“Procurement by false pretences” – the HK legal system makes an ass of itself

There are so many issues raised by the case brought against a self-proclaimed Taoist practitioner accused of duping a young model into having sex, and by the verdict and judgement delivered against him, that it is difficult to know where to start. But there is no doubt in my mind that the Hong Kong legal system (normally so sound) has made a complete ass of itself in this case.

In very brief summary the facts of the case seem to be that a young aspiring model was having no luck with her career and so she approached a self-proclaimed Taoist” master” to see if he could help. This “master” persuaded her to engage in rituals which involved him having sex with her on a number of occasions. And this happened multiple times before she apparently started wondering whether she had been duped. After she was found to be pregnant and had an abortion the police were somehow involved (it’s not clear to me how) and the Taoist “master”, Au Yeung Kwok-fu, was arrested.

The law under which he was charged (the Crimes Ordinance, Chapter 200, Section 120, Procurement by False Pretences) says this:

(1) A person who procures another person, by false pretences or false representations, to do an unlawful sexual act in Hong Kong or elsewhere shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years.
(2) For the purposes of subsection (1), “pretence” (藉口) or “representation” (申述) includes a pretence or representation relating to the past, the present or the future and any pretence or representation as to the intention of the person using the pretence or representation or any other person.

My first issue is that this seems to be a terribly drafted law. The word “unlawful” just seems to be wrong. The act which caused Au Yeung to be charged was not unlawful per se – it was sexual intercourse between two consenting adults; that is a lawful sexual act. The intent of the law seems to be to make the obtaining of consent by false pretences or false representations to be an offence. Moreover, even allowing for the terrible drafting, the law itself seems to criminalise a significant proportion of sexual activity which goes on in the world. Anyone who has ever got someone into bed on the promise of “of course I will love you forever” when in fact having no such intent is liable to go to jail for up to 5 years.

And in this case, the defendant made representations relating to the future that if the model carried out these rituals then her career would improve. I have seen no reports that he promised any particular timescale, and since he was arrested within only a few weeks of the alleged offence it seems to me impossible to demonstrate “beyond reasonable doubt” that the representations were false. In fact I have no doubt that were the model to remove herself from the cloak of anonymity which the judge imposed and offer her story and pictures on the open market then her career would improve substantially and she could make a very significant amount of money. Were this to happen then clearly Au Yeung’s representations would have become true and he could no longer be guilty of making “false representations”. He would, therefore, have to be released, and could quite reasonably sue for false arrest and imprisonment.

In a non-sexual field, procuring money by false pretences is also an offence. And yet religious ministers are somehow allowed to link donations (or “tithes”) to their church/temple/mosque/whatever to the achievement some sort of “afterlife” in “heaven”. If that isn’t procuring money by false pretences then I don’t see how this case can be procuring sex by false pretences.

The final worrying aspect of this case is the fact that the judge, Stanley Chan Kwong-chi, in his ruling brought in his own irrational superstitions and beliefs, positioning them as somehow better than those of Au Yeung and the model. This is utterly, utterly wrong. As reported by The Standard:

The judge said any religion that aims to help people will not use sex as a method to pray for blessings. “If one claims so, it is heresy or a cult, using crooked theories to satisfy one’s lust,” he said, adding it is not wrong to be superstitious.

“The victim was lured into having sex nine times, getting pregnant in the process, which resulted in the loss of a human life,” the judge said.

The judiciary should not be in the business of declaring one set of irrational superstitious beliefs (also known as “religions”) to be any better or worse than any other. Consenting adults should be able to believe whatever they want, and do whatever they want as a consequence (including sexual things), so long as it has no negative impact on third parties.

Moreover, the judge also seems to be imposing what I suspect to be his own religious beliefs on the matter of abortion. The abortion was legal – it is not the place of the judiciary to make moral judgements.

And finally, the judge apparently said “Some may also say the defendant is facing a calamity of his own making as nobody escapes the judgement of heaven”. Wrong, wrong, wrong! A judge who allows his judgements to be coloured so strongly by his personal irrational and superstitious beliefs has no place on the bench. In my opinion this case should be rapidly thrown out on appeal on the multiple grounds touched on above, and Mr Stanley Chan Kwong-chi should be looking for a new job – he is a disgrace to the good name of the Hong Kong judiciary.

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11 Responses to “Procurement by false pretences” – the HK legal system makes an ass of itself

  1. HKMacs says:

    Very well put. What an extraordinary case!

  2. Dan says:

    Yes, excellent post. Think it needs a wider airing. I would suggest the SCMP, but I dread to think how the sub-eds (esp those at the letters page) might scramble your logic.

  3. Dan says:

    Having googled the case, this just gets worse and worse…

    ‘District Court judge Stanley Chan Kwong-chi, while describing the complainant as “stupid, ignorant and simple-minded in having sex with a man 20 years her senior on the blind faith it would bring her fame and wealth”, said she was an “honest witness”.’

    http://www.theregister.co.uk/2010/01/05/taoist_trucker_guilty/

    Strike him off!

  4. Jim says:

    Plenty of women have sex with men 20 years their senior in the blind faith that it would bring them fame and wealth. Why is this special?

  5. smog says:

    The disgrace of a judge has now compounded his incompetence by sentencing a man guilty of an offence which most other men in the world have committed at least once to more than 6 years in prison. The HK legal system, one of the cornerstones of its success, needs to remedy this gross error PDQ or it will become just another part of the great thing which is the Hong Kong of the past.

  6. smog says:

    Another point has just occurred to me that tells me I really want to see the judgement – the law quoted in the post specifies a maximum sentence of 5 years, and yet in this case the sentence was 6 years and 9 months. How did that happen?

  7. Jay-P. says:

    Mr Smog, I rarely agree with you but this will be one of very few exceptions. Like you said: HK’s legal system made a complete fool of itself on this case.
    JP

  8. Football 16 says:

    The sentence was for 9 counts. Each offence was 1 count. There is no consent if there are false pretences used to obtain the sex.

  9. smog says:

    I disagree – the essence of the law is that there is consent but that it was obtained by false pretences. If there were no consent then that would be rape.

    Moreover it’s pretty rare for sentences to be consecutive rather than concurrent, and essentially there was only one deception so this seems way out of line to me, particularly when in the same week the penalty for kill someone by dangerous driving was HK$6500 and loss of licence for a year, and that for multiple counts of abuse of two children was 5 years.

  10. Football 16 says:

    If you do some checking you will see that in certain circumstances like this law, there can be no consent as it was given by being deceived. That is the essence of this law. It is the same as sex with minor who is willing. The law says there can be no consent in this case.

    As to your comparison with rape, yes it is just another situation similar but where the person is not raped by violence but sex is taken by deception.

    You can’t always compare sentences as the judge takes into consideration remorse, likelihood to re-offend and deterrence. There was a lack of remorse and understanding that what was done was wrong and the guy’s lame excuse was that he had no control over his body during sex. Preposterous.

    It would appear that it works out to 9 months per each count.

  11. smog says:

    Well that might be because he, like the vast majority of online commentators that I have seen, doesn’t regard what he did as wrong. You are clearly in a minority if you think that what he did was worthy of a sentence greater than killing someone by dangerous driving. And the judge bringing his own irrational and superstitious views into his judgement is completely unacceptable.

    Have you never got a woman into bed by suggesting you would love her forever (or similar promises)? No difference that I can see, and I (like most men) have done that a few times.

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