R. v. CHENG MAN CHIU

IN THE COURT OF APPEAL

1995, No. 207
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court):

1. The applicant was 28 years of age at the time of these offences and was convicted before Deputy Judge Burrell and a jury of one offence of gross indecency with a male child under 16 and one offence of buggery with the same child. He was sentenced to 3 years and 6 years imprisonment concurrent.

The facts

2. On 26th June 1994 the applicant met the boy at a video-game centre. The boy was then 11. The two of them went back to the applicant's flat where it seems the applicant showed the boy money. They both took off their clothes and the offences were committed. The boy said that the buggery first took place and after that the applicant had oral sex with the boy, followed by another act of buggery. The offences were not reported to the police until 13th July. The boy said in evidence that he reported this matter to his father after a 14-year-old boy had found out about the offences and was seeking to blackmail him.

3. In cautioned statements, the admission of which the applicant unsuccessfully challenged, he admitted buggery but not the oral sex.

The trial

4. The defence advanced at trial was that the boy had insisted upon going to the applicant's flat to see his dogs. While there, he had stolen a game-boy machine and had invented the story of buggery and gross indecency to avoid being reported for that theft, and that the police had extracted the confessions by threats and by force. The central issue was, therefore, whether the story advanced by the boy was fabricated. On this the boy was cross-examined on a number of contradictions between his earlier statements and his evidence. The judge reminded the jury of those and other inconsistencies in the boy's evidence and they considered them.

5. The judge also dealt with corroboration. So far as the buggery was concerned there was evidence open to the jury to accept as corroboration in the applicant's statement.

The applicant's case

6. The applicant, who appears in person, raises a number of matters for our consideration. The first is that the judge failed to direct the jury that they could accept part of the evidence. On this he is simply wrong. The judge gave a proper direction on that matter.

7. The applicant also complains that the jury requested further evidence before considering their verdict. The judge explained that they must deal with the case on the evidence that had been called. That again is a perfectly proper direction from the judge.

8. There are other matters which he raises in which there is no substance. They do not merit consideration save for one - he complains that the doctor ought to have been called to testify about his examination of the boy. However, the applicant's counsel did not require the attendance of the doctor and his evidence was in the agreed facts which were put before the jury.

The Court's point

9. There is, however, one matter which the court has raised of its own volition. It relates to the directions which the jury were given on the offence of gross indecency in the first count.

10. Having directed the jury correctly on the ingredients they had to find proved in order to convict, the judge went on to say this:

"The prosecution say that the acts complained of, namely the sucking of an 11-year-old boy's penis by a 28-year-old man and placing his penis between the 11-year-old's buttocks, could only be described as grossly indecent. It is for you to decide. ...

The prosecution allege two different acts of criminal sexual misconduct by the defendant: firstly, oral sex ... and secondly, buggery. ... So if, for example, you are less than sure that there had been any oral sex, but you were sure that the defendant had placed his penis between the boy's buttocks but had not penetrated his anus, that is a matter you could take into account when considering the first count alleging gross indecency."

Finally, in dealing with the corroboration of those alleged offences, he said:

"His alleged admissions, however, that is the defendant's alleged admissions, ... are capable of corroborating the rest of the complaint that he was buggered and in the course of being buggered subjected to an act of gross indecency."

From this, it would appear that it was left to the jury that it was open to them to convict of gross indecency on count 1 if they rejected the account given by the boy of oral sex which was not corroborated, but accepted that an act of gross indecency had occurred as a prelude to the act of buggery.

11. Now, in those circumstances, it is not clear upon what basis the jury convicted on count 1. It was, of course, open to the judge to leave the alternative of gross indecency to the jury on the count of buggery on the basis - but only on the basis - that they were not satisfied that the offence of buggery had been proved. See the Schedule to the Crimes Ordinance, Cap. 200 item 4 which specifies that for an offence of buggery charged under s.118C of the Crimes Ordinance, an alternative conviction of gross indecency under s.118H may be left to the jury.

Conclusion

12. However, the judge did not leave that alternative verdict to the jury but was inviting the jury to consider convicting of gross indecency on count 1 on facts which could only be left as a basis for an alternative verdict on count 2.

13. In these circumstances we are satisfied that there was a material misdirection. The verdict on count 1 of the indictment cannot stand. We grant leave on count 1 and quash that conviction and sentence.

14. On the conviction for buggery however, we refuse the application for leave and the sentence stands.