HKSAR v. Tsang Tak Wah, Andy

(English Translation)
CACC 95/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.95 OF 2010

(ON APPEAL FROM HCCC NO. 371 OF 2009)

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BETWEEN

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Before: Hon Tang VP, Hon Cheung and Hon Yuen JJA

Date of Hearing: 22 June 2011

Date of Judgment: 22 June 2011

Date of Reasons for Judgment: 7 July 2011

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving the Reasons for Judgment of the Court):

1.In our judgment dated 19 January 2011, we decided that the applicant’s conviction for the offence of rape was unsafe and unsatisfactory. Since we had to deal with matters concerning substituting an alternative verdict and re-trial, the hearing was adjourned to 22 June 2011. On that day, in deciding the applicant’s application for leave to appeal against conviction, we allowed the application and, treating it as the appeal proper, quashed the original conviction and, pursuant to section 83A of the Criminal Procedures Ordinance, Cap. 221, substituted it with a conviction of indecent assault and passed a sentence of three years’ imprisonment.

Conditions for substituting a conviction

2.In Hau Tung Ying and Li Bin v. HKSAR [2011] 2 HKLRD 782, the Court of Final Appeal held that in order to invoke section 83A of the Criminal Procedures Ordinance, the following two conditions must be satisfied:

“63. First, the substituted verdict must be one for an offence of which “the jury could on the indictment have found him (the accused) guilty”; that is to say, it must be for an offence which is open on the indictment.  This is often the case where the substituted offence is laid as an alternative charge in the indictment or where there are alternatives available under the law to the convicted offence.  Normally, these would be lesser offences, such as manslaughter in a case of murder or theft in a case of robbery, but that is not necessarily the case and would require consideration of the nature of both the convicted and substituted charges in question and the alleged facts sought to be proved in support of either charge.

64.  The second condition is that it must be clear to the appellate court that “the jury must have been satisfied of facts which proved him (the accused) guilty of the other offence”.  The court must be satisfied that the jury must have made a finding of the relevant facts.  It is not sufficient that the court considers that the jury would have or might have been satisfied of the relevant facts.  The court must also be satisfied that the facts found by the jury are facts which must be proved to support a conviction on the other charge.  As Widgery CJ in R v Deacon [1973] 1 WLR 696, 699 said in relation to a similar English provision:

“The basis of the power to substitute a verdict for a different offence must … be based on the finding of the jury. It is only when it appears to the court from the finding of the jury that the facts essential to establish the alternative offences were proved, that the court may substitute the alternative verdict. Unlike section 2 [the proviso], the Act does not authorize the court to act on the footing that the court is satisfied that the jury would have brought in the alternative verdict if properly instructed. What is necessary is that the findings of the jury themselves must establish the appropriate facts to support the alternative offence.”

3.In our view, the substitution of a conviction of indecent assault for the original conviction of rape satisfied the above two conditions.  First, the elements of the offence of rape with which the applicant was charged included all the elements of the offence of indecent assault, both being offences where the defendant sexually assaulted the victim without her consent.

4.Further, in this case, the second condition set out above was also satisfied.  The undisputed facts of the case were:

(1) The victim, X, was under 16 at the material times;

(2) The applicant admitted that he had had sexual intercourse with the victim; and

(3) The applicant had known before he had sexual intercourse with the victim that she was only 15.

5.The jury, in our view, must have accepted the above undisputed facts.  Further, section 122(2) of the Crimes Ordinance, Cap. 200 stipulates that a person under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of section 122(1).  Accordingly, the applicant could not rely on the consent given by the victim as his defence.  We therefore considered that the facts that must have been accepted by the jury were those that would support the applicant’s conviction of indecent assault.

Re-trial

6.The Department of Justice indicated that they would not ask for a re-trial.

Sentence

7.The victim in the present case was aged only 15 at the material times.  This was not a case where two teenagers of similar age engaged in sexual activities out of curiosity or love as they went through puberty.  The assailant was a 31-year-old adult man, who induced the victim to have sex with him on the pretext of arranging for her to enter the show business or to become a model.  In our judgment, the appropriate starting point would have been four and a half years’ imprisonment.  However, since the applicant admitted the material facts in the case, namely, that he had had sexual intercourse with the victim and that he had known she was under 16 at the material times, we gave him a one-third discount and sentenced him to three years’ imprisonment.

Memi Ng, Senior Public Prosecutor of the Department of Justice, for the Respondent

Bernard Yuen, instructed by Anthony So & Co., for the applicant (Conviction)

The Applicant, acting in person, present (Sentence)

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.