HKSAR v. LAI YIP SING

HCMA1104/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1104 OF 2000

(ON APPEAL FROM ESCC 3672 OF 2000)

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J U D G M E N T

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1. The 24 year old appellant pleaded guilty to two offences of unlawful sexual intercourse with a girl under 16, contrary to section 124(1) of the Crimes Ordinance, Cap.200. The victim was aged 14 years and 4 months at the time of the offences. In respect of each offence, the appellant was sentenced to three months' imprisonment to be served concurrently. He appeals those sentences as being too severe.

2. The facts of the offences were quite straightforward. In March 2000, the appellant and the victim had come to know each other over a phone chat hotline. Their relationship apparently developed. In late May 2000 the victim went to the appellant's premises on Lamma Island. There sexual intercourse took place between them. That is the basis of the first offence.

3. In late June, the victim again went to the appellant's premises and they had sexual intercourse for a second time. That is the basis of the second offence.

4. Before sentencing the appellant, the learned magistrate called for a probation and community services order report and a detention centre report. In those reports the appellant was found to be suitable for probation or community service or detention in a Detention Centre. The mitigation advanced on behalf of the appellant was summarized in the magistrate's statement of findings as follows :

" ... In mitigation it was submitted that the Appellant had entered an early plea of guilty, that he had no similar convictions. That the relationship between the victim and the Appellant had been one of boyfriend and girlfriend. That the victim had told the Appellant that she was eighteen years of age and there was nothing about her appearance that would lead him to believe that this was not true. The relationship had continued until the Appellant was arrested and he had been surprised when he was arrested. The Appellant had a job in a freight forwarding company. He was active in the scouting movement and was an instructor."

5. The first ground of the appeal is that the magistrate had apparently arrived at the custodial sentence by effectively rejecting that part of the appellant's mitigation which put forward that the appellant believed the victim's assertion that she was 18 years of age. Mr Macrae, SC argues that if that important aspect of mitigation was rejected by the magistrate, then he should have informed the appellant, who was represented by counsel before him, that he was not predisposed to accept that assertion from the bar table. He relies upon a line of authority to the effect that where the assertion of fact put forward in mitigation is not inherently incredible that before rejecting that assertion and proceeding to sentence without taking into account the asserted facts, the sentencer should bring to the attention of the appellant or his counsel that he was not prepared to accept that fact without evidence being called as to it.

6. In The Queen v. Chung Kam-fai [1993] 1 HKCLR 178 at p.185, Power JA (as he then was) said where such a fact urged from the bar table was an important mitigating factor, then :

"... before rejecting it the judge should have indicated to counsel that he was not prepared to accept it from the Bar. It would then have been for counsel to make a determination as to whether or not he would call evidence. If nothing is said, defence counsel could be unwittingly misled into thinking that the mitigation which is urged would be acted upon."

7. That principle goes back some way in line of authority. R v. Lester [1976] 63 Cr.App.R.144 was a case of strict liability where the defendant in mitigation said he had not knowingly committed the offence. The sentencing Judge in delivering his sentence rejected that assertion and inferred that the defendant in fact had knowledge of the offence. Bridge LJ said this about that :

"If the trial judge, in the face of what had been said on this appellant's behalf by Mr. Shand in mitigation, was minded to draw such an inference adverse to the appellant, then at the least, in the judgment of this court, the appropriate course for the learned judge to have taken would have been to indicate to counsel for the appellant what was provisionally in his mind, to point out the basis of the suggested inference, and most important of all, to offer counsel the opportunity, if he was so minded, to call his client to give evidence about this matter, as to which of course he would have been open to cross-examination by the Crown."

8. In my judgment that principle is well established and if in this case, the magistrate had rejected the asserted mitigating factor that the appellant believed the victim was over the age of 18 without giving the appellant an opportunity to call evidence as to that fact, then that may well have resulted in the imposed sentence being overturned. But nowhere either in his stated Reasons for Sentence nor the brief reasons given by him at the time of sentence does the magistrate expressly say he rejected that important aspect of the appellant's mitigation. Mr Macrea says the learned magistrate's rejection of this aspect of the appellant's mitigation can be inferred from the following statement made by him in his Reasons for Sentence. The learned magistrate said this in that regard :

" I bore in mind that the Appellant had been convicted of a serious offence and there was a wide disparity between the appellant's age and the age of the victim. I considered that a custodial sentence was necessary in a case such as these where young girls require protection from a man taking advantage of their immaturity."

9. Mr Macrae urges upon me that by referring to the need to protect young girls from men taking advantage of their immaturity the learned magistrate was effectively saying he rejected the appellant's assertion that he had believed the victim to be over 18 years of age.

10. With respect, I must disagree. It seems to me that in that statement, the magistrate was talking about something quite different.

11. If taken in its context with the immediately proceeding statement that there was a wide disparity between the appellant's age and the age of the victim, the magistrate, I think it is clear, was doing no more than referring to the general sentencing principle in cases such as these that an important consideration of general deterrence in imposing custodial sentences was to protect young girls from older men taking some advantage of them. He was not referring to any particular mitigating factor advanced by the appellant in this case.

12. In short, it seems to me that the magistrate had proceeded to sentence the appellant on the basis of all of the mitigation advanced and, as I have said earlier, set out by him in some detail in his Reasons for Sentence. Accordingly, in my judgment this ground must fail.

13. Mr Macrae's second ground of appeal effectively goes on from there however. He says that even if the magistrate did sentence on the basis the appellant had thought the victim to be of the age of 18, that it was wrong in principle to impose a custodial sentence.

14. There can be no real guideline established for this offence. It covers many possible factual circumstances. As was said in the case of The Queen v. Taylor & others [1977] 64 Cr.App.R.182 by Lawton LJ :

" ... At one end of the spectrum is the youth who stands in the dock, maybe 16, 17 or 18, who has had what started off as a virtuous friendship with a girl under the age of 16. That virtuous friendship has ended with them having sexual intercourse with one another. At the other end of the spectrum is the man in a supervisory capacity, a school-master or social worker, who sets out deliberately to seduce a girl under the age of 16 who is in his charge. ..."

15. In my judgement between those extremes come various subtle gradations of culpability and appropriate penalty. One of the important factors to take into account is any marked difference in age between the offender and the victim. As Lawton LJ went on to say :

" ... In between there come many degrees of guilt. A common type of offender is the youth who picks up a girl of loose morals at a dance, takes her out into the local park and, behind the bushes, has sexual intercourse with her. That is the kind of offence which normally is dealt with by a fine. When an older man in his twenties, or older, goes off to dances and picks up a young girl, he can expect to get a much stiffer fine and, if the girl is under 15 he can expect to go to prison for a short time. ..."

16. I might add in putting those comments into perspective, the maximum sentence for this offence in Hong Kong is five years' imprisonment whereas in England at the time of Lawton LJ's judgment, it was two years' imprisonment.

17. In the present case, there was a ten year age gap between the appellant and the victim. In my judgment, that is a considerable difference in age and takes the facts of this case out of the category of a girl and a youth of similar age allowing a friendship to go too far and then ending in intercourse. That consideration was fundamental also to the magistrate's decision to impose a custodial sentence. He said in his Reasons for Sentence :

" I bore in mind that the Appellant had been convicted of a serious offence and there was a wide disparity between the appellant's age and the age of the victim. ..."

and then he went on to say that he considered a custodial sentence to be necessary.

18. In my view, it cannot be said that the short term of imprisonment eventually imposed by the magistrate for these two offences was wrong in principle or manifestly excessive. For those reasons, the second ground of appeal must fail.

The third ground of appeal

19. Mr Macrae points out that on the day of conviction of the appellant, the learned magistrate had adjourned sentence for two weeks, pending the provision of the probation and community services and the Detention Centre report. He further points out that the magistrate had not said anything to the appellant or his counsel to suggest that if, particularly, the probation report was favourable, he may not follow any recommendation for probation in any event. He says, by not bringing to the attention of the appellant or his counsel that all his sentencing options remained open and that the appellant should not make any assumptions as to what sentence would be imposed regardless of the contents of those reports, the magistrate was allowing to be engendered in the mind of the appellant an expectation that a non-custodial sentence would be imposed.

20. R. v. Gillam [1980] 2 Cr.App.R. 267 was a road traffic case where the sentencing court had initially sent for a community service report which was duly returned in favourable terms, but where the court then imposed a sentence of imprisonment. Watkins LJ said in respect to that :

" When a judge [in these circumstances] purposely postpones sentence so that an alternative to prison can be examined and that alternative is found to be a satisfactory one in all respects; the court ought to adopt the alternative; a feeling of injustice is otherwise aroused."

21. In the present case, the magistrate, in addition to a probation report and a community service report, also requested a report on the appellant's suitability for detention in a Detention Centre. It must have been clear to the appellant, who was represented by experienced counsel before the magistrate, that by ordering a Detention Centre Report, the magistrate was considering making a custodial order. Indeed, given the appellant's age of 24, it would mean that the magistrate was considering imposing an order which would result in the appellant being detained in custody for at least three months and, perhaps, up to 12 months, pursuant to section 4(2)(a) of the Detention Centre Ordinance.

22. The particular evil the subject of criticism by Watkins LJ in R. v. Gillam is the creation in an offender's mind of a feeling of injustice in the sense that he had been misled into believing he would receive a non-custodial sentence, only to have a custodial sentence subsequently imposed.

23. But that does not really apply to the facts of this case. The magistrate made it perfectly clear to the appellant's counsel at the time of ordering the reports to be provided that his request for a Detention Centre Report effectively meant that he was, therefore, considering what can only be regarded as an indeterminate custodial sentence of at least three months. The appellant can never have assumed he was to receive a non-custodial sentence.

24. It is true that at the end of the day rather than ordering the detention of the appellant in a Detention Centre, the magistrate imposed a sentence of three months' imprisonment. That was a somewhat unusual course and perhaps it would have been better for the magistrate to specify that that sentencing option was still under consideration at the time he ordered the various reports. But I have concluded that it cannot have engendered any real sense of injustice in the mind of the appellant. The reason that course was adopted by the magistrate was said by him in his Reasons for Sentence to have been to properly reflect the mitigation which had been advanced before him. He said this at the time of sentencing :

" ... Although you are recommended for detention centre I don't think a sentence of detention centre would sufficiently reflect the mitigating circumstances which have been put forward."

25. In other words, the learned magistrate regarded a certain short term of imprisonment as a more lenient form of sentence than an order resulting in an indeterminate period of custody, of at least that long in a detention centre. Whilst that may not have been an ideal manner of approaching the question of the appropriate sentence in this case, and I must confess to having had some concern with this aspect of the sentence, at the end of the day I am satisfied that no real sense of injustice has been occasioned the appellant by any false engendering of expectations in terms of sentence. It is true to say that Mr Macrae does not urge upon me any return to consideration of a detention centre order. He quite realistically and helpfully in this regard accepts that the short sentence of imprisonment is, from the appellant's point of view, preferable to any period of custody in a Detention Centre. Accordingly, as I say, I do not think there is any sense of injustice in the terms described by the court in Gillam's case which can have arisen in the mind of the appellant.

26. One final matter was this. A medical report was provided to me which states that the appellant has been suffering from depression and anxiety, no doubt exacerbated since his conviction of these offences.

27. I have considered that report carefully. I do not think it takes matters any further. Mr Macrae has urged upon me that given the contents of that report I should consider suspending the sentence imposed by the learned magistrate. Unfortunately, anxiety, stress and depression go hand in hand with convictions for these sorts of offences, and no doubt the symptoms manifest during any period of bail pending appeal. The appellant's condition in this regard is not, in my judgment, a matter affecting any principle of sentencing in this appeal. I cannot say that the contents of that medical report suggest that the quite proper sentence of imprisonment imposed by the magistrate should be suspended.

28. Accordingly, the appeal is dismissed.