THE QUEEN v. BARRY SUMMERS

BETWEEN

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. The applicant, Barry Summers, was convicted upon his own plea before His Honour Judge Leonard, sitting as a Deputy High Court Judge, of two offences of buggery. He had pleaded guilty to both at commital proceedings and had been committed to the High Court for sentence.

2. The sentence imposed upon him was two and a half years on each count concurrent. He now seeks leave to appeal against those sentences.

3. Basically, the facts were that, in the evening of Monday 13th March 1989, the defendant and a 16-year old school boy met each other in a public lavatory. Outside that lavatory the defendant approached the boy and accused him of an act of indecency in it. This the boy denied. The defendant hailed a taxi and the boy willingly went with the defendant to a room in Wanchai. There the acts complained of took place and there were also acts of gross indecency.

4. In passing the sentence he did, the trial judge took into consideration that the boy took an active part in one of the acts of buggery and that he did have some previous experience of homosexual activity. He did not treat the case as one where the applicant was the first person who degraded and corrupted this boy but he was of the view that boys of this age must be protected by the law against themselves and against people such as the applicant.

5. Mr. Grounds, who appears for the applicant in this Court, bases his submissions on the argument that the starting point of three and a half years taken by the trial judge, and before he allowed discount for plea, was too high. He has referred us to The Queen v. Willis [1975] 1 W.L.R. 292, being a judgment of the English Court of Appeal delivered by Lord Justice Lawton and intended to give guidance to judges in that jurisdiction as to the brackets of sentence for offences of this kind.

6. Lord Justice Lawton, at page 295, made reference to certain features which aggravated these offences and it was Mr. Ground's submission that none of those aggravating factors were present here. It is true that the boy was not unwilling and that the trial judge did not treat the applicant as the first corrupter. Equally that there was no physical injury to the boy and no violence accompanied the acts.

7. The matter of emotional and psychological damage however is a matter which must be borne in mind when the age of the boy concerned is taken into account even if he had had previous homosexual experience.

8. It is suggested that the absence of the other factors redounds to the credit of the applicant.  We have also been referred to the facts of Willis, and of a number of other English authorities, and the sentences passed but, as Sir Geoffrey Briggs, C.J. said in Szeto Sit Ming v. The Queen, Criminal Appeal 1104 of 1977 (unreported), at page 2:

"The law in England rests upon a statute which is in very different terms from those of s.49 of the Offences against the Person Ordinance, which prescribes a maximum punishment of life imprisonment for all cases of buggery. Our legislature is no doubt aware of the changed attitude in England to sexual offences between male persons, but has not thought it right to amend our law. It is not for us to interpret the law as though it had been amended."

9. We have also been referred to a number of Hong Kong cases in very short compass, the full facts of which are not known to us and which are, with respect, of little assistance.

10. The applicant here has a previous record of varying different offences and, in particular, in 1983 he was sentenced for three offences of buggery to a period of 8 months' imprisonment each.

11. As was said by Lord Lane, L.C.J. in R. v. Billam [1986] 1WLR 349, where the Court was considering, in context, the offence of rape, the circumstances of a sexual offence vary considerably from case to case. Where a person pleads guilty it certainly avoids the distressing experience which could be visited upon a victim who has to give evidence in the witness box. In such cases, the discount which is granted for plea may well be somewhat greater than would be given in normal cases because of that factor.

12. But that having been said the offence here was a knowing offence, it was a completed offence in the sense that the applicant has pleaded guilty to two charges of buggery. It was not attempted buggery as was the case in The Queen v. Malia, Application for Review No. 8 of 1986 (unreported), where the boy concerned was aged 14.

13. The starting point of three and a half years was, in our judgment, a proper general starting point for offences of this nature. The discount which was allowed, and properly allowed, for the pleas made as they were at committal proceedings was a proper discount. The previous conviction for similar offences was relevant and sentences passed should contain an element of deterrence to others as well as the offender.

14. We note that the judge was not addressed upon, and for that reason did not take into consideration, the matter of any severe disease which might be inflicted upon persons who do involve themselves in this form of criminal activity. Certainly that is not a matter which we will take into consideration here. But it may well be that for the future and in the context of the protection of the young and in this type of case protection is one of the major factors for boys of 16, willing or unwilling, must be protected from themselves - this should be a matter to be borne in mind by sentencing courts.

15. We do not consider that the sentences here were in error. The application for leave to appeal against sentence is therefore refused.