The Queen v. Yuen Wing Fat and Another

HCMA000035/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 35 OF 1988

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 5 Februaty 1988

Date of delivery of judgment: 5 February 1988

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J U D G M E N T

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1. This is an appeal against conviction for permitting a girl under 16 to resort to premises for prostitution, contrary to section 141 of the Crimes Ordinance. The particulars of offence alleged that the appellants had knowingly suffered Lee Yuk-kuen, a girl under the age of 16 years, to be on the premises for the purpose of prostitution. On 5th February I dismissed the appeal and now give my written reasons.

2. The only point taken by counsel for the appellants was whether the prosecution must prove, not only that the appellants knew that the girl was there for the purpose of prostitution, and knowingly suffered her to be there, but also knew that she was under 16.

3. The section reads :

"141. An owner or occupier of any promises or vessel, and any person who manages or assists in the management or control of any premises or vessel, who induces or knowingly suffers a girl under the age of 16 to resort to or be on such premises or vessel for the purpose of having unlawful sexual intercourse with men or with a particular man or for the purpose of prostitution shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 14 years."

4. It was submitted that, following Sweet v. Parsley⁽¹⁾, mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary and that the court ought not to hold that there was strict liability in respect of any element of this charge unless that appears to have been the clear invention of the legislature.

5. More recently the Privy Council has considered the question in Gammon Ltd. v. Attorney General of Hong Kong⁽²⁾. Lord Scarman said at page 508 :

"(1) There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence

(2) the presumption is particularly strong where the offence is "truly criminal" in character

(3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute

(4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern; public safety is such an issue

(5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.''

6. There is no doubt that the cvil at which section 141 is aimed brings the section firmly within (4) and (5)

7. The matter to my mind it put beyond argument by the fact that section 142, which is in the same terms as section 141, except that it seeks to protect women defectives, provides a defence in subsection 2 thus :

"(2) A person is not guilty of an offence under this section because he induces or knowingly suffers a woman who is a defective to resort to or be on a promises or vessel for any purpese mentioned in subsection (1) if he does not know and has no reason to suspect her no be a defective."

8. Similar subsections are to be found in section 122, section 124, section 125 and section 128. Clearly the legislature felt that young girls merited greater protection than defectives. Had it intended than there should be a similar defence under section 141, a similar subsection would undoubtedly have been added.

9. Support for this view is it be found in R. v. MePherson and others⁽³⁾. This is apparently the only authority on the point in England or Hong Kong. At Leicester Crown Court Judge Blythe held that on a charge under section 26 of the Sexual Offences Act, 1956 - which is identical to section 141 - it was non necessary for the prosecution to prove knowledge by the defendants of the girl's age on the grounds that :-

(a)Where the defendant knows he is doing something morally blameworthy mens rea does not apply to every circumstance of the offence.

(b) The Offences set out in sections 25, 26 and 27 of the sexual Offences Act, 1956, are similar offences and it is significant that only section 27(2) which corresponds with section 142 of as the Crimes Ordinance-provides a defence as to knowledge of the woman's condention.

(c) The word "knowingly" precedes the word "suffer" in section 26 and does not control the word "Induce". It therefore appears that the legislature intended this to be an offence, Irrespective of knowledge of the girl's age.

10. The commentary on the case points out that the implication of the defence provided by section 27(2) in respect of defectives is that :

"A person may "induce or knowingly suffer" a defective to resert to or be on the premises for the purpose of having intercourse, although he does not know her to be a defective. If she is in fact a defective, he will be guilty unless he can prove on a balance of probabilities not only that he did not know her to be a defective but also that he had no reason to suspect that fact. In this section, "knowingly suffer bears a narrow meaning and must mean "knowingly suffer that person who, whether the defendant knows it or not, is a defective ..."

If the same meaning is given to "induce or knowingly suffer" in sections 25 and 26 it follows that they create offences of unmitigated strict liability with respect to the age of the girl."

11. The learned commentator goes on to trace the history of the legislation, which confirms to his satisfaction that this is the correct construction.

12. There can be no possible injustice to a defendant in requiring strict liability in respect of his knowledge of the girl's age. It is no hardship, and only right and proper in all the circumstances, for the manager or controller of premises to demand production of the girl's identity card before he allows her to "resort to or be on the premises".

13. For these reasons I dismissed the appeal.

(1) [1970] A.C. 132

(2) [1984] 2 A.E.R. 503

(3) [1980] C.L.R. 654

Representation:

Mr. E.C. Harris, Sr. Crown Counsel, for respondent.

Mr. A.O. Hatton (inst'd by M/S Laurence Pang & Co.) for appellants.