THE QUEEN v. RICCARDO TONTI

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J U D G M E N T

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Power, J.A. :

1. The applicant was committed for trial on a charge of buggery and assault occasioning actual bodily harm. The Attorney General, however, only preferred an indictment on the count of buggery. The applicant was found guilty after trial by a jury before Deputy Judge Ryan and sentenced to imprisonment for 3 years. He now appeals against that sentence.

2. It was the evidence of the complainant that she met the applicant in a bar and agreed for a fee, to have sexual intercourse with him and went with him to his flat where after sexual intercourse and other sexual acts buggery occurred. Her evidence was that it was without her consent and was preceded by assaults and other coercive behaviour. There was medical evidence which indicated buggery had taken place and which was consistent with, but by no means conclusive as to, the allegations of assault. The applicant gave no evidence.

3. Mr. Mullick who appeared at the trial for the applicant never suggested to the complainant that buggery had not taken place but did put to her that she had not been assaulted. The trial judge in summing-up told the jury that buggery occurred when the penis penetrated the anus and that there was no need to prove consent. He said at page 4 of his summing-up:

"The offence of buggery occurs when there is penetration of the anus by a male penis, once such penetration is complete, then the offence is complete. There is no need on the Crown to prove any question of consent or otherwise and there's no need for the Crown to prove that there was ejaculation once the Crown can prove that penetration of, in this case, the female ... the anus of the female, Madam Ho, by the accused then the offence is complete.

    In this case, of course, the Crown say that there was ejaculation and there was no consent. Neither of those matters are essential elements of the charge but, in the context of this case, they are important factually when it comes to assessing the credibility of the complainant, Madam Ho.

    So the Crown have to prove to you beyond a reasonable doubt so that you are sure that on the 5th of December 1987, at the flat on the 15th floor of 56 Cloudview Road, the accused used his penis to penetrate the anus of Madam Ho."

4. The trial judge in the above direction made it clear to the jury that they could find the offence proved even though they were not satisfied as to whether or not the act had been consensual. He also told the jury at page 2 of the summing-up:

"You don't have to be satisfied that a witness is telling you the total truth. You can accept part of what a witness has said and you can reject part of what a witness has said. You can be quite selective about that."

5. The jury, after retiring, returned and found the applicant guilty by a majority of 5 to 2.  Mr. Mullick then asked the trial judge to determine, before sentencing, the issue of consent and requested that, before determining that issue, he hear evidence from the applicants. The Crown opposed this and the trial judge, after lengthy argument, held:

"Mr. Mullick, I can't agree with you on this matter. I am satisfied that the Crown put the case before the jury as non-consensual buggery, that the jury were directed as to the importance of the credibility of Madam ho and, as far as I am concerned, their verdict was, unequivocal and clear, that they had accepted her on the account that she gave and that they quite properly brought in the verdict that they did on the evidence that they had before them. I, therefore, don't propose to allow the defence at this stage to call any evidence in relation to the question of consent."

6. Before sentencing the trial judge said:

"The case which was presented to the jury by the Crown and accepted by that jury was that Madam Ho was the victim of the offence of buggery without her consent and I propose to sentence the accused on that basis."

7. The trial judge was not correct when he said that the jury had accepted that the buggery was without Madam Ho's consent. However what, it seems, he meant to say was that he was satisfied that they must have accepted Madam Ho's evidence that the act was non-consensual or they would not have returned a verdict of guilty. Was the trial judge right in refusing to hear evidence as co sentence and was he right, given what he considered was clearly implicit in the jury verdict, in sentencing upon the basis that the buggery was non-consensual?

8. The material ground in this appeal is Ground One which states that the learned trial judge erred in law or alternatively in practice in ruling that the applicant in mitigation was not entitled to adduce evidence and/or make submissions on the issue as to whether or not Madam HO Man-yuk had consented to the act of buggery.

9. Mr. Keane, who appeared with Mr. Mullick for the applicant, submitted that the judge was wrong when he held that the applicant had no right to give evidence. His argument is that the applicant was entitled at the trial itself to put the Crown to proof and that having done so and failed he was entitled, when it was suggested that a circumstance of aggravation which was not implicit in the finding of the jury could be relied upon in the assessment of sentence, to give evidence on that issue. He argues that to hold otherwise would, in effect, be to deprive a defendant of his might, a fundamental one in our system of law, to require the Crown to prove guilt beyond reasonable doubt, i.e. to put the Crown to proof. He argues that, so to hold, would mean that a defendant who wished to be heard in mitigation could only ensure that he would be heard by entering a plea of guilty. He points out that even if a defendant entered a plea of not guilty for the express purpose of giving mitigating evidence as opposed to evidence denying the offence, he might be denied the opportunity of putting such evidence before the court as the judge might well, once he had admitted the commission of the offence, direct the jury to return a verdict of guilty.

10. Mr. Keane informed us that counsel have not been able to find any reported case on all fours with the facts in the present case.

11. He submitted that the proper procedure, when there is a dispute after plea as to a matter material to sentence, an admission as to which is not involved in the plea itself, is to resolve the matter by the hearing of evidence and referred, in this regard, to the case of Newton⁽¹⁾. He concedes that, where there has been a plea of not guilty and a finding of guilt, the trial judge is bound by the necessary implication of the verdict but submits that, where the verdict is one with regard to which there can be no certainty as to how far the jury has accepted the aggravating features, the judge must determine those features himself and must, when so doing, apply the criminal onus. He refers in this regard to the Attorney General v. Wu Kam Ming⁽²⁾and to case of R. v. McGrath & Carey⁽³⁾. Difficulties seldora arise in this regard as the judge in the usual case will have heard evidence from both sides as to all of the circumstances surrounding the offence and will be in a position without further enquiry to make his determination. Only in a case such as the present one, where the defendant has done no more than put the Crown to proof, can it be suggested that unresolved issues as to sentence remain as to which the defendant is entitled to be heard.

12. Mr. Keane submitted that, there having been a failure to follow the procedure whereby the circumstance of aggravation might properly have been established, the sentence which was passed, upon the basis that the circumstance had been established, was wrong and must be varied by this court to one in accord with the facts established, i.e. the facts necessary to establish the offence itself.

13. Mr. Keane then submitted that if we were not disposed to follow this course, it would be open to us, there being no power to remit the matter to the trial judge to hear the evidence ourselves. it was, however, his primary contention that given that a procedural muddle had arisen which was no fault of the applicant and given that this court was an entirely inappropriate forum in which to canvass issues of fact we should proceed to vary the sentence upon the basis urged above without the hearing of evidence. He submitted that the propriety of such a course was established by Newton⁽¹⁾ & Mackenzie⁽⁴⁾.

14. Mr. Harris who appeared for the Crown said that the Crown had from the very outset put its case upon the basis of non-consensual buggery. It was his submission that the jury must have found the complainant to be a credible witness overall or they could not have returned the verdict they did. He pointed out that the trial judge had been at pains on a number of occasions during his summing-up to direct the jury that the credibility of Madam Ho was crucial. He submitted that indeed there was no issue in this regard, the trial judge was bound by the findings of the jury and the necessary implications to be drawn therefrom and that on a realistic analysis the jury could not have been satisfied as to the act of buggery without also being satisfied as to the complainant's evidence as to lack of consent. This being so he submitted that the trial judge was required to sentence upon that basis and had, quite properly, done so.

15. Mr. Harris also submitted that the defence went further than the putting of the Crown to proof. We are, however, satisifed from the record that, although counsel might at times have come close to the borderline, he did not go beyond the putting of the Crown to proof of its case. Mr. Harris also submitted, but was able to offer no authority in support of the submission, that a defendant having pleaded not guilty and elected not to give evidence is bound by that election and he has no right, after verdict, to give evidence upon any issue.

16. We are not satisfied that it was implicit in the jury's verdict that they accepted the evidence of non-consent. The jury could, following the directions of the trial judge, quite properly have come to the conclusion to which they did come without having come to any firm conclusion as to whether or not the act was consensual.

17. We are satisfied, therefore, that the trial judge was wrong to hold that the jury must have resolved the issue of consensuality. We are satisfied further that this issue was one which, if weight was to be given to it as a circumstance of aggravation, the judge had to resolve before sentencing. In a trial where both sides had been heard he would have been in a position to resolve the matter upon the evidence which had been placed before the jury. This, of course, was not such a trial.

18. We are satisfied that the effect of acceding to the arguments put before this court by Mr. Harris would, in these circumstances, be to deprive the defendant either of his right to put the Crown to proof or of his right to be heard in mitigation. To deprive him of either right would be a heavy step affecting matters fundamental to our system of criminal justice. There has been nothing argued before us today which, in our view, would justify the taking of such a step. We are satisfied that the trial judge was, regrettably, wrong when he ruled that he should not hear any evidence from the complainant. We are satisfied that the proper course for us to adopt is to proceed upon the basis that non-consensuality was not established beyond doubt and should not have been taken into account when sentencing.

19. The application will be allowed, the hearing of the application will be treated as the hearing of the appeal and the sentence of the applicant will be varied to allow him to be released today.

(1) (1983) 77 Cr.App.R. 13

(2) (1987) H.K.L.R. 364

(3) (1983) 5 Cr.App.R. (S) 460

(4) (1985) Cr.App.R. (S) 441