1993, No. MA 466

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HEADNOTE

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SENTENCE - INTERCOURSE WITH MENTAL DEFECTIVE - MENTALLY UNABLE TO CONSENT - 12 MONTHS UPHELD.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.466 OF 1993

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BETWEEN

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J U D G M E N T

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1. The appellant was convicted on his own plea of guilty to two charges - one being an attempt - of unlawful sexual intercourse with a defective, contrary to s.125(1) of the Crimes Ordinance, Cap.200. He was sentenced to concurrent sentences of 12 months’ imprisonment by Mr McRandal in San Po Kong Magistrate’s Court.

2. On 11th February this year two patrolling police officers, investigating suspicious noises coming from a woman’s lavatory in a playground, discovered the appellant standing between the legs of a woman seated on a bench. Both were naked. The appellant tried to escape but was caught by one of the officers. He was wearing a condom. A packet containing two unused condoms was seized from the woman but no details of the seizure were given to the magistrate. It is accepted by counsel on appeal that this packet originally contained three condoms. The appellant admitted under caution that he had had intercourse with this woman in an apartment house in June 1992. This is the subject of Charge A.

3. It transpired that the woman had been an out-patient at Yau Ma Tei Psychiatric Centre since November 1984. At the age of three her speech became slurred. In 1977, when she was 17, she was treated by a psychiatrist for disturbing behaviour. In 1980 she spent two months in Castle Peak Hospital and was graded as moderately mentally deficient. Thereafter she received out-patient treatment until the death of her mother in 1992, when she ceased attendance.

4. She returned to Castle Peak with her sister on 23rd February 1993, 12 days after the incident in the lavatory. According to Dr. Cheng she was dirty and untidy. During the interview she appeared care-free and childish. She had fatuous smiles and opened her mouth aimlessly. Her speech was hesitant and slurred. There were no psychotic symptoms. She gave an account of the present event in fragmented speech. She was ignorant of the nature and consequences of sexual intercourse. She simply thought that it was a means to get some snack.

5. Although she was mentally retarded, Dr. Cheng found that she was able to recall the incident reliably but concluded that she was mentally not fit to consent to sexual intercourse. He recommended that she should continue out-patient treatment.

6. The appellant is 39 and works at a cold meat stall. He is single and lives with his parents. He has seven previous convictions, including robbery, possession of dangerous drugs for trafficking and assault occasioning actual bodily harm, but none for sexual offences. He was last discharged from prison in 1982.

7. The appellant first pleaded not guilty but changed his plea on the trial date. It seems unlikely that the victim would have testified; there is a cryptic note against her name in the list of witnesses, “Defective witness not suitable to give evidence”.

8. In mitigation counsel stated that the appellant recognised that he had taken advantage of the victim and did not seek to make excuses. They had metin a park when she came to talk to him and a friendly relationship began. He suspected she was defective and later in the year she told him she had received psychiatric treatment.

9. It was also alleged that the victim had tried to persuade the appellant to rent a room but he had refused, leading to the incident in the lavatory. In the light of the psychiatrist’s report this seems most unlikely - as the magistrate recognised - and in any case he had rented a room in June 1992.

10. The magistrate rightly took into account the need to protect persons unable to protect themselves. From a starting point of 18 months he deducted six months on account of the plea and lack of similar convictions.

11. Mr Mullick, who appeared for the appellant, relied on the Court ofAppeal decision of 12. R. v. Leung Kwong CA No.76/1993. That was a prosecutionunder s.65(2)(c) of the Mental Health Ordinance, Cap.136, which carries the same maximum sentence on conviction on indictment as this offence, namely five years’ imprisonment. In that case an orderly at Castle Peak Hospital pleaded guilty to two charges of having sexual intercourse with an in-patient. He was sentenced in the District Court to concurrent terms of 18 months’ imprisonment. He was a married man of 59 and of hitherto good character.

13. Allowing the appeal, Litton J.A. giving the judgment of the courtsaid at p.3 :-

“An immediate custodial sentence on a man of the applicant’s background is a traumatic experience; even if the general approach of the District Judge in imposing an immediate custodial sentence was justified, we feel that this is the sort of case where the principle embodied in the expression ‘The clang of the prison gate’ is appropriate: a short sharp period of imprisonment is all that is called for; there is no possibility of the applicant repeating the offence. The applicant has served nearly six months in prison and we feel that this operates as a sufficient punishment in relation to the crimes committed.”

14. I am satisfied that Leung Kwong can be distinguished from the present appeal. The victim in 15. Leung Kwong had been admitted to the hospital 18 months before the offence because of a relapse of schizophrenia but had been mentally stable since June 1991. At the time of the offences in September 1991 she was in remission and, in the doctor’s opinion, fully capable of consenting to sexual intercourse.

16. In those circumstances, both acts of intercourse being consensual, it is no surprise that the Court of Appeal considered six months’ imprisonment sufficient punishment.

17. Mr Mullick makes the fair point that the appellant, although aware of the mental defect, was not necessarily aware that the woman was not capable of consenting to sexual intercourse. Nevertheless this case is more serious than 18. Leung Kwong. There are also fewer mitigating factors. The magistrate’s Reasons for Sentence cannot be criticised, except that I feel his starting point of 18 months to be on the high side. On the other hand six months’ discount was generous, considering that the appellant was literally “caught with his pants down” and that a conviction was inevitable even without the victim’s evidence.

19. Twelve months is a heavy sentence but, in my judgment, not such as to warrant the interference of this court.

20. The appeal is dismissed.