HKSAR v. Lee Kwok Wah Francis
Read the full judgment text of CACC 30/2011 on BabelCite. This Court of Appeal judgment was delivered on 3 December 2012.
1. The applicant was indicted on seven counts of sexual offences. After trial before D. Pang J sitting with a jury, he was found guilty of five of the counts and was sentenced to eight years’ imprisonment. He applies for leave to appeal against both conviction and sentence.
Cited by 5 cases · Cites 12 cases
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[English Translation – 英譯本] IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 30 OF 2011 (ON APPEAL FROM HCCC NO. 183 OF 2010) ________________ BETWEEN
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J U D G M E N T Hon Cheung JA (giving the judgment of the Court): 1.The applicant was indicted on seven counts of sexual offences. After trial before D. Pang J sitting with a jury, he was found guilty of five of the counts and was sentenced to eight years’ imprisonment. He applies for leave to appeal against both conviction and sentence. The Five Convictions 2.Four of the five counts of which the applicant was found guilty concerned a girl X, who was under the age of 16. Three of these counts, namely the 1st,, the 3rd and the 5th counts, alleged that the applicant had sexual intercourse with X, a girl under the age of 16 years, contrary to sections 124(1) and 153P(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong (“the Ordinance”). Another count which involved X, namely the 6th count, alleged that the applicant engaged in indecent conduct towards a child under the age of 16 years, contrary to sections 146(1) and 153P(1) of the Ordinance. The remainder count, namely the 7th count, was concerned with another girl under the age of 16, Y, and alleged that the applicant indecently assaulted Y, contrary to sections 122(1) and 153P(1) of the Ordinance. Particulars of the offences 3.The particulars of offence of the 1st, the 3rd and the 5th counts were as follows:
4.The particulars of offence of the 6th count were that the applicant, on a day unknown between the 1st day of January, 2006 and the 31st day of August, 2007, being a Hong Kong permanent resident, at Ren Ai Children Home, No. 20 Jinlong Road, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, committed an act of gross indecency towards X. 5.The particulars of offence of the 7th count were that the applicant, on a day unknown between the 1st day of August, 2005 and the 31st of July, 2007, being a Hong Kong permanent resident, at Ren Ai Children Home, No. 20 Jinlong Road, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, indecently assaulted Y. 6.The jury unanimously found the applicant guilty of the 1st, the 3rd, the 6th and the 7th counts. In respect of the 5th count, the jury found him guilty by a majority verdict, which was 5 to 2. Sentence 7.For the 1st, the 3rd and the 5th counts, D Pang J imposed a sentence of four years’ imprisonment; for the 6th count, one year and six months’ imprisonment and for the 7th count, two years’ imprisonment. One year of the terms of each count was to be served consecutively to the terms of other counts, making a total sentence of eight years’ imprisonment. Persons involved in the case 8.The applicant was a permanent resident of Hong Kong. He set up the Ren Ai Children Home (“the Centre”) in Xishuanghana, Yunnan, on the Mainland, to take care of orphans and children who needed assistance. The applicant had the right to decide who could reside in the Centre and who could receive financial assistance, including assistance for enabling the recipient to receive education. Twenty odd children were taken care of and provided for by the Centre. The applicant visited the Centre about three times a year, and stayed there for one to two weeks each time. When he stayed there he occupied a room on the 2nd floor of the Centre. 9.X was a child inmate of the Centre. She was born on 1 April 1994. Y was born on 20 April 1992. X was molested by the applicant at a time between 1 September 2005 and 31 August 2007 when X was 11 to 13 years old. The incidents took place between the first term of X’s primary 5 school year and the second term of her primary 6 school year. 10.Y was also a child inmate of the Centre. She was molested at a time between 1 August 2005 and 31 July 2007. The facts alleged by the prosecution were that the molestation took place during the second term of her primary 6school year when she was 15 years old. 11.We adopt the summary of the prosecution case and the defence case as presented by Ms. Virginia Lau, Senior Public Prosecutor, representing the respondent, to which we supplement: Prosecution case 1st count 1) X (PW2) was video-interviewed by the police on 7 April 2009. At that time she was studying in junior [secondary] 2. The account she gave was that because she was a child of a poor family, she was sent by the government to the Centre when she was in primary 3. Later, when she was in primary 5, the applicant began to provide her with bank cards, mobile telephones, MP3s and pocket money. Gradually she became used to it and accepted gifts and money without thinking about what consequences that would lead to. 2) One day at noon during the second term of X’s primary 5 school year, she went to the Centre. She did not see the applicant. Then she telephoned him to ask him to come back for lunch, but she learnt that he was with an old female inmate called Huiming [transliteration of 輝明]. Huiming asked X to go to Fo Xin Hostel, which was in the vicinity, to meet her. When X got to the hostel, Huiming said that she was hungry and the applicant told her to go to buy some bread. Huiming was away for a long time and still did not come back. The applicant made use of this opportunity and had sexual intercourse with X in a room. X said that the applicant forcibly removed her clothes. She resisted and told him to go away but she was weaker than him in terms of physical power, so in the end he penetrated into her private parts. 3rd count 3) The applicant told three girls, namely X, Wang Zhilan and Y to join him to accompany an inmate called Jiao Jiao [transliteration of 嬌嬌] to her hometown. Subsequently they stayed overnight at Bulangshan Nong Mao Market Reception House. The applicant and the girls occupied the same room, in which there were three beds. Wang Zhilan and Y each slept on one bed, while X and the applicant slept on the remaining one. After supper, they came back and sat on the beds to watch television. When Wang Zhilan and Y seemed to have gone asleep, the applicant touched X with his hands, took off her trousers and had sexual intercourse with her. He did not use any condom. He ejaculated on X’s belly and then cleaned himself with paper. It seemed that the television was on when this was happening. The applicant did not say anything and the sexual intercourse position was the man lying on top of the girl. 4) Wang Zhilan gave evidence that during the first night of their stay at Bulangshan, she saw that the applicant and X slept on the same bed and that some bodily movements, which appeared to be sexual intercourse movements, were going on under the quilt. 5th count 5) The applicant and X had sexual intercourse also in the Centre. [She] could not remember how many times there had been, or the circumstances in which the first time happened. The occasion of which she had the clearest memory was that one day she went to the applicant’s room to play with the computer. She played for a long time until one o’clock in the small hours. The applicant, after cleaning his face and brushing his teeth, entered the room and locked the door. He told X not to leave and asked her to stay and sleep with him. X said she wanted to play a while longer, using that as an excuse for not doing what he said, but the applicant simply switched off the computer. At last, X gave in to the applicant’s persuasion. She stayed in the room and lay on the bed with the applicant, who kissed her mouth to mouth, caressed her, removed her clothes and made love to her, proceeding in the same position as usual, i.e. the applicant on top of X. Finally, he ejaculated on X’s thigh. Then [they] cleaned [themselves] and they slept together in the room until daybreak. In the course of doing this, the applicant did not say anything. 6) X said that when the above happened, it was probably the second term of her primary 6 school year, and that the weather was a bit cold at the time. 6thcount 7) Besides having sexual intercourse with X, when the applicant was having video chats with her on line, there were occasions on which the applicant told X to strip herself and also on which the applicant exposed his private parts to X and even masturbated himself, leading to ejaculation. This happened two or three times in total. On one occasion, other people were present and they saw images transmitted through the internet, showing what the applicant was doing. In the Centre, only the applicant’s room was equipped with a computer. When he was in Hong Kong and wanted to call the people of the Centre together for a meeting, he would telephone the Centre to ask them to switch on the computer so that he could talk with them. X had a key to [the door of] the applicant’s room, so she could often enter the room to play and could also ask her friends to come to accompany her. One night during the first term of her primary 6 school year, X asked Y and Wang Zhilan to sleep with her in the applicant’s room. On that occasion, X chatted with the applicant through the internet and what described above took place. X and Yang Gaiying, the housekeeper of the Centre, each had a key to [the door of] the applicant’s room, but other people did not. 8) Both Y and Wang Zhilan gave evidence that on the night in question they saw that on the computer screen the applicant exposed his private parts to X. Wang Zhilan and Yang Gaiying also said that they had seen X and the applicant going together into the bathroom to take a bath. 9) X said that she called the applicant sworn father and looked upon him as a benefactor because he had helped her. The applicant went to the Centre three or four times a year; mostly at the time of the payment of school fees at the beginning of a school term. According to X, sexual intercourse had taken place in the Centre for more than 10 times. On some of these occasions the applicant asked X to stimulate his private parts by her hands or her mouth, but X helped him by using only her hands. 10) A forensic pathologist examined X on 8 April 2009 and found that her hymen had been completely torn in the past. The condition of the tear showed that something, perhaps a penis, had definitely pierced the hymen, resulting in the damage. 7thcount 11) Y moved into and lived in the Centre in 2005 when she was studying in primary 5 and she left there after primary 6. Sometime between 7 and 8 p.m. one day during the second term of her primary 6 school year, when Y and Huiming were sleeping in the lower bunk of a bunk bed in a room on the second floor, the applicant suddenly entered the room and fondled Y’s breasts with his hands. Y resisted but she was weaker in strength than the applicant. After a while, he left on his own. Defence case 12) The applicant gave evidence and he denied all these accusations. He contracted poliomyelitis when he was one year old. His legs became crippled and he needed supporting equipment in order to walk. A doctor advised him to use a walking frame, but due to his sense of inferiority, he thought that the sight of his using it did not look nice, so he did not use it. However, he had been using a walking stick for 20 years or so. Without it his movements would have been much restricted and he would have become prone to fall or tumble because his left leg was completely strengthless. 13) During each visit to the Centre, he would stay for about two weeks; but more than half of the time would be spent on making visits outdoors. He would take photographs and make reports about his visits. After doing these, he would send emails to the sponsors and upload the information onto the internet. After he returned to Hong Kong, he would store the photographs in the computer. The dates and captions of the photographs were determined and designed according to the information contained in the files which were made for the purpose of keeping the photographs taken during each of his journeys; for example, the period during which he took Jiao Jiao to her hometown in Buhangshan was 4 to 6 May 2007. 14) The applicant claimed that he had never told any child in the Centre to go into the bathroom and stay inside together with him. He said he had only asked some children in the Centre to bring some articles of everyday use into the bathroom to give them to him so that he could take a bath. 15) According to him, in September 2006 X, Y and Huiming were all in the Centre, but during the period in which the applicant visited the Centre two times (i.e. between November 2006 and February 2007) Huiming was gone. As far as he knew, Huiming did not want to go to school, she wanted to look for a job instead. As for X, she returned to her hometown upon completion of primary 6, because her academic performance was poor and she assaulted someone in the Centre. The applicant did not really expel her from the Centre. He just wanted her to go to Menhhai Secondary School to be a boarder, but X did not want to go there and she made her own decision to return to her hometown in Menghai. 16) He said that on one occasion Wang Zhilan and Y refused to give help to move some articles and were sternly reprimanded by him. Apart from that, when Wang Zhilan was at the junior secondary education stage, she had poor academic results and her manners were bad. For these reasons she was sent to a boarding school, but subsequently she returned to the Centre. Similarly, after Y finished primary education, she was criticized by her teacher for her bad academic performance and was even told by her teacher that she should not go to school anymore. It was only because the applicant interceded for her that she could continue to receive education. Subsequently, however, Y chatted on the phone all day long and was scolded by the applicant. 17) Regarding the incident in Bulangshan Nong Mao Market Reception House, the applicant stated that according to the information stored in the computer files, the journey should have taken place from 2 to 4 May 2007. As Jiao Jiao was only 7 years old, the applicant worried that he could not take care of her properly due to the difficulties he had in getting about. He therefore asked the children in the Centre who would like to go with him. The result was that X, Y and Wang Zhilan were willing to go with him. It was a long journey and Jiao jiao’s home was not big enough to accommodate all of them, so the itinerary he worked out was that for two nights they would sleep in a hostel. At night, he alone slept on the bed closest to the door, while the other two beds were allocated by the three girls themselves. The activities for the following day were that they first went to a restaurant to have lunch and then to Jiao Jiao’s home to play. They returned to the hostel after supper. Nothing happened on that night just as nothing happened on the first night. They left early in the morning on the third day. 18) In the Centre, any bodily contacts the applicant had with the children were limited to those necessary in their daily life and in their games, and absolutely nothing more than that. The computer in his room was used for two purposes: 1. To show, through its connection with the closed circuit TV, what was going on at the main door on the ground floor and in the sitting rooms on the two storeys; 2. To talk, chat or hold meetings with individual inmates or all the inmates through the video chatting function. He denied he had ever used it to expose his private parts. He protested that the Fo Xin Hostel incident was sheer fiction. He said he had never been to that place and had not even heard of it. 19) The applicant explained that he gave more money to X than to others because he wanted to financially support the elder sister and other family members of X. He said another inmate, who was called Hui Zi, also had a bank card. At the early stage of Yang Gaiying’s service at the Centre, he was not sure how long Yang Gaiying would work there, so he gave the bank cards to X and Hui Zi. These two children were more senior in age and had a sense of responsibility. He let them have the cards as a precaution against contingencies. As for the keys to the door of his room, initially only Yang Gaiying had a key. However, she was lazy and she just gave it to the inmates so that they could take turns to enter the room to clean it, and as a result the key was lost. Subsequently, he had a number of duplicate keys made and X said she had one of them. 20) He said that the rent for renting a room at the hostel at Bulangshan was low, just 30 to 40 yuan per night, but he rented one room only. He said the reason was that he had to take care of the children. 21) Lastly, the applicant claimed that starting from 2002 he had problems concerning erection. In 2004, he sought treatment as an outpatient. In 2006, he was treated at the urological department. Acting on the advice given by the doctor, he took Viagra, but it was too expensive and the side effect was too strong. After discussion with his wife, he decided to stop using it. 22) Doctor Chan, the second defence witness, gave evidence that from March 2000 up to the present the applicant was a patient of the orthopaedics department of Pamela Youde Nethersole Eastern Hospital. His medical history showed that due to poliomyelitis, both of his legs were weak, particularly the left leg, and that he had to walk with the support of a walking stick. The result of the assessment of the strength of his left leg and right leg was respectively point 3 and point 4. Point 3 meant that he was able to stand up to gravitation, i.e. he could walk. Point 4 meant that he could resist some outside forces other than gravitation; for example, the doctor using his hand to obstruct his walking movement. If he could completely kick away the doctor’s hand, that was point 5, which meant completely normal. 23) Dr. Chan said that when the applicant completely stood still, he could stand in that position for five to six minutes without the support of a walking stick; but that if he bent from the waist and in addition someone gave him a push, it would be very difficult for him to keep his balance; and that if he wanted to squat down, he would encounter even greater difficulties. 24) Dr. Chow, the third defence witness, testified that the applicant was referred by the Chaiwan Clinic in October 2004, that he came to the urological department of Pamela Youde Nethersole Eastern Hospital for treatment for the first time in March 2006, and that he was diagnosed as suffering from moderate degree erectile dysfunction. The meaning of moderate degree was that he could not succeed in having sexual intercourse every time he wanted, but this did not mean that he failed every time. He could, for example, be successful five times out of ten. However, that was the result of medication. Dr. Chow had no idea as to what his condition was before any medicine was prescribed for him or how he would perform without taking any medicine. The medicine in question was actually Viagra. Dr. Chow said that in all other aspects the applicant was normal; that is to say, there were no other reasons which led to his impotence except idiopathic causes. Grounds of appeal 12.The applicant put forward five grounds of appeal, of which grounds 2 and 3 are about matters of principle, in that ground 2 is about the constitutionality of the offences and ground 3 alleges that the applicant did not have a fair trial; while the other three grounds are about issues concerning the contents of each individual offence. 1) Ground of appeal 2: Unconstitutionality of the Offences (1) Section 153P of the Ordinance 13.Section 153P of the Ordinance provides that:
14.The provisions listed in Schedule 2 include section 124 (i.e. intercourse with girl under 16), section 146 (i.e. indecent conduct towards child under 16) and section 122 (i.e. indecent assault) of the Ordinance. (2) Background of the legislation 15.Section 153P of the Ordinance originated from the Crimes (Amendment) Bill 1999, which was introduced into the Legislative Council on 7 July 1999 and eventually became law and was gazetted in 2003. We set out below relevant passages quoted from the Legislative Council Brief submitted by the Security Bureau to the Legislative Council on 8 January 2002:
16.In addition, we also quote the contents concerning section 153P from the Paper for the Legislative Council House Committee meeting on 20 June 2003:
17.Furthermore, in May 2003 the Security Bureau submitted the Administration’s Response to Submission by Law Society of Hong Kong dated 5.5.2003. We set out the relevant parts in the Response below:
(3) United Nations Convention on the Rights of the Child 18.Both parties agree that Article 34 of the United Nations Convention on the Rights of the Child applies to Hong Kong. The Article reads as follows:
However, the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (“the Optional Protocol”) is still not applicable to Hong Kong. (4) Equality and non-discrimination 19.Mr. Law, counsel for the applicant, argued that the Ordinance contravenes Article 25 of the Basic Law of Hong Kong, which guarantees that all Hong Kong residents shall be equal before the law, and violates the entitlement to rights without distinction and the right to protection against discrimination provided in Article 1(1) and Article 22 of the Hong Kong Bill of Rights of the Hong Kong Bill of Rights Ordinance, Cap. 383 Laws of Hong Kong. Article 1(1):
Article 22:
(5) Applicant’s argument 20.The applicant accepted that the Legislative Council of Hong Kong has the power to legislate to extend our jurisdiction to places outside Hong Kong. He complained that section 153P(1) of the Ordinance discriminates against him on account of his status as a Hong Kong permanent resident. He submitted that the status of a Hong Kong permanent resident and the status of a person who ordinarily resides in Hong Kong are covered by the phrases “other status” and “national origin” in Articles 1(1) and 22 of the Hong Kong Bill of Rights. 21.The applicant also invoked section 3 and section 25 [sic] of the Registration of Persons Ordinance, Cap.177 Laws of Hong Kong. He said that a person’s status as a Hong Kong permanent resident or his status as a person who ordinarily resides in Hong Kong can be regarded as his immigration status or residential status and his national origin, and that this person’s status can be contrasted with the immigration status or residential status of another person who is present in Hong Kong but is neither a Hong Kong permanent resident nor a person who ordinarily resides in Hong Kong. 22.According to section 3 of the Registration of Persons Ordinance, every person in Hong Kong unless exempted is required to be registered and to apply for the issue of an identity card under that ordinance. Section 25 of that Ordinance [sic] stipulates that certain categories of people, so long as they retain the status and qualifications specified in that Ordinance [sic], are not required to register or apply for the issue of an identity card. Such people include travellers and persons who do not remain in Hong Kong for more than 180 days. 23.The last paragraph of Article 24 of the Basic Law provides that non-permanent residents of Hong Kong are “persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode”. 24.The fundamental rights and duties of Hong Kong residents are governed by Chapter III of the Basic Law. Pursuant to Article 24 of the Basic Law, residents of Hong Kong include permanent residents and non-permanent residents. Article 41 of the Basic Law makes it clear that persons in Hong Kong other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in Chapter III. 25.The argument advanced by the applicant is that when a non-permanent resident or a person not ordinarily residing in Hong Kong commits the offences in question outside Hong Kong, he will not be punished under the laws of Hong Kong, but if a Hong Kong permanent resident or a person ordinarily residing in Hong Kong falls under the same situation, he will be punished under Hong Kong laws. This, according to him, is a violation of Article 25 of the Basic Law, because among residents of Hong Kong, permanent residents and Hong Kong residents ordinarily residing in Hong Kong, when compared with other residents in Hong Kong, are not equal before the law. He submitted that this also contravenes Article 1(1) of the Hong Kong Bill of Rights, because Hong Kong permanent residents and persons ordinarily residing in Hong Kong, due to their status, cannot enjoy the rights recognized in the Bill of Rights. He further submitted that this is also against Article 22 of the Hong Kong Bill of Rights, because Hong Kong permanent residents and persons ordinarily residing in Hong Kong suffer discrimination as a result of their status; and that they are not treated equally before the law and are denied equal protection of the law. (6) The case ofYau Yuk Lung 26.In Secretary for Justice v. Yau Yuk Lung (2007) 10 HKCFAR 335 the Court of Final Appeal pointed out that equality before the law is a fundamental human right and is in essence the right not to be discriminated against (see paragraph 1 of the judgment). The Court of Final Appeal expounded the legal principle that all persons are equal before the law without discrimination as follows: 1) In general, the law should accord identical treatment to comparable situations. 2) However, the guarantee of equality before the law does not invariably require exact equality. Differences in treatment under the law may be justified for good reason. To satisfy the justification test, it must be shown that:
3) Requirement (a) cannot be established from the mere act of legislative enactment (see paragraphs 19-21, 26-27). 4) Where the difference in treatment satisfies the justification test, the correct approach is to regard the difference in treatment as not constituting discrimination. Unlike some other constitutional rights, such as the right of peaceful assembly, it is not a question of an infringement of the right which may be constitutionally justified. (paragraph 22) (7) Respondent’s argument 27.The respondent did not dispute the claim that a person’s status as a Hong Kong permanent resident ora person who ordinarily resides in Hong Kong can be regarded as his immigration status or his residential status and his national origin, but it disagreed that the applicant had been treated unequally or discriminated against. (8) Our View (i) Legitimate aim 28.Section 153P(1) clearly draws a distinction between permanent residents and non-permanent residents, but the Court of Final Appeal had held that the giving of different treatments to different people might be justified for good reason. According to the criteria set by the Court of Final Appeal, the respondent was required to show that the difference in treatment pursues a legitimate aim. 29.In our judgment, it is patently obvious that section 153P(1) pursues a legitimate aim. Even though the Optional Protocol is still not applicable to Hong Kong, in order to implement what is required under Article 34 of the United Nations Convention on the Rights of the Child, Hong Kong has an unshirkable duty to enact laws to protect children from sexual abuse. In Hong Kong there is no shortage of laws for combating activities involving sexual abuse of children within our territory, but such activities do not take place just within Hong Kong, they also take place outside Hong Kong. Sexual exploitation of children is known to have international dimensions. It is common knowledge that there are adults who travel from their home countries to other places, in particular developing countries or less-developed places, to engage in sexual activities involving children. It is therefore necessary to stipulate in the law that committing acts of sexual abuse against children outside Hong Kong is a criminal offence. The applicant cited the direction on the obligations of State Parties under Article 2of the Convention on the Rights of the Child and submitted that it only requires the States Parties to enact laws to deal with sexual abuse against children within their own territories, but not laws with extra-territorial effect:
30.We consider that the applicant’s argument is a one-sided view. The use of the word “jurisdiction” in Article 2 does not mean that the duty of a State Party is limited to protecting children within its territory; on the contrary, the scope of its duty covers child abuse cases which happen outside its territory. Section 153P(1) is targeted at paedophiles who sexually abuse children outside Hong Kong. Its purpose is to prevent them from getting away unpunished by just returning to Hong Kong. This point was clearly brought out in the documents submitted to the Legislative Council and referred to above. In other words, there was a genuine need for enacting section 153P. In Canada, legislation similar to section 153P was enacted in accordance with the Convention on the Rights of the Child (See R v. Klassen 240 CCC (3d) 328). (ii) Rational connection 31.One of the criteria for satisfying the test is that the difference in treatment must be rationally connected to the legitimate aim. We consider that the Ordinance also meets the requirement of rational connection. A law which extends the jurisdiction to places outside Hong Kong must be subject to limitations; otherwise, the Hong Kong authorities would prosecute any person who sexually abuse any children outside Hong Kong. Such kind of authority will be too wide. 32.The limitations are set out in section 153P(1). A person will be prosecuted only if one of the following two conditions is fulfilled :
33.These two conditions restrict the scope of the extra-territorial jurisdiction of Hong Kong, therefore the distinction with reference to the status of persons provided for in the Ordinance is rationally connected to the legitimate aim. (iii) No more than is necessary to accomplish the legitimate aim 34.If a person who is not a Hong Kong permanent resident or who does not ordinarily reside in Hong Kong sexually abuses children in any place outside Hong Kong, he can be punished under the laws of that place; or if the laws of his own country contain provisions similar to section 153P, he may also be punished under the laws of his own country after he returned home. However, even if there are no similar provisions in the laws of this person’s country, it does not follow that a Hong Kong permanent resident or a person who ordinarily resides in Hong Kong suffers any discrimination. On the basis of the above reason, such differential treatment is no more than is necessary to accomplish the legitimate aim. We do not think that section 153P is in any sense discriminatory against a Hong Kong permanent resident or a person who ordinarily resides in Hong Kong. (iv) Proportionality test 35.As a response to the 911 terrorist attacks, the U.K. government took a number of measures, including the enactment of the Anti-terrorism, Crime and Security Act 2001. Section 23 of the Act provided for the detention of non-British nationals who were suspected to be international terrorists. In A and others v Secretary of State for the Home Department [2005] 2 AC 68 the House of Lords declared that section 23 was incompatible with the prohibition against discrimination laid down in Article 14 of the European Convention on Human Rights (cf: Article 26 of the International Covenant on Civil and Political Rights). The House of Lords held that section 23 failed to pass the proportionality test. The criteria of that test are the same as those of the justification test propounded by the Court of Final Appeal. The House of Lords’ reasons were as follows:
36.For these reasons, the House of Lords held that section 23 did not rationally address the threat to security, that it was a disproportionate response and that it was not strictly required by the exigencies of the situation. The section was declared to be incompatible with Articles 5(1) and (14) [sic] of the European Law [sic] on Human Rights. 37.In that case, the House of Lords also dealt with Article 5(1) of the European Law [sic] on Human Rights, which provides that “Everyone has the right to liberty and security of person” (cf: Article 5(1) of the Hong Kong Bill of Rights). 38.We do not think that this English case lends any support to the applicant’s arguments in this appeal. Whether the criteria of a particular test are satisfied must be decided on the basis of the contents of the legislation in question. 2) Ground of appeal 3: media reports and fair trial (1) Right to a fair trial 39.The applicant complained that before and during the trial of this case there were massive coverage given by the media and vast amounts of discussion among the public, and that for this reason the right conferred on a defendant by Article 87 of the Basic Law and Article 10 of the Hong Kong Bill of Rights were encroached upon. Article 87 of the Basic Law provides that “… Anyone … shall have the right to a fair trial by the judicial organs …”, and Article 10 of the Hong Kong Bill of Rights provides that “… everyone shall be entitled to a fair…hearing by a … independent and impartial tribunal …”. (2) Directions given by D Pang J 40.On 30 November 2010, during the trial of this case D Pang J was informed that this case was being reported by two local newspapers. After the jury retired, he discussed those reports with the prosecuting counsel and the defence counsel. At that time the applicant was represented by another counsel, who did not apply for a stay of the trial on the ground that the media reports had rendered the trial unfair. After discussing with counsel, D Pang J decided that he would give appropriate directions to the jury on those reports at the time when he should give directions to them. On 14 December 2010, when Pang J gave directions to the jury, he said the following:
(3) Applicant’s argument 41.The applicant said that there were huge amount of reports in the press about the case, that such reports were presented in both written text and pictures and a great majority of them were published on the internet. He submitted that notwithstanding D Pang J’s careful directions, the effects of those reports were that the prejudice formed in the jurors’ mind against the defendant could not be removed, nor could the risk that the prospect of a fair trial was adversely affected be eliminated. (4) Legal principles 42.In HKSAR v. Lee Ming Tee and another (2001) 4 HKCFAR 133, the Court of Final Appeal made the following comments about the legal principles applicable to questions about the effects of media reports on a trial:
See pages 189 to 192B of the judgment of that case. 43.The Privy Council held the same views in Montgomery v. H M Advocate (PC) [2003] 1 AC 641 at 673F-674G:
44.The issue in that case was the defendants’ complaint that the extent of the media reports was such that it would be impossible for them to have a fair trial as required by Article 6.1 of the European Law [sic] on Human Rights. The Privy Council considered that it was only by having regard to all the circumstances that a decision on this issue could be made, and that the circumstances included the following three matters:
45.The Privy Council held that under Article 6.1 of the European Convention on Human Rights the only issue to be addressed was the right of the defendant to a fair trial, and no assessment of the weight to be given to public interest (i.e. detection and suppression of crimes) came into the exercise, and that in this respect it might be said that the right conferred by the European Convention was superior to the common law right. (5) Our View 46.In this appeal, the applicant asked this Court to receive fresh evidence consisting of newspaper reports and articles on the internet about this case. We refused to receive such fresh evidence. Such evidence had not been produced when the case was before D Pang J and D Pang J had directed the jury that they should not search for this kind of information on the internet and that they should forget about and take no notice of the information they read and saw previously. The foundation of the jury system is that the jurors are required to follow instructions given to them by the judge. Unless there is actual evidence that the jurors have not done what is required of them, the Court must make its decision on the basis that they have done so. The applicant’s allegation that the jurors might have searched for information in disregard of D Pang J’s direction is groundless. We reject his submission in this connection. 47.Another complaint of the applicant is that D Pang J at first told the jury that they should disregard any information which they heard or read relating to this case outside the courtroom, but he added that such information and its contents should be no different from what they heard in court. The applicant submitted that such direction could confuse the jury as to what the evidence consisted of. In our view, what the applicant did was to quote D Pang J’s remarks out of context. When D Pang J’s directions are considered in their entire context; what he meant was that the jury should disregard those reports which had nothing to do with the case and had not been tested by counsel in court. We do not agree that the applicant was deprived of the right to a fair trial. 3) Ground of appeal 4 (1) Specimen charges/uncharged acts 48.The applicant’s fourth ground of appeal actually covers two areas:
49.The basis of these two arguments is in fact the same. The applicant submitted that in the course of giving directions to the jury D Pang J had reminded the jury that X had said that in the Centre, which was the place where the sexual intercourse referred to in the 5th count took place, the applicant had had sexual intercourse with her over 10 times, and that the occasion referred to in the 6th count was not the only one on which images of the applicant exposing his private parts, even masturbating himself and ejaculating were shown through the webcam. (2) Legal principle 50.(1) In Chim Hon Man v. HKSAR (1999) 2 HKCFAR 145 the Court of Final Appeal held that the prosecution could not make use of specimen charges, because there is a general principle that in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the prosecution cannot lead evidence that is equally capable of referring to a number of occasions, anyone of which might constitute an offence described in the charge and invite the jury to convict on any one of them. (2) The Court of Final Appeal pointed out that this principle serves the same general purposes as the rule against duplicity. Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence, for example, an alibi, he may have to the offence charged and to subject a complainant’s evidence to searching scrutiny by reference to the surrounding circumstances. An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others. The degree of unfairness or embarrassment may vary according to the circumstances. If the prosecution case is based on evidence of many offences in an extended period of time the unfairness may be considerable. 51.This principle was applied by this Court in the following three cases:
(3) Our View 52.The three counts of unlawful sexual intercourse with a girl under the age of 16 years involving X took place in three different places. The 1st count took place in Fo Xin Hostel; the 3rd count in the Bulangshan Nong Mao Market Reception House and the 5th count in the Centre. In addition, the 6th count, namely indecent conduct, which involved X, also took place in the Centre. 53.In our view, the overall conduct of the trial shows that the prosecution did not rely on specimen charges to establish their case against the applicant. Before the trial began, D Pang J had already discussed with the prosecution and the defence how to handle specimen charges and uncharged acts. 54.The prosecution’s opening submission concerning the 5th count and the 6th count was as follows:
55.Although the prosecution mentioned that the applicant and X had had sexual intercourse many times in the Centre, they did not tell the jury that they could find the applicant guilty if they were sure that he had engaged in any one of those acts of intercourse. The evidence adduced by the prosecution in respect of the 5th and the 6th counts was not imprecise and general, but was as clear and specific as the content of their opening submission. 56.Furthermore, D Pang J told the jury that X had specific recollection about the guilty acts referred to in the 5th count, and that at the occurrence of the 6th count other people were present. The directions he gave to the jury were as follows:
57.D Pang J asked the jury to pay attention to X’s evidence:
58.The Da Luo Town incident referred to in the directions above was the subject matter of a charge of which the applicant was acquitted. 59.D Pang J also gave detailed directions to the jury in relation to the uncharged acts:
60.Mr. Law relied on the comments made by the Court of Final Appeal in Chim Hon Man on page 165: The trial judge did not instruct the jury to the effect that the absence of particularity with respect to the individual incidents alleged to have occurred so long ago made it difficult for the defendant to be convicted of [sic] the charges. The giving of this direction is an important element in ensuring fairness to the defendant in cases involving charges concerning acts that occurred long time ago, especially where there is little particularity. Mr. Law argued that in the present case D Pang J did not give any direction similar to the above direction. We do not agree with this argument, because D Pang J did give the jury directions along these lines:
61.We do not think that the applicant has put forward sufficient grounds for appealing against the convictions in respect of the 5th count or the 6th count. 4) Ground of appeal 5 (1) Elements of the charge of unlawful sexual intercourse 62.The applicant submitted that the jury was not entitled to find him guilty of the 1st count. His reason was that X gave evidence that he did not penetrate into her private parts or that she was not sure whether he did penetrate into her private parts, therefore based on such evidence the jury could not possibly be sure that he did penetrate into her private parts. (2) D Pang J’s directions 63.As to the question of whether the applicant did penetrate into X’s vagina, D Pang J carefully recapitulated X’s evidence to the jury:
64.D Pang J also gave directions to the jury about the alternative count for the 1st count, i.e. attempted unlawful sexual intercourse:
65.Finally, the jury unanimously found the defendant guilty of the 1st count. (3) Our View 66.We consider that the jury’s verdict shows that they believed that the applicant did penetrate into X’s vagina. This was a finding of fact made by the jury. They personally heard X’s evidence and saw her demeanour when she was giving evidence. Although on the face of it some parts of her evidence was inconsistent with other parts, she maintained that the applicant’s actions of assaulting her private parts made her feel pain. In our judgment, the jury was entitled to find that the applicant’s penis did penetrate into X’s vagina on the basis of her evidence. 67.The applicant submitted that according to The Sexual Offenses Act 2003 of the U.K., vagina includes vulva, but that there is no similar definition under the laws of Hong Kong, and that therefore even if the applicant succeeded in penetrating into the vulva, that did not constitute sexual intercourse. We do not accept this argument. The fact that under the laws of U.K., vagina is defined as including vulva does not mean that under the existing laws of Hong Kong, the penetration of the penis of a male person into the vulva of a female person is not sexual intercourse. In Hong Kong, the law is that “intercourse shall be deemed complete upon proof of penetration by the penis only”. (Archbold Hong Kong 2012 paragraph 21-2). According to the 25th edition of Stedman’s Medical Dictionary, the definition of vagina is “the genital canal in the female, extending from the uterus to the vulva”. As pointed out on page 467 of Smith & Hogan Criminal Law (10th edition), to prove sexual intercourse, the slightest penetration will suffice. In the case of vaginal intercourse any penetration of the female genitalia is enough at common law. It is not necessary for the prosecution to prove that the vagina in its proper anatomical sense is penetrated. 5) Ground of appeal1 (1) Y's age 68.The time period relevant to the 7th court, which involves Y, was between 1 August 2005 and 31 July 2007. Calculation made on this basis showed that Y was less than 16 years old during the period in which she was sexually assaulted by the applicant. Subsequent to that, D Pang J gave the following directions to the jury:
(2) Applicant’s argument 69.The applicant submitted that in respect of the 7th count, D Pang J erred in giving directions to the jury to the effect that whether Y had reached 16 was not a matter they needed to consider. (3) Our View 70.According to section 153P(1)(b)(ii) of the Ordinance, the offence in question should be committed in relation to a person under the age of 16. We therefore agree that D Pang J’s direction to the jury to the effect that whether Y was 16 or not had nothing to do with the offence was a wrong direction. However, we do not think this would affect the soundness of the conviction. 71.The agreed facts stated that the forensic pathologist, who is an expert on matters about teeth, examined Y on 6 April 2009 and the result was that he confirmed that her age, i.e. Y’s age at the day of examination was 17 years old, subject to an adjustment of six months, plus or minus. That means as at 6 April 2009, the oldest possible age of Y was 17½ years old. 72.Y gave evidence that she was born on 20 April 1992, which was not challenged by the defence counsel, and this date is compatible with the opinion given by the teeth expert. In our judgment, even though D Pang J gave erroneous direction as to a point of law, the jury was entitled to accept the evidence given by Y herself but not the evidence given by Wang Zhilan in order to come to their conclusion that when Y was indecently assaulted by the applicant she was under the age of 16 years. Conclusion of the application for leave to appeal against conviction 73.For the above reasons, we dismiss the application for leave to appeal against conviction. Application for leave to appeal against sentence 1) Applicant’s arguments 74.The applicant complained that the starting points used by D Pang J for the individual counts were manifestly excessive, that his order that one year of each of the sentences for the 3rd, the 5th, the 6th and the 7th counts was to run consecutively to the other sentences was too severe, and that insufficient consideration was given to the totality principle or the principle that where an offender is to serve multiple sentences for multiple offences, the overall sentence should not be excessive. Moreover, he submitted that D Pang J erred in rejecting all the mitigating factors, particularly the factor that the applicant was a person with a positively good character. At the time of the sentencing, the applicant was 49 years old. He received education up to tertiary level and was a social worker by occupation. He was enthusiastic about voluntary work and had provided his services to various institutions. In his spare time he set up and ran the organization involved in this case. The applicant considered that his having sexual intercourse with X was not illegal on the Mainland, because X at least was 14 years old and she consented to the sexual intercourse. 2) Our View 75.We are of the view that the applicant failed to adduce admissible evidence in relation to applicable PRC laws either at the trial or during the appeal. In HKSAR v Tsang Chiu Tak, CACC 386/2011, this Court gave the following guidelines about the sentencing principle for cases involving sexual assaults on children by adults:
76.D Pang J considered that the crimes committed by the applicant were extremely serious, and he enumerated the following factors:
77.Besides, the psychologist commented that the applicant was deeply affected by a sense of inferiority and that this resulted in his strong desire to manipulate others. He said the applicant had no insight into his problems and was remorseless for what he had done in this case. His risk of re-offending was estimated to be moderate to high. This was a cause for concern. However, D Pang J stated that this was not where his attention was focused on, but that in the report nothing in favour of the applicant could be found. 78.In our view, D Pang J had sufficiently considered the circumstances of this case. We find that the starting points for the individual counts and the overall sentence are all appropriate and nothing is manifestly excessive. Conclusion of the application for leave to appeal against sentence 79.For the above reasons, we dismiss the application.
Mr. Lawrence Law, instructed by Messrs. Littlewoods, assigned by the Legal Aid Department, for the Applicant. Ms. Virginia Lau, Senior Public Prosecutor of the Department of Justice, for the Respondent. Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law |
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