HKSAR v. So Wai Lun

HCMA 39/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 39 OF 2004

(ON APPEAL FROM ESCC NO. 1085 of 2003)

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BETWEEN

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Before : Hon Ma CJHC, Stuart-Moore V-P & Lunn J in Court

Date of Hearing : 19 October 2004

Date of Handing Down Judgment : 9 November 2004

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.The issue in this appeal is whether in relation to a charge of unlawful sexual intercourse with a girl under the age of 16 (contrary to section 124 of the Crimes Ordinance, Cap.200), it is a defence for the defendant to say that he believed the girl to be 16 or more.

2.The matter comes before us by way of an appeal against acquittal on a Case Stated dated 29 December 2003 from Mr William Ng, Permanent Magistrate, under section 105 of the Magistrates Ordinance, Cap.227.

3.The Respondent was charged under section 124(1) of the Crimes Ordinance.  An information was laid against him at Eastern Magistracy on 30 December 2002.  The charge was based on the agreed fact that in the early hours of 28 July 2002 at a flat in Tsing Yi, the Respondent had sexual intercourse with a 13-year-old girl.

4.The trial took place at Eastern Magistracy on 14 and 15 July 2003.  On 7 August 2003, after having heard legal submissions and taken evidence from both the girl and the Respondent, the Magistrate made the following rulings : -

(1)    The offence of unlawful sexual intercourse with a girl below the age of 16 under section 124(1) of the Crimes Ordinance was one in which the prosecution did not need to prove that the defendant knew or had no genuine belief that the girl was under the age of 16.

(2)    It was, however, a defence for the defendant to prove on a balance of probabilities that he did not know and had no reason to suspect that the girl was under 16.

(3)    In the circumstances of the case where the Magistrate believed that the Respondent had discharged this onus of proof (in other words that on a balance of probabilities, he had shown that he did not know nor had he reason to suspect that the girl was under 16), the information would be dismissed and the Respondent acquitted of the charge.

5.Annexed to the Case Stated is a document headed “An Outline of The Reasons for The Ruling on Whether Section 124(1) Is An Absolute Liability Offence” containing the reasons for the Magistrate’s rulings.  In the Case Stated, three questions of law are posed : -

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

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

(3)    WHETHER I was correct in acquitting the Respondent in this case.”

6.Before us, both Mr Darryl Saw SC (who represents the Appellant, with him Mr David Leung) and Mr Joseph Tse (who represents the Respondent) accepted that the second of the questions was not a matter that ought to be determined by this Court.  That question was not engaged on the facts of the present case.  In the circumstances, we will not deal with this question.  That leaves the first question as the main one in this appeal.  The determination of the third question follows from the first.

The mental element in section 124(1) of the Crimes Ordinance

7.We are of course concerned in this appeal with the mental element in the statutory crime of unlawful sexual intercourse with a girl below the age of 16 under section 124(1) of the Crimes Ordinance.  This involves, in our view, looking at first principles not just regarding the construction of statutory provisions but also criminal law.  There are also a number of authorities, both here and from the United Kingdom, that have to be considered.  The question is one ultimately of statutory construction.

8.Generally, a person cannot be convicted of a criminal offence unless the prosecution has proved beyond a reasonable doubt that he had the necessary intention to commit the crime (mens rea).  There is perhaps no more basic a principle than this but there exist exceptions in the criminal law.  Offences of strict liability (where the prosecution does not have to prove mens rea) or absolute liability (where it is not even open to the defence to prove that he did not have the necessary intention to commit the crime with which he is charged) exist.  In Hong Kong, the authorities suggest the existence of both strict and absolute liability offences is consistent with the Bill of Rights (Cap.383) : - see The Queen v Wang Shih-hung and Attorney General v Fong Chin-yue and Others [1995] 1 HKCLR 193; The Attorney General v Mak Chuen Hing & 71 Others, unreported, MA 398/1996, 15 August 1996, Court of Appeal.  We shall be referring to these cases further below.  No constitutional challenge is made in the present case.

9.The fundamental question confronting us in this appeal is the dividing line between offences of absolute or strict liability and other offences.  It is not a line that is easily drawn at times.

10.Where statutory criminal offences are concerned, the starting point is the decision of the House of Lords in Sweet v Parsley [1970] AC 132.  There, the House considered the statutory offence of a person being concerned in the management of premises used for the purposes of smoking cannabis (section 5(b) of the Dangerous Drugs Act 1965 in England).  The question that arose for decision was whether the offence was one of absolute liability.  No mention was made in the relevant statutory provisions of the mental element.  The Crown argued in effect that where a statute was silent on the mental element, there was a presumption an absolute offence had been created.

11.This approach was categorically rejected by the House of Lords.  Lord Reid said at 148F-149E  : -

“I dealt with this matter at some length in Warner’s case [1969] 2 A.C. 256.  On reconsideration I see no reason to alter anything which I there said.  But I think that some amplification is necessary.  Our first duty is to consider the words of the Act:  if they show a clear intention to create an absolute offence that is an end of the matter.  But such cases are very rare.  Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another.  Such cases are quite frequent.  But in a very large number of cases there is no clear indication either way.  In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did.  That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.

Where it is contended that an absolute offence has been created, the  words of Alderson B. in Attorney-General v Lockwood (1842) 9 M. & W. 378, 398 have often been quoted :

‘The rule of law, I take it, upon the construction of all statutes, and therefore applicable to the construction of this, is, whether they be penal or remedial, to construe them according to the plain, literal, and grammatical meaning of the words in which they are expressed, unless that construction leads to a plain and clear contradiction of the apparent purpose of the Act, or to some palpable and evident absurdity.’

That is perfectly right as a general rule and where there is no legal presumption.  But what about the multitude of criminal enactments where the words of the Act simply make it an offence to do certain things but where everyone agrees that there cannot be a conviction without proof of mens rea in some form?  This passage, if applied to the present problem, would mean that there is no need to prove mens rea unless it would be ‘a plain and clear contradiction of the apparent purpose of the Act’ to convict without proof of mens rea.  But that would be putting the presumption the wrong way round: for it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.

It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word ‘knowingly,’ is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence.  In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament.  I say ‘must have been’ because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.”

12.A number of important points related to the present appeal arise out of this extract from Lord Reid’s speech : -

(1)    Whether or not a statutory provision is intended to produce an absolute liability offence is a matter of construction.  Only where a “clear” intention is shown to this effect will an absolute liability offence be created.  This, however, would be rare, no doubt owing to the fundamental principle of mens rea in criminal law.

(2)    Where a criminal statute is silent on the aspect of mens rea, the presumption is that words must be read into the particular provision so as to require mens rea to be proved before an offence is committed.  We shall for convenience refer to this as the mens rea presumption.

(3)    The fact that other parts of the same statute use words that define or qualify the mental element does not by itself mean that the provision under consideration is absolute.  However, the question that arises in the present appeal is how the mens rea presumption is affected by the existence of provisions dealing with state of mind that appear within the same statutory provision.

(4)    In construing a statutory provision which is by its own wording unclear as to whether or not absolute liability was intended, it may become necessary to go outside the statute and examine all relevant circumstances to look for the statutory intention.  Lord Pearce referred to the wording of the particular provisions and “its context” at 156G.

13.The principles from Sweet v Parsley have recently been reaffirmed in two decisions of the House of Lords dealing with sexual offences : - B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428 and Regina v K [2002] 1 AC 462.

14.In B (A Minor) v DPP, the House of Lords was concerned with the mental element in the offence contained in section 1(1) of the Indecency with Children Act 1960 of inciting a child under the age of 14 to commit an act of gross indecency.  The question for the House was whether the mens rea presumption applied to that offence.

15.It was unanimously held by the House of Lords that the presumption did apply and therefore the prosecution had to prove beyond a reasonable doubt that the defendant knew the victim to be under the age of 14 : - at 466B (per Lord Nicholls of Birkenhead), 478B (per Lord Steyn) and 482C-D (per Lord Hutton).

16.The particular provision with which the House of Lords dealt in B (A Minor) v DPP is not relevant to Hong Kong, but a number of statements of general principle were made with which we would with respect concur.  We now set these out and add some observations of our own : -

(1)    The mens rea presumption was expressly reaffirmed by the House of Lords.  Where a statutory provision was silent as to the mental element, mens rea had to be proved by the prosecution.  The fact that one of the ingredients of the offence was an age-related one made no difference.  As Lord Nicholls of Birkenhead put it at 463G : -

“I add one further general observation.  In principle, an age-related ingredient of a statutory offence stands on no different footing from any other ingredient.  If a man genuinely believes that the girl with whom he is committing a grossly indecent act is over 14, he is not intending to commit such an act with a girl under 14.  Whether such an intention is an essential ingredient of the offence depends upon a proper construction of section 1 of the Act of 1960.  I turn next to that question.”

(2)    The presumption can only be negatived either expressly or by necessary implication : - at 463H-464A, 470G-H.  Lord Nicholls of Birkenhead provided useful guidance as to the meaning of “necessary implication” at 464A-B : -

“ ‘Necessary implication’ connotes an implication which is compellingly clear.  Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence.”

(3)    The existence of the presumption is, however, reinforced when the relevant statutory offence is a serious one : - at 464B-C.  The more serious the offence, the more serious is the punishment and the stigma that attaches to it.  Where offences are “truly criminal” in character, the presumption is particularly strong : - see the speech of Lord Scarman in Gammon (Hong Kong) Ltd, Yee Chin Teo, Chan Shing Mak v Attorney-General of Hong Kong [1985] AC 1, at 14B-C.  As will presently be seen, this factor has caused us some anxiety in the present case.

(4)    In construing the relevant legislation, the Court can have regard to the legislative history surrounding the statutory provision in question.  Both Lord Nicholls of Birkenhead and Lord Steyn made extensive references to the history of the legislation before concluding that the Sexual Offences Act 1956 (which the Crown in that case had sought to use as a parallel) contained a number of disparate offences that had no coherent pattern : - at 465H, 468E and 473G.

(5)    Not too much assistance can be gained from looking solely at the objective of the statute being one for the protection of children below a certain age.  While the policy behind the statute may be tolerably clear, this however gave no indication as to whether the offence should be regarded as one of strict liability or absolute liability : - at 464E-F and 475B-E.  Reference was made to the opinion of Lord Evershed in Lim Chin Aik v The Queen [1963] AC 160, at 174 where it was emphasized that one of the factors going to the existence of strict liability offences was whether it would somehow enforce compliance with industrial or public health regulations.  These areas provide in our view two of the more common ones where offences may attract strict liability being offences which are not really criminal in nature : - see here also Gammon (Hong Kong) Ltd at 13E-14D.

(6)    In arriving at its conclusions, the House of Lords had to consider the case of R v Prince (1875) LR 2 CCR 154, in which the Court for Crown Cases Reserved, by a majority of 15 to 1, had held in relation to a charge of abduction of an unmarried girl under the age of 16 that the defendant’s belief that the girl was over 16 did not provide a defence.  In so holding, the Court stated its view that the statutory intention could not have been to make these types of crime subject to the defendant’s knowledge of the age of the victim : - at 171 per Blackburn J (who delivered the judgment representing the views of ten of the majority).  The House of Lords effectively held that R v Prince was no longer good law insofar as it was authority for the proposition that for age-related sexual offences, the defendant’s knowledge or belief was irrelevant : - see 466C-F and 475E-476G.

(7)    In their consideration of the charge under section 1(1) of the Indecency with Children Act 1960, the House of Lords drew a comparison between that provision and the provisions in England dealing with unlawful sexual intercourse with underaged girls.  Section 5 of the Sexual Offences Act 1956 made it an offence for a person to have unlawful sexual intercourse with a girl under 13 while section 6 made it an offence in relation to girls under 16 (similar to the offences created under sections 123 and 124 of our Crimes Ordinance).  Under section 6, a defence was expressly set out where the defendant, provided he was under the age of 24, believed the girl to be 16 or over.  This is the so called “young man’s defence” in England.  As to the effect of these two offences, Lord Steyn said at 469A-B that since section 5 contained no such defence, it “plainly” created an offence of absolute liability (although the term “strict liability” is used, it is clear that absolute liability was meant).  In other words, in relation to this offence, the mens rea presumption did not apply nor was it a defence for the defendant to prove that he believed the victim to be 13 or more.  Lord Hutton made similar obiter remarks at 481A-C.  Sections 5 and 6 have now been replaced by modified provisions in the Sexual Offences Act 2003.

17.What was, however, left open by the House of Lords in B (A Minor) v DPP was the applicability of the mens rea presumption (insofar as knowledge of the victim’s age was concerned) to offences where express defences existed within the same statutory provision dealing with a person’s state of mind.  The Sexual Offences Act 1956 contained provisions relating to indecent assault where, together with a statement of the offence itself, express defences were set out relating to a defendant’s knowledge.  One of them was in terms similar to that contained in section 124(2) of the Crimes Ordinance.  This issue was addressed in the subsequent decision of the House of Lords in Regina v K.  There, it was held that the mens rea presumption (relating to knowledge of age) was not displaced by necessary implication and that accordingly in relation to a charge under section 14 of the Sexual Offences Act (relating to indecent assault of a girl under the age of 16), mens rea was an essential ingredient.

18.In so holding, the House of Lords once again reaffirmed the presumption of mens rea and the need for the prosecution to prove that the defendant knew the victim to be underaged.  Although there was contained in section 14 of the Sexual Offences Act a list of specific defences relating to a defendant’s state of mind, it was held that this did not displace the mens rea presumption.  It had been argued on behalf of the Crown that since defences based on knowledge were expressly set out in the provision, the statute had to be construed as therefore excluding the presumption.  In rejecting this argument, the House of Lords took the view that since the history of the legislation was so haphazard and anomalous, no significance could be attached to the specific knowledge-based defences and these could not exclude the presumption : - at 474C-E (paragraph 21) per Lord Bingham of Cornhill.

19.The anomaly in English law was that while the “young man’s defence” was available to a charge of unlawful sexual intercourse under section 6 of the Sexual Offences Act 1956, this was not available for a charge of indecent assault even though the same facts were often involved and charges of indecent assault were laid at the same time as a section 6 charge.  The House of Lords made reference to the legislative history of the indecent assault provisions.  Lord Bingham of Cornhill said that section 14 was “not part of a single, coherent legislative scheme” : - at 467C (paragraph 4).  Lord Steyn found it of little assistance to look at the scheme : - at 476H-477A (paragraph 31).  Lord Hobhouse of Woodborough referred to the “regrettable legislative history” : - at 478E-F (paragraph 37).  Lord Millett said this at 480D-E (paragraph 44) : -

“But the age of consent has long since ceased to reflect ordinary life, and in this respect Parliament has signally failed to discharge its responsibility for keeping the criminal law in touch with the needs of society.  I am persuaded that the piecemeal introduction of the various elements of section 14, coupled with the persistent failure of Parliament to rationalise this branch of the law even to the extent of removing absurdities which the courts have identified, means that we ought not to strain after internal coherence even in a single offence.  Injustice is too high a price to pay for consistency.”

20.We make the following additional points in respect of this decision : -

(1)    Lord Bingham of Cornhill referred to sections 5 and 6 of the 1956 Act (the provisions dealing with unlawful sexual intercourse with underaged girls) to say that the mens rea presumption did not apply to these provisions in view of the express provisions relating to the “young man’s defence” : - see 474H-475B (paragraph 23(3).  This echoed Lord Steyn’s views in B (A Minor) v DPP : see paragraph 16(7) above.

(2)    R v Prince was once again criticized for the proposition that a special rule of construction existed excluding the mens rea presumption in respect of age-related sexual offences.  Lord Bingham of Cornhill referred to it as a “discredited” authority (474F at paragraph 21).  Lord Steyn called it “a spent force” (476G at pagagraph 30).

21.We have gone through some of the English authorities in some detail in order to emphasize the following points : -

(1)    The importance of the mens rea presumption, an aspect emphasized yet again by the House of Lords in the recent decision of Attorney General’s Reference No. 4 of 2002, unreported, 14 October 2004.

(2)    That in order for the presumption to be negatived, either express wording is required or this is the result by necessary implication.

(3)    Often, it will be necessary not only to look at the actual wording of the particular statutory provision but also its context within the relevant statute and also the legislative history.

(4)    R v Prince cannot now be considered as any longer representing good law.  Ironically, the reiteration of the mens rea presumption in Sweet v Parsley, B (A Minor) v DPP, Regina v K and now Attorney General’s Reference No.4 of 2002 reflected the views of the minority dissent (that of Brett J) in R v Prince : - at 170.

22.We now come to the relevant authorities in Hong Kong.  We have already referred to the Court of Appeal’s decisions in Fong Chin-yue and Mak Chuen Hing.  These two cases are authority for the following propositions : -

(1)    A strict liability (as distinct from an absolute liability) offence is one where the prosecution does not have to prove mens rea but this did not preclude a defence (to be proved by the defendant on a balance of probabilities) based on honest or reasonable belief.  Litton VP said this at page 6 in Mak Chuen Hing when dealing with strict liability offences : -

“As Bokhary JA said in Fong Chin-yue at p200, the common law rules of construction themselves have a high human rights content.  No court would ascribe to the legislature the intention of creating a crime of absolute liability, with no possibility of a defence of honest belief or reasonable excuse, unless the context admits of no other view: particularly where the commission of the offence may result in imprisonment.”

(2)    Whether or not an offence is to be regarded as one involving strict liability or absolute liability is one depending on the relevant context, as the passage just quoted states.

23.There has not been, as far as we know, any decision of this Court which directly deals with the defence of honest or reasonable belief in the offence of unlawful sexual intercourse with an underaged girl.  There have, however, been obiter remarks.  For years, the cases of the Court of Appeal in The Queen v Poon Ping-kwok & Another [1993] 1 HKCLR 56 and R v Savage (No.3) [1997] 2 HKC 768 have been regarded as authorities for the proposition that such a defence was unavailable to the defendant.  In Poon Ping-kwok, Sir Derek Cons VP said at 57 (lines 38-39) : -

“It has been long established, having regard to R v Prince (1875) LR 2 CCR 154, that it is no defence to a charge of unlawful sexual intercourse with an under-aged girl to establish that the defendant honestly and even with good reason believed her to be over the prescribed age”.

That case involved a charge of conspiracy to procure a woman under the age of 21 to have sexual intercourse.  Reference was simply made to R v Prince for this proposition.  This brief (and obiter) statement of law was relied on in Savage when dealing with the question whether this defence was available to a charge of indecent assault.

24.The Magistrate carefully and critically analyzed the two Court of Appeal decisions and tested them against the cases of Sweet v Parsley, B (A Minor) v DPP and Regina v K, as well as the Hong Kong cases of Gammon (Hong Kong) Ltd and Fong Chin-yue.  He arrived at the conclusion that although the defence was a strict liability one, it was a defence for the defendant to prove on a balance of probabilities that he did not know and had no reason to suspect the girl to be under 16.  This formed the reason for acquitting the Respondent.  The Magistrate regarded Poon Ping-kwok and Savage as having been decided per incuriam.  This was a position supported by Mr Tse in the present appeal.

25.In our view, the obiter reasoning in the two cases of this Court in Poon Ping-kwok and Savage, insofar as the judgments rely on R v Prince as being the basis for the proposition that the defence of honest or reasonable belief was unavailable for an unlawful sexual intercourse charge, must now be considered extremely dubious.  The two decisions rely almost exclusively on this case and there was no consideration of cases like Sweet v Parsley and the mens rea presumption there referred to.  R v Prince has now been largely discredited and all but overruled by the House of Lords.  The modern approach is as set out above, an approach that has as its starting point the mens rea presumption which we have already discussed.  Nor are we compelled to follow the two Court of Appeal cases : - the relevant statements of principle were obiter inasmuch as offences of unlawful sexual intercourse with an underaged girl are concerned.

26.However, this rejection of the two Court of Appeal cases does not provide an answer to the issue before us.  Here, an exercise of statutory construction has to be carried out applying those principles earlier identified.  In our view, the presumption of mens rea has been displaced by necessary implication and we conclude that the offence under section 124(1) is one of absolute liability meaning that the defence of honest or reasonable belief is not available to a defendant.  We now state our reasons for this conclusion.

27.There is of course no doubt that the mens rea presumption prima facie applies and that full weight ought to be given to it.  The offence under section 124(1) is a serious one and one that is “truly criminal” in character.  The numerous circumstances in which the offence can be committed reinforce this view.  The penalty under section 124(1) is severe : a maximum term of 5 years’ imprisonment.

28.We should in this context also have regard to the offence in section 123 of the Crimes Ordinance of unlawful sexual intercourse with a girl under the age of 13.  Section 123 states : -

“A man who has unlawful sexual intercourse with a girl under the age of 13 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.”

29.It is convenient to consider sections 123 and 124 together in that they constitute a pair of offences relating to unlawful sexual intercourse with an underaged girl.  In England, the equivalent provisions are similarly regarded as a “pair” : - see the speech of Lord Steyn in B (A Minor) v DPP at 468H; that of Lord Bingham of Cornhill in Regina v K at 474H-475B.

30.However, the feature that compels our conclusion that the offence in section 124(1) is an absolute liability one is the legislative history of this provision.  This was not an aspect on which the Magistrate had apparently been addressed.

31.We are grateful to Mr Saw and Mr Leung for providing us with material going to the legislative history of section 124(1) of the Crimes Ordinance.  They show the following : -

(1)    In the Offences against the Person Ordinance (No.4 of 1865), the offences of unlawful sexual intercourse with an unmarried girl under the age of 10 (a felony) and between the age of 10 and 12 (a misdemeanour) were introduced : - sections 44 and 45.

(2)    In the Women and Girls’ Protection Ordinance (11/1890), section 45 of the Offences against the Person Ordinance was in effect repealed and replaced by a new section 6 which introduced a defence based on reasonable belief of a girl’s age.  This provision read : -

“6.    Any person who carnally knows or attempts to have carnal knowledge of any unmarried girl being of or above the age of twelve years and under the age of sixteen shall be guilty of a misdemeanour and on conviction thereof shall be liable to the punishment hereinafter mentioned.  Provided that where both parties are Asiatics a girl shall not be deemed unmarried within the meaning of this ordinance if she is duly married according to the laws and customs of the native country of the  girl.  Provided also it shall be a sufficient defence to any charge under this section, if it shall be made to appear to the Court or jury before whom the charge shall be brought that the person so charged had reasonable cause to believe that the girl was of or above the age of sixteen years.  Provided also that no prosecution shall be commenced for an offence under this section more than three months after the commission of the offence.”  (emphasis added)

(3)    By Ordinance No. 7/1892, section 44 of the old Offences against the Person Ordinance was replaced by a provision that made it an offence to have sexual intercourse with a girl under 12, whether or not she was unmarried.

(4)    By Ordinance No. 9/1897, the Protection of Women and Girls Ordinance (as it became known) was amended to include new sections 5 and 6 dealing with, respectively, the offences of unlawful sexual intercourse with an unmarried girl between the age of 12 and 16, and a girl whether or not under the age of 12.  The section 5 offence retained the defence of reasonable belief set out in paragraph (2) above.

(5)    By Ordinance No. 4/1897, which for some curious reason followed Ordinance No. 9/1897 but came into effect the same day (10 June 1897), the provisions of the latter Ordinance (see paragraph (4) above) were replaced by new provisions making a criminal offence sexual intercourse with an unmarried girl between the age of 13 and 16 (section 5) and sexual intercourse with a girl, married or not, under the age of 13 (section 6).  Apart from the change in the range of ages (13 to 16 rather than 12 to 16), the most significant change was that for the section 5 offence of unlawful sexual intercourse with a girl between the age of 13 and 16, the defence of reasonable belief was abolished.  This abolition assumes considerable importance in the present case.

(6)    By Ordinance No.1/1951, the Protection of Women and Juveniles Ordinance came into being, containing the same provisions as sections 5 and 6 of the Protection of Women and Girls Ordinance except that the offence of unlawful sexual intercourse with a girl between 13 and 16 extended to girls whether married or not.  Where the girl was married, the consent of the Director of Social Welfare was required.

(7)    These provisions were then consolidated together with a number of other sexual offences in 1964 in the Protection of Women and Juveniles Ordinance, Cap.213.

(8)    In 1978, the provisions were consolidated in the Crimes Ordinance under a new Part XII dealing with “Sexual and Related Offences”.  The major change here to the unlawful sexual intercourse offences was that (it would appear for the first time) that there was a defence based on a defendant’s reasonable belief of his marriage to a girl under the age of 16.  This is the section 124(2) offence.

32.The importance of this legislative history is that in relation to the “pair” of offences under sections 123 and 124, the legislative scheme has always been coherent.  It is a part of a rational scheme (something that could not be said for the English Sexual Offences Act 1956 : - see the speech of Lord Steyn in B (A Minor) v DPP at 474B-C).  Of the changes that have been made over the years, by far the most significant is the introduction in 1890, followed by the repeal 7 years later in 1897, of a defence (for a charge of unlawful sexual intercourse with a girl under 16) based on a defendant’s belief of the age of the victim.  This is significant for two reasons : -

(1)    First, that in relation to such a charge, the legislature has over the years seen the need, one way or the other, to deal expressly with the defence of reasonable belief.  This, we might add, has also been the position in other common law jurisdictions such as England, New Zealand and Canada.  We have already mentioned the position in England.  In New Zealand, in relation to girls under the age of 12, it is expressly provided that the belief of the defendant is immaterial.  A “young man’s defence” is available in relation to a charge of sexual intercourse with a girl between the aged of 12 and 16 as long as there is consent as well : - see sections 132 and 133 of the Crimes Act 1961.  In Canada, the belief defence is available as regards sexual intercourse with girls below the ages of 14 and 18 only if all reasonable steps have been taken to ascertain the age of the girl.

(2)    Secondly, the history clearly shows that the reasonable belief defence has been expressly rejected in Hong Kong.

33.Mr Tse submitted that the reason why the reasonable belief defence was expressly introduced in the Women and Girls’ Protection Ordinance in 1890 was that the presumption of mens rea was not given the sort of prominence it is today.  Thus, no significance should be attached to its subsequent deletion.  With respect, we do not follow this.  Even if the presumption was not as strong in the 1890s as it is now, the fact remains that the legislature had in 1897 expressly repealed this defence.

34.Of course, we accept that a change in legislation that took place over a century ago in relation to a statute that has since been changed a number of times may have less significance than if the change took place more recently.  In the present case, the legislative change took place in 1897 and the relevant legislation governing offences of this kind of offence has since been amended a number of times (as the above history shows) up to the 1978 amendments to the Crimes Ordinance (when the present section 124 came into being).  However, given the relatively few changes in legislation over this period, the orderly way in which this type of offence has developed (unlike the position in England) and the fact that the reasonable belief defence is a type of defence that is usually expressly dealt with in such legislation, we regard the legislative change in 1897 as significant and indeed decisive.  Although we are told that the Hansard debates in 1897 throw no light on the reason for the change, the fact that the change was made must be assumed to have been quite deliberate.

35.One way of testing the importance of the legislative changes in 1897 is as follows.  The position in Hong Kong between 1890 and 1897 was, as we have seen, that the reasonable belief defence was available to a charge of unlawful sexual intercourse with a girl between the ages of 10 and 12.  Applying the dicta of the House of Lords in B (A Minor) v DPP and Regina v K in relation to sections 5 and 6 of the Sexual Offences Act 1956 (see paragraphs 16(7) and 20(1) above), it must then follow as a matter of statutory construction that the defence was therefore not available to a charge of unlawful sexual intercourse with a girl below the age of 10.  Following the 1897 amendments, if the repeal of the belief defence were not to be given any significance, the absurd situation would then have existed that the presumption of mens rea would apply to both types of charges of unlawful sexual intercourse; in other words, that the reasonable belief defence would at least also be available in relation to the more serious charge of unlawful sexual intercourse with a girl under the age of 12.

36.Of the 1978 amendments to the Crimes Ordinance, we cannot but assume that the drafter of the legislation must have taken into account the legislative history in Hong Kong as well as the position in England.  The provision of a defence specifically dealing with the belief of a defendant as to the status of the girl with whom he has had sexual intercourse (section 124(2)) in the above context is therefore, in our view, significant in that it excludes other defences based on belief.  This was not the conclusion of the House of Lords in Regina v K when faced with a similar point on statutory construction but the position in Hong Kong, especially given our legislative history compared with the English position, is distinguishable.  An argument along these lines was also rejected by this Court in Fong Chin-yue (see 209 (lines 1-19)) but the specific defence in that case was in relation to a different offence whereas in the present case, the defence in section 124(2) is contained within the same provision as the very offence with which we are concerned.

37.For the above reasons, we are of the view that in relation to a charge under section 124 of the Crimes Ordinance of unlawful sexual intercourse with a girl under the age of 16, the belief of the defendant that the girl was 16 or more does not provide a defence.  In other words, the offence is accordingly one of absolute liability in this respect.  We do not, of course, touch upon any aspect of involuntariness in the offence.  For example, if a defendant was somehow compelled against his will to commit an act of sexual intercourse with a girl under the age of 16, different considerations arise as to the question of his intention to do the act itself in the first place.  We would also like to add that while not relevant to conviction, a defendant’s belief as to the victim’s age may be highly relevant to sentence : - see The Queen v Cheung Hon Ki, unreported, Cr. App. 28 of 1996, 19 June 1996, Court of Appeal.

38.The aspect that has taxed us most about this conclusion is that there is no doubt that section 124(1) involves a “truly criminal” offence with serious consequences (a maximum of 5 years’ imprisonment).  Moreover, our conclusion on section 124 must equally apply to the section 123 offence of unlawful sexual intercourse with a girl below the age of 12.  For this latter offence, the maximum penalty is life imprisonment.  The provisions of sections 123 and 124 are virtually identical save that in respect of the latter, a statutory defence is available (section 124(2)).  It seems at first startling that a crime that carries with it such severe penalties (in fact the severest in the case of section 123) should be one of absolute liability (not even strict liability as defined above).  Yet, this remains the position in many common law jurisdictions and is a conclusion that is, given the matters already discussed as to the statutory construction and the legislative history, compelling.  We arrive at our views as a matter of statutory construction, ascertaining the intention behind these provisions of the Ordinance.  Further, although this aspect is not by itself decisive in construing the relevant provision (see paragraph 16(5) above), the policy behind these provisions is clear, namely, the protection of young girls from sexual abuse, this being in the public interest.  As Lord Hutton said in B (A Minor) v DPP at 480C : -

“This approach recognises, rightly in my opinion, that in a criminal statute intended to protect children the courts should not focus solely on the rights of the accused but should also take into account the right of children to be protected.”

Conclusion

39.For the above reasons, we would allow the appeal.  The first question in the Case Stated should therefore be answered ‘No’.  Given the facts as found by the Magistrate, it is inevitable that his acquittal of the Respondent was wrong and that the Respondent should be convicted of the offence under section 124(1) of the Crimes Ordinance.  The third question should likewise be answered ‘No’.  The second question was not, as we have already pointed out, engaged in this appeal.  In the event that this was our conclusion, Mr Tse asks that this Court sentence the Respondent instead of remitting the matter back to the Magistrate.  He refers to the time that has elapsed since the offence was committed.

40.In our view, given that the Magistrate heard evidence from both the girl and the Respondent, it is more appropriate for any sentencing to be carried out by him.  Although we appreciate the point that the Respondent may wish to know what sentence is to be imposed on him as soon as possible, we feel it more appropriate for the sentencing to be carried out by the Magistrate.  Accordingly, using the powers under section 119(1)(d) of the Magistrates Ordinance, we remit the matter back to the Magistrate with a direction that the Respondent should be convicted and that an appropriate sentence be imposed.

Mr D G Saw SC, DDPP & Mr David Leung, SGC of the Department of Justice for the Appellant

Mr Joseph W Y Tse, instructed by the Director of Legal Aid, for the Respondent