Lai Yiu Ching v. The Queen

CACC000560/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 560 OF 1968

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Coram: Hogan C.J., Scholes J. and Mills-Owens J.

Date of Judgment: 15 November 1968

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JUDGMENT

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1. In this case the appellant was found guilty of the offence of carnal knowledge of a girl under the age of 13 contrary to section 6(1) of the Protection of Women and Juveniles Ordinance, Cap.213. We have felt some concern over the fact that the judge, when sentencing the appellant, said:-

"Nevertheless, I can't but regard as serious a course of conduct which began before the girl had reached puberty ...... and continued for some nine months."

It appears clear that, in so doing, he was having regard to the evidence of the complainant that the appellant had started having carnal knowledge of her in June 1967, after using some violence towards her, and that this course of conduct continued until April 1968. It would have been difficult to present the prosecution case without introducing this evidence and the jury's verdict would indicate that they believed it.

2. Our anxiety has arisen from the fact that the appellant was only charged with one offence of carnal knowledge on or about the 20th day of April 1968. Was the judge then entitled, for the purpose of sentence, to take account of the relations between the appellant and the complainant over the previous ten months, a relationship which, according to her story, included a number of previous incidents of carnal knowledge?

3. At the trial the appellant denied the charge made against him and denied all such relations with the complainant, but, in a statement made to the police, which was admitted in evidence in the case, he admitted having intercourse on some twelve occasions altogether.

4. We have in the course of our researches made this morning looked up some other cases in which crimes of a similar type have come before the courts in Hong Kong and England, with a view to noting both the level of sentences and how this question has been handled in the past. These included R. v. Brook⁽¹⁾ where there was incest with a daughter aged 16 and the report says the appellant had had "intercourse with her on a number of occasions over a period of a month with the result that a child was born" - a sentence of 4 years' imprisonment was upheld. In the case of R. v. Brown⁽²⁾ there were pleas of guilty to four counts of attempted incest and indecent assault over a period of four years, committed against the appellant's daughter, aged 14 at the outset - six years' imprisonment was upheld. In both cases the appellant had previous convictions for other types of offence. In the case of R. v. Daniels⁽³⁾ where the appellant was convicted of four counts of incest the report says he regularly had intercourse with a sixteen year old daughter for about twelve months and with an eleven year old daughter for about twelve months. Again there were previous convictions for offences of a different type. A sentence of seven years' imprisonment was upheld.

5. It is to be noted that in two of the cases there were multiple counts, but it seems clear from the reports that the court did take account of regular intercourse with the victims over a period of time, which would seem to indicate that account was taken of more incidents than were actually charged. The Hong Kong cases were not concerned with this aspect but we would commend to the consideration of the prosecution whether in such circumstances - if account is to be taken of a course of conduct which includes events that, in themselves, constitute offences - it would be desirable to include additional charges for at least some of such offences.

6. In the circumstances of the present case, we have looked at the facts on the basis that there was only one offence in respect of which the appellant was charged and convicted, and assuming there was only one such offence involved, we have satisfied ourselves that the punishment inflicted by the learned trial judge was not such that we would regard it as manifestly excessive in the circumstances of the case, involving as it did the use of violence and the abuse of his position by the appellant who was in loco parents to the complainant. We have therefore decided, despite the anxiety to which we have drawn attention, that it would not be right to interfere with the sentence. Accordingly the application for leave to appeal against sentence is dismissed.

7. As regards the appeal against conviction, counsel for the appellant has very rightly and very properly told us that he sees nothing in the course of the trial below which would justify this court in intervening in any way. We are of the same opinion and the application for leave to appeal against conviction is also dismissed.

Representation:

Suffiad (K.C. Yung) & Co.) assigned for Appellant.

Michael Wong C.C. for Respondent.

Oral judgment delivered by President and covered by Court Reporter.

(1) (1964) C.L.R. 236

(2) (1964) C.L.R. 483.

(3) (1965) C.L.R. 616.