HKSAR v. Gurung Krishna

CACC 203/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 203 OF 2009

(ON APPEAL FROM HCCC NO. 57 OF 2009)

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Before: Hon Stock VP, A Cheung J and Fok J in Court

Dates of Hearing: 29 and 30 June 2010

Date of Handing Down Judgment: 21 July 2010

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J U D G M E N T

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Hon Stock VP:

The Issue

1.The section under challenge in this appeal is section 125 of the Crimes Ordinance, Cap. 200, which provides:

“(1) Subject to subsection (2), a man who has unlawful sexual intercourse with a woman who is a mentally incapacitated person shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years.

(2) A man is not guilty of an offence under this section because he has unlawful sexual intercourse with a woman if he does not know and has no reason to suspect her to be a mentally incapacitated person.” 

2.Section 150 states that:

“Where in any section in this Part the description of an offence is expressed to be subject to exceptions mentioned in the section, proof of the exception is to lie on the person relying on it.”

3.On a proper construction, s. 125 requires the prosecution to prove the act of sexual intercourse and the fact of mental incapacity of the woman but, when read with s. 150, it imposes upon an accused person a persuasive burden to show that at the time of the intercourse he did not know or have reason to suspect the woman to be a mentally incapacitated person.  That burden infringes the presumption of innocence.

4.The issue in this appeal is whether that infringement is justified.

The case

5.On 9 June 2009, after a trial before McMahon J and a jury, the appellant was convicted of the offence of unlawful sexual intercourse with a mentally incapacitated person, contrary to s. 125(1) of the Ordinance.  He was sentenced to two years three months’ imprisonment.  This is his appeal against conviction.  Since the appeal involves a question of law only, leave is not required[1].

6.There were originally two defendants and three counts upon the indictment but, upon the direction of the trial judge, the jury was directed to acquit the second defendant on the only count against him and to acquit the appellant in relation to an offence of buggery with the mentally incapacitated person contrary to s. 118E(1) of the Ordinance.

7.Count 2 of the indictment alleged that on or about the 10^th day of October, 2008 or the 14^th day of October, 2008, inside a room at Ground Floor, No. 104 First Street, Western, in Hong Kong, the appellant had unlawful sexual intercourse with X, a woman who was a mentally incapacitated person.

8.The reason for the alternative dates was based on some confusion on the complainant’s part about the events of 10 and 14 October 2008, but the precise date matters not for present purposes.

9.In summing up the case to the jury, the judge directed them that it was for the prosecution to prove that the woman in question was mentally incapacitated and, further, that the appellant had had sexual intercourse with her at the time alleged.  He instructed them, however, that even if they were sure of those facts, it was incumbent upon them to consider the defence which had been raised, namely, that the appellant did not know and had no reason to suspect that she was thus incapacitated; and he directed them that the burden of proving that defence lay upon the appellant on a balance of probabilities.

10.It is the direction as to that burden which provides the sole basis of this appeal.  It is an attack directed against the validity of the reverse onus provision constituted by s. 125(2) of the Ordinance when read with s. 150, and which has implications beyond the immediate case.  The merit of the argument does not turn on the specific facts of the instant case.  Nonetheless, a summary of the evidence is worth recounting not only by way of background but because it provides an example by which to test or ‘feel’ the weight of the arguments relevant to the central issue, though the validity of the test must be qualified by recognizing that the facts of cases in this category of offence will vary widely.

11.It was common ground at trial that on 14 October 2008, the appellant had sexual intercourse with the complainant.  It was common ground as well that at the material time the complainant was a mentally incapacitated person, as defined by s. 117 of the Ordinance.  The sole issue was whether, at the time of that intercourse, he knew that she was a mentally incapacitated person.

12.In October 2008, the complainant was aged 21 years and worked in the evenings at a KFC shop.  She had met a person called Ah Sam; quite when it is unclear but she had befriended him and viewed herself as his girlfriend.  On 10 October he took her back to his room where he and a number of other men had sexual intercourse with her.  It appears that a considerable amount of alcohol had been consumed by all.

13.After the incident of 10 October, the complainant told the manageress at her workplace what had happened and the manageress in turn reported the matter to a social worker.  The social worker spoke to the complainant on 13 October and counselled her to go straight home from work that night and not to see the men with whom she had had intercourse on 10 October.  The complainant promised to do so.

14.But the complainant did not go straight home.  She met Ah Sam again, drink was again consumed, and at Ah Sam’s place she had intercourse with a number of men, including the appellant.

15.On the evening of 14 October she was examined at the Queen Mary Hospital.  In the small hours of the following morning the appellant was arrested and interviewed.  There was no admission by him of sexual intercourse with the complainant.  He said that he lived in a room next to that occupied by Ah Sam.  He had seen the girl on about 5 October in the company of Ah Sam and again on 10 October in his company and that of other men.  He did not know that she had a mental problem.

16.Vaginal swabs were secured from the complainant and by comparing the characteristics of DNA samples taken from the appellant and DNA samples from sperm cells found on those swabs, it was established that the appellant had had sexual intercourse with the complainant.

17.Testimony was given by a clinical psychologist who had examined the complainant.  The effect of her testimony was as follows:

a.   On the basis of a widely used intelligence test, the complainant obtained a score of 54 whereas that of a normal person is around 100.  It followed that the complainant’s intelligence was lower than that of 99.9% of the population of the same age.

b.  Tests were conducted for adaptive functioning: that is to say, motor skills, social interaction, personal living skills, and community living skills.  In respect of these skills, the complainant’s performance was equivalent to that of an 8½-year-old person.  She showed a “support” score of 78, which indicated that she needed intermittent support from reliable adults to maintain her daily living which in turn meant that she was incapable of independent living.

c.  She was particularly weak in communication and social interaction skills.

d.  In cross-examination, the psychologist agreed that there were four grades of mental retardation: mild, moderate, severe and profound; and that the complainant was within the grade of least retardation, which is to say, mild retardation.

e.   She had not seen how the complainant behaved and appeared after consuming alcohol.

f.    Severely mentally retarded people clearly appeared to a casual observer to have impairment.  However, mildly mentally retarded people had only subtle limitations, often not evident to a casual observer.  But if someone were to spend several minutes with a person who had mild mental retardation, that person might have suspicions.  It was a matter of degree.  In this regard the judge summarised the psychologist’s evidence as follows:

“If there was considerable contact with the person, then it is more likely that the person having contact with a person such as [the complainant] would notice their mental retardation.  The more contact, the more likely one would be to notice.  You might think that is really very commonsensical, members of the jury.  She said that mildly retarded people may have some characteristics about them.  They may be, for example, improperly dressed or have a slow response.  Their eyes might be glazed and not look at people necessarily directly when they are being spoken to or when they are speaking to them.  She agreed, however, that all of those were subtle matters.”

18.The complainant was interviewed and videos of those interviews were shown to the jury, constituting her evidence-in-chief.  She was cross-examined via closed-circuit television.  So the jury had the opportunity of assessing her behaviour in those settings, albeit settings somewhat different from that which obtained on the nights of 10 and 14 October 2008.

19.The appellant did not testify, nor call evidence on his behalf.

20.Despite the fact that the appellant did not give evidence, his counsel suggested to the jury a number of factors which emerged from the evidence put before them, which demonstrated, he said, that it was more probable than not that the appellant did not realise nor had any reason to suspect that the complainant was mentally incapacitated.  These were that:

a.   she had been out by herself, with no guardian or other person taking care of her;

b.  she had a boyfriend as well as a job which would have suggested to an observer that she was living an independent life;

c.  there was nothing about her appearance that would attract attention to oddity about her personality – no evidence, for example, that she was badly dressed;

d.  there was no evidence that she moved or walked in a peculiar way;

e.   her incapacity had been described as mild;

f.    the symptoms of retardation were subtle;

g.  the complainant spoke Cantonese whereas the appellant, a Nepalese national, spoke English as a second language, and no Cantonese at all, so that the language barrier was a further reason why he might not have had cause to suspect that the complainant was mentally incapacitated;

h.  the complainant had been drinking, so that such conduct by her as may have been unusual could reasonably have been attributed by an observer to drink; and

i. the appellant himself had been drinking, a fact which might have affected his perception.

21.The prosecutor, on the other hand, asserted that the appellant had failed to establish that the defence and pointed to the following factors:

a.   the appellant must have been able to observe the complainant for some time: he had met her at a 7-Eleven store; had spoken to her there; had gone with her to Ah Sam’s place; and had had sexual intercourse with her;

b.  the appellant had seen the complainant having sexual intercourse with a number of men at the behest of or with the contrivance of Ah Sam, a fact which in itself would suggest that she was unable to guard against exploitation; and

c.  that it was plain from the observation of her evidence that she was significantly below average in intellect.

The Ordinance

22.Whilst this case is concerned with s. 125 when read with s. 150, there are other provisions within Part XII which I mention to illustrate the scheme of things.

23.There are a number of provisions which create offences for sexual conduct with mentally incapacitated persons:

i.s. 118 E makes it an offence for any man to commit buggery with a mentally incapacitated person, but the man does not commit an offence if he does not know and has no reason to suspect the other to be a mentally incapacitated person or, where the buggery is committed with a woman, if he is, or believes on reasonable grounds that he is, married to that woman;

ii.s. 128 makes it an offence for a person who takes a mentally incapacitated person out of the possession of her or his parent or guardian against the will of the parent or guardian intending the incapacitated person to do an unlawful sexual act, but there is provided a reverse onus along the lines of that in s. 125;

iii.s. 133 provides a similar defence, by way of reverse onus, in the case of procurement of a mentally incapacitated woman to have unlawful sexual intercourse with a third person;

iv.s. 136 creates the offence of causing or encouraging prostitution of a mentally incapacitated person, but provides that a person who causes or encourages the prostitution of another is not guilty of this offence if he or she does not know and has no reason to suspect the other to be a mentally incapacitated person; and

v.s. 142 renders it an offence for an owner or occupier of premises or vessel, and for a person who manages or assists in the management or control of any premises or vessel, to induce or suffer a mentally incapacitated person to resort to or be on such premises or vessel for the purpose of unlawful sexual intercourse, prostitution, buggery or gross indecency; though no such offence is committed by someone who does not know and has no reason to suspect the other to be a mentally incapacitated person.

24.Section 122 deals with indecent assault and refers specifically to women who are mentally incapacitated, but the structure of the section is different from that of the sections to which I have thus far referred.  Sub-section (1) provides that “subject to subsection (3)” a person who indecently assaults another person is guilty of an offence.  Sub-section (2) states that a person aged under 16 years cannot in law give such consent as would prevent an act being an assault.  Sub-section (3) specifies that a person is not, by virtue of sub-section (2), guilty of indecently assaulting another if that person is, or believes on reasonable grounds that he or she is, married to that other person.  Sub-section (4) addresses the question of consent by a woman who is a mentally incapacitated person: it specifies that such a person cannot in law give such consent as would prevent the act being an assault but “a person is only to be treated as guilty of indecently assaulting a mentally incapacitated person by reason of that incapacity to consent, if that person knew or had reason to suspect her to be a mentally incapacitated person.”  Since the provisions of sub-section (1) are not expressed to be subject to sub-section (4), the section as a whole would seem to contemplate that in the case of an indecent act allegedly perpetrated upon a mentally incapacitated woman, the burden of showing knowledge of or reason to suspect that incapacity is upon the prosecution.

25.Finally, for present purposes, there is s. 124.  It renders it an offence for a man to have sexual intercourse with a girl under the age of 16 years.  Even though it is not one of the offences in Part XII directed at conduct with those who are mentally incapacitated, its suggested relevance lies in the fact that the section does not exonerate those who lack knowledge and reason to suspect that the girl is aged under 16 years, the absence of which defence has survived constitutional challenge: see So Wai Lun v HKSAR[2].

Mental incapacity

26.By s. 117, “mentally incapacitated person” means:

“… a mentally disordered person or a mentally handicapped person (within the meaning of the Mental Health Ordinance (Cap. 136)) whose mental disorder or mental handicap, as the case may be, is of such a nature or degree that that person is incapable of living an independent life or guarding himself against serious exploitation, or will be so incapable when of an age to do so.”

27.It follows that we must turn to the Mental Health Ordinance for its definitions of “mentally disordered person” and “mentally handicapped person”.

28.By reason of s. 2 of the Mental Health Ordinance:

– a mentally disordered person is a person suffering from mental disorder; and a mental disorder means –

a.   mental illness;

b.   a state of arrested or incomplete development of mind which amounts to a significant impairment of intelligence and social functioning which is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned;

c.   psychopathic disorder; or

d.   any other disorder or disability of mind which does not amount to mental handicap. 

– a mentally handicapped person is a person who is or appears to be mentally handicapped and “mental handicap” means sub-average general intellectual functioning with deficiencies in adaptive behaviour.

The principles of law

29.In the context of reverse onus provisions, the fundamental principles have been articulated in a number of the decisions of the Court of Final Appeal, most particularly in HKSAR v Lam Kwong Wai & Anor[3] and HKSAR v Ng Po On & Anor[4]:

i.Although in any event a central rule of common law, the presumption of innocence enjoys constitutional protection by reason of art. 87 of the Basic Law and by art. 14(2) of the International Covenant on Civil and Political Rights, applied by art. 39 of the Basic Law.

ii.A corollary of the presumption is the burden upon the prosecution of proving beyond reasonable doubt the defendant’s guilt of the offence charged, which means that the law “does not (in the absence of statutory intervention) impose any persuasive burden on the accused, but places the burden throughout on the prosecution to prove the ingredients of the offence and to negative any defence raised by the accused beyond reasonable doubt.”[5]

iii.Where a statute reverses the burden of proof, requiring the accused to prove an ultimate fact which is necessary to the determination of his guilt or innocence, he is required to satisfy that burden on the balance of probabilities.[6]

iv.A reverse onus is prima facie objectionable and in any event inconsistent with the presumption of innocence, “because it allows the defendant to be convicted on failing to discharge the reverse onus, even though the prosecution fails to prove all the elements of the offence beyond reasonable doubt”[7] :

“A defendant may in other words be convicted even though there is a reasonable doubt as to his guilt of the offence charged or as to his entitlement to rely on an applicable defence, on the ground that he has not persuaded the tribunal of fact that the evidence he relies on in respect of the relevant ultimate fact is probably true.  Indeed, a reverse burden requires the defendant to be convicted even if his version of the facts is considered equally likely to be right as to be wrong.”[8] 

v.A burden which requires an accused to prove that it is more likely than not that his version of a fact necessary for the determination of guilt or innocence is true is categorized as a persuasive burden, which is to be contrasted with an evidential burden; the latter does not require the accused to establish anything as a matter of proof but:

“… arises where the defendant wishes to put in issue some matter that is potentially exculpatory whilst the prosecution continues to bear the persuasive burden throughout.  In such cases, there must be evidence supporting such exculpatory matter which is sufficiently substantial that it raises a reasonable doubt as to the defendant’s guilt. … If …the accused fails to adduce or point to any evidence on the relevant issue or if the evidence adduced is rejected or is not sufficiently substantial to raise a reasonable doubt, the potentially exculpatory matter places no obstacle in the way of the prosecution proving its case beyond reasonable doubt.  An evidential burden, functioning in this manner, is wholly consistent with the presumption of innocence.”[9]

vi.The constitutional protection accorded to the presumption of innocence is not absolute.  Derogation from it may be justified if the derogation:

(i)     has a legitimate aim;

(ii)  is rationally connected with the pursuit of that aim; and

(iii) is no more than necessary for the achievement of that aim.[10]

vii.The burden of justifying the derogation is on the state.

viii.The burden of justification is a substantial one and for a reverse onus to be acceptable “there must be a compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence.”[11]  The more serious the punishment upon conviction the more compelling must be the reason.[12]

ix.It is incumbent upon the court to give weight to the legislature’s view that the imposition of a reverse onus is an appropriate response to the problem addressed in the statute.[13]  That said:

“The weight to be accorded to the legislative judgment by the Court will vary from case to case depending upon the nature of the problem, whether the executive and the legislature are better equipped than the courts to understand its ramifications and the means of dealing with it.  In matters of serious crime, the courts must recognise that the legislature has the responsibility for determining policy and framing the elements of the criminal offence.”[14]

There may however be cases where the issue turns on matters of proof, onus and evidence in which realm the court may be in as good a position as the legislature to form a judgment:

“It is for the Court to exercise its constitutional responsibility by determining the issue, after giving appropriate respect to the legislative judgment.  At the end of the day, to repeat the words of Lord Nicholls of Birkenhead in R v Johnstone [2003] 1 WLR 1736 at p. 1750F-G:

‘The court will reach a different conclusion from the legislature only when it is apparent the legislature has attached insufficient importance to the fundamental right of an individual to be presumed innocent until proved guilty.’”[15]

The legitimate aim

30.It is sufficiently clear that:

i.  the legislature intended mens rea to be an essential ingredient of

the offence created by s. 125;

ii. the legislature also intended to impose upon the accused the onus of persuading the jury, on a balance of probabilities, that he did not possess the relevant mens rea, which in this instance is knowledge or reason to suspect the woman to be a mentally incapacitated person;

iii.    in the light of the language and structure of the section, the onus thus imposed is persuasive and not merely evidential;[16]

iv.    the result is a derogation from the presumption of innocence under art 87(2) of the Basic Law, and art 14(2) of the ICCPR (embraced by art 39 of the Basic Law and also reflected in art 11(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383).

31.So the question in the case is whether the derogation has been justified.

32.The scheme of Part XII, insofar as it relates to offences against mentally incapacitated persons is to provide those who are mentally incapacitated and, for that reason, especially vulnerable, with protection from sexual abuse and exploitation.  No legislative debate or policy paper revealing the rationale for the reverse onus imposed by the various provisions to which I have earlier referred[17], preceded their enactment in Hong Kong.  However, common sense dictates that the reverse onus was imposed because it was thought that those who are mentally incapacitated are, as a generality, less likely to be in a position to provide an account, or a reliable account, of material events than are complainants in other cases of sexual offences and that without a reverse onus the efficacy of the law, criminalizing sexual conduct with the mentally incapacitated, would materially be undermined.

33.I am satisfied that the aim thus described is an obviously legitimate societal aim and, further, that the derogation from the presumption of innocence which is constituted by the reverse onus imposed by sub-section (2) of s. 125, is rationally connected with that aim.

34.The sole remaining question, therefore, is whether the means employed, namely, the creation of a persuasive rather than an evidential burden upon an accused in relation to the mens rea of the offence has been shown by the respondent to be necessary to achieve that legitimate aim.

The ruling

35.The issue arising in this appeal was canvassed before McMahon J who provided a reasoned decision prior to summing-up.  He correctly identified the key issue as that of proportionality and said that although Part XII pre-dated human rights legislation constituted by the Bill of Rights and, later, by the Basic Law, the legislature must have been “of the clear view that the derogation … was justified by the purpose of the protection.”

36.He acknowledged that there would be cases, most obviously where the victim was institutionalised or at home and known to the offender, in which the prosecution would have little difficulty in establishing an offender’s knowledge of, or reason to suspect, the victim’s handicap: in such cases the reversal of the onus was unnecessary and disproportionate to the possible penalty of 10 years’ imprisonment.  Yet, he commented:

“… in other cases where the disability is mild, as it appears to be the situation in the present case, the victim may be able to enjoy an ordinary social life, absent any guardian or surveillance, and it is desirable that such persons be able to do so without risk of exploitation.”

37.He concluded that “the reversal of onus is proportional.”  That was so, he explained, because:

“In all cases, the defendant will be aware of the circumstances in which intercourse took place and will often be best able to recollect and recount in evidence the appearance and behaviour of the complainant at the time.  Absent the reverse onus, the prosecution, given the realities of these cases, will find it difficult to establish the state of the defendant’s knowledge of the victim’s mental handicap, other than in the circumstances of institutionalisation or familiarity I have referred to.

… I take into account that a defendant does not have any insurmountable difficulties, whether practical or legal, in establishing his defence.  The victim’s mental condition and its effect upon her behaviour can readily and professionally be assessed.  That would lessen the likelihood of a defendant innocent of blameworthy conduct being convicted, which was an important element in the court’s decision in Sheldrake v DPP [2005] 1 AC 265..

In this case, the reversal of the onus creates an available defence and so derogates less from a defendant’s rights than the legislation creating an absolute offence in So Wai Lun v HKSAR, at 530[18].  In that case the derogation of a defendant’s rights, if that is the correct phrase to use, was justified by the overweaning consideration of the duty of society and the requirement in society of protecting under-aged girls from sexual abuse.

On balance, I think the reversal of onus in the present legislation is proportional.  The defendants have, therefore, the onus of establishing their defence on the balance of probabilities.  I might add that I think it more appropriate for a Court of First Instance to adopt a conservative approach to the interpretation of legislation and challenges to that legislation on the basis of it breaching the Bill of Rights.”

The arguments

38.The reasoning thus articulated by McMahon J finds an echo in the respondent’s submissions in this appeal.  In summary, Mr Tam, for the respondent, places emphasis on the nature of the offence, the vulnerable circumstances in which a mentally incapacitated person is likely to find herself, the difficulty which she may have in remembering or recounting how she came to know the accused, the extent of their acquaintanceship and how sexual intercourse came to take place.  He refers, by contrast, to the absence of such an obstacle in the path of an accused against whom sexual intercourse with a mentally incapacitated person is proved.  Mr Tam points out that sexual intercourse is likely to have taken place in circumstances of privacy and that the defendant and the mentally incapacitated woman may well be the only persons who know of the circumstances in which they came to know each other and what opportunity the defendant had to notice signs of incapacity.  Mentally incapacitated persons are susceptible to being lured by strangers and in such circumstances the difficulty and disadvantage at which the prosecution might be put was, he suggested, obvious.  He relied as well on the judgment in So Wai Lun, heavily influenced as it was by recognition of the need to afford particular protection to the immature: the same consideration should he argued here apply.

39.Mr McCoy SC, on the other hand, emphasised the facts that the onus was placed by s. 125 upon a defendant in relation to an essential element of the offence; that the offence carried with it a possible term of 10 years’ imprisonment; and that, he suggested, the burden upon the prosecution of proving knowledge or reason to suspect was not in practice nearly as difficult as the respondent contended, whereas the onus upon a defendant might in many cases be a difficult one to discharge.  He contended that in general the difficulty of showing that one did not know that a woman was mentally incapacitated was likely to be less than showing one had no reason to suspect it.  This led him to suggest, as a possible middle course, that it was open to the Court to find the reverse onus impermissible in relation to the “reason to suspect” limb of the provision but permissible insofar as the section required the defendant to show on the balance of probabilities that he did not know the person to be a mentally incapacitated person.

History and the UK’s approach

40.At the Divisional Court stage of Sheldrake v Director of Public Prosecutions[19], Clarke LJ pointed to the fact that:

“The view of the [Criminal Law Revision] committee [in its 1972 report, that ‘both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only’] has, however, until very recently been steadfastly ignored over the last 30 years and reverse burdens of proof which have been construed as legal burdens have proliferated rather than withered. … Recently the position has changed as a result of cases like Kebilene[20]  and Lambert[21].”[22]

41.That change in the United Kingdom came, one can safely assume, as a result of sensitivity to the requirements of the European Convention on Human Rights, the jurisprudence of the European Court of Human Rights and, most particularly, the enactment of the Human Rights Act 1998.

42.The history in Hong Kong is similar in the proliferation of reverse onus provisions, not surprisingly since much of the legislation reflected, to one degree or another, that of England and Wales.  These provisions were applied with little demur, save in the instance of some drug trafficking cases, for example, where prosecutors felt they did not need to rely on them.  The change in Hong Kong has an aetiology different from that of England in that it was triggered by the enactment in 1991 of the Hong Kong Bill of Rights Ordinance and, later, the coming into force of the Basic Law.  The change has been reflected in a series of challenges since 1991 to the constitutionality of a number of reverse onus provisions in this jurisdiction. 

43.Many of the provisions of Part XII of the Crimes Ordinance, including s. 125, were enacted in 1978 and copy provisions of the Sexual Offences Act 1956 (United Kingdom).

44.We have been taken as far back as the Mental Deficiency Act 1913 which, by s. 56, created a number of offences designed for the protection of those classified by that Act as “mentally defective”.  The section rendered guilty of a misdemeanour and liable to imprisonment not exceeding two years, any person who had unlawful carnal knowledge of a woman under care or treatment in an institution; who procured a “mentally defective” female for unlawful carnal connection; who caused or encouraged the prostitution of such a female; who, being the owner or occupier of premises or who had or assisted in the management or control of premises, suffered such a woman to resort to the premises for the purpose of carnal knowledge; or who took such a woman out of the possession of her parents or guardian, against their will, intending her to have carnal knowledge by a man.  Such a person was guilty of a misdemeanour “unless he proves that he did not know and had no reason to suspect that the woman or girl was a defective.”

45.One sees at once how closely the 1978 provisions of Part XII to which I have referred follow the categorisation of offences created in 1913.  The category of persons now protected by the Ordinance is significantly wider than that protected by the 1913 and 1956 Acts, for “mental defective” was confined to those with “severe impairment of intelligence and functioning”.  The change in Hong Kong in that regard came in 1997 in consequence of the Mental Health (Amendment) Ordinance.

46.The Sexual Offences Act 1956, as amended by the Mental Health Act 1959, retained the reverse onus for sexual offences relating to “mental defectives.”[23]  We see in particular how s. 150 of the Crimes Ordinance is a reflection of s. 47 of the 1956 Act which provided that “[w]here in any of the foregoing sections the description of an offence is expressed to be subject to exceptions mentioned in the section, proof of the exception is to lie on the person relying on it.”

47.It is established that the test whether the man knew of the woman's mental incapacity is subjective.  In R v Hudson[24], the defendant was tried upon an indictment of having sexual intercourse with a “defective”, contrary to s. 7 of the 1956 Act and the judge directed the jury that the proper test was objective, namely, whether an ordinary man, capable of reasoning, would have known or suspected that the girl was a “defective”.  The Court of Criminal Appeal rejected that interpretation and held that:

“… if an accused man succeeds in establishing to the extent known as the balance of probabilities test that he, himself, did not know and that he, himself, had no reason to suspect the woman to be a defective, then he succeeds in his defence.  It is, of course, right to say…that in considering whether he knew or whether he had cause to suspect, the jury are obviously entitled to look at the whole of the evidence regarding the girl’s condition, appearance, conversation and the like.  It is true also to say that the man is not entitled to take advantage of the defence by, so to speak, shutting his eyes to the obvious, but if he were to attempt to do that the result would be rather the rejection of his defence than the substitution of another test.  Equally, in considering his state of mind, in the view of this court, the jury is entitled and, indeed, bound to take into account the defendant himself.  There may be cases, of which this is not one, where there is evidence before the jury to show that the defendant himself is a person of limited intelligence and possibly suffering from some handicap which would prevent him from appreciating the state of affairs which an ordinary man might realise.  Again that is a matter which, in the appropriate case, would no doubt receive consideration in the summing up.”[25] 

48.The law in the United Kingdom concerning sexual offences has now changed whilst that in Hong Kong has not.  The Sexual Offences Act 2003 came into force on 1 May 2004.

49.The 2003 Act, by ss. 30 to 41, introduced a number of significant changes to the previous regime.  The protection was extended to male as well as female complainants; the category of potential complainant was widened from “defectives” to those with a mental disorder, as defined by the Mental Health Act 1981 (thus conferring protection not only on those with a disability that was severe but upon those whose disability, though not severe, was such as to impair their capacity); a wider range of sexual activity than sexual intercourse and indecent assault is now criminalized; the maximum sentence was substantially increased; and the reverse onus no longer applies.[26]

50.The theme of ss. 31 to 41 is that of offences against persons with a mental disorder which impedes their choice.  That theme as well as the approach to proof of mens rea is typically revealed by s. 30(1):

“(1) A person (A) commits an offence if –

a. he intentionally touches another person (B),

b. the touching is sexual,

c.    B is unable to refuse because of or for a reason related to a mental disorder, and

d.    A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.”

Upon conviction on indictment for that offence, the offender is liable to   imprisonment for a term not exceeding 14 years.

51.Other offences in this category include causing or inciting a person with a mental disorder impeding choice to engage in sexual activity; engaging in sexual activity in the presence of a person with a mental disorder impeding choice; causing a person with a mental disorder impeding choice to watch a sexual act; and using an inducement, threat or deception to procure sexual touching or sexual activity with a person with a mental disorder.  The maximum sentences for such offences include a maximum term of life imprisonment in the case of certain specified sexual activity of a gross nature but otherwise 14 or in some instances 10 years’ imprisonment.  Each of these provisions requires the prosecution to prove that the accused knew or could reasonably be expected to know that the complainant had a mental disorder.

52.In the case of offences allegedly committed by care workers, however, there is imposed a burden upon the defendant but it is an evidential burden.  It comes in the form of a provision[27] that where it is proved that the complainant had a mental disorder, “it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it.”

53.The enactment of the 2003 legislation was, as one would expect, preceded by public consultation and legislative debate but we have only some of the relevant material before us and it would take an in-depth study sufficiently to ascertain the process by which it was considered acceptable or, indeed, requisite to dispense with the persuasive burden in relation to knowledge and reason to suspect mental incapacity.  It suffices to conclude, which I think we safely can, that the circumstances as a whole were viewed as not providing a sufficiently compelling reason to retain the persuasive burden although it is pertinent to note that by the phrase “could reasonably be expected to know” the legislation provides an objective test, an easier burden for the prosecutor than a subjective one.

Other jurisdictions

54.Mr McCoy has informed us that Canada and New Zealand impose the burden of proof of knowledge of mental impairment upon the prosecution whereas New South Wales, Victoria and Queensland impose a persuasive burden upon the accused.

55.Care must be exercised in placing too much emphasis upon the approach of other jurisdictions, since the weight to be placed upon a specific approach must depend on a number of factors which will include the way in which the statutory offence is framed, the degree of mental impairment at which the statute is directed, the particular mens rea that is prescribed, the tools available to prosecutors in the jurisdiction in question to adduce evidence from vulnerable witnesses, and whether reverse onus legislation in the jurisdiction is susceptible to challenge.  Whether as a result of this judgment it is desirable to rethink the scheme of this subject-specific legislation in Hong Kong is a matter for others to consider.

Analysis

56.The judgment which we are called upon to make is not facilitated by the fact that we do not have the benefit of case examples in this jurisdiction, other than the instant case; of any consideration of the issue by the Law Reform Commission; of any legislative debate; or of any report specifying the number of allegations of abuse of the mentally impaired each year and the settings of such abuse.  Any exercise in applying the tests which have to be engaged in reverse onus challenges necessarily involves addressing, at least in general terms, the circumstances in which the category of offence is likely to be committed but in this category of offence it is less easy than in many other categories of offence to predict typical examples of offending.  That is because of the diversity of those with mental impairment, both as to the extent of that impairment and as to their living circumstances, and the wide variety of situations in which an offender may meet and take advantage of such a person.

57.That said, one does not need a Law Reform Commission report or a legislative debate to know that those with mental impairment are particularly vulnerable to sexual abuse and exploitation, and to conclude that they are therefore deserving of particular protection by the law.  It is likely that many instances of abuse go unreported.  One can also safely state – as a generality - that, save perhaps in the case of offences against children, the effective prosecution of offenders is, by reason of the condition of the victims of such offences, made more difficult than in the case of other sexual offences.  That is because the mental condition of the complainant is often likely to be such as to affect reliable recollection.

58.As against this profound need to protect the vulnerable against the predator, sits the fact of our deeply ingrained abhorrence at the notion of incarceration of the innocent, by which, in our system, we mean those who have not been shown beyond reasonable doubt to be guilty.  There is a real possibility that the particular facts of a case may be such that the accused did not know or have reason to suspect the complainant to be suffering from a mental impairment; perhaps because of the brevity of the relationship, the relatively mild incapacity of the complainant, the mental condition of the accused, a false perception induced by the complainant’s consumption of alcohol, or a combination of such factors.  The instant case is an example of a case in which some such factors are said to have presented themselves.

59.Much has been made by counsel for the appellant of the suggested difficulty in discharging the persuasive onus imposed by ss. 125 and 150 of the Ordinance.  Mr McCoy argued that so complicated are the definitions of mental incapacity as to place the concepts thus defined beyond the comprehension of the average lay person, thereby making it well-nigh impossible for him to discharge the burden placed upon him by ss. 125(2) and 150.  A significant proportion of his argument concentrated upon this definitional difficulty.  I think, with respect, that the validity of the argument is suspect.  Whilst the statutory provision is aimed at the protection of the mentally vulnerable from those within the population at large who might be minded to exploit them, there is a category of persons who, by reason of their occupation and daily proximity to the vulnerable individual, will know that individual to be mentally disordered or mentally handicapped, in one or more of the defined aspects.  That category includes mature and capable family members, as well as those in the caring professions, with whom a mentally incapacitated person might at any given time be placed.  This is not for a moment to suggest that the vast majority of such family members and professional persons are other than wholly dedicated and proper in their care of the vulnerable.  But, regrettably, experience reveals exceptions to this rule and it is realistic to suppose that the legislative provision is directed in part at such exceptions.  In other situations, the case is more likely to turn upon the “reason to suspect” limb of s. 125 and it seems to me that that is not as difficult an onus to discharge as has been suggested.  In any event, the difficulty for a defendant which Mr McCoy postulates, as one arising from the statutory definition, might well be real were a defendant required to show that he knew or suspected a woman to be mentally incapacitated as defined.  But that is, of course, not the requirement and the approach adopted by counsel for this appellant at trial in pointing to factorssupporting an absence of indicia in itself illustrates how a persuasive burden would generally, in this context, be approached on a defendant’s behalf without reference to the elaborate statutory definition.

60.Mr Tam for the respondent contends that the burden is a relatively easy one to discharge; that it is the defendant in any given case who knows better than anyone else how the act of intercourse came to occur and what opportunity he had to assess the mental capacity of the complainant.  I accept this contention and I accept as well that the ease with which a defendant is likely to be able to discharge a reverse onus is a material consideration in the required analytical exercise.  But it is, in my judgment, the wrong point at which to start and it is an argument to be approached with some caution because a logical extension of it would undermine the importance of the presumption of innocence in relation to almost all serious crime.

61.The place at which one has always to begin is to recognize that a persuasive onus upon a defendant in relation to an essential element of an offence means that so long as the prosecution has discharged such burdens as are placed upon it in relation to the other essential elements, the defendant faces conviction even where the tribunal of fact entertains a reasonable doubt as to his guilt.  In the case of an offence which carries with it the likelihood of incarceration, that is no small matter:

“The relevant factors to be taken into account when considering whether such a [compelling] reason exists [why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence] have been considered in several recent authorities… . … A sound starting point is to remember that if an accused is required to prove a fact on the balance of probability to avoid conviction, this permits a conviction in spite of a fact-finding tribunal having a reasonable doubt as to the guilt of the accused. … This consequence of a reverse burden of proof should colour one’s approach when evaluating the reasons why it is said that, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused.  The more serious the punishment which may flow from conviction, the more compelling must be the reasons.”[28] 

62.The same point had already been made by the South African Constitutional Court in State v Coetzee[29] in a judgment by Sachs J noteworthy also for its analysis of the argument often directed in such cases, as also in this, at the perniciousness of the offence:

“There is a paradox at the heart of all criminal procedure, in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become.  The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book… .  Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system.  Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise.  The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise.  If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption… the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases.”[30]

63.It seems to me that if one starts from that point and takes into account the following factors, a compelling justification has not been shown for the reverse onus in the case of ss. 125 and 150:

(1)   The offence constituted by s. 125 is a serious criminal offence carrying with it not only significant social stigma but the virtual certainty in most cases of a term of imprisonment.  That term may be as much as 10 years.

(2)   What the accused is asked to do by ss. 125(2) and 150 is to disprove a substantial element of the offence.

(3)   Whilst I accept that this type of case will often present the prosecution with difficulties of proof born of the mental condition of the complainant, it is not, in my judgment, an insuperable difficulty.  The worse the condition of the complainant, the more likely it is that she will be unable to testify or to testify reliably.  But the more extreme her condition, the easier it will be for the prosecution to prove by other evidence – that of experts and of others with whom she has come into contact – that her condition must have been obvious to an observer.

(4)   I acknowledge that this leaves one with the question of proof of the circumstances in which the accused came to meet, and to have intercourse with, the complainant.  There will be cases in which that might be difficult to prove.  Mr Tam postulated the example of a man who lures a woman from a bus stop to his living quarters nearby, having perhaps observed her at a distance for some time.  In such a case, he suggested, if the woman is not in a position to give reliable evidence as to the degree of their acquaintanceship, a prosecution would, but for a reverse onus, inevitably fail.  That may or may not be so, depending upon what other evidence there is.  In many such cases there will be other evidence; often the evidence of sexual intercourse will be the result of a complaint by the woman which fact will of itself suggest sufficient capacity to testify.  But it must be remembered that difficulty of proof is a concomitant of the presumption of innocence and does not per se justify a reverse onus:

“There will no doubt be cases in which it will be difficult to prove that a particular person against whom the presumption would have operated, was in fact in possession of the prohibited article.  If that person was in fact guilty, the absence of the presumption might enable him or her to escape conviction.  But this is inevitably a consequence of the presumption of innocence; this must be weighed against the danger that innocent people may be convicted if the presumption were to apply.  In that process the rights of innocent persons must be given precedence.  After all, the consequences of a wrong conviction are not trivial.”[31] 

(5)   A remedial interpretation of s. 125 with s. 150, if remedy be required, would result in the two sections imposing an evidential rather than a persuasive burden, assuming that a reading down to that effect is possible.  An evidential burden on a defendant is not illusory.  It requires the accused to adduce evidence, either himself or from another quarter, which is sufficient to raise a reasonable doubt as to his knowledge of or reason to suspect the mental incapacity of the woman.  His mere ipse dixit is not enough.  There must be evidence which supports the defence.  It is “important to bear in mind that it is not for the defence merely to allege the fact in question: the court decides whether there is a real issue on the matter”:[32]

(6)   Although the question of the defendant’s knowledge or reason to suspect is a matter to which of the defendant is well able to speak, the proportion of cases in which, assuming the mens rea to have been present, the prosecution will be unable to produce evidence from which his knowledge or reason to suspect can be inferred will, in my judgment, be small, and it is to be recalled that:

“While the defendant’s peculiar knowledge of the facts can be a factor in assessing proportionality, it is in principle not sufficient in itself to justify a reverse onus.  As Lawton LJ stated:

‘There is not, and never has been, a general rule of law that the mere fact that a matter lies peculiarly within the knowledge of the defendant is sufficient to cast the onus on him.  If there was any such rule, anyone charged with doing an unlawful act with a specified intent would find himself having to prove his innocence because if there ever was a matter which could be said to be peculiarly within a person’s knowledge it is the state of his own mind.’”[33] 

(7)   There exist special measures in this jurisdiction by which prosecutors may present the evidence of mentally incapacitated persons, thereby facilitating, though not eradicating, the practical difficulties presented in such cases.  Where a video recording has been made of an interview between an adult and a mentally incapacitated person relating to the matter in issue in criminal proceedings the video recording may, with leave of the court, be given in evidence, unless the mentally incapacitated person will not be available for cross-examination or it is otherwise in the interests of justice to preclude admission of the evidence.[34]  In relation to the giving of evidence in court, whether in chief or where, in the case where a video interview is admitted as evidence in chief, cross-examination is requested, the court is empowered to permit a mentally incapacitated person to be examined by way of a television link.[35]  It is relevant to note that these provisions were enacted in 1995, well after the enactment of ss. 125 and 150 of the Crimes Ordinance.

(8)   The fact that other common law jurisdictions have dispensed with the persuasive burden tends to suggest that its absence has not been considered such as to prevent effective enforcement of the law in this area although, in so saying, I acknowledge that this is a fact to which only qualified weight can be attached; qualified in the main by reason of the different statutory provisions which apply in those jurisdictions.

64.It is not possible to say in the present case whether the jury convicted because they were sure that the appellant possessed the requisite mens rea or whether they convicted because he had not discharged the persuasive burden imposed upon him.  It may very well be that, having observed the testimony of the complainant at some length, they were able with the benefit of that observation to be sure.  We do not have the advantage of that perspective, yet I note the comment made by the judge in his summing-up that:

“You have seen [the complainant] on close circuit TV, and you might think there is nothing about her particularly that would suggest that she was mentally retarded.”

65.Assuming for a moment that the jury was not compelled by viewing the video recording of the interview and the testimony via closed-circuit television to the conclusion that the applicant must have had reason to suspect her incapacity, and bearing in mind that the complainant’s symptoms of retardation were said to be “subtle”, this is precisely the type of case in which one might justifiably nurture the fear that the jury convicted because of the failure on the appellant’s part to discharge the burden placed upon him rather than because the jury was sure that he possessed the requisite mens rea.  And if that be the position, one should be disturbed not only for the obvious reason that the conviction resulted in the imprisonment of a person who, on this analysis, might not have had reason to suspect the complainant’s mental incapacity but also because there would appear to have been no impediment to the prosecution in discharging the burden of proof of mens rea if the facts so warranted.  Indeed, we know from the summing-up that the way in which the prosecution put its case was in the manner traditionally adopted when the burden of proof is on the prosecution in relation to the essential ingredients of an offence, namely, by submitting that bearing in mind his opportunity to observe her, his conversations with her, the acts in which the two had engaged, the manner in which she had, to his knowledge, behaved with a number of other men, and what the jury themselves could see from observing her evidence, it must have been plain to the applicant that she suffered mental incapacity.

66.Why, then, in such a case is there a need to run the risk which, because of the persuasive burden, was run?  It will be said in answer to that question that the persuasive burden is intended for other cases, the details and complexities of which cannot be forecast.  That may be so, yet, as a generality, it seems to me safe to say that in the substantial majority of cases it will either be relatively easy, because of obvious symptoms, to show either knowledge or reason to suspect – in which case a prosecutorial burden will not be difficult to discharge; or more difficult to show knowledge or reason to suspect where, for example, the symptoms are more subtle or the duration of the relationship brief – in which case, all the more reason for the burden to be on the prosecutor.  This is not to deny the fact that there will be cases in which the condition of the woman will in itself present prosecutors with considerable difficulties in discharging the burden, if imposed upon them, but I am not persuaded that those cases will be other than the exception rather than the rule and it does not seem to me to be just to conclude that because of them the burden is properly reversed across the board.

67.The respondent prays in aid the decision of the Court of Final Appeal in So Wai Lun v HKSAR[36].  That decision concerned a challenge to the constitutionality of s. 124 of the Ordinance[37] which makes it an offence for a man to have unlawful sexual intercourse with a girl aged under 16 years.  The magistrate ruled that it was a defence for a defendant to prove on the balance of probabilities that he did not know and had no reason to suspect that the girl was under that age.  The Court of Appeal held that he was wrong in so ruling.  The Court of Final Appeal held that having regard to the vital importance of protecting young girls, it was unable to say that imposing absolute liability for unlawful sexual intercourse with a girl under the age of 16 years was arbitrary: it was a choice constitutionally open to the legislature.  The argument by the respondent in the present case is that the rationale of that decision applies to s. 125, since s. 125 is equally designed for the protection of the vulnerable against sexual exploitation.  The difficulty for this argument is that the legislature chose, in the case of s. 124, to create an absolute liability offence whereas, in the case of s. 125, it chose to make knowledge or reason to suspect an essential ingredient of the offence and, further, that the issue of consistency with the presumption of innocence was not one which fell for the Court’s consideration in So Wai Lun.

68.Our attention was also drawn to Attorney- General of Hong Kong v Lee Kwong-Kut, a decision of the Privy Council[38].  One of the two provisions under scrutiny was s. 25 of the Drug Trafficking (Recovery of Proceeds) Ordinance.  It is not necessary to set out that lengthy provision.  It suffices to say that s. 25(1) of that Ordinance makes it an offence for a person to enter into or to be concerned in an arrangement whereby another person’s proceeds of drug trafficking are used for that other person’s benefit, knowing or having reasonable grounds to believe that that other person is a person who carries on or has carried on drug trafficking.  It is, however, by reason of sub-section (4) a defence for the accused to prove that he did not know or suspect that the arrangement related to any person’s proceeds of drug trafficking.  It was contended that this constituted an unjustified infringement of the presumption of innocence protected by art. 11(1) of the Bill of Rights, a contention which was rejected by their Lordships.

69.The decision does not, in my judgment, assist the respondent.  It is materially different in its effect from the one with which we are in this case concerned, in that under s. 25(1) (of the drug trafficking legislation) the onus is on the prosecution in relation to the substance of the offence, in particular to prove beyond reasonable doubt that the accused knew or had reasonable grounds to believe that the relevant person was a person who carries on or has carried on drug trafficking or has benefited from drug trafficking.  We see from the analysis of their Lordships that:

“The substance of the offence is contained in section 25(1) as to which the onus is on the prosecution.  Unless the prosecution can prove that the defendant has been involved in a transaction involving the relevant person’s proceeds of drug trafficking … and that at that time he had the necessary knowledge or had reasonable grounds to believe the specified facts the defendant is entitled to be acquitted.  However once the defendant knows or has reasonable grounds to believe that the relevant person is a person who carries on or has carried out drug trafficking or has benefited from drug trafficking, then the defendant knows that he is at risk of committing an offence and that he can only safely deal with that person if he is in a position to satisfy section 25(3) or (4).  If the defendant chooses not to take the precautionary action under section 25(3) [disclosure to an authorised officer] then he knows he can only safely proceed by relying on section 25(4).  To be able to achieve this the defendant will have to take any steps necessary to ensure that he does not have the knowledge or suspicion referred to.  An example would be, by insisting on seeing documents establishing the untainted source of the funds.  If the defendant has done this then he will be aware of the relevant facts and it is reasonable that he should be required to establish them.  It would be extremely difficult, if not virtually impossible, for the prosecution to fulfil the burden of proving that the defendant had not taken those steps.”[39] 

70.The difference may be discerned quite readily.  In the case of s. 125 of the Crimes Ordinance, it is not for the prosecution to prove any state of knowledge on the part of the accused and, more particularly, it is not for the prosecution to prove that, objectively, there existed, in the circumstances that prevailed between the accused and the complainant, reasonable grounds to believe that the complainant was mentally incapacitated.  Section 25 of the Drug Trafficking (Recovery of Proceeds) Ordinance requires that before any burden is shifted upon the accused, the prosecution must prove facts showing that the accused was clearly put on notice of the risk which he was running before he proceeded further, whereas there is no analogous requirement imposed by s. 125 of the Crimes Ordinance; proof that the woman was a mentally incapacitated person might or might not, depending on the degree of incapacity and all other circumstances of the case, demonstrate that the accused was put on notice. 

Conclusion

71.For the reasons which I have provided, it is my opinion that there has been shown insufficient justification for the persuasive burden which is imposed by s. 125 (2) when read with s. 150.

72.It follows that, in my judgment, the two provisions when read together are unlawful insofar as they impose upon an accused person a persuasive burden to show that he did not know or have reason to suspect that the woman with whom he has had intercourse was a mentally incapacitated person.

Reading down

73.The Basic Law confers on the courts of this Region an implied power of remedial interpretation, which includes the obligation to read down a provision, where that is possible, in order to preserve its validity: Lam Kwong Wai[40].

74.The remedy in this case is to read down s. 125(2) in conjunction with s. 150 so that they are understood as imposing an evidential burden instead of a persuasive burden.[41]  Thus read down, this means that once it is proved by the prosecution that a defendant had sexual intercourse with a woman and that at the time of that intercourse she was mentally incapacitated, as that term is defined by the Ordinance, he is required to raise the contention that he did not know or have reason to suspect that she was thus incapacitated and he is required to support that contention by sufficient evidence – whether from himself or other testimony called on his behalf or from the testimony adduced by the prosecution – to create a reasonable doubt as to that knowledge or reason on his part to suspect.  Once that is done, the burden is then on the prosecutor to prove, beyond reasonable doubt, either that he knew it or that he had reason so to suspect.  Such an evidential burden does not infringe the presumption of innocence.

Result

75.Since the appellant was convicted upon a direction to the jury that there was a persuasive onus upon him in relation to the mens rea of the offence, I would allow the appeal and quash the conviction.

Hon Andrew Cheung J:

76.I agree with the judgment of Stock V-P and the order he proposes.

Hon Fok J:

77.I also agree. 

Hon Stock VP:

78.Accordingly, the appeal is allowed and the conviction quashed.  If there is to be an application for costs, we will hear counsel in due course.

Mr Tam Sze-lok, Isaac, SPP of Department of Justice, for the Respondent

Mr Gerard McCoy, SC & Mr Michael Arthur, instructed by Messrs Tse Yuen Ting Wong, assigned by DLA, for the Appellant

Appellant - absent

[1] s. 82 Criminal Procedure Ordinance, Cap. 221.

[2] (2006) 9 HKCFAR 530.

[3] (2006) 9 HKCFAR 574.

[4] (2008) 11 HKCFAR 91.

[5] Ng Po On at para. 21, per Ribeiro PJ.

[6] Ng Po On at para. 25.

[7] Lam Kwong Wai at para. 25 per Sir Anthony Mason NPJ.

[8] Ng Po On at para. 26.

[9] Ng Po On at para. 27.

[10] Ng Po On at para. 28.

[11] Lam Kwong Wai at para 44 citing R v Johnstone [2003] 1 WLR 1736 at pp. 1749-1750.

[12] R v Johnstone at para. 50.

[13] Lam Kwong Wai at para. 45; and Ng Po On at para. 28.

[14] Lam Kwong Wai at para. 45.

[15] Lam Kwong Wai at para. 45.

[16] The steps thus far are those adopted by Sir Anthony Mason NPJ at para 33 of HKSAR v Lam Kwong Wai and Another (2006) 9 HKCFAR 574.

[17] paras. 22-25 above.

[18] (2006) 9 HKCFAR 530.

[19] Sheldrake v Director of Public Prosecutions [2003] 2 Cr App R 206; culminating in the determination of the House of Lords reported at [2005] 1 AC 264.

[20] R v DPP ex p Kebilene [2000] 2 AC 326.

[21] R v Lambert & others [2000] 2 AC 545.

[22] [2003] 2 Cr App R at p. 211.

[23] ss. 7; 9; 21; 27 and 29 of the 1956 Act and s. 128 of the 1959 Act.

[24] [1966] 1 QB 448.

[25] at p. 455 per Ashworth J.

[26] Rook and Ward “ Sexual Offences Law and Practice” 3^rd ed., at pp. 205 – 208.

[27] sections 38(2); 39(2); 40(2); and 41(2).

[28] R v Johnstone at p. 1750, para. 50.

[29] State v Coetzee [1997] 2 LRC 593.

[30] at p. 677, para. [220].

[31] State v Mbatha [1996] 2 LRC 208 at p. 218.

[32] R v Lambert [2002] 2 AC 545 at p. 572 per Lord Steyn.

[33] Ng Po On at para. 65, citing R v Edwards [1975] QB 27 at p. 35.

[34] s. 79C (3) and (4) Criminal Procedure Ordinance, Cap. 221.

[35] s. 79B(3) Criminal Procedure Ordinance.

[36] (2006) 9 HKCFAR 530. See paras. 26 and 38 above.

[37] see para. 25 above.

[38] [1993] A.C. 951.

[39] at p.973 D – G.

[40] at paras. 78 and 79.

[41] see, by analogy, Ng Po On at para. 77.