Lau Yat Pang and Another v. R.

CACC000260/1994

1994, No.260
(Criminal)

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H E A D N O T E

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TRAINING CENTRE HELD TO BE APPROPRIATE FOR HOMOSEXUAL

OFFENCES INVOLVING YOUTHS OF ABOUT THE SAME AGE.

IN THE COURT OF APPEAL

1994, No.260
(Criminal)

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Coram: Hon. Power, V.-P., Litton and Mortimer, JJ.A.

Date of hearing: 22 November 1994

Date of judgment: 22 November 1994

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. There were originally three accused in this matter and those accused faced six counts. They were all homosexual offences and all occurred in the Castle Peak Boys Home in the early months of 1993. The two applicants before the court today were the 1st and 2nd defendants at the trial and for convenience I will refer to them as the 1st and 2nd defendants.

2. The 1st defendant was convicted on two counts of gross indecency with a man under the age of 21 (counts 1 and 2 at trial) and one count of homosexual buggery with a man under the age of 21 (count 3 at trial). The first two counts occurred in February and March 1993 and the third on 26th April.

The 1st defendant was sentenced to two years on each of those counts and the sentences were ordered to be concurrent. He was sentenced to three years on the 3rd count, and that sentence was ordered to be consecutive, making a total of five years.

3. The 2nd defendant was convicted on one count of gross indecency (count 4) which occurred in February of 1993, and one count of aiding and abetting homosexual buggery on a man under the age of 21 (count 5). He was sentenced to two years on each of those counts and the sentences were ordered to be consecutive.

4. All the three defendants and the victim were inmates of the Castle Peak Boys Home. The victim was, as stated in the charge, 16 years of age at the time. His name was Lam Kam-fai. As to counts 1, 2 and 4, the counts of gross indecency, the evidence was that this boy was coerced by the 1st and 2nd defendants into performing oral sex upon them. As to counts 3 and 5 the evidence was that D2 had forcibly restrained the boy Lam while D1 had buggered him.

5. D1 and D2 raise the same two written grounds of appeal which can be summarized as follows -(1) the evidence given by the witnesses did not tally with their statements and there were discrepancies between the evidence of witnesses, particularly as to counts 4 and 5; (2) the verdict were questionable because the judge emphasized the possibility of error when directing the jury.

6. The first suggestion, which was that the evidence of the witnesses did not tally as between each other and as between their sworn evidence and their statements, relates particularly to the evidence of Leung Kam-fai and to the evidence of PW3, another inmate, whose name was Cheung Chi-hung. The judge was, however, at pains to point out the discrepancies that existed between the evidence of these two witnesses and also pointed out the discrepancies that existed between the evidence given by Cheung and what he had said in his statement to the police. These matters were placed squarely before the jury by the judge and they must have had them very much in mind when coming to their decision.

7. The second suggestion, that the judge emphasized the possibility of error, seems to arise out of the directions which he gave as to the danger of convicting upon the uncorroborated evidence of an accomplice. In fact he told the jury that as to counts 1, 2, 4 and 5 there was no corroboration and he stressed that these complaints were complaints of a sexual offence and that the prosecution evidence rested almost entirely upon the evidence of an accomplice. He carefully instructed the jury that there were dangers in convicting upon the uncorroborated evidence of an accomplice but also said, and quite properly, that, if they were satisfied as to the truth of what the accomplice said, it was open to them to convict despite his warning. It is difficult to see what the applicants can properly make of these entirely correct directions which, we have no doubt, the jury heeded. Nonetheless, at the end of the day, they were quite satisfied as to the truthfulness of the Crown evidence and, being so satisfied, returned verdicts of guilty.

8. The 1st defendant has sought today to raise other matters suggesting that there was significant evidence which might have been called and that there were weaknesses in the Crown case to which the jury failed to pay heed.

9. As to the suggestion that further evidence might have been called it was open to counsel, and at trial both were represented by counsel, to call any evidence which they considered might assist the defence. In fact neither defendant gave evidence and no evidence was called on their behalf.

10. As to the suggested weaknesses in the Crown case these were clearly before the jury. The jury must have had them in its mind when they came to consider the evidence and were nonetheless satisfied to return verdicts of guilty on all of the counts with which we are concerned. Nothing that has been put before us either in the written grounds or in argument occasions us any doubt as to the propriety of the convictions and the applications for leave to appeal against conviction are therefore refused.

11. As we have indicated when dealing with the applications for leave to appeal against conviction, the applicants were found guilty on serious offences of gross indecency, homosexual buggery and aiding and abetting that last offence. The trial judge sentenced the 1st defendant to an overall period of imprisonment of five years and the 2nd defendant to an overall period of 4 years. The applicants were 17 in the case of the 1st applicant and 16 in the case of the 2nd applicant at the time when the sentences were imposed. The trial judge when sentencing referred to the case of R. v. Willis [1974]60 Cr App R 146. Insofar as he gained guidance from it we think it may have led him into error. In Willis the court was dealing with an adult offender and quite a young child. The trial judge, when sentencing, referred on several occasions to the history of the two applicants stating that they had been receiving training within "a training centre". This may have been a slip of the tongue. He may have been referring to their detention in the Boys Home. It is, however, disturbing as it may be that he was under the impression that the applicants had already been receiving training in a training centre. However that may be we are satisfied that the sentences of imprisonment were wholly inappropriate in the circumstances. It is true that the offences were serious ones but they were committed by youths and the victim was a person of about the same age. This was clearly a case where, given favourable training centre reports, a training centre order should have been made. We are mindful that the applicants have already been in custody for some time but, nonetheless, consider that the only proper order is one of detention in a training centre. The applications for leave to appeal against sentence will be allowed. The hearing of the applications will be treated as the hearing of the appeals. The appeals will be allowed. The sentences of imprisonment will be quashed and the applicants will be ordered to be detained in a training centre.

Representation:

Mr. Moorfoot, S.A.C.P. (Crown Prosecutor) for the Respondent.

Mr. John Mullick (D.L.A.) for the applicants.