Lai Kang-shing v. The Queen

CACC000912/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.912 OF 1975

-----------------

Coram: Briggs, C.J.

Date of Judgment: 21st November, 1975.

-----------------

JUDGMENT

-----------------

1. In this case the appellant appealed against his conviction and sentence. The appeal against conviction was dismissed. The appellant was sentenced to two years' imprisonment for defilement of a girl between the ages of 13 and 16 years and to one year's imprisonment for blackmail. The girl was aged 14 and worked in a 'music parlour'. It was admitted she was not a virgin at the time of the offence.

2. The appellant, who is aged 17, had a clear record and the sentence of two years on the first charge is the maximum sentence for that offence.

3. The magistrate, in his statement of findings, made two statements which must have influenced him in imposing the said sentence. He said that he was of the opinion that the youth and clear record of the appellant are not mitigating factors but rather aggravating factors in determining the sentence. He also stated that the appellant "deliberately chose the victim of tender age, intentionally raped her." I do not think that the word 'rape' was used in a strict legal sense which could have that connotation.

4. In my view in cases of defilement as well as in most other criminal cases the clear record and youth of the accused are mitigating factors and must be taken into consideration when considering sentence.

5. Taking all these matters into consideration, I think the best thing to do is to reduce the sentence on the first charge to a sentence of one year's imprisonment as opposed to two years. In the event, the two sentences will be served concurrently as the facts disclose that the offence of blackmail and the defilement formed part of the same incident.

Representation:

Appellant in person.

Polson for crown.