Lee Wah and Another v. The Queen

CACC000500/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 500 OF 1975

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 12th August 1975.

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JUDGMENT

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Huggins, J.:

1. The two Applicants seek leave to appeal against conviction as well as against sentence. There appears in the record this entry after the charge had been read to the Appellants:

"INTERPRETER: Both plead guilty, sir".

That is the only reference to any plea. If these Appellants had denied that they pleaded guilty we might have been in grave difficulty. It is not open to a judge of the Supreme Court to receive a plea of Guilty from counsel: even less is it open to him to accept the statement of an interpreter that a witness pleads Guilty. It has been said many times that the interpreter is the mouth and ears of the court. His task is to translate as faithfully as he can what is said by others in the court. He must not be asked or allowed to report what has been said: he must translate direct speech into direct speech. As it is, both these Appellants admit that they did plead Guilty but now seek to say that they did not wish to plead Guilty. In our view nothing that they have said shows that what they did was not their own willing choice, and in those circumstances we cannot entertain their appeal against conviction.

2. This case has given us considerable anxiety. The Appellants were convicted on their own confessions of buggery. The seriousness of their offence lies in the fact that it was committed in the middle of the day in a public lavatory, in circumstances where it might have been observed by any member of the public. It is unfortunate that although the Appellants both pleaded Guilty in the court below they have sought to persuade us that they really were not guilty at all. Although we are not minded to attach too much weight to this change of heart it does throw some doubt upon their repentance. The learned judge, rightly saying that he could not be guided by what happens in other jurisdictions, passed sentences of eighteen months' imprisonment on the first Appellant and twelve months' imprisonment on the second Appellant.

3. The first Appellant is 63 years of age. He is in Hong Kong without his family and he has two grown up children in China. It was he who induced the second Appellant to commit the offence. The second Appellant is only 23 years of age. Both these men have little education.

4. It is always a problem to know what is the right form of punishment for this particular offence, but it has been generally recognized that imprisonment is the only available one, unsuitable as it may be. Having given this case the best consideration we can, we think that the learned judge, perhaps, did not give quite enough weight to the age of the first Appellant and that justice will be done if we substitute for the sentence passed on him a sentence of twelve months' imprisonment. In the case of the second Appellant we think that a sentence of six months' imprisonment would be appropriate.

12th August 1975.

Representation:

1st Appellant in person.

Eddis for 2nd Appellant as to sentence only.

Chandler for Respondent.