R v. JEFFREY SAVAGE

IN THE COURT OF APPEAL

1997, No. 32
(Criminal)

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J U D G M E N T

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Nazareth Atg CJ (giving the judgment of the Court) :

1. On 4th December 1996 after a trial in the District Court the applicant, Jeffrey Savage, and two co-accused were convicted by His Honour Judge Lugar-Mawson on one count of indecent assault with or towards a child under 16 contrary to s.146(1) of the Crimes Ordinance, Cap. 200. On 18th December 1996 he was sentenced to 9 months imprisonment. He was also acquitted of a charge of possession of obscene articles in the way of about 6 video tapes for the purpose of publication.

2. The particulars of the offences of which he was convicted were to the effect that he, Rita Manzano and Larraine da Silva on a day unknown in October 1995 at Flat F, Block 7, Site 2, Whampoa Garden in Kowloon committed an act of gross indecency with or towards Leung Ka-man, a child under the age of 16. The applicant now seeks leave to appeal against his conviction.

3. The facts shortly stated are as follows. On 1st May 1996 the police searched the applicant's home which was the flat specified in the charge on which he was convicted. They found a number of pornographic video tapes. They also found a tape that was marked "School Girl HK" which came to be known as "the School Girl tape" or the "Ka-man tape". It was recorded by the applicant in his flat of the child Leung Ka-man. Her date of birth was 12th December 1983. On the day of the offences charged Ka-man was brought to the flat by the 3rd defendant, Larraine, who is her mother. The applicant was assisted in recording the video by the 2nd defendant, Rita who appears to be his Filipina maid. She undressed Ka-man and changed her clothing. The 3rd defendant Larraine appears to have spent most of the time during which the video was recorded in an adjoining room.

4. The judge described the contents of the tape in some detail in his judgment:

"The tape lasts for approximately 21 minutes; ... In it, Ka-man is seen changing clothes in a bedroom. At the beginning of the tape she is seen naked from the waist down, this is while she is removing her clothing. The right flank of her buttocks is seen. She changes into a grey school uniform and a pair of blue P.E. knickers. [Rita] is seen to arrange her clothing under the 1st defendant's direction. She is encouraged by [the applicant] and [Rita] to pull the skirt of the school uniform up towards her chest, revealing the knickers. [Rita] acts as [the applicant's] Cantonese interpreter.

At one stage she is encouraged by the [applicant, with Rita interpreting] to lift the skirt of the uniform herself. [The applicant can be heard on the soundtrack, telling Ka-man to pull up her skirt.]

[Ka-man] is then encouraged to kneel on the bed in the room and raise her buttocks into the air. The [applicant] instructs [Rita] to tell [Ka-man] to get her buttocks up into the air. [The judge] quote from the soundtrack ...:

'Yeah, but tell her to. She has to get her butt up in the air.'

The image on the tape concentrates on her buttocks for some time, they are still covered by the P.E. knickers. At another stage the image concentrates on her crotch. At all times her buttocks and genitalia are covered by the P.E. knickers.

She is then encouraged to change into a white swimming costume by the [applicant], [Rita] interpreting for him. Ka-man does so, putting the costume on over the blue P.E. knickers and her vest. She appears at this stage to be distressed. The [applicant], in English, calls her mother, [Larraine] into the room. It would appear that the [mother] is nearby in an adjacent room as she soon appears in the image. In fact, throughout the tape, background conversation can be heard.

The 3rd defendant [Larraine], Ka-man's mother, encourages her to try on the swimming costume. ...

Ka-man's discomfiture continues and after a few minutes, [the mother] tells her to take off the swimming costume and leave. Ka-man is seen to remove the swimming costume and change back into her ordinary clothes."

As the judge mentioned, apart from the very initial stage of the tape, no part of the child's naked body was seen.

5. It is convenient at this point to turn to the applicant's grounds. These are set out in a letter he attached to his proforma application for leave to appeal, it should be noted, against conviction only. The letter reads as follows:

"I wish to appeal against my conviction on the grounds that a lacuna exist in the law. I do not condone my conduct but nor did I know the true age of the young lady in my case. I was assured by the mother that she was 16, based on her physical and mental appearance I believed her to be 16.

However, regardless there is a gap in the existing legislation which does not apply to my case, there was no sexual intention or gratification during the offence and according to the definition as explained to me these are the requirements for gross indecency, taking a video does not make my conduct grossly indent, and there is no legislation which makes this illegal regardless of the persons age.

Thought legislation exist in England it does not apply in HK, I should not be made to be a case of political conditions and should be prosecute according to the law. Therefore I state the following

1. No sexual gratification at the time of taking the video

2. Regardless of my alleged statement there was no sexual gratification after making the video

3. The video was a commercial conceptualisation akin to a commercial. There was adequate adult supervision

4. No exposure of genitalia at any time

5. The co-defendant and girl approached me or commissioned me to take this video. I did not solicit them.

6. No exploitation was committed on my part. Again I except responsibility for failing to confirm the age, but at the same time, I can't be held accountable or be convicted under this charge which does not apply. It is the responsibility of the legislature to pass the appropriate legislation and my human rights must not be abused.

I was convicted of a crime I did not commit - gross indecency to a minor!"

6. Before us today the applicant has appeared in person, although he was represented below. He stressed that the case was complex and has questioned whether there was gross indecency, also whether there was any sexual gratification at the time of the offence. He contends that R v Francis (1989) CrAppR 127 requires sexual gratification as an essential element of gross indecency. He also invited us to address the mental element contending that he did not know he was breaking the law. He says he did not try to exploit the girl and made it clear beforehand to both the mother and the daughter that it was nothing to do with sex or nudity.

7. We turn then to his points in the order he set them out in his letter attached to the application for leave. The first point he made was that he did not know the real age of Ka-man and genuinely believed she was at least 16. However, the law on this point is very clear. It is an offence of strict liability and one only has to refer to the three authorities cited to see that, R v Prince (1875) LR 2 CCR 154, 171; R v Maughan (1934) 24 CrAppR 130, 134 and R v Poon Ping-kwok and another [1993] 1 HKCLR 56, 57. They make the position quite clear that even a genuine belief that a child is not under 16 is irrelevant and not a defence to such an offence designed to protect the young. There is therefore nothing in this point. It might have gone to sentence but it certainly is no defence to the offence.

8. The applicant's next point is that there was no sexual gratification either at the time of taking the video or later. The first point that has to be made is that the judge held on the applicant's own admission in a police video interview that there was sexual gratification. The applicant was asked by interviewing police officer what was his purpose. The applicant said "erotic, yes; stimulation, yes". Upon that the judge rightly accepted, on what he himself said i.e. that his purpose was erotic stimulation, which was sexual gratification. But however that may be, the authorities show that sexual gratification is not an essential element of indecency. On this point, the applicant had sought to rely on R v Francis and other authorities which he says state that sexual gratification is such an element. It is true that there are cases in which sexual gratification is mentioned but only as showing that such intention assists in determining there was indecency. It does not follow that the absence of such intention means there cannot be indecency. There is accordingly nothing in the applicant's point that there was no sexual gratification. It is not an essential element in law; moreover upon the findings of the judge below which are entirely in accordance with the evidence, there was sexual gratification upon the applicant's admission.

9. We turn to the applicant's next point that there was no gross indecency in this case. The judge very carefully addressed this aspect of the case, reviewing several authorities and ultimately adopting the test in R v Court [1989] AC 28 (see per Lord Griffith at p.44G: "... an indecent assault i.e. an assault which right-minded persons would think was indecent"; Lord Ackner at p.45A; and Lord Golf at p.48F). On that basis the judge examined the circumstances and evidence before him and came to the conclusion that what had occurred was clearly indecent. In fact he asked himself whether what was shown on the tape constituted an act, or acts, of gross indecency. He took account of the absence of a statutory definition and adopted the guidance given in the Court case and concluded that the recording of the tape was indecent.

10. He then proceeded to address the question of whether it was gross indecency. He adopted as the law the view taken in the Queensland case of R v Whitehouse [1955] QLR 100,102 in which the Court of Criminal Appeal there took the view that the word "gross" should be given the Oxford English Dictionary meaning of "plain, evident, obvious". He then proceeded to record his conclusion which was that "What Ka-man does in the tape and is encouraged to do in the School Girl tape is grossly indecent, no right thinking person could find otherwise".

11. Before us Mr Grenville Cross QC, who with Miss Denise Chan appears for the Crown, draws our attention to a number of authorities which make the point we have already noted that the test of indecency is what right-minded persons would think was indecent. As to gross indecency, we cannot say that we are attracted by the dictionary meaning of "gross" adopted in the Whitehouse case. It seems to us that what may be intended is indecency that is to be regarded as more serious than mere indecency (either of which might be "plain, evident, obvious"). That would be consistent with some of the authorities to which Mr Cross drew our attention (e.g. "... gross indecency may be defined as a marked departure from decent conduct expected of the average [person] R v Quesnel (1979) 51 CCC (2d) 270, 280; "an act ... which, under the customs and morals of our times, would be considered grossly indecent by any right-thinking member of the public" R v K and H (1957) 118 CCC 317, 319). However that may be, the applicant not being represented, this does not provide a suitable occasion for pronouncement upon such matters. We are accordingly content to say that we agree with the judge that what took place "is grossly indecent" and that "no right-thinking person could find otherwise". What we have here is a girl not quite 12, of whom a videotape is taken, with her naked from the waist down to commence with and later concentrates on her crotch and buttocks. Clearly, she was distressed. The purpose was erotic stimulation, in the words of the applicant himself. It is suggested that this was purely a video requested by the mother of the child. Yet the mother was paid a sum of $2,000 and given a video recorder. That appears in the judge's findings and was the evidence. Having regard to all the circumstances, it cannot be said that the judge was wrong in the view he took.

12. In those circumstances there is nothing in any of the grounds which the applicant has sought to urge before us. We refuse leave to appeal against conviction.