it. When considering whether the above acts constitute “gross indecency”, you may take into account the following factors: first, the father-son relationship between the defendant and X; second, X’s age at the time; third, whether X consented; and fourth, whether the defendant intended to obtain sexual gratification through his actions.

However, regarding the third and fourth factors—whether X consented and whether the defendant intended to obtain sexual gratification through his actions—these are not matters that the prosecution must prove. Nevertheless, when determining whether the defendant’s actions constitute ‘gross indecency’, these factors may be considered as one of the elements to be taken into account. Therefore, even if the defendant’s actions were consensual or the defendant did not intend to obtain sexual gratification from his actions, this does not constitute a defence. Ultimately, you must consider the circumstances in which the act occurred at the time and ask yourselves: Would the defendant’s actions, from the perspective of a reasonable person with normal thinking, be considered grossly indecent according to current customs and moral standards? That is the ultimate question.

Regarding Charges 1, 4, and 7, the three matters you need to decide are as follows:

First, on the date and at the location specified in the Charge, did the defendant show pornographic films to his son X, and did he expose his genitalia in the presence of X and masturbate in front of him? This is a question of facts, and it is the first matter you need to decide. I will repeat this again: on the date and at the location specified in the Charge, did the defendant, while showing pornographic films to X, expose his genitalia in the presence of X and masturbate in front of X, such that X could see it? This is a question of facts and is the first issue you need to address.

What is the second question? If the above circumstances occurred, then according to the standard I mentioned earlier, does the defendant’s conduct constitute “gross indecency”? This is also a question you need to address. I will repeat: if the above circumstances occurred, then according to the standards I mentioned earlier, does the defendant’s behaviour constitute “gross indecency”? This is the second point.

The third point is that if the behaviour constituted“gross indecency”, did the defendant intentionally want X to see him masturbating, or was it unintentional? If you are to convict the defendant, you must be certain that the defendant intentionally wanted X to see him masturbating.”

11.The second group concerns the elements of Charges 2 and 5: [7]

“Alright, what constitutes ‘gross indecency’ and the relevant considerations? I have already explained them earlier; I will not repeat them here. In this case, regarding Charges 2, 5, and 8, what does the prosecution mean by ‘conduct with gross indecency’? It refers to the defendant playing pornographic films for his son X to watch while simultaneously told X to masturbate in front of the defendant. This is the prosecution’s allegation.

What does ‘incitement’ mean? You may need to take notes. ‘Incitement’ refers to encouraging, persuading, suggesting, pressuring, or even threatening someone to do certain things. This is what is meant by ‘incitement’. Let me repeat: encouraging, persuading, suggesting, pressuring, or even threatening someone to do something is called ‘incitement’.

Regarding Charges Two, Five, and Eight, the four matters you must decide are as follows:

First, on the date and at the location specified in the charge, did the defendant play pornographic films for X to watch, while using his own words or actions to incite X to masturbate in the defendant’s presence for the defendant to see? This is a question of facts.

Second, if the above occurred, did X masturbate in the defendant’s presence, knowing that the defendant was present, in such a way that the defendant could see it? This is also a question of facts.

The first point concerns whether the defendant did certain things, and the second point concerns whether X did certain things, okay?

If the answers to the first two points are in the affirmative, then the third point is: if the defendant did so and X also did so, then according to the standard I mentioned earlier, does X’s act of masturbating in front of others constitute gross indecency?

The fourth point is, if it is deemed to be grossly indecent, did the defendant intentionally cause X to commit the aforementioned acts of gross indecency? The intention here means that he did it deliberately. Did the defendant intentionally cause X to commit the aforementioned acts of gross indecency?”

Grounds for Appeal

12.Ms Priscilia Lam, who took over the case at the appeal stage, submitted three amended grounds of appeal[8]on behalf of FSL.

(Ground 1)

13.Ground 1 Complaint: The trial judge erred in the directions of law on Charges 1 and 4, i.e., the two counts of “indecent conduct”, resulting in unsafe convictions.

14.Key Argument:

The trial judge stated in his directions that FSL’s intention to obtain sexual gratification through his conduct was not an element of the relevant offence (see paragraph 11 above); the trial judge reached this conclusion based on The Queen v Jeffrey Savage [1997] HKLRD 428.  

The judgment made by the Court of Appeal in Savage stems from its misunderstanding in R v Francis(1989) 88 Cr App R 127,a British case. The defendant’s intent to obtain sexual gratification through his conduct has always been an essential element of the relevant offence.

This is evident in R v R [1993] Lexis Citation 3119 & [1993] Crim LR 971; R v B [2019] WLR 3177; R v Holmes (Peter) [2023] 4 WLR 13 of the United Kingdom and in Rv Orsos (1997) 95 A Crim R 457; R v Chonka [2000] NSWCCA 466; DPP(NSW) v Presnell [2022] NSWCCA 146 of New South Wales, Australia. Additionally, Y v R [2014] 1 NZLR 724of New Zealand is also worth considering.

Of course,in the UK, “indecent conduct”has been replaced by “engaging in sexual activity in the presence of a child” under the Sexual Offences Act 2003, but both the judicial interpretation and the underlying policy objectives of the new and old offences remain consistent, with no fundamental change. The provisions are slightly different but essentially the same in Australia and New Zealand.

Even in Hong Kong, the Law Reform Committee proposed in December 2019 to replace ‘indecent conduct’ with a new offence, which did not deviate from the core policy orientation outlined above.

In summary, “committing an act of gross indecency towards a child under the age of 16 years” does not mean performing the relevant acts directly on the child concerned. The correct interpretation of “toward” is not directional, it means “involve”. “Involve” means that the defendant intended to obtain sexual gratification at least through the presence of the child and his observation of the conduct in question. This has long been established in foreign cases prior to Savage.

Since there was no evidence of sexual gratification at the original trial, and the trial judge’s directions did not address the relevant concepts, the convictions in this case were indeed unsafe. For example, the jury may have convicted FSL solely because his behaviour was immoral, but mere immorality is not the essence of the charge of ‘indecent conduct’.

(Ground 2)

15.Ground 2 Complaint: The trial judge erred in his directions on the law regarding Charges 2 and 5, i.e., the two charges of “inciting indecency”, rendering the convictions on those charges unsafe.

16.Key Submissions:

The key to “inciting indecency” also lies in the two aspects of “toward” and obtaining sexual gratification. In other words, to convict the defendant, the prosecution must prove that the defendant incited the child concerned with the intention that the child would involve in the relevant conduct with him, thereby enabling the defendant to obtain sexual gratification.

However, the directions on law made by the trial judge completely omitted the relevant concepts (see paragraph 11 above). Under the directions he provided, the jury would have been misled into believing that if FSL intended to cause X to commit the relevant act and the act was grossly indecent, FSL should be found guilty. However, this is not the essence of the charge of “inciting indecency”.

(Ground 4)

17.Ground 4 Complaint: All four convictions in this case are tainted by lurking doubts.

18.Key Submissions:

All charges in this case stem from the four incidents. Charges 1 and 2 relate to Incident 1. Charges 4 and 5 relate to Incident 2. Charges 7 and 8 relate to Incident 3. Charge 10 relates to Incident 4. Of all the four incidents, only Incident 4 occurred in Macau and did not involve FSL inciting X to masturbate.

Conversely, Incidents 1 to 3 all occurred at the home of FSL and X. They all involved FSL’s masturbation and incitement of X to masturbate. They all rely on X’s testimony as the prosecution’s sole evidence. For this reason, the trial judge also gave directions cautioning the jury to avoid reaching contradictory or incompatible conclusions regarding the various incidents (AB 36B–G).

However, the jury found that Incidents 1 and 2 had occurred but excluded Incident 3. This result is difficult to reconcile. Since the jury rejected X’s testimony regarding Incident 3, they should have also rejected X’s testimony regarding Incidents 1 and 2. In fact, X’s testimony was highly questionable, with nine points of doubt, and therefore he was not a credible and reliable witness.

Respondent’s refutations

(Ground 1)

19.The respondent pointed out that during the trial, the defence did not challenge the ruling in Savage; in fact, they explicitly stated that they accepted the ruling as correct. The respondent cited香港特別行政區訴黃偉光HCMA 834/2012and香港特別行政區訴王漢津HCMA 97/2015 to emphasize the recognition of Savage in Hong Kong. The respondent analysed Ms Lam’s cases and argued that these cases did not support Ms Lam’s assertions. The respondent argued that since the legislative purpose of “indecent conduct” was to protect children, the defendant should be found guilty once he had committed the relevant acts, regardless of his personal motives (be it sexual gratification, child abuse, mere boredom, or any other reason).

(Ground 2)

20.The respondent reiterated the rebuttal of Ground 1. The respondent cited Singleton v Police [2009] SASC 41 and Raymond Frederick Ayles v The Queen (1993) 66 A Crim R 302.

(Ground 4)

21.The respondent argued that Ms Lam had failed to demonstrate that the verdicts over Incidents 1 and 2 were inconsistent with those over Incident 3.

Discussion – Law

(Relevant provisions)

22.“Indecent conduct” and “inciting indecency” actually contravene the same provision. Until the UK enacted the Sexual Offences Act 2003, this provision was identical to the relevant provisions in the UK.[9] The following is the content of the provision:

“146. Indecent conduct towards child under 16.

(1) Subject to subsection (3), a person who commits an act of gross indecency with or towards a child under the age of 16, or who incites a child under the age of 16 to commit such an act with or towards him or her or another, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years.

(2)        …”

(UK cases)

23.The case of Francis mentioned above is a UK appeal case, with the date of judgment being April 1988. The appellant, F, masturbated in the changing room of a public swimming pool while repeatedly looking at the boys around him, and was accused of committing acts of gross indecency towards two 13-year-old boys who witnessed the incident.

24.The English Court of Appeal noted in this case that, based on previous cases, the phrase “with or towards” in the provision constitutes a single concept (p.128):

“We have been referred helpfully to the case of Director of Public Prosecutions v Burgess [1971] QB 432, 436D–F, in which Lord Parker CJ had this to say about this particular section of the Indecency with Children Act – although the case was one which raised an entirely different point from the matters with which we are concerned today:

“In my judgment, there are not two offences of gross indecency in section 1(1) of the Indecency with Children Act, 1960, but one, namely, the committing of an act of gross indecency involving a child, that is to say, one reads ‘with or towards a child’ as a phrase ‘with or towards’: that as it seems to me is the natural meaning because it is impossible in any particular case to say quite definitely: this is a case of gross indecency with, and not a case of gross indecency towards or vice versa. Indeed, the case to which this Court has been referred to, of Hull (No 2) [1963] 47 Cr App R 253, [1964] QB 273, though dealing with a very different situation, really supports this view because it was held there that the word ‘with’ in this connection does not mean ‘with the consent of’, but has a looser meaning of ‘against or directed towards’.  In other words, as it seems to me, the words ‘or towards’ may be said to be explaining the word ‘with’. That this is the true view is, I think, put beyond all doubt by section 1(1) itself, because when one gets to the alternative offence of incitement, the incitement is ‘who incites a child under that age to such an act with him’. If ‘towards him’ was a separate offence, one would expect in the case of incitement to have the incitement operating not only in the case of an act with, but in the case of an act towards.’”

25.Lord Lane CJ, who was responsible for writing the judgment in the case, went on to point out (p.129):

“That being the case, it seems to this Court that the act of a man masturbating in the presence of youngsters under the age of 14 may or may not, according to the circumstances, be an act in contravention of this subsection of the 1960 Act. If a man does masturbate in the presence of children, it may be in circumstances where he believes they are not observing what he is doing. In that case there can be, in the view of this Court, no question of his acting towards the children. He does not involve the children in his action.

On the other hand, where a man masturbates in the presence of children knowing that they are watching him, whether he has deliberately attracted their attention or not, and deriving excitement from the fact that they are watching him masturbating, then, in the view of this Court, he can truly be said to be committing an act of gross indecency towards those children who are watching and whose observation is acting upon him as a stimulus or added stimulus to what he is doing.  Indeed, there is very little difference between the two sides, the appellant and the respondent, in the view that they took about those propositions which I have just endeavoured to describe.”

26.Ultimately, the trial judge’s directions were deemed overly simplistic, potentially leading the jury to believe that “masturbation merely in the presence of a child” was sufficient to establish guilt. The directions failed to emphasize that, in any case, the defendant’s conduct must be directed at the children specified in the charge, meaning that he must have acted with the intent to let them see and derive pleasure from it (p.130):

“… He does not sufficiently direct the jury, in our view, that the actions must be directed towards the children in some way, at the very least deriving satisfaction from the knowledge that children are watching what he is doing.”

27.R v R is another UK case relied upon by Ms Lam. It was also decided prior to 2003. The case involved R and her husband summoning their 8-year-old daughter into the bedroom to watch them engage in sexual intercourse. The appeal focused on whether, under Francis, the prosecution must prove that the defendant actually derived pleasure from knowing that the child was acting as audience (“is the offence only made out if the prosecution proves that an accused directed his grossly indecent behaviour at the victim and actually derived satisfaction from knowing the victim was watching him”)?

28.On the above question, the answer of the English Court of Appeal was “no”. The Court of Appeal ruled that the defendant needed only to have the relevant intention. The Court of Appeal stated as follows (p.3):

“… [Lord Lane] said that the judge should instruct the jury that the offence is only committed if the conduct is ‘… directed towards the children in some way, at the very least deriving satisfaction from the knowledge that children are watching what he is doing.’

We do not understand Lord Lane’s use of the present participle in that passage from his judgment as negating the offence, unless the prosecution can prove that an accused actually derived satisfaction from his achieved object of attracting his victim’s attention. It is clear that Lord Lane’s ruling was concerned with an accused’s intention as to his conduct in such circumstances, namely, that to constitute the offence it had to be ‘directed’ at some person with the intention of deriving satisfaction from that person’s observation of him.”

29.R v Holmes (Peter) was a 2023 case, but the conduct in question occurred between 1976 and 1991, during which H served as a language teacher and physical education coach at a secondary school, so the old legislation applied. Ms Lam cited this case because although the central issue was different (as to what constitutes ‘gross indecency’), the English Court of Appeal repeatedly referred to the presence of children as a means of deriving pleasure, clearly treating it as an element of the offence. The following are examples (paras. 82 and 84):

“82. In our judgment the judge was entitled to find that there was a case to answer on the counts he left to the jury. There was evidence on which the jury could find that the defendant, for his sexual satisfaction, had, among other acts, directed boys: to row naked, or to row in underpants with the pants pulled down to expose their buttocks, or to row in underpants, on a rowing machine; to strip to their underpants, sit astride the defendant and massage him; to stand naked in front of a boy in an attempt to gauge his reaction; and to strip naked so that the defendant could massage the boy.

…

84.  The judge’s directions to the jury about the elements of offence of indecency with children were proper directions. The jury must, on the basis of the judge’s directions, have been sure that: the defendant committed the acts alleged; derived sexual satisfaction from the act identified; and that the acts were ones of ‘gross indecency’ taking account of the context and all relevant circumstances.”

30.Unlike previous cases, R v B concerns the new offence under the Sexual Offences Act 2003, ‘engaging in sexual activity in the presence of a child’.[10]This offence requires the defendant to intentionally commit an act; the act must be of a sexual nature; the defendant must commit the act with the intention of obtaining sexual gratification; during the commission of the act, a child must be present in a place where the defendant can be seen; and the defendant must know, believe, or intend that the child will see the act. The issue at hand in the case is the source of the sexual satisfaction: does it stem from the child’s observation, or from the act itself?

31.The English Court of Appeal ruled that the answer is the former. The English Court of Appeal held that the conclusion can be based not only on general principles of legal interpretation but also on the clear legislative intent underlying the new offence (paragraphs 24 to 28):

“24. There appears to be academic as well as judicial disagreement in relation to whether this is the correct interpretation of the requisite element in relation to the obtaining of sexual gratification. The editors of Archbold, Criminal Pleading, Evidence and Practice, and the editors of The Sexual Offences Referencer,2nd ed., seem to favour the interpretation contended for by the prosecution whereas the editors of Blackstone’s Criminal Practice and the editors of Rook & Ward, Sexual Offences Law and Practice,5th ed. (2016), prefer the approach of the defendants.

25. In our judgment, the approach as set out in Rook & Ward and Blackstone’s is the correct one. The section is not ‘equivocal’ or ambiguous. The prosecution must prove a number of elements to the offence, as set out in subsections (1)(a)(b)(c) and (d). One of those elements is that the sexual activity must be ‘for the purpose of obtaining sexual gratification’. Arguably, most, if not all sexual activity is ‘for the purpose of obtaining sexual gratification’. If we accepted the prosecution’s interpretation, it would follow that the phrase ‘for the purpose of obtaining sexual gratification’ is superfluous. We do not consider that it was. The phrase does not stand alone as a separate element. Applying the simple rules of construction, the phrase not only introduces, it qualifies the elements of the offence identified in subsection (1)(c). It follows that, in our view, the prosecution must prove a link between ‘for the purpose of obtaining sexual gratification’ and the presence or observation of a child.

26. Had we considered the meaning of the section ambiguous (as the prosecution suggested), we would have been entitled to look to the intention of Parliament, being mindful of the necessary caution of resorting to the rule in Pepper v Hart [1993] AC 593 in a criminal context.

27. The observations of Mr Goggins, the minister, confirm that he drew a clear distinction between sexual activity in the presence of a child and sexual activity for the purpose of obtaining sexual gratification from the presence of the child. His intention was to capture an offence in which ‘the fact that children are present and watching sexual activity gives rise to the sexual gratification’. This was accepted by the legislature and the clause enacted as drafted. The intention of Parliament therefore supports the interpretation of section 18(1) (and, by analogy, section II(1)) urged on behalf of the defendants that the purpose of the sexual gratification must be linked to the presence or observation of the child.

28. We are acutely conscious of the need to protect children from harm and it may be that Mr Hornsby is correct in saying that engaging in sexual activity in the presence of a conscious child should be made a criminal offence. However, if so, it is not for the courts to legislate to that effect. It is for Parliament.”

(Australian and New Zealand cases)

32.Orsos is a case from New South Wales. The old legislation in New South Wales was almost identical to the old legislation in the UK, but the new version applicable to Orsos added the words “or towards” to the incitement provision, so that the entire sentence now reads: “incites a person under that age to an act of indecency with or towards that or another person”[11] . Taking into account this situation, as well as general meaning and grammatical considerations, the New South Wales Court of Appeal ruled by a majority that, whether it is “committing” or “inciting”, “indecency with” and “indecency towards” are two distinct offences.

33.Putting aside the aforementioned rulings, the only aspect of Orsos that is truly worthy of this Court’s consideration is a brief observation made by Hulme J, who held the minority opinion. He stated that, in his personal view, indecent acts involving children are the very acts that the law seeks to combat (and thus constitute an offence), while the terms “with” and “towards” merely denote differences in the specific conduct involved: the former requires the active participation of the child, whereas the latter is completed bythe child’s presence which gives the offender some added stimulation. The other two judges, who formed the majority, did not express any objections to this distinction in conduct. The following is Hulme J’s original statement (page 463):

“… it is to my mind clear that the mischief against which the provision is directed is indecency involving children. On the question of the mischief, it seems to me utterly irrelevant whether the indecency is with them in the sense that there is some active participation by them or towards them in that their presence gives the offender some added stimulation. The statutory provision is directed at protecting children from acts of indecency.”

34.The last two New South Wales cases cited by Ms Lam are Chonka and Presnell. These two cases are particularly noteworthy because, in Presnell, the child concerned was facing away from the defendant and was unaware of what the defendant was doing; as for Chonka, the defendant was the other party in a telephone conversation and could not see the child concerned at all. The New South Wales Court of Appeal conducted various analyses of scenarios involving “lack of awareness” and “out of sight” under the aforementioned limitations to determine whether such circumstances could still constitute different forms of (with or towards) in“committing” and “inciting” indecency. However, due to the different issues in the present case and the divided opinions within the Court of Appeal itself, the academic significance of these discussions outweighs their practical significance. The only point worth noting is that “indecent conduct” must be directed at the child concerned for the purpose of obtaining sexual gratification, which appears to remain the prevailing view.

35.Y v R is a case heard by the New Zealand Supreme Court. In that country, “everyone who does an indecent act on [a child or young person]” is guilty of an offence[12]; “does an indecent act on another person” means “does an indecent act with or on the other person” or “induces or permits the other person to do an indecent act on him or her”.[13] The question the Supreme Court had to address was what constitutes “with or on the other person”. This issue arose because the defendant showed pornographic films to three boys, instigated them to masturbate, and watched them doing so.

36.The Supreme Court ultimately ruled that, in many cases, neither “does an indecent act with or on the other person” nor “induces or permits the other person to do an indecent act on him” could be accomplished unilaterally by the defendant or the children concerned, and physical contact is not necessary (paragraphs 19 and 20):

“19. When s2(1B)(b) is engaged the defendant will have induced or permitted the child to do an indecent act. In many – perhaps most – instances where there has been inducement or permission, the logical corollary will be that the act was performed by the child ‘with or on’ the defendant. It is, however, possible to envisage situations where an adult induces or permits a child to do indecent acts which are not ‘with or on’ the adult. A defendant may have induced the child to do an indecent act in another place (that is, with the defendant not present) or with another person. In such circumstances, the conclusion may be that the acts in question were not ‘with or on’ the defendant. As well, an adult in charge of a child may permit that child to do an indecent act in circumstances where the adult is indifferent to whether the act is performed or perhaps just does not want to make a fuss about it. If so, the conclusion is likely to be that the act was not ‘with or on’ the adult.

20.  When the focus is on the indecent acts of the defendant (that is, under s2(1B)(a)) and the other person is a child, the expression ‘with or on’ obviously has work to do, and does not just mean ‘while in the presence of’.  Where there was physical contact between the defendant and the child (direct or indirect) there should be no difficulty in concluding that the indecent act was ‘with or on’ the child. Similar considerations will apply if, at the request of the defendant, the child performed concurrent actions which were associated with the defendant’s indecent acts.  But it will also be open to the finder of fact to conclude that the ‘with or on’ element of the offence has been made out even where there was neither direct contact nor simultaneous related activity. If the presence of the child provides the motivation for the adult, and the child is, in this sense, a participant, it may be open to a finder of fact to conclude that the indecent acts in question were ‘with or on’ the child. We consider that this is very likely to be so where the child was under the control or influence of the defendant at the time.”

(Hong Kong cases)

37.The facts and issues in Savage are as follows. S and a woman (the second defendant) agreed with the mother of the girl concerned (the third defendant) that the third defendant would bring the girl to S’s residence, where S, with the assistance of the other two, would film the girl in a state of partial nudity, changing clothes, and posing in a provocative manner. As a result, the three were found guilty of one count of ‘indecent conduct’. The particulars of the offence stated that they ‘committed acts of gross indecency with or towards the girl’.

38.S was not represented by a lawyer in the appeal. One of his grounds of appeal was that there was no sexual intention or gratification at the time of the offence (“there was no sexual intention or gratification during the offence”). He stated that, according to his understanding, sexual intent or gratification was an essential element of the offence (“according to the definition as explained to me, these are the requirements for gross indecency”), and that filming the video itself did not render his conduct grossly indecent (“taking a video does not make my conduct grossly indent (sic)”) (page 430F to G)).

39.S emphasized that the video was similar to a commercial production, with adequate adult supervision during filming (“the video was a commercial conceptualization akin to a commercial; there was adequate adult supervision”); no genitalia were exposed at any time during filming (“no exposure of genitalia at any time”); the video was filmed at the request of the other party, and he was not the initiator (“the co-defendant and the girl approached me or commissioned me to take this video; I did not solicit them”). S reiterated that he did not experience sexual gratification during filming (“no sexual gratification at the time of taking the video”) (Page 430 H to I).

40.In summary,S’s argument was that at the time of the incident, he was working, did not act with sexual intent, and did not derive sexual gratification. However, obtaining sexual gratification was an element of the relevant offence, so he did not commit a crime. The issue was twofold: first, S admitted under caution that seeking erotic stimulation was his purpose in filming; second, the Court of Appeal agreed that admitting this confession as evidence was correct (“rightly accepted”). In other words, the Court of Appeal could rely solely on these two points to dismiss the appeal, and it explicitly stated so (page 431D to E). The Court of Appeal further noted that, according to the evidence, S had previously given money and gifts to the third defendant (page 432C to D).

41.Next, we will discuss the paragraph of concern raised by Ms Lam. Ms Lam argues that the content of this paragraph is inconsistent with, and even contrary to, a series of UK cases. Below is the content of this passage. At the time, Nazareth Ag CJ had just pointed out the cautioned statement given by S and its impact on the grounds for appeal (page 431E to G):

“But however that may be, the authorities show that sexual gratification is not an essential element of indecency. On the point, the applicant had sought to rely on R v Francis and other authorities which he says state that sexual gratification is such an element. It is true that there are cases in which sexual gratification is mentioned but only as showing that such intention assists in determining there was indecency. It does not follow that the absence of such intention means there cannot be indecency. There is accordingly nothing in the applicant’s point that there was no sexual gratification. It is not an essential element in law …”

42.Ms Lam opines that this passage is problematic. First, it should be clarified that the meaning of this passage is clear. However, as mentioned above, S did not have legal representation when applying for appeal, so the rigor of the submissions could not be compared to that under general circumstances. For example, he said that the charge required the defendant to have sexual gratification. How did he specifically express this? How would the Court of Appeal at the time have understood it? Did it mean that pleasure was actually obtained? Or was it sufficient to have the relevant intent? He claimed that he was engaged in commercial production, which is a rebuttal applicable to two different requirements, but the two requirements are indeed distinct in law (see R v R for clarification). Another example: According to Nazareth Ag CJ, S should have cited cases other than Francis, but what specific cases were those? Such questions would significantly impact the appellate court’s understanding and response to S’s position.

43.In summary, if one insists on comparing the relevant passages with the cases cited by Ms Lam, the content of the former raises some questions. After all, as a sexual offence that is not merely directed at children but specifically targets them, the fact of obtaining sexual gratification, or at least the intent to do so, has been consistently mentioned in cases involving different scenarios. However, given the limited scope of the issues and discussions in Savage, this Court does not believe that Nazareth Ag CJ intended to define the offence of “indecent conduct”.

(Extraction of Principle)

44.After reviewing the relevant cases, this Court has the following observations regarding the requirement for obtaining sexual gratification:

1.  The requirement of obtaining sexual gratification arises from a specific scenario: the defendant and the relevant child are in the same place; they can see each other; there is no physical contact between them; the defendant masturbates while watching the child, without taking any other actions.

2.  Theoretically, the defendant’s behaviour could be purely unilateral. That is, he does not care whether the child reacts or how the child reacts. Such behaviour is indistinguishable from engaging in self-gratification while looking at an inanimate object.

3.  The issue is that, regardless of whether the charge is interpreted as one or two charges (this Court needs not and will not make such a determination), the terms “with” and “toward” both require some form of connection between the defendant and the child; otherwise, the charge cannot be established. This is what the UK cases refer to as “involving” a child.

4.  Within the above framework, any behaviour that can be described as ‘with’ a child should involve a connection, and no difficulty arises. As for the term “toward”, since it does not merely refer to facing, how can the required connection be established when there is no physical contact between the defendant and the child?

5.  The answer provided by the cases is that the child must see the defendant, and the defendant must feel “added stimulation” because he knows the child is watching him. This satisfies the requirement of “involving” a child. As for the nature of the stimulation, courts in UK, Australia, and New Zealand have unhesitatingly (and even without any discussion) declared it to be sexual gratification.

45.As for the respondent, they argued that since the relevant requirement originated from a specific context (see paragraph 44(1) above), the judgment in Francis should not be overinterpreted. Their argument is that the English Court of Appeal, lacking evidence of physical contact in that case, added the element of sexual gratification derived from being seen by the child to address the unique circumstances of that case and similar cases. They assert that in any case where the conduct in question, for various reasons such as quantity or nature, is obviously ‘involving’ the child concerned (as in the present case), the requirement for sexual gratification does not apply.

46.However, this argument is both unsupported by precedent and unreasonable.

47.Assuming the respondent’s argument is correct, in any case involving physical contact, the defendant would be guilty if his behaviour constitutes gross indecency, regardless of whether he acted to seek sexual gratification, to intimidate the child, to corrupt the child, or to provide sexual education to the child. Conversely, if there is no physical contact in the case, only defendants seeking sexual gratification would be guilty, while others, such as those intending to corrupt the child, would be acquitted. Such an outcome is difficult to imagine.

48.The respondent’s assertion is essentially policy-based. The respondent argues that, in order to protect children, any form of gross indecency must be combatted for any purpose; adding the requirement of sexual gratification to cases involving no physical contact is merely a temporary measure. The issue is that the courts in the UK and subsequently in Australia and New Zealand did not mention any possible purposes beyond seeking sexual gratification. They could have done so, but they did not explain that any connection of any nature could constitute ‘involving’ a child. Instead, they explicitly designated sexual stimulation as the sole criterion. This is clearly because the offence in question is a sexual offence, and the courts in the UK, Australia, and New Zealand do not believe that the scope of prosecution should be expanded to include defendants with other purposes. A similar approach was taken in R v B.

49.Lastly, it is worth mentioning R v Holmes (Peter). H’s behaviour in this case was more complex than that in Francis. This means that while H did not engage in overt masturbation, he employed various methods and consistently avoided physical contact with the students. However, since the students followed H’s instructions, even the respondent had to acknowledge a connection between H and the students. Nevertheless, the British courts did not consider the requirement for sexual gratification to be superfluous. In the case, the pursuit of sexual gratification remained part of the directions to the jury.

(Summary at this stage)

50.As an interim summary, the court concludes that “indecent conduct” must be done with the purpose of obtaining sexual gratification. This is not only the most reasonable interpretation of the existing cases but also consistent with the principle that the scope of criminal liability should not be expanded arbitrarily in the absence of express statutory provisions. As for “inciting indecency”, this court’s analysis remains the same as before. That is, since the purpose required for “indecent conduct” cannot be distinguished based on whether there was physical contact, the purpose required for “inciting indecency” should naturally not differ from that of “indecent conduct”.

51.Before reaching the aforementioned conclusion, this Court had not overlooked the two South Australian cases relied upon by the respondent, Singleton v Police and Raymond Frederick Ayles, but this Court failed to find any assistance for the respondent in those cases. Take Singleton v Police as an example, the relevant provision in that case, (“commit an act of gross indecency with, or in the presence of, any person under the age of sixteen years”), is a provision that has been subject to multiple judicial interpretations, [14] to the extent that the appellate court could rely on the relevant precedents to make the following two most relevant statements: “The question of what constitutes the offence ... is to be considered having regard to Parliament’s intention that section 58 has a wide operation to ensure the protection of children” (para. 40); and “Indecency may be occasioned with or without sexual overtones” (para. 44). This case has only its own legislative and judicial context and lacks general applicability.

52.This Court has considered whether such conclusions would pose difficulties for the prosecution of child sexual abuse cases, and the answer is “no”. As some cases have pointed out, the motives for such offences are likely to be sexual in nature. Therefore, if a defendant claims that he intended to scare the child, embarrass the child, or offers various uncommon explanations, he is likely to have to testify and face cross-examination that is difficult to withstand, otherwise it would be hard for him to be exonerated.

(Looking back at the original trial)

53.After the above analysis, the trial judge’s directions to the jury regarding “indecent conduct”, namely, ‘whether the defendant intended to obtain sexual gratification through his actions ... is not something the prosecution must prove’ and ‘the defendant did not or did not intend to obtain sexual gratification through his actions does not constitute a defence’, were incorrect. His failure to direct the jury that on “inciting indecency”, that offence requires the intent to obtain sexual gratification, is also problematic. As for how these errors and imperfections may affect the outcome of this case, this Court will discuss them in the final part of the judgment.

Discussion – Facts

54.The nine contradictions and/or inconsistencies identified by Ms Lam in relation to X’s testimony were actually raised by the defence in their final submissions. Ms Lam merely quoted[15]:

“59. …

(i) The defence pointed out that X might have learned from the social worker in 2019 that the actions taught to him by the applicant were acts of masturbation, and therefore his testimony was influenced by different individuals;

(ii) The evidence showed that X had a concealed penis, so he often rubbed his genitals. The defence argued that the jury should consider why this behaviour was interpreted as indecent, and therefore, whether his testimony was credible.

(iii) The defence also argued that if X complied with the applicant’s instructions to engage in masturbation 80% of the time and only disobeyed 20% of the time, and during the time when he disobeyed, X claimed that he would already comply whenever the applicant threatened him with a rattan cane, then why was it necessary for the applicant to threaten X with a knife?

(iv) During cross-examination, the defence also asked X about the applicant’s ejaculation. X stated that he had seen some yellow substances, but they were in granules. Therefore, the defence argued that it is highly doubtful whether X actually witnessed this situation.

(v) Regarding Incident Three, the defence also pointed out that if the applicant truly intended to watch X masturbate, why would he tell X to get into the duvet cover? Furthermore, X provided inconsistent answers during cross-examination and re-examination regarding this part of the testimony, thereby casting doubt on X’s evidence.

(vi) The defence pointed out that X could not actually see whether the door was locked from the outside. He merely assumed it was locked and stated during cross-examination that the applicant had locked the door from the outside. When the court asked X again, he stated that the door was not locked from the outside. Therefore, is X’s account exaggerated or untrue? Additionally, X claimed that there was a closed-circuit television system installed at home, but he did not know whether it was turned on. If there was indeed a closed-circuit television system, how could the applicant have committed such acts of “gross indecency” at home?

(vii) The defence pointed out that X knew that the applicant had borrowed money from his aunt, and his mother’s family did not like the applicant. X was on the same side as his mother and her family, so he also harboured grievances against the applicant and thus exaggerated his testimony.

(viii) Regarding the incident where the applicant took X to the toilet cubicles at the shopping mall in Sheung Shui, X provided different versions of the events. Was X telling the truth?

(ix)  Incident Four: Regarding the Macau Incident, the defence conducted a detailed cross-examination, particularly concerning whether they stayed in a hotel and their itinerary. The defence argued that, according to X’s testimony, it was simply impossible to have done so many things in such a short period of time. Therefore, X’s testimony was not credible.”

55.In other words, the nine points in question were known to the jury and were considered by them. The reason why it is stated that the jury considered them is that, as pointed out by the respondent, points (iii), (v), (vi) and (ix) are directly related to Incidents 3 and 4, namely the two sets of accusations that the jury returned not guilty verdicts. For example, it had been confirmed that the door lock could be opened from the inside, so even if FSL had used a key to lock the door from the outside, it could not have prevented the mother from coming out.[16]  Another example is that X was allegedly taken to Mainland China and Macau, and stayed in or entered over a dozen different hotel rooms, but according to records, he left Hong Kong for only about twenty hours.[17]  Given such circumstances, it is not difficult to understand why the jury could not convict FSL on the specific Incidents 3 and 4. As for the remaining points (i), (ii), (iv), (vii), and (viii), they primarily involve X’s personal perceptions and broader contextual issues such as whether he was misled or instigated. After careful consideration, the jury could remain entirely unconvinced. In summary, the fact that the jury reached different verdicts regarding the Charges under Incidents 1, 2, and those under Incidents 3, 4 was not an irreconcilable contradiction. The outcome does not raise any lingering doubt for this Court.

Conclusion of the entire case

56.Having analysed the case to now, the only issue with the original trial is the trial judge’s failure to consider sexual gratification as the necessary purpose for the two related charges. He even asserted that the absence of sexual gratification as a purpose does not constitute a defence against the Charge of “indecent conduct”. However, whether FSL intended to obtain sexual gratification was still an issue considered by the jury – albeit only as one of the factors in assessing whether the relevant conduct constituted “gross indecency” for the purpose of the offence of “indecent conduct”. Additionally, since FSL did not testify, and the defence did not raise other possible purposes such as sexual education during cross-examination, the only reasonable inference is that FSL intended to obtain sexual gratification, regardless of whether it pertained to the offences of “conduct” or “inciting”. In response, Ms Lam vigorously argued that, based on the evidence, X had symptoms in his genital area, including itchiness, so FSL taught him to scratch it. X’s manipulation of his genital area was sometimes scratching and sometimes masturbation, so it was difficult to draw a definitive conclusion. This was her only substantive rebuttal to the application of the proviso. The problem is that common sense tells us that playing pornographic videos and the term ‘doing it’ have nothing to do with scratching an itch, but are absolutely related to masturbation and encouraging others to masturbate. Yet both were allegedly present and used at the time of the incident, so Ms Lam’s argument is also untenable. The trial judge explicitly cautioned the jury: “Can you be certain that the defendant was not teaching X to scratch his genitals due to itchiness, but was instead masturbating himself and telling X to masturbate with him?” There was no room for misunderstanding.[18] This Court believes that if the jury had been informed that FSL must have the intent of obtaining sexual gratification, they would inevitably have found FSL guilty of Charges 1, 2, 4, and 5.

Judgment

57.The application for leave to appeal and the related appeal filed by FSL on Ground 4 are dismissed. Applying the proviso, the appeal filed by him on Grounds 1 and 2 is also dismissed. The original convictions are upheld in their entirety.

Translated by the Court Language Section of the Judiciary and vetted by  Mr P Y Lo, Barrister-at-law.