R. v. WONG WAI ON

IN THE COURT OF APPEAL

1994, No.395
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This applicant faced one charge of unlawful sexual intercourse with a defective woman. He pleaded not guilty and was convicted after trial before District Judge Kilgour in the District Court and he was sentenced to imprisonment for 2½ years. Originally he entered applications for leave to appeal against both conviction and sentence. He has abandoned the application for leave to appeal against conviction and pursues only his application with regard to sentence.

2. It was the Crown case that between 1st December 1991 and 28th February 1992 the applicant had intercourse at a factory premises which were his work place with a lady who was defective as defined by the Ordinance. The offence came to light in June 1992 when it was found that she was pregnant. The trial judge when sentencing said:

"The law was enacted to protect females of low intellect from exploitation.

In my view the facts in this case mirror exactly the kind of situation that the law envisaged. I take a serious view of the offence and in particular the fact that the complainant said she did not consent to what you did and was extremely upset by you forcing yourself on her.

You are lucky that you are not facing more serious charges.

It does you no credit that when she rang you to tell you she was pregnant you turned your back on her and that you lied to her brother who was trying to clear up the sorry mess and to the police who had to investigate it.

I cannot give you any credit for pleading guilty and sparing the complainant the ordeal of giving evidence.

I take into account that you have no previous convictions, you are married with a child and have responsibilities in that area, but you did not seem to take them into account when you indulged yourself at this woman's expense."

3. Miss Rosaline Wong, who appeared for the applicant today, has placed four grounds of appeal before the court. The first and second, which can be taken together, are that the trial judge erred in taking into consideration matters which he should not have considered and second that he sentenced the applicant for rape and not the less serious offence with which he had been charged.

4. The extraneous matter which it is suggested the judge took into account was indicated when he said that the applicant had caused considerable distress to the victim and had forced himself upon her. The circumstances of the offence as they come from the victim show that she was caused considerable distress. That seems to us to have been an entirely appropriate matter for the judge's consideration. It is suggested further that he failed to give consideration to the fact that the meetings were arranged by the complainant. We are not impressed by the suggestion. Clearly the judge was well aware of the background against the offence was committed. He was quite properly indicating when sentencing what he considered to be the serious aspects of it. There is nothing, we are satisfied, in these first two grounds of appeal.

5. The third ground suggests that the judge failed to take into consideration that the complainant was only suffering from a mild mental defect. However one describes her mental capacity the trial judge, we are satisfied, made no mistake as to its nature. He said in his reasons when convicting that he accepted the evidence of PW2 and PW3 that it would soon be evident to a normal person on talking to the victim that she was mentally retarded. He stated that he was satisfied that by the second time the applicant had intercourse he knew that the victim was a defective. Those were the observations which he made based upon the evidence and of course based upon his own observation of the victim when she gave evidence. It seems to us that no suggestion can properly be made that the trial judge failed to give due weight to the mental defect from which this woman suffered.

6. It is finally suggested that the starting point of three years was too high. In this regard we were referred to two decisions. The first was a decision of Bewley J. in an appeal from the Magistrate's Court in which, in a case of this nature, he said that he felt the starting point of 18 months was "on the high side". We are not persuaded that the observation was meant to be an indication that in all such cases 18 months must be regarded as being upon the high side. If it was, then we would not be disposed to follow it.

7. The other case to which we were referred was that of The Queen v. Leung KwongCrim.App. No. 76 of 1993. There were, however, in that case a number of factors which make it very different from the present one. The applicant there had pleaded guilty. The court was satisfied that the victim was plainly a willing party and the court was satisfied in the particular circumstances of that case that the interests of justice would be served if the applicant was given a sentence which would bring home to him the seriousness of what he had done by ensuring that he heard the clang of the prison gates. We are satisfied that the circumstances were very different from the present ones and that we do not receive any real guidance from that authority. Each case of this nature depends very much upon its own facts. As the judge here said the facts in this case mirrored exactly the kind of situation that the law was set up to deal with. In our view he did not take into account any matter which he should not have taken into account. We cannot be persuaded that his starting point of three years was in any way wrong and we are satisfied that the sentence which he finally imposed, reducing that starting point by six months was an entirely appropriate one.

8. The application for leave to appeal therefore must be refused.