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Hksar v Choi Wai Lun

Judgment Cited authorities 16 Cited in 1 Precedent Map Related
Vincent
Judgment Date09 May 2018
Neutral Citation[2018] HKCFA 18
Judgement NumberFACC11/2017
Citation(2018) 21 HKCFAR 167
Year2018
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC11/2017 HKSAR v. CHOI WAI LUN

FACC No. 11 of 2017

[2018] HKCFA 18

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 11 OF 2017 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 620 OF 2016)

____________________

BETWEEN
HKSAR Respondent
and
CHOI WAI LUN (蔡偉麟) Appellant

_____________________

Before : Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ and Lord Collins of Mapesbury NPJ
Date of Hearing: 23 April 2018
Date of Judgment: 9 May 2018

________________________

J U D G M E N T

________________________

Chief Justice Ma:

1. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

2. Under section 122(1) of the Crimes Ordinance,[1] a person who indecently assaults another is guilty of an offence and is liable on conviction on indictment to imprisonment for 10 years. If there is consent to the relevant acts, such conduct, although “indecent”, generally does not constitute an assault so that the offence is not committed. However, section 122(2) provides: “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 this section”.

3. The question which arises in this appeal is whether a person commits the offence if he engages in sexual conduct which is in fact consensual with a girl who is actually aged 13 when he honestly and reasonably believes her to be aged 16 or above.[2]

A. The facts

4. In August 2014, the appellant, then a third year university student aged 22, visited an adult website on which the girl (referred to throughout as “PW1”) had posted an advertisement, describing herself as aged 17 and offering sexual services at listed prices. The appellant asked for, and received from her, a half-length photo of herself. They arranged to meet and went to a guest house where they showered together and the appellant ran his hands over her body. PW1 then performed oral sex on him.

5. The appellant testified that he thought that her photo was consistent with her being aged 17 and that he believed that this was borne out when they met, PW1 appearing to him to be relatively tall, with well-developed bodily features, and speaking in a mature manner. He said that he did not suspect that she was under 16. PW1 gave evidence that she would dress more maturely when meeting clients.

B. The magistrate’s decision

6. The deputy magistrate, Mr Peter Hui Shiu-keung,[3] rejected the prosecution’s submission that the offence was one of absolute liability and held, following the House of Lords decision in R v K,[4]that where there is actual consent, an honest belief on the defendant’s part that the girl is aged 16 or more results in an acquittal.

7. He found that PW1 “really looked more mature than her actual age, and did not look like a 13-year old girl”[5] in the light “of her appearance, build and speaking tone”.[6] Taking account of PW1 having claimed to be 17 and her “deliberate attempt to appear to be mature when meeting her clients”, the magistrate found that there was “no apparent reason that [the appellant] should have any suspicions about the age PW1 claimed”[7] and concluded that the appellant should be acquitted since “the defence that the defendant honestly and reasonably believed that PW1 was aged 16 or above is not rebutted”[8]. The prosecution appealed by way of case stated.

C. The Judge’s decision

8. The magistrate’s ruling was reversed by Deputy High Court Judge Stanley Chan.[9] He relied principally on the decisions of the Court of Appeal[10] and this Court[11] in HKSAR v So Wai Lun (involving unlawful sexual intercourse with a girl under 16)[12] and held that, as a matter of necessary implication, the legislative intent was that indecent assault should be an offence of absolute liability. The appellant therefore could not escape conviction on the basis of an honest and reasonable belief as to PW1’s age. I shall return to consider in greater detail the arguments which led his Lordship to that conclusion.

D. Leave to appeal

9. The Appeal Committee[13] granted leave to appeal, certifying the following questions of law as being of the requisite importance, namely:

(i) Whether an offence contrary to s 122 (1) & (2) of the Crimes Ordinance, Cap 200, taken together is an offence of absolute liability when the alleged victim is a person under 16 years of age.

(ii) Whether an accused charged under s 122 (1) with indecently assaulting a person who was under 16 years of age can legally put forward a defence that the person in fact consented and the accused genuinely believed that he/she was 16 years of age or over.

(iii) Whether in a prosecution under s 122 (1) where the alleged victim is a person under 16 years of age the prosecution is required to prove absence of genuine belief on the part of the accused that the person was 16 years of age or over.

E. Determining the mental elements of a statutory offence

10. Those questions fall to be answered in the light of significant developments in this jurisdiction within the last decade as to how the mental elements of a statutory offence are to be determined and, in particular, as to when such an offence is to be treated as one of absolute liability.

11. The absolute liability approach to age-related sexual offences illustrated by nineteenth century English cases like R v Prince,[14] had previously held sway. Thus, in Prince, a statute made it an offence unlawfully to take an unmarried girl under the age of sixteen out of the possession and against the will of her father but was silent as to the defendant’s required mental state regarding her age. The defendant was convicted although the jury found that he “bonâ fide, and on reasonable grounds, believed that she was above sixteen, viz, eighteen years old.”[15] This was upheld by a Court consisting of 16 judges[16] with Bramwell B, who wrote one of the main judgments, commenting that to require proof of mens rea in respect of her age would mean “reading the statute with some strange words introduced; as thus: ‘Whosoever shall take any unmarried girl, being under the age of sixteen, and not believing her to be over the age of sixteen, out of the possession’, &c”[17]. Such a construction of the Act was rejected.

12. That approach was applied in Hong Kong, as is evident from cases decided by the Court of Appeal as late as in 1993 and 1997.[18] However, in HKSAR v So Wai Lun,[19] Ma CJHC (as the Chief Justice then was) observed that in the light of more modern decisions,[20] Prince had been “largely discredited and all but overruled by the House of Lords” and held that the abovementioned Court of Appeal decisions had to be regarded as of “extremely dubious” authority.

13. As Ma CJHC noted,[21] instead of demanding a justification for reading in a mens rea requirement, the modern starting-point is that mens rea is presumed to be an essential ingredient where the statute is silent on the mental element unless that presumption is displaced expressly or by necessary implication.[22]

14. The presumption of mens rea flows from recognition that it is a cardinal principle of our criminal law that mens rea, involving the intentional or knowing performance of prohibited conduct, is ordinarily an essential ingredient of guilt of a criminal offence. The law therefore assumes that in creating a statutory offence, the legislature does not intend to dispense with that basic principle unless the enactment does so expressly or by necessary implication. This has been said to reflect the principle of legality[23] or to be a principle of statutory interpretation whereby any ambiguity in a penal statute is resolved in favour of the accused.[24]

15. The major developments in this jurisdiction relate to cases where the presumption of mens rea is held to be dislodged. As this Court concluded in Hin Lin Yee v HKSAR,[25] it becomes necessary in such event to ask: “By what, if any, mental requirement is the supplanted requirement of mens rea to be replaced?”

16. The English approach (previously followed in Hong Kong) presents a stark choice between construing the statute as requiring full mens rea and construing it as imposing absolute liability.[26] This has led eminent judges to lament the absence of an option to establish liability on some intermediate basis, such as a construction requiring the accused to “convince the jury that on balance of probabilities he is innocent of any criminal intention”.[27] Such an option was, however, thought to have been excluded by Woolmington v Director of Public Prosecutions.[28]

17. After considering different approaches in Australia, Canada and New Zealand, this Court decided in 2010 to depart from the confining regime adopted in England and Wales. It was held in Hin Lin Yee v HKSAR,[29] that in appropriate cases, the law permits statutes to be construed as intending to displace the presumption of mens rea in favour of an intermediate basis of liability. Five possible bases of liability were recognised, ranging from full mens rea to absolute liability with three intermediate possibilities.

18. Hin Lin Yee was a case involving the relatively minor offence of selling a drug intended for use by man but unfit for that purpose[30] where the mental element in question related to the circumstance of the drug’s unfitness. In Kulemesin v HKSAR,[31] which involved the more serious offence of endangering the safety of others in a vessel or at sea,[32] the issue concerned the mental element regarding the consequence of endangerment. To accommodate more serious offences and to cater for mens rea as to...

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  • Hksar v Mak Wan Ling
    • Hong Kong
    • Court of Final Appeal (Hong Kong)
    • 18 October 2019
    ...style="color=black;">[55] [2004] 1 AC 1034 at §32. [56] (2010) 13 HKCFAR 142. [57] (2013) 16 HKCFAR 195. [58] [2018] HKCFA 18. [59] (2005) 8 HKCFAR 192. [60] [2004] 1 AC 1034 at §28. [61] Cap 132. act, or in any manner whatsoever without reasonable excuse, endangers or causes to be endanger......

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