HKSAR v. Yee Yiu Sam

CACC000530/2001

CACC 530/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 530 OF 2001

(ON APPEAL FROM HCCC 281 OF 2001)

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Coram: Hon Mayo VP, Stock JA and Lugar-Mawson J in Court

Date of Hearing: 6 June 2002

Date of Judgment: 22 July 2002

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J U D G M E N T

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Hon Mayo VP:

1.The applicant was charged with: (1) trafficking in persons to Hong Kong contrary to section 129 of the Crimes Ordinance Cap. 200, (2) assisting an unauthorized entrant to remain in Hong Kong contrary to section 37DA(1) of the Immigration Ordinance Cap. 115, (3) non-consensual buggery contrary to section 118A of the Crimes Ordinance, and (4) in the alternative, buggery with a girl under 21 contrary to section 118D of the Crimes Ordinance.

2.He pleaded not guilty to the first three counts and guilty on the fourth in the High Court before Nguyen J. He was sentenced to 2 years and 8 months' imprisonment. He seeks leave to appeal against this sentence.

3.A summary of facts was agreed by the parties:

"(The victim) (PW1) was born on 27th August 1983 in Hubei, China.

On the 25th December 2000, PW1 then 17 years-old, worked as karaoke bar hostess in Shenzhen. She met the Defendant, Yee Yiu-sam at a disco through the introduction of someone called 'Ah Kin'. PW1 was asked to address the Defendant as 'Brother Sang'.

Ah Kin told PW1 in the presence of the Defendant that it was difficult for her to make money in Shenzhen whereas in Hong Kong she could make more than a hundred thousand dollars income every month. The Defendant then asked Ah Kin to explain the details to her. PW1 was told that she would be required only to dance and sing with men and did not have to engage in sexual intercourse.

PW1 claimed that she was 20 years old and arrangements were made for her to come to Hong Kong on the 29th December 2000. Upon arrival in Hong Kong in the afternoon of the 29th December, PW1 was met by the Defendant.

The Defendant took PW1 to Flat E, 34th Floor, Block 2, Jubilee Garden in Shatin. The Defendant gave pornographic magazines to PW1 and asked her to remove her clothes. PW1 did as she was told. The Defendant asked PW1 to do what was shown in the magazines and he would teach her how to have sexual intercourse.

PW1 was asked by the Defendant to kneel down on the sofa and move her buttocks. The Defendant then smeared lubricant into PW1's anus. The Defendant massaged PW1's anus with his fingers and then penetrated her anus with his penis. The Defendant did not wear a condom. The sexual act was recorded on a video (Exh. P7) by the Defendant. The Defendant was arrested on 30th December 2000 in the building of the flat in Shatin."

4.Mr Oderberg who represented the applicant before us and in the court below placed a number of mitigating factors before the Judge:

1. PW1 had told the applicant that she was aged 20.

2. He referred to the fact that the applicant had pleaded not guilty to the third count of non-consensual buggery. From this it should be inferred that what the fourth count related to was consensual buggery which meant that PW1 had consented to the applicant's conduct.

3. Before coming to Hong Kong PW1 had engaged in entertaining men in the Mainland.

4. The applicant had a wife and a 2-year-old daughter in the Mainland.

5. By his guilty plea PW1 had been saved the embarrassment and trauma of having to give evidence in court.

6. The act took place in a private flat in circumstances which were not demeaning in so far as this was possible.

7. There was no evidence that PW1 suffered any trauma consequent upon the offence.

5.The main issue which was canvassed before the Judge was the extent to which the Judge could assume that PW1 had consented to this act.

6.As can be seen form the agreed facts the applicant had videotaped the incident.

7.The Judge agreed to view the tape with counsel.

8.After seeing the tape Ms Ma who was prosecuting counsel submitted that while it appeared that PW1 initially was consenting to what was taking place it soon became apparent that this consent had been withdrawn.

9.It appeared that shortly after she had been penetrated she suffered pain and discomfort and wanted the applicant to desist. He did not do so. He continued until he ejaculated.

10.In his Reasons for Sentence the Judge had this to say on this aspect of the matter:

"In my view, the complainant must have been under some pressure when she was in the flat, to do as she was told. She had agreed, admittedly, to come voluntarily to Hong Kong to do work of entertaining men. Because she had agreed to come to Hong Kong to do that, in my view, she would have agreed to do whatever she was requested to do. From the video, it is clear - and I agree with the prosecution's view of this - that she was agreeing to remove her clothes and moving her buttocks, as instructed. She did agree to the lubricant being applied to her anus, she did agree to your massaging her anus with your fingers. What happened after you penetrated her anus with your penis, is a matter of some uncertainty.

In my view, when the complainant was crying and saying things like, 'that's enough', 'leave me alone', and 'stop, that's enough' during the act of buggery, which lasted some 10 minutes, she was either withdrawing her initial consent to the act or at the very least, expressing to either you or generally, that she was in pain and she did not want the act to continue. What was going through her mind was a very subjective thing which, without hearing her evidence on the matter, I am unable to say with any degree of certainty. What is clear to me is that she was not enjoying what was being done to her and she wanted it to stop.

From the videotape, which was played in court, it is clear that she began to cry and whimper almost immediately after the act began. This carried on with her sometimes crying, sometimes whimpering, sometimes sobbing, sometimes muttering, and at one stage crying quite audibly, until you ejaculated inside her anus. In my view, what began as a consensual session of the foreplay, for want of a better word, developed into the act of buggery, the continuation of which was expressed by the victim - by the complainant - as something which she was not enjoying."

11.The perfected grounds of appeal which were pursued before us were:

"1. The Learned Judge erred in law in seeking to speculate on the question of consent when lack of consent was not alleged in the prosecution's summary of facts and then in resorting to the concept of 'some kind of pressure' and then the concept of 'enjoyment' in determining the starting point of the sentencing procedure.

3. The Learned Judge erred in law in fixing (sic) the starting point at 4 years imprisonment for a consensual act of buggery (sic) with a woman under 21 years of age.

4. The Learned Judge failed to take into account any of the authorities cited to him in respect of the issue of the appropriate sentence to be imposed.

5. The sentence impose was manifestly excessive on the facts of the case."

12.When considering the observations made by the Judge it is essential to bear in mind the parameters of the summary of facts which was agreed by the parties.

13.It is also necessary to remember that the applicant pleaded not guilty to the third charge which charged him with non-consensual buggery.

14.Mr Oderberg submitted that it appeared from the transcript of the proceedings that the Judge proceeded on the basis that PW1's initial consent had been withdrawn and that the applicant had not ceased in his activities after that.

15.He argued that this was most unfair to the applicant. The consequence of the Judge coming to this conclusion on the basis of the material which was before him was to preclude the applicant from the benefit of a jury's determination on this critical issue. The applicant had only agreed to plead guilty to the fourth count on the understanding that he would be sentenced on the basis that PW1 was consenting throughout the commission of the act of buggery.

16.Mr Oderberg rejected the suggestion that it had been open to the applicant to take part in a Newton hearing. Although this approach had been offered to the applicant he had been justified in refusing the offer as a Newton hearing was quite different to a determination by a jury.

17.Mr Chapman for the respondent contended that although the prosecution had initially agreed to proceed upon the basis that PW1 had consented to the offence this in no way bound the Judge to have to accept this.

18.His duty was to consider all of the surrounding circumstances and he was not bound by any agreement which may have been concluded between the parties.

19.There is a commentary at para. 5-18 on p. 524 of Archbold 2002 edition on the procedure to adopt when there is disagreement on the facts upon which sentencing is to be based:

"If the defendant, having pleaded guilty, advanced an account of the offence which the prosecution did not, or felt they could not, challenge, but which the court felt unable to accept, whether because it conflicted with the facts disclosed in the Crown case or because it was inherently incredible and defied common sense, it was desirable that the court should make it clear that it did not accept the defence account and why. There was an obvious risk of injustice if the defendant did not learn until sentence was passed that his version of the facts was rejected, because he could not then seek to persuade the court to adopt a different view . The court should therefore make its views known and, failing any other resolution, a hearing could be held, and evidence called, to resolve the matter. That would usually involve calling the defendant, and the prosecutor should ask appropriate questions to test the defendant's evidence, adopting for this purpose the role of an amicus, exploring matters which the court wished to be explored. It was not generally desirable that the prosecutor, on the ground that he had no evidence to contradict that of the defendant, should leave the questioning to the judge."

20.This commentary however fails to address the problem which was encountered in the present case. Here the applicant had pleaded not guilty to the section 118A offence and guilty to the section 118D offence. The one issue which distinguished these two offences where a woman was under the age of 21 was the question of consent.

21.There was much merit in Mr Oderberg's submission that the practical effect of the way in which the Judge had proceeded was to deprive the applicant of the advantage of his defence being considered by a jury.

22.The question of whether it was permissible for a defendant convicted of a lesser offence to be sentenced as if he had been convicted of a more serious one was considered by the Court of Appeal in T.J. Davies [1998] 1 Cr App R (S) 380 at p. 382:

"Ultimately the question before us is whether it was appropriate for the appellant to be sentenced for rape, when he has not been convicted of rape and the question of consent was not decided by a jury. As a matter of principle the answer to that question is no. We are reinforced in our conclusion by the recent decision of the Court in Canavan [1998] 1 Cr.App.R.(S.) 243 in which Lord Bingham C.J., giving judgment, said:

'A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of the jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see Anderson [1978] A.C. 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit. It is said that the trial judge, in the light of the jury's verdict, can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual counts. But this, as it was put in Hutchison (1972) 56 Cr.App.R. 307 at 309; [1972] 1 W.L.R. 398 at 400 is to 'deprive the appellant of his right to trial by jury in respect of the other alleged offences'. Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle.'

According, although we suspect that the appellant may be a fortunate young man, we are constrained to impose a sentence on him which reflects that, although guilty of buggery, he was not convicted of rape. Even allowing for the youth of the woman, given the nature and enthusiasm of the sexual relationship, it would not be right for him to be detained in custody any longer, and on Friday afternoon we ordered his release."

23.Clearly on the basis of the background and the pleas the Judge should have proceeded upon the basis that PW1 had consented throughout to what took place.

24.It is of course accepted that the overall surrounding circumstances do have to be considered.

25.However it would appear from the observations made by the Judge that he may have failed to differentiate between PW1's acquiescence and enthusiastic participation in the incident.

26.It is doubtful whether it is possible to glean from viewing a video what was in the mind of PW1. Certainly it is dangerous to attach undue weight to impressions which may be at variance with the facts which have been agreed.

27.There were a number of strong mitigating factors in this case.

28.Perhaps the most important is the character and personality of PW1 herself. It can be seen from the summary of facts that she was eager to come to Hong Kong to earn more than $100,000.00 in a short period of time. Although she was told that she would not be required to engage in sexual intercourse with men it must have occurred to her, having regard to the amount of money she hoped to obtain, that she might well have to do rather more than dancing and singing with men.

29.There is also the fact that she represented to the applicant that she was 20 years of age when in fact she was only 17.

30.The main relevance of referring to all of this is that it seems most unlikely that PW1 suffered any trauma or permanent adverse effects consequential upon what took place.

31.The other strong mitigating factor was the applicant's plea of guilty to the fourth count. The effect of this was to obviate the necessity for PW1 to give evidence and suffer the embarrassment which this would entail.

32.What has to be balanced against all of this is the overall seriousness of the offence.

33.The fact that the applicant had been involved in bringing PW1 from the Mainland to Hong Kong would inevitably have brought about a situation where PW1 would to an extent have come under the applicant's control. This would be a relevant factor in determining the willingness of PW1 in giving her consent to what transpired.

34.There is a further and more important matter. The section 118D offence is not a trivial one; it carries a maximum of life imprisonment, which indicates how seriously the legislature views this offence. The legislation is intended to protect young girls from themselves, even though they may be willing participants in the act. Here the applicant, who at the time was aged 37, was undoubtedly exploiting PW1, over whom he exercised a considerable degree of control, for his own purposes. And regardless of the fact that PW1 had represented she was aged 20, she was at the time of the act still only 17. All of this has to be balanced against the mitigation which was advanced.

35.I have come to the conclusion after considering what I see to be all of the relevant factors that the starting point of 4 years adopted by the Judge was neither manifestly excessive nor wrong in principle.

Hon Stock JA:

36.I would grant leave to the applicant to appeal against sentence but, treating the hearing of the application for leave as the appeal, I would dismiss the appeal.

37.Where upon the delivery of a verdict or the entering of a plea of guilty to an offence, the verdict, or the plea, is consistent with more than one version, or suggested version, of facts underlying the verdict or plea, then it is for the sentencing judge to determine that factual basis, although in doing so he must not sentence on a basis which is inconsistent with the jury's verdict, or contrary to the constituent elements of the offence to which that the defendant has pleaded guilty. The judge is not bound to accept whatever mitigation is advanced, nor is he bound to adopt the version most favourable to the defendant. Where, after a guilty plea, a version is put forward which is clearly implausible, then a judge is not bound to hear evidence; nor is he bound to do so where a choice between the two versions will make no practical difference to sentence. Otherwise, the sentencing tribunal should hear evidence to enable it to determine the proper factual basis for sentence. These principles emerge from a compendium of sources. See in particular Part L2 'Current Sentencing Practice' by Professor Thomas; Archbold 'Criminal Pleading Evidence and Practice' 2002, para. 5-9 et seq; Cheung v R [2002] 185 ALR 111; R v Olbrich [1999] 199 CLR 270; R v Isaacs [1997] 41 NSWLR 374. So, too, it seems clear, and in accordance with fundamental principle, that where a judge is invited to adopt a factual premise adverse to the interests of the defendant, he may do so only if he is sure that that is the proper and correct view of the facts to take; whereas it is for the defendant to establish, albeit not to the same degree, matters advanced in his favour. See Olbrich pp. 280-281; Isaacs p. 378D. I would add two further general principles which are touched by this appeal: that a judge is not generally bound to accept such factual basis for sentencing as is agreed between the prosecution and the defence: R v Myers [1996] 1 Cr App R(S) 187; and that the prosecutor should not lend himself to an agreement which is based upon an unreal and untrue set of facts: R v Beswick [1996] 1 Cr App R(S) 343.

38.Against the background of these basic principles, we see that in the present case the applicant pleaded guilty to a charge under section 118D of the Crimes Ordinance, which reads as follows:

"A man who commits buggery with a girl under the age of 21 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life."

The two ingredients of the offence are the act of buggery, and the fact that the female with whom the act is committed is aged under 21 years. Following the principles to which I have alluded, there is, thus far, no inconsistency between a finding of non-consensual buggery and a plea of guilty to a charge under section 118D.

39.The question in this case, however, was whether, given the existence of section 118A, the judge was entitled to open the issue of consent and to proceed, if he did, to sentence on the basis that there was no consent, where offences under sections 118A and 118D were charged expressly as alternatives, and where the applicant had pleaded guilty to the fourth count (section 118D), not guilty to the third count (section 118A), and where the prosecution had accepted that plea and agreed that Count 3 be left on the file, an order which the court then made.

40.Section 118A provides:

"A person who commits buggery with another person who at the time of the buggery does not consent to it shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life."

Section 118A requires proof of buggery, and that it was non-consensual.

41.The effect of R v Davies [1998] 1 Cr App R(S) 380 would, by analogy, appear to be that in a case in which lack of consent is alleged, the prosecution is bound in principle to charge the offence under section 118A, and that, in the face of a deliberate decision by the prosecution not to charge a section 118D offence alone, the court is precluded from sentencing on the basis of a non-consensual act. (See also R v Anthony D. [2000] 1 Cr App R(S) 120.) In this case, it is not strictly necessary to decide that issue, for the decision in this case, so it seems to me, is dictated by the fact that the prosecution expressly put the counts in the alternative, and accepted the plea of not guilty to the section 118A offence. There is but one relevant difference between the two offences, namely, that under section 118A proof of non-consent is necessary, whereas under section 118D the offence is committed with or without the female's consent (provided she is aged under 21 years). Had that plea not been accepted, and had the matter proceeded to trial, and had the jury acquitted in respect of Count 3 but convicted in respect of Count 4, that result could only have followed from doubt whether there was or was not consent. In that situation, it would hardly have been acceptable for the sentencing judge to have sentenced on a basis of non-consent, seeking then to justify that process on the footing that absence of consent was not an ingredient of a section 118D offence. The proper approach cannot, in my judgment, be different where the prosecution has proffered both charges and accepted a plea of not guilty to one (section 118A), and guilty to the other (section 118D). The relevant principle is succinctly encapsulated as follows:

"Where an offender is convicted of an offence, whether on his plea or by verdict, and one of the alleged aggravating circumstances of the offence is a fact which would constitute an element of another offence, the sentencer may sentence the offender on the basis of that aggravating circumstance, notwithstanding that he has not been convicted of the offence of which the aggravating circumstance forms an element, if the two offences are of comparable gravity and the decision to charge the offender with one offence rather than the other does not imply an acceptance that the aggravating circumstance cannot be proved." (See Thomas 'Current Sentencing Practice L2-1J) (Emphasis added)

42.One finds commentary to the same effect in a discussion in another factual context, namely, about the offence, in England, of cultivation of cannabis plants (which may or may not, in a given case, be for the purpose, in due course, of supply) and the offence of possession of a drug with intent to supply (where intent to supply is a necessary ingredient of the offence). In such a situation:

"... where the prosecution elect to include a count for possession with intent to supply, and the accused is either acquitted on that count or his plea of not guilty to it is accepted, the allegation of an intent to supply must be disregarded and he must be sentenced on the basis of cultivation for personal use only." (See Commentary to R v Lawrence [1981] Crim LR 421, 422)

43.It seems to me, therefore, that the judge in this case could not properly proceed on the basis of non-consensual buggery. There appears to be a suggestion in Davies, p. 382, that a Newton hearing might there have cured the problem. If that is the suggestion then it is one with which I would respectfully disagree, and the point is significant in this case because a Newton hearing on the issue of consent was offered by the judge to the applicant. By the course which was adopted in this case, the defendant was encouraged to decide to plead guilty to Count 4 on the basis, implicit from the framing of the indictment and the conduct of the prosecutor in accepting his pleas, that the question of consent was no longer in issue, and he pleaded accordingly. The effect was that he abandoned his right to have that issue, had it remained an issue, to be determined by a jury. That is a right which had, before arraignment, been presented to him by the indictment.

44.Counsel asserted in the court below that the court was precluded by the summary of facts from entering upon the question whether or not there had been consent. I do not agree. The summary of facts was silent upon the issue and, indeed, referred to the tape, and it is the tape which contained strong evidence that consent, if given initially, was withdrawn. It was not the summary of facts that precluded the judge from sentencing on the basis of non-consent, but rather, the provisions of sections 118A and 118D, the presentation of alternative counts, and the course which the pleas and their acceptance took. What happened in this case was that Count 4 was described in the indictment itself as "alternative to 3rd Count". When Count 3 was put to the applicant, he pleaded not guilty to it, and when Count 4 was put, it was then expressed by the Clerk to be an alternative, and the applicant pleaded guilty to that count. There was then this exchange:

"[PROSECUTING COUNSEL]: The prosecution accept that as a sufficient plea to the indictments (sic) and would ask for the remaining counts to be left on the court file.

COURT: So, that just one plea of guilty to the alternative count, the 4th count?

[PROSECUTING COUNSEL]: Yes."

45.A reading of the transcript of the proceedings in the court below shows prosecuting counsel initially accepting that she approached the two counts as representing non-consensual and consensual buggery respectively, yet saying, when the judge in the course of mitigation raised concern about pressure on the girl and whether consent was truly given, that she, counsel, needed to take instructions from the Department of Justice. One might have hoped that the prosecutor's stance would have been determined before the pleas were accepted. What then transpired presented the judge with a very difficult task. Upon return to court, after taking instructions, prosecuting counsel referred to the tapes, which revealed the crying of the complainant, her protestations that what was happening was very painful, and her insistence that she had had enough; and counsel said that the prosecutor's case, then, was that buggery continued thereafter but without the girl's consent. In other words, the case was that although the act appeared to have been consensual initially, consent had been withdrawn. It is, in those circumstances, not clear to me why the prosecutor had accepted the plea of not guilty to Count 3. I pause here to say that I cannot agree with the suggestion at [26] above that it is doubtful whether one can glean from viewing the video what was in the girl's mind. These descriptions of her conduct, which emerged from the transcript, and which are not at variance with the agreed facts (for the facts refer to the video), show very clearly what was in her mind when she was crying and complaining of pain, and saying that she had had enough.

46.The judge offered the defence the opportunity of calling evidence, an opportunity that was declined. It is not entirely easy to discern the precise basis upon which the judge sentenced, although I recognise the constraints under which he had been placed. He said, as we see from the passage at [10] above, that the complainant had not enjoyed what was going on and wanted it to stop; yet he did not say in terms that consent had been withdrawn.

47.For the reasons I have suggested, it was in my judgment not open to the judge to sentence on the basis of non-consensual buggery, if in the event that is what he did. That, however, is by no means the end of the matter. In so far as the judge was concerned to know whether, although buggery may well have been consensual, it was nonetheless a consent given in circumstances which were oppressive, and in which it might have been difficult for the complainant to say No, that was a valid matter for the judge to address. Indeed he was, in my opinion, bound to do so. Mr Oderberg was arguing that the matter was black or white, that there was a stark choice between consent and non-consent, and that that was all there was to it. I do not agree. Neither sentencing principle, nor the course which the case took, dictated, as Mr Oderberg contended, that "the most favourable view of the facts has to be taken". It is neither realistic, nor necessarily reflective of the count to which the applicant did plead guilty, to say that where there has been consent, the circumstances of that consent and its nature cannot be examined. A judge is not in such a situation constrained to accept that the act was one committed by two persons in a position of equal choice, free from pressure of circumstance. Neither the law, nor the agreed facts, compelled the judge to do so. Had he done so, he would have been acting mechanically, without regard to the circumstances and facts of the case. The circumstances in which sexual acts take place are varied indeed, even though consent is not withheld, for consent takes many shades. It may, for example, be that consent has been given reservedly or unhappily and under pressure of circumstances, even though the circumstances fall short of negating consent. The framework within which the act takes place; the age of the offender; what influence, by virtue of his relationship with the complainant or on the facts, are brought to bear upon the complainant; whether he holds some position of, or akin to, trust, or a position of dominance - all matters of this kind are relevant. These are shades, factors, which must necessarily be addressed in deciding an appropriate sentence. So, to the extent that the judge took into account the question of inequality of status; the fact that the complainant was at the mercy of the applicant, being a girl brought here by him so that she was staying unlawfully; the power which he, a 37 year-old procurer, could and did exercise over a 17 year-old girl - the judge was quite right to do so.

48.The question, therefore, is whether, in that factual framework, the starting point of four years' imprisonment, and the resulting two years eight months, were manifestly excessive. In my judgment, they were not. Much was made in argument of cases in England where much lower sentences were passed in instances of consensual buggery. Those cases are of no value in the present context. We see from the legislation in Hong Kong that a section 118D offence is thought so serious as to merit a maximum term of life imprisonment. So, too, must regard be had to the power held by this applicant over this complainant by virtue of facts which have their own, and their local, flavour. Furthermore, consensual in a very strict sense though the act may have been, this was hardly a developed relationship of mutual affection. What this was was the exercise, in a dominant way, of power, in order to use this young woman, and to prepare her for the sordid life for which the applicant was engaging her. The suggestions made in mitigation that she was a 'free agent', and that the act was 'entirely consensual' in the sense in which that phrase was used, was to ignore the truth, and reality.

49.I do not, with respect, agree that the girl's background can reasonably be described as a strong mitigating factor, or that one should assume that she has suffered no trauma. We simply do not know how versed or experienced in matters sexual she was. But assuming, as well one can, that she was no innocent, she was young nonetheless, and was being used in a framework of non-equality, both as to age and circumstance, to which I have referred. I would rather put it the other way, and say that had her background been wholly innocent, that would have been an aggravating factor. Notwithstanding a young complainant's sexual experience or character, it is to be remembered that a law such as this "... is designed to protect young people from others, and indeed sometimes to protect them from themselves." See R v Matthews [2001] 2 Crim App R(S)112, 113.

50.The applicant was not a person of previous good character. He has a string of convictions including convictions for robbery, operating a gambling establishment, and living on the earnings of a prostitute. The principal mitigating factor was his plea, and for that he was given full credit. In my judgment, neither the starting point, nor the resulting sentence, was too long.

Hon Lugar-Mawson J:

51.I, too, would grant the applicant leave to appeal against sentence, but treating the hearing of the application for leave as the appeal, would dismiss the appeal.

52.It is not necessary for me to add much to what Mayo VP and Stock JA have said already. Once the prosecution made their decision to accept the appellant's not guilty plea to the section 118A offence of non-consensual buggery and proceed against him only on the section118D offence of buggery with a girl under 21, which they had charged in the alternative, and to which he had pleaded guilty, both they and the judge were precluded from raising the issue of the girl's consent to the act of buggery that the appellant practiced on her. That is not to say - and here I agree with Stock JA - that the judge was precluded from inquiring into the framework in which that act took place, including the nature of the relationship between the parties, their divergence of age and the degree of control, or dominance, the appellant exercised over the girl.

53.I, too, found the reference to the levels of sentence passed in England for offences of consensual buggery of no value. The facts and setting are different, and in Hong Kong the Legislature has set life imprisonment as the maximum sentence for the perpetrator of an offence contrary to section 118D, which indicates that it is to be regarded as a very serious offence.

Hon Mayo VP:

54.The application is accordingly allowed. Treating it as the appeal we dismiss the appeal.

Representation:

Mr P.S. Chapman SADPP, of the Department of Justice, for the Respondent.

Mr Keith Oderberg and Dr Stephen Tang, instructed by Messrs Francis Kong & Co., for the Applicant.