Following is a question by the Hon Chan Han-pan and a reply by the Secretary for Labour and Welfare, Mr Matthew Cheung Kin-chung, in the Legislative Council today (November 23):
 
Question:
 
     It has been reported that a former superintendent of a privately run residential care home for persons with disabilities (RCHD), the Bridge of Rehabilitation Company, was prosecuted for indecently assaulting two female residents with intellectual disability during the period between 2002 and 2004 but was acquitted. In addition, that person was prosecuted in 2014 for having unlawful sexual intercourse with a female RCHD resident with intellectual disability. However, the Department of Justice (DoJ) withdrew the prosecution in May this year on the ground that the female resident was unfit to give evidence in court proceedings. The case has aroused public concerns about the monitoring of this type of residential care homes, protection for the rights and interests of the residents and law enforcement against sex crimes. In this connection, will the Government inform this Council:

(1) given that operators of RCHDs are required to comply with the principles, procedures, guidelines and standards for the operation, keeping, management or other control of RCHDs provided in the Code of Practice for Residential Care Homes (Persons with Disabilities), of the number of cases of contravening the Code uncovered by the authorities in each of the past three years; given that the Convention on the Rights of Persons with Disabilities has been in force in Hong Kong since 2008, why the Government has so far not introduced any legislation on the Convention to strengthen the protection for the rights and interests of persons with disabilities;

(2) of the number of prosecutions for sex crimes in each of the past three years; among them, the number of cases in which the victims were unable to give evidence in court proceedings, and the respective numbers of those cases in which DoJ withdrew prosecution for this reason and continued with the prosecution, and the number of convictions; what factors DoJ considered when deciding whether or not to continue with the prosecution; and

(3) of the number of prosecutions for sex crimes in the past three years in which the victims resided in RCHDs; DoJ's considerations in deciding whether or not to institute prosecutions against the persons concerned, and whether such considerations include the previous prosecution and conviction records of them; if so, of the details; if not, the reasons for that?

Reply :

President,

     My reply to the question raised by the Hon Chan Han-pan is as follows: 

(1) The United Nations Convention on the Rights of Persons with Disabilities (the Convention) has entered into force for Hong Kong since August 2008.  The rights of persons with disabilities as stipulated in the Convention have been implemented through various laws and other measures, including the Hong Kong Bill of Rights Ordinance, the Disability Discrimination Ordinance and the Residential Care Homes (Persons with Disabilities) Ordinance (RCHD Ordinance) which I will mention later.  

     The Government attaches importance to the monitoring of residential care homes for persons with disabilities (RCHDs) and monitors RCHDs through a licensing system set up under the RCHD Ordinance and administered by the Director of Social Welfare (DSW).  It is stipulated that DSW may issue code of practice from time to time regarding the operation of RCHDs (i.e. the Code of Practice for Residential Care Homes (Persons with Disabilities) (Code of Practice)).  The Licensing Office of Residential Care Homes for Persons with Disabilities (LORCHD) of the Social Welfare Department (SWD) conducts surprise inspections of RCHDs from time to time and will promptly conduct surprise inspections upon receipt of complaints.  If any RCHDs are found to have contravened the Code of Practice during surprise inspections or investigation of complaints, LORCHD will, depending on the nature and severity of the irregularities identified, issue to the RCHDs concerned advisory or warning letters, or written directions on remedial measures under the RCHD Ordinance.  If the RCHDs concerned persistently fail to make improvement, LORCHD will, in accordance with the RCHD Ordinance and the actual situation of non-compliance, take prosecution action against them, or consider revoking or refusing to renew their licences or certificates of exemption.  From 2014-15 to 2016-17 (as at October 31, 2016), LORCHD issued 1 142 advisory letters and 30 warning letters and revoked the certificate of exemption for one RCHD.

(2) and (3) As to parts (2) and (3) of the question concerning the prosecution for sex crimes by the Department of Justice (DoJ), the reply from DoJ is as follows:

     Based on available information, the number of prosecutions and convictions under section 125 of the Crimes Ordinance (Cap. 200) (i.e. the offence of sexual intercourse with mentally incapacitated person) in the past three years are listed as follows:
 

	2013	2014	2015
Not convicted	2	1	3
Convicted	4	2	2
Total	6	3	5

     The Government does not maintain statistics on the withdrawal of prosecutions owing to the non-availability of the witnesses (including victims) to testify in court, or statistics on the prosecution of sexual offences involving residents of care homes for persons with disabilities as the victims.

     According to Chapter 5 of the Prosecution Code published by DoJ, the decision to prosecute requires consideration of two factors: the first is that the admissible evidence available is sufficient to justify instituting or continuing proceedings; the second is that the general public interest must require that the prosecution be conducted.  In respect of the first factor, there must be legally sufficient evidence to support a prosecution; that is, evidence that is admissible and reliable and, together with any reasonable inferences able to be drawn from it, likely to prove the offence.  The test is whether the evidence demonstrates a reasonable prospect of conviction. The public interest is not served by proceeding with cases that do not satisfy this test.  Chapter 10 of the Prosecution Code also provides that a prosecutor remains under a duty continually to review a prosecution that has been commenced. The prosecution must be discontinued if, following a change of circumstances, a reapplication of the prosecution test at any stage indicates that the evidence is no longer sufficient to justify a reasonable prospect of conviction or the interests of public justice no longer require the prosecution to proceed. 

     Based on the principles mentioned above, in the event that the victim is unable to give evidence in court, and the remaining evidence could not demonstrate a reasonable prospect of proving any criminal offence against the defendant, the Department would need to withdraw the prosecution.

     The abovementioned considerations in deciding whether to prosecute are applicable to all cases, including sexual offences involving residents of care homes for persons with disabilities as the victims.  In the prosecution process, apart from protection of the victims (in particular vulnerable victims), prosecutors must also be alert to the rights conferred upon an accused by law which are relevant to the prosecution process, including rights guaranteed under the Basic Law (i.e. equality before the law, the rights to have confidential legal advice, to be presumed innocent, and to have a fair trial without undue delay, etc.), and the right of a defendant to have a fair and public hearing guaranteed under Article 10 of the Hong Kong Bill of Rights.  As such, generally speaking, a suspect's prosecution or conviction record is not part of the admissible evidence.  However, when assessing whether it is in the public interest to prosecute a suspect, whether the suspect has any criminal history can be one of the factors for necessary consideration.

Ends/Wednesday, November 23, 2016
Issued at HKT 14:27

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