R. v. LI MING KWONG

IN THE COURT OF APPEAL

1993, No. 19
(Criminal)

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J U D G M E N T

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Penlington J.A.:

1. This is an application for leave to appeal against sentences of two years' imprisonment, to be served concurrently, imposed in the District Court on two charges of unlawful sexual intercourse with a girl under the age of 16, contrary to s. 124 of the Crimes Ordinance.

2. The applicant was originally also charged with another count contrary to s. 123 of the Crimes Ordinance of sexual intercourse with the same girl at a time when she was under the age of 13. However the trial judge having considered her evidence came to the view that while he accepted it as to the conduct of the applicant, was not satisfied as to the date that the first offence was committed, and therefore whether she was under the age of 13 at that time and acquitted the appellant on that charge. He was however satisfied as to the other two charges.

3. In coming to his reasons for sentence he took into account that this was a course of conduct carried out by the appellant over a long period although the two offences with which he was convicted took place at a time when the girl was only a few months under the age of 16.

4. Before us Mr. Poon has argued that the judge has not given adequate consideration to the evidence in the applicant's cautioned statement that he did not know that the girl in question was under the age of 16 at the time these offences were committed and that she was only barely under the age of 16. We think the trial judge was perfectly entitled to take into account that the appellant had known this girl since at least 1988 and that therefore he must also have known that she was of tender years. The girl's age is relevant as a mitigation circumstance but we do not consider that the sentencing judge has failed to take it adequately into account in the light of the other factors in particular that this was a course of conduct.

5. The maximum sentence for an offence under s. 124 is five years' imprisonment. Here the appellant was convicted after trial and the girl was put through the ordeal, and clearly here it was a considerable ordeal, of having to give evidence. That is of course not a reason for increasing the penalty but it certainly means that no mitigation can be taken into account for his conduct after his arrest.

6. He has a previous conviction in 1977 for robbery and, of more relevance, in 1986 for managing a vice establishment.

7. We were referred by Mr. Poon to Hui Yeung Chit v. The Queen Crim. App. No. 347 of 1979 where a sentence of three years was reduced to one of 15 months. There the girl was under the age of 13, which was a much more serious offence, but the appellant was under the age of 18 himself and the circumstances in that case were that the appellant and the girl met in a ballroom in circumstances very different indeed to those here. We do not think that decision is of any assistance to us.

8. Taking into account all the circumstances of this case and the maximum sentence, we consider that the sentence imposed cannot be said to be excessive.

9. The application for leave to appeal is refused.