R. v. CHEUNG HON KI

IN THE COURT OF APPEAL

1996, No. 28
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. On November 9 last year, this applicant, a man of previous good character aged 30, pleaded guilty before Her Honour Judge Beeson in the District Court to the two charges which he faced: each being of unlawful sexual intercourse with a girl under the age of 13.

2. The judge sent for a psychiatric report and a background report. The psychiatric report shows that the applicant is not mentally abnormal; and the background report does not contain anything remarkable.

3. Sentence was passed on November 30 last year.

4. Saying that a starting point of "two to three years" was appropriate, the judge, after taking into account the applicant's pleas of guilty and the other mitigation available to him, sent him to prison for 18 months, doing so by way of concurrent terms of that duration.

5. As is apparent from what we have just said, the judge did not identify a starting point except by way of a range. We say for future guidance that a specific starting point should be stated so that precisely what discount has been given for mitigating factors may be seen.

6. Each offence was committed against the same girl: on February 14 last year under the 1st charge and on the following day under the 2nd charge. She was aged 12 years & 11 months at the time.

7. The applicant had come to know her in November 1994 through a line telephone game.

8. Then there came a time when she quarrelled with her mother and ran away from home. She ran away to the applicant's home.

9. Within a matter of days, the police located her. By then, unfortunately, these two offences had been committed.

10. In the course of her Reasons for Sentence, the judge noted that the applicant had admitted the acts of intercourse but denied knowledge of the victim's age. She then went on to say that such denial was irrelevant. We take the judge to mean that the denial of knowledge did not negative the pleas because knowledge of the victim's age is not an element of the offence charged. However, such knowledge is of course relevant to sentence. And we note that in her Reasons for Sentence, the judge did consider knowledge, taking the view that the applicant must have known that the girl was underage which we take to mean at least under 16.

11. From what the applicant said to us, he accepts that he knew that the girl was rather young although he did not know, he says, precisely how young she was. What he would have known was that she was young enough to have run away from home after a quarrel with her mother.

12. The applicant appears to be genuinely remorseful. But the judge would have been aware of his remorse, the truest and most practical manifestation of which lay in his pleas of guilty.

13. We have given anxious thought to this matter. But in all the circumstances, we are ultimately of the opinion that the judge was entitled to sentence the applicant as she did.

14. Accordingly, the application for leave to appeal against sentence is dismissed.