THE QUEEN v. ALBERT STANLEY MALIA

CAAR000008/1986

IN THE COURT OF APPEAL

Application for Review 1986, No 8

BETWEEN

THE QUEEN   and   ALBERT STANLEY MALIA _________________

Coram: Sir Alan Huggins, V. -P., Fuad & Kempster, JJ. A.

Date of Hearing : 8th May 1986

Date of Judgment: 8th May 1986

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JUDGMENT

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Sir Alan Huggins, V. -P. :

1. This is an application by the Attorney General under s.81A of the Criminal Procedure Ordinance for the review of sentences of eighteen months' imprisonment which are concurrent but suspended for two years on seven charges. The Respondent was convicted in the High Court on his own plea of two charges of attempted buggery and five of acts of gross indecency. The attempts at buggery were discontinued immediately objection was taken by, the victim and we think that it is right that we should treat all the charges as having been in effect acts of gross indecency.

2. The principle which is relied upon by the Attorney General is that which was stated by this court in Reg. v Summerville Crim. App. 1984, No. 227, in which Cons, J. A., delivering the judgment of the court, said:

"In normal cases it would not be right to suspend the sentence. That is the view which has been more than once judicially expressed and we respectfully agree. An immediate custodial sentence is inevitable for offences of this nature unless there are very special circumstances. We are satisfied that those circumstances exist in the instant case."

The issue in the present case is whether or not there were such special circumstances.

3. The learned judge below has not indicated what special circumstances he thought to exist, and on careful consideration we are driven to the conclusion that there were no exceptional circumstances which justified the suspension of the sentences.

4. It is argued that the boy who was involved in all seven counts has not been corrupted. He was already a habitue of a bar which has been notorious as a place of resort of homosexuals and he was there expecting to make homosexual acquaintances. The Respondent made his acquaintance by offering him a drink and matters developed from there, but it is not right in our view to say that the boy has not been corrupted: he has as a result of the attentions of the Respondent had the opportunity to exercise his homosexual proclivities and is now in the same position as was the Respondent as a young boy, when he was similarly exposed to such conduct.

5. The law exists to protect young people - ever those who appear to be older than they are. The offences here were acts of gross indecency with a boy under the age of 14. It is emphasized on the Respondent's behalf that there was evidence that Chinese police officers thought that he was of an age between 15 and 20, two of them saying 17 and over, but the fact remains that this is the very type of boy who is to be protected by the courts, We think that the, judge went wrong in principle in suspending the order and that the effect of suspension was to render the sentences manifestly inadequate.

6. We therefore grant this application. We agree that the terms of eighteen months were proper, but, as this is an application for review, we recognize that the Respondent has been put to great strain as a result of the further litigation and we therefore order that in place of the sentences which were imposed there be an immediate sentence of twelve months' imprisonment on each count to run concurrently.

8th May 1986

Representation:

A. S. Hodge & P. O'Mahony for Crown

W. Howard, Q. C. & J. Tse for Respondent