The Queen v. Leung Chung

CACC000284/1986

BETWEEN

Coram: Yang, J.A., Silke & Kempster, JJ.A.

Date of hearing: 28th August, 1986.

Date of delivery of judgment: 28th August, 1986.

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JUDGMENT

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Yang, J.A.:

1. We are treating this application for leave to appeal against sentence as the hearing of the appeal.

2. The facts of the case are relatively straightforward. On the evening in question, the victim was at her father's house where a party was held. The Defendant and his wife were among the guests. During dinner, the question of the girl's relationship with her erstwhile boyfriend came up and it was clear then that she had been staying with this boyfriend for a period of time and had recently left him. There was a discussion as to the desirability of reporting the matter to the police. At some stage during the evening the Defendant obtained permission from the victim's father to take her away with a view to reporting the matter to the police. Instead, the Defendant and his wife took the victim to their home to discuss the sort of things that they ought to say when they came to the police station.

3. As the discussion went on till 2 a.m. in the morning it was decided that it was rather too late to go to the police, and the Defendant suggested that the victim should spend the night with them in their home. The three slept in the Defendant's, apartment, which was a very confined area, and in the middle of the night he got out of bed and made an approach to her which resulted in sexual intercourse taking place. When the wife discovered what had happened she packed her bag and left.

4. The girl was, at the time of the incident, some 15 years and 4 months old, and this had been revealed to the Applicant during the conversation at the dinner party. The Judge in his reasons for sentence expressed the view that the Defendant had embarked upon a ruse to take her out of the control of her father so that he would be in a position ultimately to have sexual intercourse with her. Counsel for the Applicant objects to this conclusion and says there is no evidence to support it.

5. Looking at the facts with common sense we are of the view that the Judge was entitled, taking all the facts into consideration, to come to the conclusion he did. The Judge also said that if the Applicant had not pleaded guilty, a sentence of 18 months after trial would have been appropriate. We are informed this morning that very few cases of this type are brought in the District Court or the High Court, and if they are brought they always come in company with some other more serious charge e.g. rape as in the present case. We are also informed that whilst the maximum sentence for this type of offence on indictment is 5 years, in the Magistrates Court (where a Magistrate is empowered to impose a sentence of not more than 2 years) the level of sentence for this type of offence is much lower. We think that in the Magistrates Court a conviction after trial would probably give rise to a sentence of somewhere in the region of 9 months.

6. In the present case the Applicant pleaded guilty. We give him credit for that plea. We would therefore allow the appeal and reduce the sentence from 12 to 6 months.

Representation:

Frank Wong (D.L.A.) for Applicant

A.A. Bruce for D.P.P./Respondent