Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Hksar v Chan Lok Man, Norman

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date12 March 2021
Neutral Citation[2021] HKDC 240
Judgement NumberDCCC763/2020
Subject MatterCriminal Case
CourtDistrict Court (Hong Kong)
DCCC763/2020 HKSAR v. CHAN LOK MAN, NORMAN

DCCC 763/2020

[2021] HKDC 240

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 763 OF 2020

________________________

HKSAR
v
CHAN Lok-man, Norman

________________________

Before: His Honour Judge W.K. Kwok

Date of Hearing: 5 March 2021

Date of Decision: 5 March 2021

Date of Reasons for Decision: 12 March 2021

________________________

REASONS FOR DECISION

________________________


1. The defendant is charged with 3 counts of homosexual buggery with a man under the age of 16, contrary to section 118C(b) of the Crimes Ordinance, Cap. 200. These charges were transferred to the District Court by the order of a magistrate made on 23 September 2020 pursuant to section 88(1)(a) of the Magistrates Ordinance, Cap. 227.

2. The defendant first appeared in the District Court on 6 October 2020 to answer to these charges. He has not yet entered his plea.

3. By a Notice of Motion dated 23 December 2020 and supported by the affirmation of Mr Chan Ka-lok Michael, Government Counsel of the Department of Justice, filed on 24 December 2020, the Secretary for Justice applies for an order that the proceedings herein are to be transferred to the Court of First Instance pursuant to section 77A of the District Court Ordinance, Cap. 336.

4. The defendant opposes the application.

5. After hearing submissions from the parties, I dismiss the application with reasons to be given in writing. Here are the reasons.

The Application

6. The prosecution applies for the 3 charges against the defendant to be transferred to the Court of First Instance on the ground that it is uncertain whether or not the District Court has the jurisdiction to hear and determine these charges because it is uncertain whether or not the learned magistrate has the jurisdiction to make the order transferring these 3 charges to the District Court, and that for the sake of avoiding the issue of lack of jurisdiction to be raised in the District Court now or in the higher courts in the future, it will be in the interests of justice, as well as for the benefits of all parties concerned, for all charges to be transferred to the Court of First Instance for adjudication since the Court of First Instance possesses unlimited jurisdiction.

Transfer of charges to and from the District Court

7. According to sections 74 and 75(1) of the District Court Ordinance, the District Court has jurisdiction to hear and determine those charges that are transferred to it by a magistrate “in accordance with the provisions of Part IV of the Magistrates Ordinance”.

8. Part IV of the Magistrates Ordinance deals with transfer of certain indictable offences by a magistrate to the District Court. Part IV contains sections 88 to 90. Section 88(1)(a) provides that “whenever any person is accused before a magistrate of any indictable offence not included in any of the categories specified in Part III of the Second Schedule”, the magistrate shall, upon application made by or on behalf of the Secretary for Justice, make an order transferring the charge or complaint in respect of the indictable offence to the District Court.

9. There are 8 categories of indictable offences set out in Part III of the Second Schedule to the Magistrates Ordinance. The second category refers to “any offence which is punishable with imprisonment for life” with a number of exceptions specified therein.

10. In other words, if the charge is for an indictable offence punishable with imprisonment for life and it is not within the exceptions specified, a magistrate will have no jurisdiction to order its transfer to the District Court. A transfer ordered by a magistrate without jurisdiction will render the proceedings in the District Court a nullity: HKSAR v Tang Siu Kwong & Another[1].

11. After the transfer or purported transfer of charges from the magistrates’ court to the District Court, the Secretary for Justice may apply to the District Court for an order to transfer the proceedings to the Court of First Instance (or to the magistrates’ court to be tried summarily, as the case may be) pursuant to section 77A(1) of the District Court Ordinance. Sections 77A(1), (2) and (3) stipulate when the application shall be made and what procedures are to be followed.

12. Section 77A(4) provides that the district judge to whom an application is made under section 77A(1) may either allow or refuse the application “if he considers it fit having regard to the interests of justice”, and may make such order as to costs as he considers appropriate.

The subject offence

13. The offence of homosexual buggery with a man under the age of 16 is created by the statute under section 118C of the Crimes Ordinance (“section 118C”). As it appears at this moment in the statute book, section 118C is in the following terms:

“A man who—

(a) commits buggery with a man under the age of 16; or

(b) being under the age of 16 commits buggery with another man,

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.”

14. Section 118C in its statutory form has therefore created two offences, i.e. (a) homosexual buggery with a man under the age of 16, and (b) homosexual buggery by a man under the age of 16, and the maximum sentence for each of them is identical, i.e. imprisonment for life.

15. Since an offence under section 118C in its statutory form is punishable with imprisonment for life and it is not within the specified exceptions, the learned magistrate would have no jurisdiction under section 88(1)(a) of the Magistrates Ordinance to order the transfer of these 3 charges to the District Court.

16. It is however common ground between the parties that the courts will not interpret section 118C according to its statutory form. The parties agree that since the decisions given by Mr Justice Au (as he then was) in Yeung Chu Wing v Secretary for Justice[2] on 30 May 2019 and by the Court of Appeal in HKSAR v Yeung Ho Nam[3] on 25 September 2019, the provisions of section 118C have to be given the following remedial interpretation so as to make them consistent with the Basic Law and the Hong Kong Bills of Rights (“BOR”):

“A man who—

(a) commits buggery with a man under the age of 16; or

(b) being under the age of 16 commits buggery with another man,

shall be guilty of an offence and shall be liable on conviction on indictment to (a) imprisonment for life if the buggery is committed with a boy under the age of 13; or (b) imprisonment for 5 years if the buggery is committed with a boy under the age of 16 but is of or above the age of 13.”

17. According to these decisions, section 118C in its statutory form has infringed the right to equality before the law under article 25 of the Basic Law, and the right to equal protection of the law under article 22 of the BOR because it differentiates between homosexual intercourse and heterosexual intercourse. First, it criminalizes a man aged under 16 for committing buggery with a man, whereas no criminal liabilities will be imposed on a man aged under 16 for having sexual intercourse with a female. Second, under section 118C in its statutory form, a man committing buggery with a man aged under 16 is liable to imprisonment for life, whereas a man having unlawful sexual intercourse with a girl aged under 16 but not less than 13 is liable to imprisonment for 5 years only under section 124 of the Crimes Ordinance. Section 118C in its statutory form is therefore unconstitutional and will be struck down unless it is given the above remedial interpretation.

18. Despite its statutory form, section 118C has therefore been interpreted by the courts to have created only one offence, namely, a man committing buggery with a man under the age of 16, but provided the maximum sentence in two limbs: (a) imprisonment for life if the victim is under the age of 13, and (b) 5 years’ imprisonment in other cases.

19. According to the summary of facts, the defendant committed buggery on 3 occasions with the same victim who was at the material times aged under 16 but over 13. Hence, the maximum sentence that may be imposed on the defendant for each charge is 5 years’ imprisonment according to the remedial interpretation of section 118C by the courts.

The issue and submissions

20. The issue, as raised by the prosecution, is whether or not the current case law and the statute have left it ambiguous as to whether the District Court has jurisdiction to hear and determine these 3 charges.

21. The prosecution stresses that it has no qualms with the fact that the maximum sentence of the subject offence is read down to 5 years’ imprisonment “as a matter of case law”, but submits that “the essence of the remedial interpretation of Yeung Chu Wing rests on how the provisions and the maximum sentence of the subject offence shall be treated in a gender neutral manner by the Courts as a matter of practice, rather than an authority overriding the need of a legislative amendment, or a strict guideline onto the selection of venue of trial”.

22. The prosecution takes the view that it is not the intention of the Courts to override the need for legislative amendment by the remedial interpretation in Yeung Chu Wing, and that the remedial interpretation is only meant to render the subject offence constitutional in future cases by providing equal treatment to homosexual males. On the other hand, up to this moment, there has been no legislative amendment to section 118C which remains an offence punishable with imprisonment for life according to the statute book.

23. The prosecution considers that it is at least ambiguous as to whether or not legislative amendment is required to stipulate that the maximum sentence for a man committing buggery with a boy under the age of 16 but of or over...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT