CACC30/2011

CACC30/2011

由此 A A [English Translation – 英譯本] B CACC 30/2011 B C C IN THE HIGH COURT OF THE D D HONG KONG SPECIAL ADMINISTRATIVE REGION E E COURT OF APPEAL F F CRIMINAL APPEAL NO. 30 OF 2011 G (ON APPEAL FROM HCCC NO. 183 OF 2010) G H ________________ H I BETWEEN I HKSAR Respondent J J K AND K L L LEE KWOK WAH FRANCIS Applicant M M （李國華） N ________________ N O O Coram: Hon Cheung JA, Hon Yuen JA and Hon Chu JA in Court P P Date of Hearing: 16 and 17 October 2012 Q Q Date of Judgment: 3 December 2012 R R S S JUDGMENT T T U U V V JD 187-2013 由此 A A B Hon Cheung JA (giving the judgment of the Court): B C C 1. The applicant was indicted on seven counts of sexual offences. D D After trial before D. Pang J sitting with a jury, he was found guilty of five of the E E counts and was sentenced to eight years’ imprisonment. He applies for leave F F to appeal against both conviction and sentence. G G H H The Five Convictions I I J 2. Four of the five counts of which the applicant was found guilty J K concerned a girl X, who was under the age of 16. Three of these counts, namely K L the 1st,, the 3rd and the 5th counts, alleged that the applicant had sexual L intercourse with X, a girl under the age of 16 years, contrary to sections 124(1) M M and 153P(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong (“the N N Ordinance”). Another count which involved X, namely the 6th count, alleged O O that the applicant engaged in indecent conduct towards a child under the age of P P 16 years, contrary to sections 146(1) and 153P(1) of the Ordinance. The Q Q remainder count, namely the 7th count, was concerned with another girl under R R the age of 16, Y, and alleged that the applicant indecently assaulted Y, contrary S to sections 122(1) and 153P(1) of the Ordinance. S T T U U V 2 JD 187-2013 V 由此 A A B B C Particulars of the offences C D D 3. The particulars of offence of the 1st, the 3rd and the 5th counts were E E as follows: F F G G 1) The 1st count: The applicant, on a day unknown between the 1st day H H of September, 2005 and the 31st day of March, 2007, being a Hong Kong I I permanent resident, at Fo Xin Hostel, No. 8 Xiang Shan Xin Street, Xiangshan J Town, Menghai County, Xishuangbanna, Yunnan Province, China, had J K unlawful sexual intercourse with X. K L L 2) The 3rd count: The applicant, on a day unknown between 1st day of M M September 2006 and 31st day of July, 2007, being a Hong Kong permanent N N resident, at Bulangshan Nong Mao Market Reception House, Menghai County, O O Xishuangbanna, Yunnan Province, China, had unlawful sexual intercourse with P P X. Q Q R R 3) The 5th count: The applicant, on a day unknown between the 1st day S of August, 2006 and the 31st day of July, 2007, being a Hong Kong permanent S T resident, at Ren Ai Children Home, No. 20 Jinlong Road, Xiangshan Town, T U U V 3 JD 187-2013 V 由此 A A B Menghai County, Xishuangbanna, Yunnan Province, China, had unlawful B C sexual intercourse with X, a girl under the age of 16 years. C D D 4. The particulars of offence of the 6th count were that the applicant, E E on a day unknown between the 1st day of January, 2006 and the 31st day of F F August, 2007, being a Hong Kong permanent resident, at Ren Ai Children G G Home, No. 20 Jinlong Road, Xiangshan Town, Menghai County, H H Xishuangbanna, Yunnan Province, China, committed an act of gross indecency I I towards X. J J K 5. The particulars of offence of the 7th count were that the applicant, K L on a day unknown between the 1st day of August, 2005 and the 31st of July, L 2007, being a Hong Kong permanent resident, at Ren Ai Children Home, No. M M 20 Jinlong Road, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan N N Province, China, indecently assaulted Y. O O P P st rd 6. The jury unanimously found the applicant guilty of the 1 , the 3 , Q Q the 6th and the 7th counts. In respect of the 5th count, the jury found him guilty R R by a majority verdict, which was 5 to 2. S S T Sentence T U U V 4 JD 187-2013 V 由此 A A B 7. For the 1st, the 3rd and the 5th counts, D Pang J imposed a sentence B C of four years’ imprisonment; for the 6th count, one year and six months’ C imprisonment and for the 7th count, two years’ imprisonment. One year of the D D terms of each count was to be served consecutively to the terms of other counts, E E making a total sentence of eight years’ imprisonment. F F G G Persons involved in the case H H I I 8. The applicant was a permanent resident of Hong Kong. He set up J the Ren Ai Children Home (“the Centre”) in Xishuanghana, Yunnan, on the J K Mainland, to take care of orphans and children who needed assistance. The K L applicant had the right to decide who could reside in the Centre and who could L receive financial assistance, including assistance for enabling the recipient to M M receive education. Twenty odd children were taken care of and provided for N N by the Centre. The applicant visited the Centre about three times a year, and O O stayed there for one to two weeks each time. When he stayed there he P P nd occupied a room on the 2 floor of the Centre. Q Q R R 9. X was a child inmate of the Centre. She was born on 1 April S 1994. Y was born on 20 April 1992. X was molested by the applicant at a time S T between 1 September 2005 and 31 August 2007 when X was 11 to 13 years old. T U U V 5 JD 187-2013 V 由此 A A B The incidents took place between the first term of X’s primary 5 school year B C and the second term of her primary 6 school year. C D D 10. Y was also a child inmate of the Centre. She was molested at a E E time between 1 August 2005 and 31 July 2007. The facts alleged by the F F prosecution were that the molestation took place during the second term of her G G primary 6 school year when she was 15 years old. H H I I 11. We adopt the summary of the prosecution case and the defence J case as presented by Ms. Virginia Lau, Senior Public Prosecutor, representing J K the respondent, to which we supplement: K L L Prosecution case M M 1st count N N O O 1) X (PW2) was video-interviewed by the police on 7 April 2009. P P At that time she was studying in junior [secondary] 2. The account she gave Q Q was that because she was a child of a poor family, she was sent by the R R government to the Centre when she was in primary 3. Later, when she was in S primary 5, the applicant began to provide her with bank cards, mobile S T telephones, MP3s and pocket money. Gradually she became used to it and T U U V 6 JD 187-2013 V 由此 A A B accepted gifts and money without thinking about what consequences that would B C lead to. C D D 2) One day at noon during the second term of X’s primary 5 school E E year, she went to the Centre. She did not see the applicant. Then she F F telephoned him to ask him to come back for lunch, but she learnt that he was G G with an old female inmate called Huiming [transliteration of 輝明]. Huiming H H asked X to go to Fo Xin Hostel, which was in the vicinity, to meet her. When I I X got to the hostel, Huiming said that she was hungry and the applicant told her J J to go to buy some bread. Huiming was away for a long time and still did not K come back. The applicant made use of this opportunity and had sexual K L intercourse with X in a room. X said that the applicant forcibly removed her L M clothes. She resisted and told him to go away but she was weaker than him in M terms of physical power, so in the end he penetrated into her private parts. N N O O 3rd count P P Q Q 3) The applicant told three girls, namely X, Wang Zhilan and Y to R R join him to accompany an inmate called Jiao Jiao [transliteration of 嬌嬌] to S S her hometown. Subsequently they stayed overnight at Bulangshan Nong Mao T T Market Reception House. The applicant and the girls occupied the same room, U U V 7 JD 187-2013 V 由此 A A B in which there were three beds. Wang Zhilan and Y each slept on one bed, B C while X and the applicant slept on the remaining one. After supper, they came C back and sat on the beds to watch television. When Wang Zhilan and Y D D seemed to have gone asleep, the applicant touched X with his hands, took off E E her trousers and had sexual intercourse with her. He did not use any condom. F F He ejaculated on X’s belly and then cleaned himself with paper. It seemed G G that the television was on when this was happening. The applicant did not say H H anything and the sexual intercourse position was the man lying on top of the I I girl. J J K 4) Wang Zhilan gave evidence that during the first night of their stay K L at Bulangshan, she saw that the applicant and X slept on the same bed and that L some bodily movements, which appeared to be sexual intercourse movements, M M were going on under the quilt. N N O O 5th count P P Q Q 5) The applicant and X had sexual intercourse also in the Centre. R R [She] could not remember how many times there had been, or the circumstances S in which the first time happened. The occasion of which she had the clearest S T memory was that one day she went to the applicant’s room to play with the T U computer. She played for a long time until one o’clock in the small hours. U V 8 JD 187-2013 V 由此 A A B The applicant, after cleaning his face and brushing his teeth, entered the room B C and locked the door. He told X not to leave and asked her to stay and sleep C with him. X said she wanted to play a while longer, using that as an excuse for D D not doing what he said, but the applicant simply switched off the computer. At E E last, X gave in to the applicant’s persuasion. She stayed in the room and lay F F on the bed with the applicant, who kissed her mouth to mouth, caressed her, G G removed her clothes and made love to her, proceeding in the same position as H H usual, i.e. the applicant on top of X. Finally, he ejaculated on X’s thigh. I I Then [they] cleaned [themselves] and they slept together in the room until J daybreak. In the course of doing this, the applicant did not say anything. J K K L 6) X said that when the above happened, it was probably the second L term of her primary 6 school year, and that the weather was a bit cold at the M M time. N N O O 6th count P P Q Q 7) Besides having sexual intercourse with X, when the applicant was R R having video chats with her on line, there were occasions on which the applicant S told X to strip herself and also on which the applicant exposed his private parts S T to X and even masturbated himself, leading to ejaculation. This happened two T U or three times in total. On one occasion, other people were present and they U V 9 JD 187-2013 V 由此 A A B saw images transmitted through the internet, showing what the applicant was B C doing. In the Centre, only the applicant’s room was equipped with a computer. C When he was in Hong Kong and wanted to call the people of the Centre D D together for a meeting, he would telephone the Centre to ask them to switch on E E the computer so that he could talk with them. X had a key to [the door of] the F F applicant’s room, so she could often enter the room to play and could also ask G G her friends to come to accompany her. One night during the first term of her H H primary 6 school year, X asked Y and Wang Zhilan to sleep with her in the I I applicant’s room. On that occasion, X chatted with the applicant through the J internet and what described above took place. X and Yang Gaiying, the J K housekeeper of the Centre, each had a key to [the door of] the applicant’s room, K L but other people did not. L M M 8) Both Y and Wang Zhilan gave evidence that on the night in N N question they saw that on the computer screen the applicant exposed his private O O parts to X. Wang Zhilan and Yang Gaiying also said that they had seen X and P P the applicant going together into the bathroom to take a bath. Q Q R R 9) X said that she called the applicant sworn father and looked upon S him as a benefactor because he had helped her. The applicant went to the S T Centre three or four times a year; mostly at the time of the payment of school T U fees at the beginning of a school term. According to X, sexual intercourse had U V 10 JD 187-2013 V 由此 A A B taken place in the Centre for more than 10 times. On some of these occasions B C the applicant asked X to stimulate his private parts by her hands or her mouth, C but X helped him by using only her hands. D D E E 10) A forensic pathologist examined X on 8 April 2009 and found that F F her hymen had been completely torn in the past. The condition of the tear G G showed that something, perhaps a penis, had definitely pierced the hymen, H H resulting in the damage. I I J 7th count J K K L 11) Y moved into and lived in the Centre in 2005 when she was L studying in primary 5 and she left there after primary 6. Sometime between 7 M M and 8 p.m. one day during the second term of her primary 6 school year, when N N Y and Huiming were sleeping in the lower bunk of a bunk bed in a room on the O O second floor, the applicant suddenly entered the room and fondled Y’s breasts P P with his hands. Y resisted but she was weaker in strength than the applicant. Q Q After a while, he left on his own. R R S Defence case S T T U U V 11 JD 187-2013 V 由此 A A B 12) The applicant gave evidence and he denied all these accusations. B C He contracted poliomyelitis when he was one year old. His legs became C crippled and he needed supporting equipment in order to walk. A doctor D D advised him to use a walking frame, but due to his sense of inferiority, he E E thought that the sight of his using it did not look nice, so he did not use it. F F However, he had been using a walking stick for 20 years or so. Without it his G G movements would have been much restricted and he would have become prone H H to fall or tumble because his left leg was completely strengthless. I I J 13) During each visit to the Centre, he would stay for about two weeks; J K but more than half of the time would be spent on making visits outdoors. He K L would take photographs and make reports about his visits. After doing these, L he would send emails to the sponsors and upload the information onto the M M internet. After he returned to Hong Kong, he would store the photographs in N N the computer. The dates and captions of the photographs were determined and O O designed according to the information contained in the files which were made P P for the purpose of keeping the photographs taken during each of his journeys; Q Q for example, the period during which he took Jiao Jiao to her hometown in R R Buhangshan was 4 to 6 May 2007. S S T 14) The applicant claimed that he had never told any child in the T U Centre to go into the bathroom and stay inside together with him. He said he U V 12 JD 187-2013 V 由此 A A B had only asked some children in the Centre to bring some articles of everyday B C use into the bathroom to give them to him so that he could take a bath. C D D 15) According to him, in September 2006 X, Y and Huiming were all E E in the Centre, but during the period in which the applicant visited the Centre F F two times (i.e. between November 2006 and February 2007) Huiming was gone. G G As far as he knew, Huiming did not want to go to school, she wanted to look for H H a job instead. As for X, she returned to her hometown upon completion of I I primary 6, because her academic performance was poor and she assaulted J someone in the Centre. The applicant did not really expel her from the Centre. J K He just wanted her to go to Menhhai Secondary School to be a boarder, but X K L did not want to go there and she made her own decision to return to her L hometown in Menghai. M M N N 16) He said that on one occasion Wang Zhilan and Y refused to give O O help to move some articles and were sternly reprimanded by him. Apart from P P that, when Wang Zhilan was at the junior secondary education stage, she had Q Q poor academic results and her manners were bad. For these reasons she was R R sent to a boarding school, but subsequently she returned to the Centre. S Similarly, after Y finished primary education, she was criticized by her teacher S T for her bad academic performance and was even told by her teacher that she T U should not go to school anymore. It was only because the applicant interceded U V 13 JD 187-2013 V 由此 A A B for her that she could continue to receive education. Subsequently, however, B C Y chatted on the phone all day long and was scolded by the applicant. C D D 17) Regarding the incident in Bulangshan Nong Mao Market E E Reception House, the applicant stated that according to the information stored in F F the computer files, the journey should have taken place from 2 to 4 May 2007. G G As Jiao Jiao was only 7 years old, the applicant worried that he could not take H H care of her properly due to the difficulties he had in getting about. He I I therefore asked the children in the Centre who would like to go with him. The J result was that X, Y and Wang Zhilan were willing to go with him. It was a J K long journey and Jiao jiao’s home was not big enough to accommodate all of K L them, so the itinerary he worked out was that for two nights they would sleep in L a hostel. At night, he alone slept on the bed closest to the door, while the other M M two beds were allocated by the three girls themselves. The activities for the N N following day were that they first went to a restaurant to have lunch and then to O O Jiao Jiao’s home to play. They returned to the hostel after supper. Nothing P P happened on that night just as nothing happened on the first night. They left Q Q early in the morning on the third day. R R S 18) In the Centre, any bodily contacts the applicant had with the S T children were limited to those necessary in their daily life and in their games, T U and absolutely nothing more than that. The computer in his room was used for U V 14 JD 187-2013 V 由此 A A B two purposes: 1. To show, through its connection with the closed circuit TV, B C what was going on at the main door on the ground floor and in the sitting rooms C on the two storeys; 2. To talk, chat or hold meetings with individual inmates or D D all the inmates through the video chatting function. He denied he had ever E E used it to expose his private parts. He protested that the Fo Xin Hostel F F incident was sheer fiction. He said he had never been to that place and had not G G even heard of it. H H I I 19) The applicant explained that he gave more money to X than to J others because he wanted to financially support the elder sister and other family J K members of X. He said another inmate, who was called Hui Zi, also had a K L bank card. At the early stage of Yang Gaiying’s service at the Centre, he was L not sure how long Yang Gaiying would work there, so he gave the bank cards to M M X and Hui Zi. These two children were more senior in age and had a sense of N N responsibility. He let them have the cards as a precaution against O O contingencies. As for the keys to the door of his room, initially only Yang P P Gaiying had a key. However, she was lazy and she just gave it to the inmates Q Q so that they could take turns to enter the room to clean it, and as a result the key R R was lost. Subsequently, he had a number of duplicate keys made and X said S she had one of them. S T T U U V 15 JD 187-2013 V 由此 A A B 20) He said that the rent for renting a room at the hostel at Bulangshan B C was low, just 30 to 40 yuan per night, but he rented one room only. He said C the reason was that he had to take care of the children. D D E E 21) Lastly, the applicant claimed that starting from 2002 he had F F problems concerning erection. In 2004, he sought treatment as an outpatient. G G In 2006, he was treated at the urological department. Acting on the advice H H given by the doctor, he took Viagra, but it was too expensive and the side effect I I was too strong. After discussion with his wife, he decided to stop using it. J J K 22) Doctor Chan, the second defence witness, gave evidence that from K L March 2000 up to the present the applicant was a patient of the orthopaedics L department of Pamela Youde Nethersole Eastern Hospital. His medical M M history showed that due to poliomyelitis, both of his legs were weak, N N particularly the left leg, and that he had to walk with the support of a walking O O stick. The result of the assessment of the strength of his left leg and right leg P P was respectively point 3 and point 4. Point 3 meant that he was able to stand Q Q up to gravitation, i.e. he could walk. Point 4 meant that he could resist some R R outside forces other than gravitation; for example, the doctor using his hand to S obstruct his walking movement. If he could completely kick away the doctor’s S T hand, that was point 5, which meant completely normal. T U U V 16 JD 187-2013 V 由此 A A B 23) Dr. Chan said that when the applicant completely stood still, he B C could stand in that position for five to six minutes without the support of a C walking stick; but that if he bent from the waist and in addition someone gave D D him a push, it would be very difficult for him to keep his balance; and that if he E E wanted to squat down, he would encounter even greater difficulties. F F G G 24) Dr. Chow, the third defence witness, testified that the applicant was H H referred by the Chaiwan Clinic in October 2004, that he came to the urological I I department of Pamela Youde Nethersole Eastern Hospital for treatment for the J first time in March 2006, and that he was diagnosed as suffering from moderate J K degree erectile dysfunction. The meaning of moderate degree was that he K L could not succeed in having sexual intercourse every time he wanted, but this L did not mean that he failed every time. He could, for example, be successful M M five times out of ten. However, that was the result of medication. Dr. Chow N N had no idea as to what his condition was before any medicine was prescribed for O O him or how he would perform without taking any medicine. The medicine in P P question was actually Viagra. Dr. Chow said that in all other aspects the Q Q applicant was normal; that is to say, there were no other reasons which led to his R R impotence except idiopathic causes. S S T Grounds of appeal T U U V 17 JD 187-2013 V 由此 A A B 12. The applicant put forward five grounds of appeal, of which B C grounds 2 and 3 are about matters of principle, in that ground 2 is about the C constitutionality of the offences and ground 3 alleges that the applicant did not D D have a fair trial; while the other three grounds are about issues concerning the E E contents of each individual offence. F F G G 1) Ground of appeal 2: Unconstitutionality of the Offences H H (1) Section 153P of the Ordinance I I J 13. Section 153P of the Ordinance provides that: J K K L “153P Extra-territorial effect of sexual offence provisions L listed in Schedule 2 M M N N Certain sexual offences committed against children outside O O Hong Kong; related arrangements and advertisements P P Q (1) Where – Q (a) (i) a person who is a Hong Kong permanent R R resident or who ordinarily resides in Hong S S Kong; T T U U V 18 JD 187-2013 V 由此 A A B (ii) a body corporate that is incorporated or B registered in Hong Kong; or C C (iii) a body of persons, whether corporate or D D unincorporated, that has a place of business E E in Hong Kong, F commits any act outside Hong Kong; and F G G (b) the act – H H (i) would have constituted an offence under any I I of the provisions specified in Schedule 2 had J J it been committed in Hong Kong; and K (ii) is committed in relation to a person under K L the age of 16 or in the case of an offence L under section 123 or 140, under the age of M M 13, N N then the person or body shall be guilty of that offence. O O P P (2) Where any person or body of persons, whether corporate Q or unincorporated, commits any act outside Hong Kong that – Q R (a) would have constituted an offence under any of the R provisions specified in Schedule 2 had it been S S committed in Hong Kong; and T T U U V 19 JD 187-2013 V 由此 A A B (b) is committed in relation to a person who is a Hong B Kong permanent resident or who ordinarily resides C C in Hong Kong and is – D D (i) under the age of 16; or E E (ii) in the case of an offence under section 123 F or 140, under the age of 13, F G then the person or body shall be guilty of that offence. G H H (3) Where a defendant is charged with an offence that is an I I offence by virtue of subsection (1) or (2) and involves a sexual J J act done by him with or to another person, it is a defence for the K defendant to establish that – K L (a) at the time of the sexual act, there existed between L the defendant and that other person a marriage that M M was valid, or recognized as valid, under the law of – N N (i) the place where the marriage was O O solemnized; P P (ii) the place where the sexual act was done; or Q (iii) the place of the defendant’s residence or Q R domicile; R S S (b) when it was solemnized, the marriage was genuine; T T and U U V 20 JD 187-2013 V 由此 A A B B (c) at the time of the sexual act, that other person C C consented to the sexual act.” D D E E 14. The provisions listed in Schedule 2 include section 124 (i.e. F F intercourse with girl under 16), section 146 (i.e. indecent conduct towards child G under 16) and section 122 (i.e. indecent assault) of the Ordinance. G H H I (2) Background of the legislation I J J 15. Section 153P of the Ordinance originated from the Crimes K K (Amendment) Bill 1999, which was introduced into the Legislative Council on L L 7 July 1999 and eventually became law and was gazetted in 2003. We set out M M below relevant passages quoted from the Legislative Council Brief submitted by N N the Security Bureau to the Legislative Council on 8 January 2002: O O P “General Background P Q Q United Nations Convention on the Rights of the Child (UNCRC) R R S S 3. Under Article 34 of the UNCRC, which applies to Hong T T Kong, children should be protected from all forms of sexual U U V 21 JD 187-2013 V 由此 A A B exploitation and sexual abuse. Enacting legislation which B prohibits child pornography and child sex tourism will be a C C positive step to implement the UNCRC. D D E E …… F F G Child Sex Tourism G H H 7. Sexual exploitation of children is known to have I I international dimensions. Child sex tourism, that is, J J arrangements which enable adults to travel from their home K countries to other places, in particular less-developed places, to K L engage in sexual activities involving children, is known to exist L around the world. A number of countries, including Australia, M M the United States and many European countries, have enacted N N specific legislation against child sex tourism. O O P P 8. Hong Kong, through regular liaison with overseas law Q enforcement agencies, has been maintaining a close watch on the Q R problem and assisted in the investigation of a number of cases. R However, the Crimes Ordinance does not prohibit local residents S S from exploiting children sexually in other places. Nor does it T T provide protection to local children who may be abducted outside U U V 22 JD 187-2013 V 由此 A A B the territory and become targets of child sex tours. Given the B heinous nature of child sex tours and the need for joint C C international efforts, legal sanctions must be imposed on D D perpetrators who prey on local or overseas children. We E E therefore propose to introduce legislative amendments to provide F extra-territorial effect to certain sexual offences under the Crimes F G Ordinance in respect of acts committed to children where the G perpetrator or the victim has a nexus with Hong Kong. H H I I …… J J K Proposals relating to child sex tourism K L L 22. We propose to extend the application of 24 sexual offence M M provisions of the Crimes Ordinance to acts committed outside N N Hong Kong, the provisions are set out in Annex B. In other O O words, these provisions will be given extra-territorial effect. At P P present, 14 of these provisions are applicable to victims of any Q age. Four provisions currently apply to victims under the age of Q R 21. We propose that the extra-territorial effect will only be R applicable to cases where victims are under the age of 16 under S S these 18 provisions. Four of the remaining six provisions have T T applicable age limit of the victims set under the age of 16 and the U U V 23 JD 187-2013 V 由此 A A B other two under the age of 13. For these six provisions, we do B not propose any change to the applicable age limit. C C D D 23. We further propose that the extra-territorial effect should E E cover the persons and corporations referred to in sub-paragraphs F (a) to (c) below insofar as they are the perpetrators of the relevant F G criminal act outside Hong Kong and the persons referred to in G sub-paragraph (a) below insofar as they are the victims of the H H relevant criminal act outside Hong Kong – I I J J (a) a person who is a Hong Kong permanent resident or K who ordinarily resides in Hong Kong; K L L (b) a body corporate that is incorporated or registered M M in Hong Kong; or N N O O (c) a body of persons, whether corporate or P P unincorporated, whose principal place of business Q is Hong Kong. Q R R 24. Separately, we propose to create an offence for arranging S S or advertising child sex tours. The offence covers any message T T U U V 24 JD 187-2013 V 由此 A A B sent through the Internet, any other forms of electronic B transmission or other means. C C D D 25. We propose that valid marriage between the defendant and E E the victim will be a defence to a charge for extra-territorial sexual F offences under the Bill provided that the victim consented to the F G act. We also propose that there shall be a defence for a person G charged with publishing an advertisement for child sex tours if he H H did not have any reasonable cause to suspect it to be such an I I advertisement.” J J K K 16. In addition, we also quote the contents concerning section 153P L from the Paper for the Legislative Council House Committee meeting on 20 L M June 2003: M N N “The Bill O O P P 3. The Bill seeks – Q Q (a) … R (b) … R S (c) to extend the application of certain sexual offence S provisions to acts committed against children T T outside Hong Kong and prohibiting the making of U U V 25 JD 187-2013 V 由此 A A B any arrangement relating to commission of those B acts and advertisements for such arrangement. C C D D …… E E F Extra-territorial effect of sexual offence provisions listed in F G Schedule 2 of the Crimes Ordinance G H H 52. The new section 153P of the Crimes Ordinance to be I I added by the Bill extends the application of 24 sexual offence J J provisions listed in the new Schedule 2 to the Crimes Ordinance K to an act committed against a child outside Hong Kong if the K L defendant or the child has connections with Hong Kong. Valid L marriage between the defendant and the victim will be a defence M M to a charge of extra-territorial sexual offences under the Bill N N provided that the victim consented to the act. O O P P 53. On the rationale for the proposed provisions, the Q Administration has explained that sexual exploitation of children Q R is known to have international dimensions. Child sex tourism is R known to exist around the world, and has inherent to it an S S extra-territorial element. Extra-territorial effect of the relevant T T offence provisions is essential for combating child sex tourism. U U V 26 JD 187-2013 V 由此 A A B Permanent residents and persons who ordinarily reside in Hong B Kong, irrespective of their nationality, should be prohibited from C C engaging in the heinous acts of child sex tourism occurred D D outside Hong Kong. They should therefore be covered under E E the Bill. F F G 54. Regarding the enforcement of the provisions, the G Administration has explained that if a person who is a Hong H H Kong permanent resident or who ordinarily resides in Hong Kong I I commits an offence under new Schedule 2 overseas, he could be J J arrested and prosecuted before Hong Kong courts when he K returns to Hong Kong. In this situation, evidence/witnesses will K L be required from the place where the offence was committed. L This may involve liaison at the law enforcement level and/or a M M formal request for mutual legal assistance. Depending on the N N circumstances, the perpetrator may be extradited and then O O prosecuted in Hong Kong. P P Q …… Q R R 57. The Administration has explained that the 24 offences are S S included because they relate more directly to sexual exploitation T T of children. Other sexual offences, such as living on earnings of U U V 27 JD 187-2013 V 由此 A A B prostitution of others, keeping a vice establishment etc. are B considered less directly relevant. As the purpose of the proposal C C is to deal with a particular problem by extending the application D D of the existing sexual offences under the Crimes Ordinance, the E E Administration considers that efforts should be focused on the F most directly relevant offences and the net should not be casted F G too wide. Extra-territorial effect is therefore not proposed to be G extended to offences which are not likely to be the principal H H offences committed by paedophiles.” I I J J 17. Furthermore, in May 2003 the Security Bureau submitted the K K Administration’s Response to Submission by Law Society of Hong Kong dated L L 5.5.2003. We set out the relevant parts in the Response below: M M N “…… N O O 9. In addition, under Article 3 of the Optional Protocol to the P P UN Convention on the Rights of the Child on the sale of children, Q Q child prostitution and child pornography (the Optional Protocol), R R each state party has to ensure, inter alia, that possession of child S pornography be made an offence under its criminal law before it S T may comply with the Optional Protocol. T U U V 28 JD 187-2013 V 由此 A A B …… B C C Extra-territorial effect of offences listed under Schedule 2 D D E E 12. Sexual exploitation of children is known to have F international dimensions. Child sex tourism, that is, F G arrangements which enable adults to travel from their home G countries to other places, in particular less-developed places, to H H engage in sexual activities involving children, is known to exist I I around the world. Child sex tourism has inherent to it an J J extra-territorial element. Extra-territorial effect of the relevant K offence provisions is essential for combating child sex tourism. K L L 13. The Optional Protocol mentioned in paragraph 9 above M M also states that each state party should take measures to establish N N its jurisdiction over the relevant offences in the following cases: O O P P (a) when the alleged offender is a national of that State Q or a person who has his habitual residence in its Q R territory; R S S (b) when the victim is a national of that State. T T U U V 29 JD 187-2013 V 由此 A A B 14. Hong Kong, as a member of the international community, B has a compelling interest to protect children and to join in the C C concerted efforts in combating sexual abuse of children. We D D therefore propose to introduce legislative amendments to give E E extra-territorial effect to certain sexual offences under the Crimes F Ordinance in respect of acts that relate to direct sexual F G exploitation of children, where the perpetrator or the victim has a G nexus with Hong Kong.” H H I I (3) United Nations Convention on the Rights of the Child J J K K 18. Both parties agree that Article 34 of the United Nations L L Convention on the Rights of the Child applies to Hong Kong. The Article M M reads as follows: N N O “Article 34 O P P States Parties undertake to protect the child from all forms of Q Q sexual exploitation and sexual abuse. For these purposes, States R R Parties shall in particular take all appropriate national, bilateral, S and multilateral measures to prevent: S T T U U V 30 JD 187-2013 V 由此 A A B (A) The inducement or coercion of a child to engage in any B unlawful sexual activity; C C (B) The exploitative use of children in prostitution or other D D unlawful sexual practices; E E (C) The exploitative use of children in pornographic F performances and materials.” F G G However, the Optional Protocol to the Convention on the Rights of the Child on H H the Sale of Children, Child Prostitution and Child Pornography (“the Optional I I Protocol”) is still not applicable to Hong Kong. J J K K (4) Equality and non-discrimination L L M M 19. Mr. Law, counsel for the applicant, argued that the Ordinance N contravenes Article 25 of the Basic Law of Hong Kong, which guarantees that N O all Hong Kong residents shall be equal before the law, and violates the O P entitlement to rights without distinction and the right to protection against P Q discrimination provided in Article 1(1) and Article 22 of the Hong Kong Bill of Q Rights of the Hong Kong Bill of Rights Ordinance, Cap. 383 Laws of Hong R R Kong. S S T T U U V 31 JD 187-2013 V 由此 A A B Article 1(1): B C C “The rights recognized in this Bill of Rights shall be enjoyed D D without distinction of any kind, such as race, colour, sex, E E language, religion, political or other opinion, national or social F F origin, property, birth or other status. [cf. International G Covenant on Civil and Political Rights Art. 2]”; and G H H I Article 22: I J J “All persons are equal before the law and are entitled without any K K discrimination to the equal protection of the law. In this respect, L L the law shall prohibit any discrimination and guarantee to all M M persons equal and effective protection against discrimination on N any ground such as race, colour, sex, language, religion, political N O or other opinion, national or social origin, property, birth or other O status. [cf. International Covenant on Civil and Political Rights P P Art. 26]” Q Q R R (5) Applicant’s argument S S T 20. The applicant accepted that the Legislative Council of Hong Kong T U has the power to legislate to extend our jurisdiction to places outside Hong U V 32 JD 187-2013 V 由此 A A B Kong. He complained that section 153P(1) of the Ordinance discriminates B C against him on account of his status as a Hong Kong permanent resident. He C submitted that the status of a Hong Kong permanent resident and the status of a D D person who ordinarily resides in Hong Kong are covered by the phrases “other E E status” and “national origin” in Articles 1(1) and 22 of the Hong Kong Bill of F F Rights. G G H H 21. The applicant also invoked section 3 and section 25 [sic] of the I I Registration of Persons Ordinance, Cap.177 Laws of Hong Kong. He said that J a person’s status as a Hong Kong permanent resident or his status as a person J K who ordinarily resides in Hong Kong can be regarded as his immigration status K L or residential status and his national origin, and that this person’s status can be L contrasted with the immigration status or residential status of another person M M who is present in Hong Kong but is neither a Hong Kong permanent resident N N nor a person who ordinarily resides in Hong Kong. O O P P 22. According to section 3 of the Registration of Persons Ordinance, Q Q every person in Hong Kong unless exempted is required to be registered and to R R apply for the issue of an identity card under that ordinance. Section 25 of that S Ordinance [sic] stipulates that certain categories of people, so long as they S T retain the status and qualifications specified in that Ordinance [sic], are not T U required to register or apply for the issue of an identity card. Such people U V 33 JD 187-2013 V 由此 A A B include travellers and persons who do not remain in Hong Kong for more than B C 180 days. C D D 23. The last paragraph of Article 24 of the Basic Law provides that E E non-permanent residents of Hong Kong are “persons who are qualified to obtain F F Hong Kong identity cards in accordance with the laws of the Region but have G G no right of abode”. H H I I 24. The fundamental rights and duties of Hong Kong residents are J governed by Chapter III of the Basic Law. Pursuant to Article 24 of the Basic J K Law, residents of Hong Kong include permanent residents and non-permanent K L residents. Article 41 of the Basic Law makes it clear that persons in Hong Kong L other than Hong Kong residents shall, in accordance with law, enjoy the rights M M and freedoms of Hong Kong residents prescribed in Chapter III. N N O O 25. The argument advanced by the applicant is that when a P P non-permanent resident or a person not ordinarily residing in Hong Kong Q Q commits the offences in question outside Hong Kong, he will not be punished R R under the laws of Hong Kong, but if a Hong Kong permanent resident or a S person ordinarily residing in Hong Kong falls under the same situation, he will S T be punished under Hong Kong laws. This, according to him, is a violation of T U Article 25 of the Basic Law, because among residents of Hong Kong, U V 34 JD 187-2013 V 由此 A A B permanent residents and Hong Kong residents ordinarily residing in Hong Kong, B C when compared with other residents in Hong Kong, are not equal before the law. C He submitted that this also contravenes Article 1(1) of the Hong Kong Bill of D D Rights, because Hong Kong permanent residents and persons ordinarily residing E E in Hong Kong, due to their status, cannot enjoy the rights recognized in the Bill F F of Rights. He further submitted that this is also against Article 22 of the Hong G G Kong Bill of Rights, because Hong Kong permanent residents and persons H H ordinarily residing in Hong Kong suffer discrimination as a result of their status; I I and that they are not treated equally before the law and are denied equal J protection of the law. J K K L (6) The case of Yau Yuk Lung L M M 26. In Secretary for Justice v. Yau Yuk Lung (2007) 10 HKCFAR 335 N N the Court of Final Appeal pointed out that equality before the law is a O O fundamental human right and is in essence the right not to be discriminated P P against (see paragraph 1 of the judgment). The Court of Final Appeal Q Q expounded the legal principle that all persons are equal before the law without R R discrimination as follows: S S T 1) In general, the law should accord identical treatment to comparable T U situations. U V 35 JD 187-2013 V 由此 A A B B C 2) However, the guarantee of equality before the law does not C invariably require exact equality. Differences in treatment under the law may D D be justified for good reason. To satisfy the justification test, it must be shown E E that: F F G G (a) The difference in treatment pursues a legitimate aim; in other H H words, a genuine need for such difference must be established; I I J (b) The difference in treatment is rationally connected to the legitimate J K aim; and K L L (c) The difference in treatment is no more than is necessary to M M accomplish the legitimate aim. N N O O 3) Requirement (a) cannot be established from the mere act of P P legislative enactment (see paragraphs 19-21, 26-27). Q Q R R 4) Where the difference in treatment satisfies the justification test, the S correct approach is to regard the difference in treatment as not constituting S T discrimination. Unlike some other constitutional rights, such as the right of T U U V 36 JD 187-2013 V 由此 A A B peaceful assembly, it is not a question of an infringement of the right which B C may be constitutionally justified. (paragraph 22) C D D E E (7) Respondent’s argument F F G G 27. The respondent did not dispute the claim that a person’s status as a H H Hong Kong permanent resident or a person who ordinarily resides in Hong I I Kong can be regarded as his immigration status or his residential status and his J national origin, but it disagreed that the applicant had been treated unequally or J K discriminated against. K L L (8) Our View M M (i) Legitimate aim N N O O 28. Section 153P(1) clearly draws a distinction between permanent P P residents and non-permanent residents, but the Court of Final Appeal had held Q Q that the giving of different treatments to different people might be justified for R R good reason. According to the criteria set by the Court of Final Appeal, the S respondent was required to show that the difference in treatment pursues a S T legitimate aim. T U U V 37 JD 187-2013 V 由此 A A B 29. In our judgment, it is patently obvious that section 153P(1) pursues B C a legitimate aim. Even though the Optional Protocol is still not applicable to C Hong Kong, in order to implement what is required under Article 34 of the D D United Nations Convention on the Rights of the Child, Hong Kong has an E E unshirkable duty to enact laws to protect children from sexual abuse. In Hong F F Kong there is no shortage of laws for combating activities involving sexual G G abuse of children within our territory, but such activities do not take place just H H within Hong Kong, they also take place outside Hong Kong. Sexual I I exploitation of children is known to have international dimensions. It is J common knowledge that there are adults who travel from their home countries J K to other places, in particular developing countries or less-developed places, to K L engage in sexual activities involving children. It is therefore necessary to L stipulate in the law that committing acts of sexual abuse against children outside M M Hong Kong is a criminal offence. The applicant cited the direction on the N N obligations of State Parties under Article 2 of the Convention on the Rights of O O the Child and submitted that it only requires the States Parties to enact laws to P P deal with sexual abuse against children within their own territories, but not laws Q Q with extra-territorial effect: R R S “States Parties shall respect and ensure the rights set forth in the S T present Convention to each child within their jurisdiction without T discrimination of any kind, irrespective of the child’s or his or her U U V 38 JD 187-2013 V 由此 A A B parent’s or legal guardian’s race, colour, sex, language, religion, B political or other opinion, national, ethnic or social origin, C C property, disability, birth or other status.” D D E E 30. We consider that the applicant’s argument is a one-sided view. F F The use of the word “jurisdiction” in Article 2 does not mean that the duty of a G G State Party is limited to protecting children within its territory; on the contrary, H the scope of its duty covers child abuse cases which happen outside its territory. H I Section 153P(1) is targeted at paedophiles who sexually abuse children outside I J Hong Kong. Its purpose is to prevent them from getting away unpunished by J just returning to Hong Kong. This point was clearly brought out in the K K documents submitted to the Legislative Council and referred to above. In L L other words, there was a genuine need for enacting section 153P. In Canada, M M legislation similar to section 153P was enacted in accordance with the N N Convention on the Rights of the Child (See R v. Klassen 240 CCC (3d) 328). O O P P (ii) Rational connection Q Q R 31. One of the criteria for satisfying the test is that the difference in R S treatment must be rationally connected to the legitimate aim. We consider that S the Ordinance also meets the requirement of rational connection. A law which T T extends the jurisdiction to places outside Hong Kong must be subject to U U V 39 JD 187-2013 V 由此 A A B limitations; otherwise, the Hong Kong authorities would prosecute any person B C who sexually abuse any children outside Hong Kong. Such kind of authority C will be too wide. D D E E 32. The limitations are set out in section 153P(1). A person will be F F prosecuted only if one of the following two conditions is fulfilled : G G H H (1) He is a Hong Kong permanent resident or he ordinarily resides in I I Hong Kong (section 153P(1)); or J J K (2) The victim is a child who is a Hong Kong permanent resident or K L who ordinarily resides in Hong Kong (section 153P(2)). L M M 33. These two conditions restrict the scope of the extra-territorial N N jurisdiction of Hong Kong, therefore the distinction with reference to the status O O of persons provided for in the Ordinance is rationally connected to the P P legitimate aim. Q Q R R (iii) No more than is necessary to accomplish the legitimate aim S S T 34. If a person who is not a Hong Kong permanent resident or who T U does not ordinarily reside in Hong Kong sexually abuses children in any place U V 40 JD 187-2013 V 由此 A A B outside Hong Kong, he can be punished under the laws of that place; or if the B C laws of his own country contain provisions similar to section 153P, he may also C be punished under the laws of his own country after he returned home. D D However, even if there are no similar provisions in the laws of this person’s E E country, it does not follow that a Hong Kong permanent resident or a person F F who ordinarily resides in Hong Kong suffers any discrimination. On the basis G G of the above reason, such differential treatment is no more than is necessary to H H accomplish the legitimate aim. We do not think that section 153P is in any I I sense discriminatory against a Hong Kong permanent resident or a person who J ordinarily resides in Hong Kong. J K K L (iv) Proportionality test L M M 35. As a response to the 911 terrorist attacks, the U.K. government N N took a number of measures, including the enactment of the Anti-terrorism, O O Crime and Security Act 2001. Section 23 of the Act provided for the detention P P of non-British nationals who were suspected to be international terrorists. In A Q Q and others v Secretary of State for the Home Department [2005] 2 AC 68 the R R House of Lords declared that section 23 was incompatible with the prohibition S against discrimination laid down in Article 14 of the European Convention on S T Human Rights (cf: Article 26 of the International Covenant on Civil and T U Political Rights). The House of Lords held that section 23 failed to pass the U V 41 JD 187-2013 V 由此 A A B proportionality test. The criteria of that test are the same as those of the B C justification test propounded by the Court of Final Appeal. The House of C Lords’ reasons were as follows: D D E E (1) It was stipulated in section 23 that a non-British national suspected F F to be an international terrorist might be detained, but such treatment was not G G applicable to a British national suspected to be an international terrorist; H H I I (2) It permitted non-national suspects to leave the U.K.; J J K (3) It did not address the threat from U.K. nationals; and K L L (4) It was capable of applying to individuals who did not present that M M threat. N N O O 36. For these reasons, the House of Lords held that section 23 did not P P rationally address the threat to security, that it was a disproportionate response Q Q and that it was not strictly required by the exigencies of the situation. The R R section was declared to be incompatible with Articles 5(1) and (14) [sic] of the S European Law [sic] on Human Rights. S T T U U V 42 JD 187-2013 V 由此 A A B 37. In that case, the House of Lords also dealt with Article 5(1) of the B C European Law [sic] on Human Rights, which provides that “Everyone has the C right to liberty and security of person” (cf: Article 5(1) of the Hong Kong Bill D D of Rights). E E F F 38. We do not think that this English case lends any support to the G G applicant’s arguments in this appeal. Whether the criteria of a particular test H H are satisfied must be decided on the basis of the contents of the legislation in I I question. J J K 2) Ground of appeal 3: media reports and fair trial K L (1) Right to a fair trial L M M 39. The applicant complained that before and during the trial of this N N case there were massive coverage given by the media and vast amounts of O O discussion among the public, and that for this reason the right conferred on a P P defendant by Article 87 of the Basic Law and Article 10 of the Hong Kong Bill Q Q of Rights were encroached upon. Article 87 of the Basic Law provides that R R “… Anyone … shall have the right to a fair trial by the judicial organs …”, and S Article 10 of the Hong Kong Bill of Rights provides that “… everyone shall be S T entitled to a fair…hearing by a … independent and impartial tribunal …”. T U U V 43 JD 187-2013 V 由此 A A B (2) Directions given by D Pang J B C C 40. On 30 November 2010, during the trial of this case D Pang J was D D informed that this case was being reported by two local newspapers. After the E E jury retired, he discussed those reports with the prosecuting counsel and the F F defence counsel. At that time the applicant was represented by another G G counsel, who did not apply for a stay of the trial on the ground that the media H H reports had rendered the trial unfair. After discussing with counsel, D Pang J I I decided that he would give appropriate directions to the jury on those reports at J the time when he should give directions to them. On 14 December 2010, when J K Pang J gave directions to the jury, he said the following: K L L “ At this stage I shall tell you what evidence consists of. In M M the present case, evidence includes the testimonies given in court N N by all the witnesses, that is, including the defendant himself and O O his witnesses; the facts over which there is no dispute between P the parties and which have been read out to you; and all the P Q documents, sketches, photographs and tangible objects which Q have been produced as exhibits. Well, I have particularized for R R you what evidence is composed of, because you must make your S S decisions only according to the evidence; that is to say, you must T T consider all the evidence. As for those matters which have not U U V 44 JD 187-2013 V 由此 A A B been covered by any evidence, you must not guess or speculate. B This is very important, ladies and gentlemen. It is extremely C C rare that every part and every link of a case is covered by D D evidence. You must accept this limitation. You must not fill E E in the gaps with your speculations. If you have heard, seen or F read anything relating to this case outside this courtroom, you F G should disregard it, particularly the information on the G newspapers and the internet. These reports and their contents H H should be no different from what you have heard in court but, for I I various reasons, they may contain opinions given from a certain J J angle, a matter that even the people who made these reports may K not be aware of that themselves; not to mention there may be K L things which have nothing to do with this case and have not been L tested by counsel in court; so you should never take any notice of M M these things; take no notice of them. This evening, you should N N not surf the internet to search. Those you saw previously, forget O O about them. Don’t take any notice of them. …” P P Q (3) Applicant’s argument Q R R S 41. The applicant said that there were huge amount of reports in the S press about the case, that such reports were presented in both written text and T T pictures and a great majority of them were published on the internet. He U U V 45 JD 187-2013 V 由此 A A B submitted that notwithstanding D Pang J’s careful directions, the effects of B C those reports were that the prejudice formed in the jurors’ mind against the C defendant could not be removed, nor could the risk that the prospect of a fair D D trial was adversely affected be eliminated. E E F F (4) Legal principles G G H H 42. In HKSAR v. Lee Ming Tee and another (2001) 4 HKCFAR 133, I I the Court of Final Appeal made the following comments about the legal J principles applicable to questions about the effects of media reports on a trial: J K K L 1) In a society where the press is free it is inevitable that the reporting L of crime will, in some sections of the media, be lurid and sensationalist, M M sometimes even at the risk of punishment for contempt. The more heinous or N N shocking a particular crime, the more it is likely to be given notoriety and to O O receive potentially prejudicial reporting. Jurors will therefore almost certainly P P have been exposed to some degree to such media coverage, prejudicial to the Q Q accused. R R S 2) Reliance on the integrity of the jury and its ability to try the case S T fairly on the evidence, to put aside extraneous prejudice and to follow the T U directions of the judge is fundamental to the jury system itself. U V 46 JD 187-2013 V 由此 A A B B C 3) There is good sense in regarding a jury, properly directed, as able C to overcome prejudicial publicity in the vast majority of cases. First, with the D D passage of time, any recollection that a juror may have of adverse publicity can E E be expected to fade, lessening its prejudicial effect. F F G G 4) Secondly, the jury may sensibly be credited with the ability to H H overcome any pre-trial prejudice because of the nature and atmosphere of the I I trial process itself. Whatever impression of the case members of the jury may J have gained beforehand, at the trial, they are given direct, first-hand access to J K the actual evidence in the case, presented systematically and in detail, with live K L witnesses tested by cross-examination and exhibits tendered for inspection. L They are addressed as to the significance of such evidence by counsel on both M M sides and guided by the impartial summing-up of the judge. Many jurors will N N already harbour a healthy scepticism about certain kinds of press reporting. O O They can be credited with the intelligence to realise that whatever may have P P been reported, they are far better placed at the trial to make up their own minds Q Q on the evidence, with the help of the judge’s direction. R R S See pages 189 to 192B of the judgment of that case. S T T U U V 47 JD 187-2013 V 由此 A A B 43. The Privy Council held the same views in Montgomery v. H M B C Advocate (PC) [2003] 1 AC 641 at 673F-674G: C D D “ I am not persuaded that the judges in the court below were E E in error in their assessment of the effect of the publicity that has F F been given to this case and of the question whether, despite that G publicity, the jury can be expected to act impartially. Recent G H research conducted for the New Zealand Law Commission H suggests that the impact of pre-trial publicity and of prejudicial I I media coverage during the trial, even in high profile cases, is J J minimal: Young, Cameron & Tinsley, Juries in Criminal Trials: K K Part Two, vol I, ch 9, para 287 (New Zealand Law Commission L L preliminary paper no 37, November 1999). The lapse of time M since the last exposure may increasingly be regarded, with each M N month that passes, in itself as some kind of a safeguard. N Nevertheless the risk that the widespread, prolonged and O O prejudicial publicity that occurred in this case will have a residual P P effect on the minds of at least some members of the jury cannot Q Q be regarded as negligible. The principal safeguards of the R objective impartiality of the tribunal lie in the trial process itself R S and the conduct of the trial by the trial judge. On the one hand S there is the discipline to which the jury will be subjected of T T listening to and thinking about the evidence. The actions of U U V 48 JD 187-2013 V 由此 A A B seeing and hearing the witnesses may be expected to have a far B greater impact on their minds than such residual recollections as C C may exist about reports about the case in the media. This D D impact can be expected to be reinforced on the other hand by E E such warnings and directions as the trial judge may think it F appropriate to give them as the trial proceeds, in particular when F G he delivers his charge before they retire to consider their verdict.” G H H 44. The issue in that case was the defendants’ complaint that the extent I I of the media reports was such that it would be impossible for them to have a fair J J trial as required by Article 6.1 of the European Law [sic] on Human Rights. K K The Privy Council considered that it was only by having regard to all the L L circumstances that a decision on this issue could be made, and that the M M circumstances included the following three matters: N N O 1) the length of time since publication of the reports; O P P Q 2) the focusing effect of listening to evidence over a prolonged period; Q and R R S S 3) the likely effect of the directions by the trial judge. T T U U V 49 JD 187-2013 V 由此 A A B 45. The Privy Council held that under Article 6.1 of the European B C Convention on Human Rights the only issue to be addressed was the right of the C defendant to a fair trial, and no assessment of the weight to be given to public D D interest (i.e. detection and suppression of crimes) came into the exercise, and E E that in this respect it might be said that the right conferred by the European F F Convention was superior to the common law right. G G H H (5) Our View I I J 46. In this appeal, the applicant asked this Court to receive fresh J K evidence consisting of newspaper reports and articles on the internet about this K L case. We refused to receive such fresh evidence. Such evidence had not L been produced when the case was before D Pang J and D Pang J had directed M M the jury that they should not search for this kind of information on the internet N N and that they should forget about and take no notice of the information they read O O and saw previously. The foundation of the jury system is that the jurors are P P required to follow instructions given to them by the judge. Unless there is Q Q actual evidence that the jurors have not done what is required of them, the Court R R must make its decision on the basis that they have done so. The applicant’s S allegation that the jurors might have searched for information in disregard of D S T Pang J’s direction is groundless. We reject his submission in this connection. T U U V 50 JD 187-2013 V 由此 A A B 47. Another complaint of the applicant is that D Pang J at first told the B C jury that they should disregard any information which they heard or read C relating to this case outside the courtroom, but he added that such information D D and its contents should be no different from what they heard in court. The E E applicant submitted that such direction could confuse the jury as to what the F F evidence consisted of. In our view, what the applicant did was to quote D G G Pang J’s remarks out of context. When D Pang J’s directions are considered in H H their entire context; what he meant was that the jury should disregard those I I reports which had nothing to do with the case and had not been tested by J counsel in court. We do not agree that the applicant was deprived of the right J K to a fair trial. K L L 3) Ground of appeal 4 M M (1) Specimen charges/uncharged acts N N O O 48. The applicant’s fourth ground of appeal actually covers two areas: P P Q Q 1) The 5th count and the 6th count were specimen charges. To put the R R defendant under trial for these two counts was unfair to the defendant, rendering S the convictions therefor unsafe; and S T T U U V 51 JD 187-2013 V 由此 A A B 2) D Pang J erred in admitting evidence concerning uncharged acts, in B C that the prejudicial effect against the defendant produced by such evidence C outweighed its probative effect. D D E E 49. The basis of these two arguments is in fact the same. The F F applicant submitted that in the course of giving directions to the jury D Pang J G G had reminded the jury that X had said that in the Centre, which was the place H H where the sexual intercourse referred to in the 5th count took place, the applicant I I had had sexual intercourse with her over 10 times, and that the occasion referred J to in the 6th count was not the only one on which images of the applicant J K exposing his private parts, even masturbating himself and ejaculating were K L shown through the webcam. L M M (2) Legal principle N N O O 50. (1) In Chim Hon Man v. HKSAR (1999) 2 HKCFAR 145 the Court of P P Final Appeal held that the prosecution could not make use of specimen charges, Q Q because there is a general principle that in the absence of any act or acts being R R identified as the subject of an offence charged in an indictment, the prosecution S cannot lead evidence that is equally capable of referring to a number of S T occasions, anyone of which might constitute an offence described in the charge T U and invite the jury to convict on any one of them. U V 52 JD 187-2013 V 由此 A A B B C (2) The Court of Final Appeal pointed out that this principle serves the C same general purposes as the rule against duplicity. Knowledge of the D D particular act, matter or thing which is the foundation of the charge is important E E in enabling the accused to ascertain and prove what, if any, defence, for F F example, an alibi, he may have to the offence charged and to subject a G G complainant’s evidence to searching scrutiny by reference to the surrounding H H circumstances. An accused person may be subjected to unfairness and I I embarrassment if he is called upon to meet a charge of one offence based upon J evidence of the commission of multiple offences, more particularly if the J K evidence is such that it does not enable each such offence to be clearly K L differentiated from the others. The degree of unfairness or embarrassment L may vary according to the circumstances. If the prosecution case is based on M M evidence of many offences in an extended period of time the unfairness may be N N considerable. O O P P 51. This principle was applied by this Court in the following three Q Q cases: R R S 1) HKSAR v Chu Chi Wah (No. 2) [2010] 4 HKLRD 715; S T T U 2) HKSAR v Kwok Hing Tony [2010] 3 HKLRD 761; and U V 53 JD 187-2013 V 由此 A A B B C 3) HKSAR v Chu Chi Wah (No. 1) [2010] 4 HKLRD 675. C D D (3) Our View E E F F 52. The three counts of unlawful sexual intercourse with a girl under G G the age of 16 years involving X took place in three different places. The 1 st H H count took place in Fo Xin Hostel; the 3rd count in the Bulangshan Nong Mao I I Market Reception House and the 5th count in the Centre. In addition, the 6th J count, namely indecent conduct, which involved X, also took place in the J K Centre. K L L 53. In our view, the overall conduct of the trial shows that the M M prosecution did not rely on specimen charges to establish their case against the N N applicant. Before the trial began, D Pang J had already discussed with the O O prosecution and the defence how to handle specimen charges and uncharged P P acts. Q Q R R 54. The prosecution’s opening submission concerning the 5 th count and S the 6th count was as follows: S T T U “(4) The 5th and the 6th counts U V 54 JD 187-2013 V 由此 A A B B The 5th count is about an act of sexual intercourse between C C the defendant and X in the Centre. In fact, after X was D D raped by the defendant in Fo Xin Hostel, the defendant E E had sexual intercourse with X many times in the F defendant’s room in the Centre. Between 2006 and 2008 F G the defendant went to the Centre from Hong Kong several G times every year (in February, April/May, August and H H November respectively) to inspect. When he performed I I such acts, X did not resist because, having been molested J J so many times, she became used to it. Apart from that, K the defendant gave her some presents, including MP3 K L player[s], T shirts and a bankcard under the defendant’s L name, which enabled her to withdraw money from the M M bank. N N O O The 5th count occurred during the second term of X’s P P primary 6 school year (between 1 January 2007 and 31 Q July 2007). At that time the weather was rather cold. Q R One day, around 0130 in the small hours, X was playing R with the computer in the defendant’s room. The S S defendant entered the room and locked the door. Then he T T told X to sleep with him. X wanted to leave but the U U V 55 JD 187-2013 V 由此 A A B defendant did not agree. At his insistence, finally X had B sexual intercourse with him in the room. The defendant C C did not wear a condom and he ejaculated on X’s thigh. D D E E The 6th count (between 1 January 2007 and 31 August F 2007) was about what happened in the defendant’s room F G in the Centre [one day] between the second term of X’s G primary 5 school year and the first term of her primary 6 H H school year. On that day, the defendant was in Hong I I Kong. He had given X the key to the door of his room so J J that she could use his room, including the computer in the K room. At the material time X, Y and Wang Zhilan (PW8) K L were together playing with the computer in the L defendant’s room. After they finished playing, Wang M M Zhilan and Y went to sleep first. At about 1 a.m. Wang N N Zhilan and Y woke up and saw X and the defendant O O chatting through the internet. The defendant, through the P P webcam, instructed X to take off her clothes and he Q himself also took off his clothes, exposed his private parts Q R and masturbated himself. R S S T T U U V 56 JD 187-2013 V 由此 A A B On 7 April 2009 X was interviewed by Hong Kong police B officers and she made complaints about what the C C defendant had done.” D D E E 55. Although the prosecution mentioned that the applicant and X had F F had sexual intercourse many times in the Centre, they did not tell the jury that G G they could find the applicant guilty if they were sure that he had engaged in any H one of those acts of intercourse. The evidence adduced by the prosecution in H I respect of the 5th and the 6th counts was not imprecise and general, but was as I J clear and specific as the content of their opening submission. J K K 56. Furthermore, D Pang J told the jury that X had specific recollection L L th about the guilty acts referred to in the 5 count, and that at the occurrence of the M M th 6 count other people were present. The directions he gave to the jury were as N N follows: O O P P “ In the morning of the third day, all of them left Q Bulangshan. As far as X could remember, the time at which the Q R Bulangshan incident happened should be earlier than what R happened at Da Luo Town, because Da Luo Town was the place S S where she and the defendant had sexual intercourse for the last T T time. Alright, besides the incidents happened at Fo Xin Hostel, U U V 57 JD 187-2013 V 由此 A A B Bulangshan and Da Luo Town, did any other things happen? B The answer is that something did happen in the Children Home, C C but she can’t remember how many times there were, nor could D D she remember the circumstances in which the first time happened. E E However, there is one occasion about which she has the clearest F recollection: She went to the defendant’s room and there she F G played with the computer for a long while until one o’clock in the G small hours. The defendant entered the room after washing his H H face and brushing his teeth. He locked the door and told her not I I to leave and asked her to stay and sleep with him. X said she J J wanted to play a while longer, using that as an excuse for not K doing what he said, but the defendant simply switched off the K L computer. At last, X gave in to the defendant’s persuasion. L She stayed in the room and lay on the bed with the defendant, M M who kissed her mouth to mouth, caressed her, removed her N N clothes and made love to her, proceeding in the same position as O O usual, that is, the defendant on top of her. Finally, he finished P P by ejaculating on her thigh. Then it was wiped with paper and Q [they] cleaned [themselves] in toilet. After that, they slept Q R together in the room until daybreak. In the course of doing this, R the defendant, again, did not say anything. S S T T U U V 58 JD 187-2013 V 由此 A A B X said she can’t remember among all the incidents which B happened in the Children Home which time the above incident C C was according to chronological order. She said whenever the D D defendant came to the Children Home he would stay there for E E one week and she would sleep with him on two or three nights. F As to when did [they] happen, she could just describe it in a F G general way. It should be primary 6. In respect of this G incident, she said it was during the second term. At that time H H the weather was a bit cold. X said that in the Centre when the I I defendant did not use a condom, he would ejaculate outside her J J body, like what happened on this occasion. She said she treated K this incident in the same way as she treated all other incidents, K L that is, she had never told anyone about this sexual intercourse. L The foregoing is about the 5th count. M M N N Lastly, X said that besides having sexual intercourse with O O her, there were occasions on which the applicant told her to strip P P herself when he was having video chats with her on line. The Q defendant had also exposed his private parts to X and even Q R masturbated himself, leading to ejaculation. This happened two R or three times in total. On one occasion, other people were S S present. How did it happen? In the Centre, only the T T defendant’s room was equipped with a computer. When he was U U V 59 JD 187-2013 V 由此 A A B in Hong Kong and wanted to call the people of the Centre B together for a meeting, he would telephone to the Centre to ask C C them to switch on the computer so that he could talk with them. D D Further, X had a key to [the door of] the applicant’s room, so she E E could often enter the room to play; and if she didn’t want to be F alone, she could ask her friends to come to accompany her. In F G these circumstances, one night during the first term of X’s G primary 6 school year, when Wang Zhilan was sleeping and H H when X was chatting with the defendant through the internet, I I what described above took place, but it is not clear whether Wang J J Zhilan had really fallen asleep. This is the 6th count.” K K L 57. D Pang J asked the jury to pay attention to X’s evidence: L M M “ As regards the incident about having sexual intercourse in N N the defendant’s room, actually she had mixed things up. 1 mean O O the truth is that it was the defendant who was continuously P P playing with the computer. After that, he made her stay Q overnight there. Why did this incident leave such a deep Q R impression in X’s mind? X said there was no special reason. R She said she could remember it and that’s why she remembered S S it.” T T U U V 60 JD 187-2013 V 由此 A A B 58. The Da Luo Town incident referred to in the directions above was B C the subject matter of a charge of which the applicant was acquitted. C D D 59. D Pang J also gave detailed directions to the jury in relation to the E E uncharged acts: F F G G “ The 5th point, you will remember that the six counts which H H involve X are only so-called specimens. Why is it? It is I because X claimed that she had had sexual intercourse with the I J defendant as many as 10 to 20 times in total, at least more than J 10 times; and that the occasion mentioned in the 6th count was not K K the only occasion on which he exposed his body through the L L webcam, right? In addition, there were the bath-taking incidents M M which some people said they saw that but X denied, right? Well, N in that case, you must be careful. First of all, the acts which N O have not been included in the charges in the indictment have no O evidential value at all unless, unless what, unless you are sure P P that they did happen. Secondly, even if you are sure that they Q Q did happen, these acts can only be used to explain one thing, and R R the thing is why is it that within the period of time involved in S this case, X did not resist sexual contacts with the defendant and S T she even became used to them. Furthermore, this is the third T point, you should never simply rely on this kind of evidence and U U V 61 JD 187-2013 V 由此 A A B then come to the conclusion that the defendant did commit B offences of a similar nature, or the conclusion that the defendant C C is the sort of person who will commit the offences which he is D D th charged with in the present case. Moreover, this is the 4 point, E E you should never simply rely on this kind of evidence and then F stop thinking and just casually find the defendant guilty of the F G charges in the indictment. On the contrary, you should carefully G consider each count one by one. What I have said is about what H H the uncharged acts can be used for and what they cannot be used I I for. You must not have any confusion about this, alright?” J J K K 60. Mr. Law relied on the comments made by the Court of Final L Appeal in Chim Hon Man on page 165: The trial judge did not instruct the jury L M to the effect that the absence of particularity with respect to the individual M N incidents alleged to have occurred so long ago made it difficult for the N defendant to be convicted of [sic] the charges. The giving of this direction is O O an important element in ensuring fairness to the defendant in cases involving P P charges concerning acts that occurred long time ago, especially where there is Q Q little particularity. Mr. Law argued that in the present case D Pang J did not R R give any direction similar to the above direction. We do not agree with this S S argument, because D Pang J did give the jury directions along these lines: T T U U V 62 JD 187-2013 V 由此 A A B “Firstly, our experience tells us that for various reasons, B sometimes the victims of some criminal cases really C C made false accusations; and, it may be easy to make D D false accusations but to refute them is difficult; and this E E applies to any defendant no matter how innocent he is. F F G Secondly, in the final analysis, it cannot be denied that X, Y and G Wang Zhilan were of tender age, especially during the H H early period. Is there any possibility that they could I I not tell right from wrong, and for some reasons they J J said something irresponsibly, resulting in Ms. Shum K making a report to the police, and the matter then went K L out of control? You have to consider this. L M M Thirdly, every offence in this case was allegedly committed N N three years or more than three years ago. You must O O take into account the disadvantages which the P P defendant may suffer as a result of this fact; for Q example, would he forget something which could have Q R been in his favour? Another example: If these R incidents had not happened so long ago, could he have S S been able to prove that he was not present at the scene? T T When you consider these factors, you should put U U V 63 JD 187-2013 V 由此 A A B yourself in his position in order to see whether it would B affect your verdict.” C C D D 61. We do not think that the applicant has put forward sufficient E E th grounds for appealing against the convictions in respect of the 5 count or the F F 6th count. G G H 4) Ground of appeal 5 H I (1) Elements of the charge of unlawful sexual intercourse I J J K 62. The applicant submitted that the jury was not entitled to find him K guilty of the 1st count. His reason was that X gave evidence that he did not L L penetrate into her private parts or that she was not sure whether he did penetrate M M into her private parts, therefore based on such evidence the jury could not N N possibly be sure that he did penetrate into her private parts. O O P P (2) D Pang J’s directions Q Q R 63. As to the question of whether the applicant did penetrate into X’s R S vagina, D Pang J carefully recapitulated X’s evidence to the jury: S T T U “Evidence-in-chief of X U V 64 JD 187-2013 V 由此 A A B B ...... To put it simply, X said that the defendant removed her C C clothes by force, that is to say, her outer garments and her two D D pants — the outer pants and the underpants were pulled down E E and away from her body. She resisted and told the defendant to F F go away, but her strength was weaker than the defendant’s. As G for the defendant himself, he did not take off his upper garments. G H He just pressed one of his hands on X and removed his trousers H with the other hand. Then he inserted his penis into X’s private I I parts. However, that was X’s first time, so (I quote) it was very J J tight and it could not get into her; but X immediately added this: K K The defendant should have been successful in getting into her L body, and after that he moved his body up and down, which L M caused her great pain. X went on to say that upon entry into her M body, the defendant kissed her and put his hand underneath her N N bra and fondled her breasts. To sum up: X said that the O O defendant at that time did not wear any condom. However, she P P was not able to tell how deep into her body he entered or how Q long the whole process lasted. It was a little longer than one Q R minute but less than two minutes. Furthermore, X said that she R did not see how the applicant’s body moved at the moment of his S S entry into her body. However, when the defendant finished, T T withdrew and wiped that part of the body with paper — she saw U U V 65 JD 187-2013 V 由此 A A B this part of the process. At that moment, the defendant told her B not to tell anyone about this. .....” C C D D X under cross-examination E E F Following that, it was the Fo Xin Hostel incident. F G According to X, before it happened, she did not expect that such G thing would happen; but when the defendant began to remove her H H clothes, she did not put up much of a resistance, so not all what I I she said in the video recording is true. However, there’s one J J thing and that is when the defendant was about to penetrate into K her, she tried to push him away. Why? Because, after all, it K L was her first time, so she felt great pain; and for that reason the L duration of that intercourse was very short; at most it was one to M M two minutes. On this basis, the defence asked her, “You said N N you were not willing. The only reason for your saying so was O O that you felt pain, but not because you resisted the defendant P P making love to you, right?” X’s answer was: “I don’t know.” Q The defence asked her another question: “Finally the defendant Q R stopped. Was it because you felt pain?” X said, “Should be so, R I’m not sure.” The final remark of the defence was: “The S S defendant could not penetrate into your body, and that’s because T T you felt pain.” X said, “I agree, that should be so.” As for the U U V 66 JD 187-2013 V 由此 A A B contraceptive pill which later appeared, X confirmed that the B defendant did not force her to take it. He just gave it to her. X C C knew that it was a contraceptive pill because the defendant told D D her that it was. ….. E E F Re-examination of X F G G …… As regards the Fo Xin Hostel incident, X further clarified H H her evidence by saying that before the defendant stopped his I I actions he did try to get into her body slowly, and that in the J J course of doing so he might have so-called shaken his body. K It’s for this reason that she gave similar description in the video K L recording. However, the thing which X had the clearest L recollection was pain. As to whether the defendant did M M penetrate into her, she could not give a clear answer.” N N O O 64. D Pang J also gave directions to the jury about the alternative count P P for the 1st count, i.e. attempted unlawful sexual intercourse: Q Q R “ Lastly and finally, please pay attention to this. The 1st R S count of this case is treated in a special way. You have heard S what the prosecution said, that is, if you are sure that X’s T T evidence is true, that is to say, you are sure that she and the U U V 67 JD 187-2013 V 由此 A A B defendant had sexual contacts in Fo Xin Hostel; but because X B felt pain, you are not sure whether the defendant’s penis did enter C C into her vagina; you are not sure whether there was even the D D slightest degree of entry. Then, after finding the defendant not E E guilty of the charge of having unlawful sexual intercourse with a F girl under 16, you have to go on to consider whether he was F G guilty of the alternative count: attempting to have unlawful G sexual intercourse with a girl under 16, although it is not written H H on the indictment. To attempt means that at the time in question I I the defendant intended to have sexual intercourse with X and J J with that intention in his mind he did something, and what he did K was more than mere preparation for having the sexual intercourse. K L The only thing he had not done was to complete the sexual L intercourse. If you are sure that this was what happened at that M M time, you can find the defendant guilty of attempting to have N N unlawful sexual intercourse with a girl under 16. Let me give O O you an example: if the defendant did insert his penis into X’s P P private parts, it may be regarded as an act more than mere Q preparation for the sexual intercourse, even though X pushed him Q R away because she felt pain. If he repeatedly tried to do that, it R would be even more likely that he had fulfilled the condition. It S S is for you to decide whether that was what happened. You think T T about it yourselves. U U V 68 JD 187-2013 V 由此 A A B B C 65. Finally, the jury unanimously found the defendant guilty of the 1st C count. D D E E (3) Our View F F G G 66. We consider that the jury’s verdict shows that they believed that H H the applicant did penetrate into X’s vagina. This was a finding of fact made by I the jury. They personally heard X’s evidence and saw her demeanour when I J she was giving evidence. Although on the face of it some parts of her J K evidence was inconsistent with other parts, she maintained that the applicant’s K L actions of assaulting her private parts made her feel pain. In our judgment, the L jury was entitled to find that the applicant’s penis did penetrate into X’s vagina M M on the basis of her evidence. N N O O 67. The applicant submitted that according to The Sexual Offenses Act P P 2003 of the U.K., vagina includes vulva, but that there is no similar definition Q Q under the laws of Hong Kong, and that therefore even if the applicant succeeded R R in penetrating into the vulva, that did not constitute sexual intercourse. We do S not accept this argument. The fact that under the laws of U.K., vagina is S T defined as including vulva does not mean that under the existing laws of Hong T U Kong, the penetration of the penis of a male person into the vulva of a female U V 69 JD 187-2013 V 由此 A A B person is not sexual intercourse. In Hong Kong, the law is that “intercourse B C shall be deemed complete upon proof of penetration by the penis only”. C (Archbold Hong Kong 2012 paragraph 21-2). According to the 25th edition of D D Stedman’s Medical Dictionary, the definition of vagina is “the genital canal in E E the female, extending from the uterus to the vulva”. As pointed out on page F F th 467 of Smith & Hogan Criminal Law (10 edition), to prove sexual intercourse, G G the slightest penetration will suffice. In the case of vaginal intercourse any H H penetration of the female genitalia is enough at common law. It is not I I necessary for the prosecution to prove that the vagina in its proper anatomical J sense is penetrated. J K K L 5) Ground of appeal 1 L (1) Y's age M M N N 68. The time period relevant to the 7th court, which involves Y, was O O between 1 August 2005 and 31 July 2007. Calculation made on this basis P P showed that Y was less than 16 years old during the period in which she was Q Q sexually assaulted by the applicant. Subsequent to that, D Pang J gave the R R following directions to the jury: S S T “ The above-mentioned view, this view of the prosecution, T basically the defence do not object to it. However, there is one U U V 70 JD 187-2013 V 由此 A A B point, and that is Y said that Wang Zhilan was one grade more B senior than she and X, and Wang Zhilan said that she herself was C C promoted to primary 6 after the Chinese New Year holidays in D D 2006. If calculation is made on the basis of that year, then the E E second term of Y’s primary 6 school year, that’s the time when F she was allegedly indecently assaulted, at the latest it could be F G December 2007 or even January 2008. That means she was G over 16. Why? Let me remind you. The forensic pathologist, H H who is an expert on matters about teeth, had made some I I calculations. According to his calculations, Y could have J J reached 16 by 6 October 2007. You have to take this point into K account. But, however, assuming that she had reached 16, what K L does it matter? As I said before, the constituting element of L indecent assault is that the victim does not consent to her being M M assaulted or touched. This is so unless the victim is younger N N than 16. Therefore, since Y herself said that she was not willing O O to be touched by the defendant — she did say so, didn’t she — it P P seems that whether she was 16 or not is not a problem. The Q only problem is whether you believe what she said. …… Q R R …… Miss Y reiterated that this incident occurred during the S S second term of her primary 6 school year. She remembered that T T because during that period, she thought of leaving the Centre, the U U V 71 JD 187-2013 V 由此 A A B Children Home. However, when the defence asked her further B questions, she said that actually she could not remember clearly C C matters about time. What she was sure about was that Wang D D Zhilan was one grade more senior than she and when Wang E E Zhilan went up to the next grade in school, that was when she F went up to the next grade in school; so if Wang Zhilan was F G promoted to primary 6 after the Chinese New Year holidays in G 2006, she would at the same time be promoted to primary 5.” H H I I (2) Applicant’s argument J J K K 69. The applicant submitted that in respect of the 7th count, D Pang J L L erred in giving directions to the jury to the effect that whether Y had reached 16 M was not a matter they needed to consider. M N N O (3) Our View O P P 70. According to section 153P(1)(b)(ii) of the Ordinance, the offence Q Q in question should be committed in relation to a person under the age of 16. R R We therefore agree that D Pang J’s direction to the jury to the effect that S S whether Y was 16 or not had nothing to do with the offence was a wrong T T U U V 72 JD 187-2013 V 由此 A A B direction. However, we do not think this would affect the soundness of the B C conviction. C D D 71. The agreed facts stated that the forensic pathologist, who is an E E expert on matters about teeth, examined Y on 6 April 2009 and the result was F F that he confirmed that her age, i.e. Y’s age at the day of examination was 17 G G years old, subject to an adjustment of six months, plus or minus. That means H H as at 6 April 2009, the oldest possible age of Y was 17½ years old. I I J 72. Y gave evidence that she was born on 20 April 1992, which was J K not challenged by the defence counsel, and this date is compatible with the K L opinion given by the teeth expert. In our judgment, even though D Pang J L gave erroneous direction as to a point of law, the jury was entitled to accept the M M evidence given by Y herself but not the evidence given by Wang Zhilan in order N N to come to their conclusion that when Y was indecently assaulted by the O O applicant she was under the age of 16 years. P P Q Q Conclusion of the application for leave to appeal against conviction R R S 73. For the above reasons, we dismiss the application for leave to S T appeal against conviction. T U U V 73 JD 187-2013 V 由此 A A B Application for leave to appeal against sentence B C C 1) Applicant’s arguments D D E E 74. The applicant complained that the starting points used by D Pang J F F for the individual counts were manifestly excessive, that his order that one year G G of each of the sentences for the 3rd, the 5th, the 6th and the 7th counts was to run H H consecutively to the other sentences was too severe, and that insufficient I I consideration was given to the totality principle or the principle that where an J offender is to serve multiple sentences for multiple offences, the overall J K sentence should not be excessive. Moreover, he submitted that D Pang J erred K L in rejecting all the mitigating factors, particularly the factor that the applicant L was a person with a positively good character. At the time of the sentencing, M M the applicant was 49 years old. He received education up to tertiary level and N N was a social worker by occupation. He was enthusiastic about voluntary work O O and had provided his services to various institutions. In his spare time he set P P up and ran the organization involved in this case. The applicant considered Q Q that his having sexual intercourse with X was not illegal on the Mainland, R R because X at least was 14 years old and she consented to the sexual intercourse. S S T 2) Our View T U U V 74 JD 187-2013 V 由此 A A B 75. We are of the view that the applicant failed to adduce admissible B C evidence in relation to applicable PRC laws either at the trial or during the C appeal. In HKSAR v Tsang Chiu Tak, CACC 386/2011, this Court gave the D D following guidelines about the sentencing principle for cases involving sexual E E assaults on children by adults: F F G G “The Sentencing Principle H H I 8. The Court of Appeal reiterated in many recent cases that I J the Court had to protect innocent trusting children and prevent J these vulnerable persons from sexual abuse which would cause K K them physical and psychological trauma. In cases involving L L sexual assault on a child, it was necessary for the Court to adopt M M deterrent sentences to deter others from committing similar N offences. Such deterrent sentences were to show the abhorrence N O of members of the public to crimes of this nature and to redress O the grievance suffered by the victims and their families. P P Q Q 9. The Court of Appeal pointed out that when the Court dealt R R with offences of sexual assault on a child, the factors that it S needed to take into consideration included: S T T (1) The age difference between the defendant and the victim; U U V 75 JD 187-2013 V 由此 A A B B (2) The relationship between the defendant and the victim, C C including whether the defendant had taken advantage of D D his position or status to commit the offence and whether E E there was a breach of trust in the case; F F G (3) Whether the defendant had used threats or inducements to G make the victim succumb; H H I I (4) The number of occasions of committing the offences and J J the duration of the offences; K K L (5) Whether inappropriate and unnecessary violence was used L by the defendant to cause harm or discomfort to the M M victim; N N O O (6) Whether any safety measures were taken by the defendant P P in sexually abusing the victim in order to avoid Q transmitting any venereal disease to the victim or getting Q R her pregnant; R S S (7) Whether the sexual abuses have caused physical or T T psychological trauma to the victim; U U V 76 JD 187-2013 V 由此 A A B B (8) Whether the offences have impact on the family members C C of the victim; D D E E (9) Whether the defendant was involved in other inappropriate F behaviour such as inviting other people to watch or take F G photos or videos of the offence he committed; and G H H (10) Whether the defendant is psychologically imbalanced and I I paedophilic and the likelihood of re-offending. J J K See HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, HKSAR v K L Lee Hon Wah [2011] 4 HKLRD 319, HKSAR V Ng Ka Kin L (CACC 328/2010) and HKSAR v Lee Kwok Wai (CACC M M 199/2011).” N N O O 76. D Pang J considered that the crimes committed by the applicant P P were extremely serious, and he enumerated the following factors: Q Q R (1) There was a huge age difference between he and either X or Y. R S S T (2) X, in particular, was of very tender age. T U U V 77 JD 187-2013 V 由此 A A B (3) In the relation between the applicant and the two girl victims, there B C obviously was no love and affection in the sense of the love and affection C between a girl and her boyfriend. As far as X is concerned, perhaps she was D D well disposed towards him and was grateful to him. However, the applicant E E had a wife and his daughters, who live permanently in Hong Kong. He assumed F F the status of sworn father in the Centre. The first sexual intercourse between G G X and the applicant was not something which X expected to happen and it could H H even be said that it happened as a result of her falling into a trap set by the I I applicant. It was definitely not the outcome of love and affection between a J man and a girl. Moreover, X was not the only victim in the present case or in J K the Centre. K L L (4) On the occasions when he committed the offences he did not wear M M a condom. N N O O (5) On some occasions he committed the offences in the presence of P P other children. This showed that he had reached the stage that he had Q Q absolutely no scruples about acting in the way he did. R R S (6) The purpose of setting up a children’s home must be to take care of S T the children, so that they can grow up in a safe environment; but what the T U applicant did was exactly the opposite. In the case of X, the offences were U V 78 JD 187-2013 V 由此 A A B committed over a rather long period of time; it was more than one year. It is B C one of the most serious examples of breach of trust. C D D (7) Although X said in court that the goods and commodities she E E obtained from the applicant had nothing to do with the sexual relationship F F between she and he, the evidence showed that the benefits she received from the G G applicant were more than those received by others; for example, she had a bank H H card; she could freely go into the applicant’s room by using a duplicate key to I I play with the computer; and even her elder sister and her mother received J financial assistance from the applicant. All these could prove that the J K applicant intended to exchange these benefits for X’s cooperation. That means K L what he had been doing was to corrupt the mind of the victim by material L benefits. M M N N (8) By committing the offences on the other side of the border the O O applicant damaged the reputation of charitable organizations set up by Hong P P Kong people on the Mainland. Those affected were not confined to individual Q Q persons or a particular organization. R R S 77. Besides, the psychologist commented that the applicant was deeply S T affected by a sense of inferiority and that this resulted in his strong desire to T U manipulate others. He said the applicant had no insight into his problems and U V 79 JD 187-2013 V 由此 A A B was remorseless for what he had done in this case. His risk of re-offending B C was estimated to be moderate to high. This was a cause for concern. C However, D Pang J stated that this was not where his attention was focused on, D D but that in the report nothing in favour of the applicant could be found. E E F F 78. In our view, D Pang J had sufficiently considered the G G circumstances of this case. We find that the starting points for the individual H H counts and the overall sentence are all appropriate and nothing is manifestly I I excessive. J J K Conclusion of the application for leave to appeal against sentence K L L 79. For the above reasons, we dismiss the application. M M N N O O P P Q Q (Peter Cheung) (Maria Yuen) (Carlye Chu) R R Justice of Appeal Justice of Appeal Justice of Appeal S S T T U U V 80 JD 187-2013 V 由此 A A B Mr. Lawrence Law, instructed by Messrs. Littlewoods, assigned by the Legal B C Aid Department, for the Applicant. C Ms. Virginia Lau, Senior Public Prosecutor of the Department of Justice, for the D D Respondent. E E F F Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. G P. Y. Lo, Barrister-at-law G H H I I J J K K L L M M N N O O P P Q Q R R S S T T U U V 81 JD 187-2013 V