Szeto Sit Ming v. The Queen

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Coram: Briggs, CJ, Huggins and Pickering, JJA

Date of Judgment: 18th November 1977

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JUDGMENT

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Huggins, J.A.:

1. The Appellant was indicted for buggery and upon arraignment pleaded guilty. He was a dim-sum waiter and committed the offence with a fellow waiter who was then aged sixteen and a quarter years. He himself was aged thirty-eight years. He persuaded the victim to enter his room and closed and secured the door. The evidence of the securing of the door could have come only from the victim. Inside the room the Appellant gave the victim a pornographic magazine to look at and, while the victim was looking at that magazine, the Appellant unfastened and removed the victim' s trousers. The victim did not resist. Then followed the act which constitutes the offence, after which the Appellant invited the victim "to come back on any other day he wanted to play the same game". The victim left and mentioned the matter to fellow workers. On their advice he reported to his mother, who in turn took him to a hospital and the police were called. A small tear was found in the victim' s anus.

2. The learned judge passed a sentence of four years' imprisonment and against that sentence the Appellant now appeals. The first ground of appeal relates to the following passage in the judge' s remarks on passing sentence:

"It was a planned offence; you got this boy up to your room and you seduced him by showing him extremely pornographic literature of a highly indecent sort. He certainly gave you no positive encouragement to make an attack on him. I don' t believe he was in any real sense a consenting party to this act. You are a great deal older than he is. This legislation exists for the protection of youths against such attempted seduction".

3. Mr. Mok in a forceful address has submitted that the judge erred in drawing the inference that the victim was not a consenting party. He points to the concession that the victim was physically bigger than the Appellant and to the fact that the victim did not resist at any stage. The learned judge was doubtless impressed by the youth of the victim and the comparative ages of the parties to the offence, the fact that the Appellant secured the door, the injury to the victim, his distressed condition and the fact that he made an early report to his mother. For my part I think that the learned judge was entitled to draw the inference which he did, but the other members of the court take a different view: they accept that the offence was the result of a carefully planned seduction but think that some show of resistance was to be expected from a non-consenting party. The point is of no great consequence because we are agreed that, whatever was the correct inference as to consent, a sentence of four years' imprisonment was in all the circumstances excessive. We have been referred to several decided cases, some in the English courts and some in the courts and some in the courts of Hong Kong. We find none of these of much assistance. The law in England rests upon a statute which is in very different terms from those of s.49 of the Offences against the Person Ordinance, which prescribes a maximum punishment of life imprisonment for all cases of buggery. Our Legislature is no doubt aware of the changed attitude in England to sexual offences between male persons, but has not thought it right to amend our law. It is not for us to interpret the law as though it had been amended. The two Hong Kong cases cited have not been reported and we are not aware of the full facts.

4. The facts which have persuaded us to interfere are that the victim, whether he consented or not, has not been depraved and does not appear to have suffered any serious emotional or psychological damage and that the Appellant himself was found to be suffering seriously from diabetes, which took some time to be suffering seriously from diabetes, which took some time to stabilize before his trial, in addition to his having heart trouble which may or may not be serious. The learned judge rightly blamed the Appellant for taking advantage of a young fellow employee, but we doubt whether it was right to describe this as a betrayal of trust: his position was certainly very different from that of a guardian and ward or school master and pupil.

5. In the event we think that a sentence of two years' imprisonment would meet the justice of the case and we allow the appeal and substitute that term for the term of four years.

18th November 1977.