Leung Tak Fu v. The Queen

CACC001107/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 1107 OF 1974

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Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 27th May, 1975.

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JUDGMENT

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1. The appellant was found guilty of five counts of carnal knowledge of a girl under 13 years of age, the same girl being involved in each count. He pleaded guilty and was sentenced to three years' imprisonment for each offence, the sentences to be served concurrently. He has appealed against these sentences.

2. The facts as laid before the court show that the appellant became acquainted with the girl because he used to frequent a shop which was situation on the ground floor of the block of flats in which the girl and her mother lived. She and her mother lived on the second floor. The appellant and the girl became friendly and went out together on many occasions. The first offence took place on the 28th May, 1974 which was some ten months after the couple became acquainted. The girl told her grandmother but not, it would seem, her mother. The second offence was committed on the 7th June. The mother must have become aware of the situation because on the 14th June a meeting was arranged at the home of the girl's mother, which the appellant, the girl, the girl's mother and the girl's stepfather attended. The appellant and the girl wished to get married but the mother of the girl demanded the sum of $10,000 by way of marriage gift. This was a sum beyond the capacity of the appellant. So on that day the appellant ran away with the girl and they lived together in an apartment house. The third offence was committed on that day. The other offences took place after the 14th June. If the grandmother or the mother of the girl had reported this matter to the police when they first learned of this situation, which it was their duty to do, the appellant would only have faced two charges and not five.

3. The girl who was present at the hearing of the appeal is a very well-developed girl and is five feet in height and weighs some 135 pounds. The judge in the court below was told that when the appellant and the girl first met she told him that she was over 18 and that he had no reason to disbelieve her. And this statement was not challenged by the Crown.

4. The trial judge, when passing sentence on the appellant said:-

"If this were an isolated incident, I could perhaps understand your coming to the conclusion that the girl was a good deal older than she is because perhaps at a cursory glance one might think, having regard to her size, that she was a good deal older than she is. The first incident took place after you had known her for quite a few months, but certainly when the subsequent incidents of intercourse took place between you you were fully aware of her age. It was with that knowledge that you took her away from her home and went to live in this apartment with her."

5. Mr. Li, who appeared for the appellant suggested that this was a wrong inference for the learned judge to draw from the facts which were put before the court, which, as we have already said, were not challenged by the prosecution.

6. Mr. Li also drew our attention to the distinction between cases where the offender is in loco parentis to his victim and in cases where there is no such relationship. The authorities show that sentences passed for an offence falling within the former class of cases attract a heavier sentence than one coming within the latter. In the present case, there is no doubt that the appellant was not in loco parentis. We think there was merit in each of Mr. Li's two points.

7. Taking all this into consideration, we think that the sentence should be reduced on each charge to one of eighteen months, the sentences to run concurrently.

Representation:

A. Li (Director of Legal Aid) for appellant.

Carolan for crown.