Chim Wai Ping v. The Queen
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CACC000648/1972 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 648 OF 1972 -----------------
----------------- Coram: Rigby, C.J. Date of Judgment: 1st November, 1972 ----------------- JUDGMENT ----------------- 1. The appellant in this case is 18 years of age. He pleaded guilty to the charge preferred against him of carnal knowledge of a girl under the age of 16. I have been told that the girl, at the time, was two days short of her 15th birthday. The simple facts of this case were that the appellant and another youth took this girl and another girl friend to the cinema. After the cinema the appellant and this girl went home to the premises where he lived and there he had sexual intercourse with her. Upon those facts the learned magistrate adjourned the case to obtain a probation officer's report. On the resumed hearing of the case the magistrate had that report before him. The probation officer had interviewed the appellant and, quite properly, he had also interviewed the girl. The appellant said that the intercourse had taken place with the girl's consent. The girl told an entirely different story to the probation officer and said that she had been forced into having intercourse with the appellant and that he had, in fact, threatened her with a razor blade and said that he would scan her face if she did not agree. Upon the resumed hearing the appellant again protested that what had occurred had been entirely with the girl's consent. The magistrate, however, for some inexplicable reason, saw fit to call the girl and take her evidence and she maintained that she had only consented as a result of being threatened. If, indeed, that was true, it was a clear case of rape and it should not have been brought as a charge of carnal knowledge. However, the magistrate said that he gave the appellant the benefit of the doubt and dealt with the case on the basis that the girl had consented to what had happened. 2. Mr. Duckett, Crown Counsel, now informs me, entirely properly, that when the girl first made her statement to the police she made no suggestion whatsoever that she had been threatened. On the face of it, the story which she subsequently told to the probation officer appears to be no more than an after-thought. It is wholly regrettable that the girl's original statement was not brought to the notice of the magistrate by the prosecuting officer. If it had been, it may well be - indeed, it certainly should have been - that he would have taken an entirely different view of this case. As it was, on the facts before him, and the probation officer's report, he made an order that the appellant be sent to a training centre. It is against that order that the appellant now appeals. The question that one asks oneself is whether it is appropriate that an 18-year-old youth should be sent to a training centre for a single act of sexual intercourse with a girl of this age. 3. In my view, and particularly on the facts which this court has now been told, the order made was entirely wrong in principle and the sentence manifestly excessive. The appeal will be allowed. The training centre order will be set aside and in lieu thereof under section 36(1)(b) of the Magistrates Ordinance, Cap.227, the appellant will be placed on his own bond, in the sum of $100, to be on good behaviour and to come up for sentence any time when called upon within the period of the next six months. Representation: Appellant in person. Duckett, S.C.C. for Crown/Respondent. |