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Confession of Law? A Critical Perspective on Production of Child Subject in Hong Kong Law Controlling Child Sexual Abuse

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Abstract

Child protection has been one of the main concerns of Hong Kong Law in twenty-first Century. However, the definition of child and the related presumptions have never been meticulously investigated critically challenged. In the article, I employ the Deleuzean perspective in questioning the structure underlying the formation and production of the concept ‘child’ in law. I will then propose a reform strategy that can avoid certain problems created by the concept while providing more effective protection to the powerless. I will also examine the feasibility of the strategy in Hong Kong.

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Notes

  1. Cap 579 LHK.

  2. Cap 390 LHK.

  3. Cap 200 LHK.

  4. A child, under domestic abuse, can also apply for injunction under civil law, by her/his next friend, under Section 3A, Domestic and Cohabitation Relationships Violence Ordinance (Cap 189 LHK). Please also note: (1) a victim of child abuse can seek damages by using negligence (and vicarious liability) as cause of action; (2) the claim will not be handicapped by limitation if the incident happened during claimant’s infancy. Please see Section 22, Limitation Ordinance Cap 347 LHK and H v. Lau Ka-yee Michael and Another [2006] HKEC 1944. Since the article concentrates on the discussion of criminal law, details of civil remedy will not be discussed.

  5. Prevention of Child Pornography Ordinance (Cap 579 LHK).

  6. A person who owns, occupies, manages, assists to manage or control a premises or vessel, induces or knowingly suffers a woman or a man under 13 to resort there for the purpose of doing an unlawful sexual act or sex work shall be guilty. (Section 140, Crimes Ordinance) If such person induces or knowingly suffers a woman under 16, for the purpose of doing an unlawful sexual act or sex work; or a man under 21, for the purpose of having buggery or committing gross indecency with another man, to resort on the premises or vessel, s/he shall be guilty. (Section 141, Crimes Ordinance).

  7. The law forbids anyone from taking an unmarried woman under age 16 out of the possession of her parent or guardian and against their will. (Section 126, Crimes Ordinance) A person who takes an unmarried woman under age 18 out of the possession of her parent or guardian, against their will, with the intention that she shall have unlawful sexual intercourse with male shall also be guilty. (Section 127, Crimes Ordinance).

  8. Section 132, Crimes Ordinance states that a person who procures a woman under age 21 to have unlawful sexual intercourse in Hong Kong or elsewhere with a third person shall be guilty. Section 135(1), Crimes Ordinance also says: a person who causes or encourages sex work of or an unlawful sexual act with a woman or man under age 16 for whom that person is responsible shall be guilty. The responsible person includes: parents, guardian, people who have actual possession or control of the child and people who have the custody, charge or care of the child. (Section 135(3), Crimes Ordinance) A person who uses, procures or offers another person under age 18 for making pornography, or for performing a live pornographic show, where the under age 18 person is or is to be pornographically depicted shall be guilty. (Section 138A, Crimes Ordinance).

  9. Section 123.

  10. Section 124.

  11. HKSAR v. So Wai-lun [2005] 1 HKLRD 443, per Judge Ma.

  12. Section 118A.

  13. [2005] 1 HKLRD 657.

  14. The provisions violated include Art 2, which reads: ‘All Hong Kong residents shall be equal before the law’, and Art 39 which reads: ‘The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.’.

  15. Cap 383 LHK. The articles that the present provision violates include Art 1 (Entitlement to rights without distinction), Art 14 (Protection of privacy, family, home, correspondence, honour and reputation) and Art 22 (Equality before and equal protection of law).

  16. The Sub-committee on Review of Sexual Offences was set up in July 2006, the initial terms of reference are: ‘To review the common and statute law governing sexual and related offences under Part XII of the Crimes Ordinance (Cap 200) and the common and statute law governing incest under Part VI of the Ordinance, and to recommend such changes in the law as may be thought appropriate.’ (Law Reform Commission of Hong Kong 2008 Consultation Paper: Interim Report on Sex Offender Register Hong Kong: Law Reform Commission of Hong Kong, Para 1) The terms of reference were expanded in October 2006 and are: ‘To review the common and statute law governing sexual and related offences under Part XII of the Crimes Ordinance (Cap 200) and the common and statute law governing incest under Part VI of the Ordinance, including the sentences applicable to those offences, to consider whether a scheme for the registration of offenders convicted of such offences should be established, and to recommend such changes in the law as may be appropriate.’ (Law Reform Commission of Hong Kong 2010 Sexual offences Records Checks for Child-related Work: Interim Proposals Hong Kong: Law Reform Commission of Hong Kong, Para 1) Please also note that Section 118D is also under reviewed.

  17. HKSAR v. Chow Yuen-fai [2010] 1 HKLRD 354, para 32.

  18. [2005] 1 HKLRD 657.

  19. Section 4(1), Evidence Ordinance (Cap 8 LHK).

  20. Section 4A and Section 4B, Evidence Ordinance (Cap 8, LHK).

  21. [2005] HKEC 1063.

  22. [2005] HKEC 1063, para 8.

  23. [2005] HKEC 1063, para 9.

  24. Section 154, Crimes Ordinance (Cap 200 LHK). Another point which is worth noting is: an offence allegedly committed over a period of time based on evidence of multiple ‘uncharged acts’ that happened during the said period of time and at the same venue, might be very unfair to the defendant, as s/he would not be able to defend. In HKSAR v. Chu Chi Wah [2010] 4 HKLRD 691, Judge Yeung explains: ‘The prosecution alleged that within these periods of time, besides the sexual intercourse specified in the individual charges, there were many other incidents of sexual intercourse between the applicant and X. According to the prosecution, in any one of the periods of time referred to by the charges, the applicant did many other ‘uncharged acts’, the exact number of which is not known. Owing to the fact that the offences and many other “uncharged acts” took place within the same place and the same periods of time, and under the same circumstances, the acts specified in the charges cannot be separated or differentiated from the many “uncharged acts” at all.

    This handling method has two major defects: (a) it may lead to unfairness to the defendant, because the defence cannot distinguish which acts are the acts referred to in the charges and which acts are “uncharged acts”, and therefore may encounter difficulties when preparing its defence; (b) it will also be difficult for the trial judge to give directions to the jury as to these “uncharged acts.” ([2010] 4 HKLRD 691, para 79, 80. See also HKSAR v. Kwok Hing Tony [2010] 3 LRD 769).

  25. R v. Billam [1986] 1 WLR 349; HKSAR v. Hui Ka-sang [2000] 2 HKLRD 718.

  26. HKSAR v. Habid Ahsan & Shah Amtiyaz Hussain CACC 211/2002.

  27. Ibid.

  28. Ibid.

  29. Ibid.

  30. Ibid.

  31. Ibid.

  32. HKSAR v. Chow Kam-wah HCCC80/2010.

  33. R v. Billam [1986] 1 WLR 349; HKSAR v. Hui Ka-sang [2000] 2 HKLRD 718.

  34. Ibid.

  35. Ibid.

  36. Ibid.

  37. Ibid.

  38. Ibid.

  39. HKSAR v. Lam Yip-sing [2001] HKEC 818.

  40. HKSAR v. KKF DCCC897/2008.

  41. HKSAR v. Chow Yuen-fai [2010] 1 HKLRD 354, para 39.

  42. HKSAR v. Cheung Kwok-yip Peter [2010] HKEC 268, para 11.

  43. [2010] HKEC 268, para 14.

  44. Please note the effect of Section 154, Crimes Ordinance (Cap 200 LHK).

  45. HKSAR v. Lam Yee-mong DCCC 571/2010.

  46. [2006] HKEC 1314.

  47. [2006] HKEC 1314, para 35–39.

  48. ‘Child-related work’ means the jobs where the usual duties involve, or are likely to involve, contact with a child or children (i.e. people aged under 18). ‘Work relating to mentally incapacitated persons’ means work where the usual duties involve, or are likely to involve, contact with a mentally incapacitated person. (Law Reform Commission of Hong Kong 2010 Sexual offences Records Checks for Child-related Work: Interim Proposals Hong Kong: Law Reform Commission of Hong Kong, Recommendation 2).

  49. Please see “Appendix 3”.

  50. Liu (2011).

  51. Law Reform Commission of Hong Kong (2010) Report: the Common Law Presumption that a Boy Under 14 is Incapable of Sexual Intercourse Hong Kong: Law Reform Commission of Hong Kong. Para 25.

  52. Lind (1998, 84).

  53. HKSAR v. Kong Yun-chiu [2007] 4 HKC 391, para 11. In Secretary for Justice v. Man Kwong-choi CAAR 8/2007, Judge Ma (the then Chief Judge of High Court and current Chief Justice) also writes: ‘The aim of PCPO [i.e. Prevention of Child Pornography Ordinance Cap 579 LHK] is principally the protection of children from being exploited and abused for the purpose of pornography.’ (para 9).

  54. HKSAR v. Lau Chi Cheung [2008] HKEC 691, para 4. In fact, law in Hong Kong nowadays seems also to take care of the parents of the victims in cases of child sexual abuse, as they are, in the view of courts, haunted by the trauma. Judge Stocks writes: ‘Parents of child victims will almost certainly be haunted by images of what has been done to the child and, in addition, will nurture a deep sense of guilt either for having entrusted the child to the company of someone who breaches that trust or, in other cases, for having left the child unguarded for the odd moment’ (HKSAR v. Kong Yun-chiu [2007] HKEC 1419, para 11).

  55. Cap 1 LHK.

  56. Cap 410 LHK.

  57. Section 123, Crimes Ordinance (Cap 200 LHK).

  58. Section 124, Crimes Ordinance (Cap 200 LHK).

  59. Cap 200 LHK.

  60. Section 118D, Crimes Ordinance (Cap 200 LHK) states that the age of consent for woman in case of opposite sex buggery is 21.

  61. [1892] 2 Q B 600, at 601.

  62. Section 3, Juvenile Offenders Ordinance (Cap 226 LHK).

  63. Watson (2008, 197, 198).

  64. As Claire Colebrook illustrates: a machine is ‘nothing more than its connections’. Colebrook (2002, 56).

  65. According to Deleuze, while the social force are always sementary and rigid; desire flows freely and preexists human. As Claire Colebrook writes: ‘Life is a flow of desire.’ May (2008, 135); Colebrook (2002, 142).

  66. Deleuze and Guattari (1984); Jun (2009). It seems desire is the key drive of machine: ‘It is axiomatic for Deleuze and Guattari that no technical machine can exist without the prior investment of desire.’ Buchanan (2008b, 17).

  67. Rose (2000).

  68. Kevin Haggerty and Richard Ericson argue that body in the contemporary assemblage (a state form) are broken down into pure information flow, monitored and analyzed. A good example will be the sexual offender registration system, where criminal records and career choices of sexual offenders are recorded and updated constantly. See Haggerty and Ericson (2000).

  69. Haggerty and Ericson (2000, 609).

  70. Winslade (2009, 336, 337).

  71. Jun (2009, 351).

  72. Winslade (2009, 336).

  73. May (2008, 125).

  74. Rajchman (2000, 60).

  75. Tsang, Phyllis (2010) ‘Boys under 14 can rape, panel says’ South China Morning Post 14 December, EDT 3.

  76. Flieger (2000, 43).

  77. Buchanan (2008b, 22); Žižek (2004, 12).

  78. Colebrook (2002b, 45).

  79. Linstead and Pullen (2006).

  80. Žižek, Slavoj (2004: 12).

  81. Bryant (2008, 58).

  82. Rajchman (2000, 81).

  83. Buchanan (2008a, 45).

  84. Ibid, 22.

  85. Ibid, 47.

  86. Deleuze (1995, 33).

  87. Goodley (2007, 147).

  88. Ibid, 153.

  89. Ibid, 267.

  90. May (2005).

  91. May (2005, 137).

  92. HKSAR v. Cheung Kwok-yip Peter, per Judge Tang.

  93. Winslade (2009, 341).

  94. ‘Son’ does not essentially mean child, though it often relates to teenager or youth; it is only an identity which ties with a ‘subservient role to that of his or her elders, ancestors and others in hierarchically superior position.’ Hsiang (2005, 21).

  95. Liao (2008, 129).

  96. Hsiang (2005, 5).

  97. Ibid, 192.

  98. Bai (2005, 7).

  99. Hsiang (2005, 257).

  100. The only exception is Han Dynasty, which once stated that the age of criminal responsibility is 10. Year 2 Regulation(二年律令) writes: The person who is guilty but is under 10, exempted from being responsible’ (有罪年不盈+歲, 除).

  101. A question remains: But why do we have to import a foreign concept? As I have argued in the article titled ‘‘Beyond Colonialism: Osmotic Reconstruction of Gender/Sexual Justice in Hong Kong’, in Han-Chinese socio-legal culture, there is obviously a lack of ‘powerful and mature legal-philosophical paradigm for the production of resistance/subversion’. Chiu (2009). As Guu-ying Chen (陳鼓應) rightly points out, there is a lack of critical perspective and related resistance strategy within Han-Chinese culture. Chen (1988, 1). The Deleuzean concept of deterritorialization and BwO hence provides a functional resistance perspective which can bring about changes. For smooth and successful transplantation and import of a foreign theory (and related law), there needs to be a matching point between the two cultures—the culture where the transplanting concept is developed and the target culture. Buddhist Vijnanamatra, under meticulous analysis, is providing a matching platform for the transplantation of Deleuzean philosophical perspective on body. For details, please see Chiu (2009).

  102. Chiu (2004).

  103. Art 41, Criminal Penal Code of Japan.

  104. For details of the movie, please see Confession Gets UK Theatrical Release, SciFi Japan. 2011. http://www.scifijapan.com/articles/2011/01/13/confessions-gets-uk-theatrical-release/. Accessed 28 October 2011.

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Acknowledgments

Special thanks go to Professor Leslie Moran of Birkbeck, University of London for his valuable advice of this paper.

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Authors and Affiliations

  1. Department of Law and Business, Hong Kong Shue Yan University, 10 Wai Tsui Crescent, Braemar Hill Road, North Point, Hong Kong

    Man-chung Chiu

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Appendices

Appendix 1

Offences with Extra-Territorial Effect

According to Section 153P of Crimes Ordinance, a person who is a permanent resident of Hong Kong or usually resides in Hong Kong, has committed an offence listed in Schedule 2 outside Hong Kong, and the victim is under 16, or under 13 for offences under Section 123 (Intercourse with Underage woman) or Section 140 (Sex Work), the person shall be guilty of that offence; unless the person can prove that there is a marital relationship between the person and the complainant; and the complainant consented to the sexual act. The offences listed in Schedule 2 include:

  • Section 118 Rape

  • Section 118A Non-consensual buggery

  • Section 118B Assault with intent to commit buggery

  • Section 118C Homosexual buggery with or by man under 21

  • Section 118D Buggery with girl under 21

  • Section 118F Homosexual buggery committed otherwise than in private

  • Section 118G Procuring others to commit homosexual buggery

  • Section 118H Gross indecency with or by man under 21

  • Section 118J Gross indecency by man with man otherwise than in private

  • Section 118K Procuring gross indecency by man with man

  • Section 119 Procurement by threats

  • Section 120 Procurement by false pretences

  • Section 121 Administering drugs to obtain or facilitate unlawful sexual act

  • Section 122 Indecent assault

  • Section 123 Intercourse with girl under 13

  • Section 124 Intercourse with girl under 16

  • Section 126 Abduction of unmarried girl under 16

  • Section 130 Control over persons for purpose of unlawful sexual intercourse or prostitution

  • Section 132 Procurement of girl under 21

  • Section 134 Detention for intercourse or in vice establishment

  • Section 135 Causing or encouraging prostitution of, intercourse with, or indecent assault on, girl or boy under 16

  • Section 140 Permitting girl or boy under 13 to resort to or be on premises or vessel for intercourse

  • Section 141 Permitting young person to resort to or be on premises or vessel for intercourse, prostitution, buggery or homosexual act

  • Section 146 Indecent conduct towards child under 16

Appendix 2

Summary of Criminal Offences and Related Penalties

 

Offences

Related statutory provisions

Maximum penalty

Incest

Section 47, Crimes Ordinance

20 year Imprisonment

Section 48, Crimes Ordinance

14 year Imprisonment

Rape

Section 118, Crimes Ordinance

Life Imprisonment

Intercourse with underage woman

Section 123, Crimes Ordinance

Life Imprisonment

Section 124, Crimes Ordinance

5 year Imprisonment

Indecent assault

Section 122, Crimes Ordinance

10 year Imprisonment

Indecent conduct towards child under 16

Section 146, Crimes Ordinance

10 year imprisonment

Abduction

Section 126, Crimes Ordinance

10 year Imprisonment

Section 127, Crimes Ordinance

7 year Imprisonment

Procurement

Section 132, Crimes Ordinance

5 year Imprisonment

Section 135, Crimes Ordinance

10 year Imprisonment

Section 138A(1)(a), Crimes Ordinance (The person depicted in pornography is under 16)

$3,000,000 fine + 10 year imprisonment

Section 138A(1)(b), Crimes Ordinance (The person depicted in pornography is under 18 but 16 or above)

$1,000,000 fine + 5 year imprisonment

Sex work

Section 140, Crimes Ordinance

Life Imprisonment

Section 141, Crimes Ordinance

14 year Imprisonment

Buggery

Section 118A*, Crimes Ordinance

Life Imprisonment

Section 118C*, Crimes Ordinance

Life Imprisonment

Section 118D*, Crimes Ordinance

Life Imprisonment

Gross indecency

Section 118H*, Crimes Ordinance

2 year Imprisonment

Section 146, Crimes Ordinance

10 year Imprisonment

  1. * Provisions under review

Appendix 3

Offences Which can be Checked According to the Proposal of Sexual Offenders Registry

 

Crimes ordinance

Section 47

Incest by men

Section 48

Incest by women of or over 16

Section 118

Rape

Section 118A

Non-consensual buggery

Section 118B

Assault with intent to commit buggery

Section 118C

Homosexual buggery with or by a man under 21 (only if the victim was under 16)

Section 118D

Buggery with a girl under 21 (only if the victim was under 16)

Section 118E

Buggery with a mentally incapacitated person

Section 118G

Procuring others to commit homosexual buggery (only if to procure a victim under 16)

Section 118H

Gross indecency with or by a man under 21 (only if the victim was under 16)

Section 118I

Gross indecency by a man with a male mentally incapacitated person

Section 119

Procurement of an unlawful sexual act by threats or intimidation

Section 120

Procurement of an unlawful sexual act by false pretences

Section 121

Administering drugs to obtain or facilitate an unlawful sexual act

Section 122

Indecent assault

Section 123

Sexual intercourse with a girl under 13 (only if the offender was 18 or above)

Section 124

Sexual intercourse with a girl under 16 (only if the offender was 18 or above)

Section 125

Sexual intercourse with a mentally incapacitated person

Section 126

Abduction of an unmarried girl under 16

Section 127

Abduction of an unmarried girl under 18 for sexual intercourse

Section 128

Abduction of a mentally incapacitated person from parent or guardian for sexual act

Section 129

Trafficking in persons to or from Hong Kong for the purpose of prostitution

Section 130

Control over persons for the purpose of unlawful sexual intercourse or prostitution

Section 132

Procurement of girl under 21

Section 133

Procurement of a mentally incapacitated person to have unlawful sexual intercourse

Section 134

Detention for intercourse or in a vice establishment

Section 135

Causing or encouraging prostitution of, intercourse with, or indecent assault on, a girl or boy under 16

Section 136

Causing or encouraging prostitution of a mentally incapacitated person

Section 138A

Use, procurement or offer of persons under 18 for making pornography or for live pornographic performances

Section 140

Permitting a girl or boy under 13 to resort to or be on premises or vessel for intercourse

Section 141

Permitting a young person to resort to or be on premises or vessel for intercourse, prostitution, buggery or homosexual act (only if the victim was under 16 and the offender was 18 or above)

Section 142

Permitting a mentally incapacitated person to resort to or be on premises or vessel for intercourse, prostitution or homosexual act

Section 146

Indecent conduct towards a child under 16

Prevention of child pornography ordinance

Section 3

Offences relating to child pornography

Related inchoate offences

Inciting another to commit any of the above offences

 

Aiding, abetting, counselling or procuring the commission of any of the above offences

 

Conspiracy to commit any of the above offences

 

Attempting to commit any of the above offences

 

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Chiu, Mc. Confession of Law? A Critical Perspective on Production of Child Subject in Hong Kong Law Controlling Child Sexual Abuse. Liverpool Law Rev 33, 45–66 (2012). https://doi.org/10.1007/s10991-012-9109-5

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