The plaintiff was a registered veterinary surgeon who had been found guilty of violating a provision of the Veterinary Surgeons Registration Ordinance after complaints that he had sent sexually inappropriate text messages to a co-worker. He argued that, because the co-worker was not a patient or customer of the clinic where they both worked, her complaints were not within the scope of the ordinance. The court dismissed his argument, finding that the ordinance was meant to be broad in scope and covered such misconduct.
Women and Justice: Court: Court of Appeal
Domestic Case Law
Veterinary Surgeons Board v. Herbert Court of Appeal (2018)
Leung Chun Kwong v Secretary for the Civil Service Court of Appeal (2018)
The plaintiff, a gay man, challenged the government’s denial of spousal benefits to his husband. The couple had been married in New Zealand. The court observed that Hong Kong law does not recognize same-sex marriage; the Marriage Ordinance defines marriage as “the voluntary union for life of one man and one woman to the exclusion of all others.” The court concluded that the government’s denial of spousal benefits therefore did not violate the Basic Law, Bill of Rights, or common law. The plaintiff plans to appeal to Hong Kong’s highest court, the Court of Final Instance.
Sit Ka Yin Priscilla v. Equal Opportunities Commission Court of Appeal (2011)
The plaintiff was a former employee of the defendant. She alleged that the defendant had unlawfully discriminated against her because of her gender. Following poor performance reviews, the plaintiff had been fired by the defendant. She pointed to disparate treatment of her versus a male colleague, who despite having had multiple complaints made against him (while there were none against her) had received better performance reviews than the plaintiff. The court denied the plaintiff’s claims, relying in part on nine allegations of substandard performance that had been made against her.
Attorney General of Botswana v. Rammoge Court of Appeal (2016)
The Court of Appeal held here that the Department of Civil and National Registration’s refusal to register Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) was an unjustifiable limitation of its members’ rights. The Court of Appeal held that the right to form associations to advocate for legal change is a fundamental component of the right to freedom of assembly and association, and it dismissed the Department of Civil and National Registration’s argument that LEGABIBO’s objectives were contrary to public morality and would encourage the commission of criminal offenses. In its holding, the Court of Appeal protected the right of LEGABIBO and other LGBT advocacy groups to promote the rights of LGBT individuals and to lobby for legal reform.
Warren v. R. Court of Appeal (2015)
The applicant was convicted in the Circuit Court of Kingston for the offences of indecent assault, incest and assault. Later, a single judge granted leave to appeal and granted legal aid to the appellant. The prosecution conceded that the learned trial judge erred in imposing a sentence of 15 years imprisonment in respect of the incest charge, under the Child Care Protection Act of 2004, because the appellant was actually charged under the Incest (Punishment) Act, which establishes as maximum penalty for the crime is five years. As a consequence, the appeal against the sentence was allowed on the incest charge and this was set aside and substituted for five years imprisonment. The Court didn’t take into account, nor studied, the possibility of amending the indictment due to the specific circumstances and seriousness of the case, that is, the fact that the appellant sexually assaulted an underage girl on more than one occasion, and also, according to the evidence, threatened her to kill her if she made him go to prison.
Gregory v. R. Court of Appeal (2015)
The applicant was sentenced to seven years imprisonment for abduction and robbery with aggravation. In response to his first application for leave to appeal against conviction and sentence, the judge granted him leave to appeal to the sentence, but refused permission to appeal against conviction. The applicant renewed his application for leave to appeal against his conviction. The issue on appeal was whether the indictment erroneously citing the wrong statute warranted overturning the conviction. The offence of forcible abduction can be found in the section 17 of the Sexual Offences Act, and it was formerly an offence addressed in section 56 of the Offences Against Person Act. The latter was repealed when the Sexual Offences Act passed. Although the sections are not identically worded, they create the same offence of taking away a woman, against her will, with the intent of having sexual intercourse with her. The indictment in this case had incorrectly stated that the offence was in violation of section 56 (which had been repealed at that point). Nonetheless, the Court of Appeals decided that the error was not fatal to the conviction, as an amendment would have been permissible. This leads to the conclusion that as long as indictment errors are related to the form, and not the substance, then there is no prejudice to the appellants.
Hall v. R. Court of Appeal (2014)
The appellant was charged for carnal abuse of a girl under the age of 12 years and buggery. On 20 April 2009, the appellant was convicted for carnal abuse (but not for buggery). On 9 November 2010 the appellant filed for leave against the conviction and the sentence. He argued in his appeal that the trial judge was obliged to give the jury a separate and distinct warning related to the dangers of convicting relying solely on the uncorroborated evidence from children (in addition to the warning she gave them in relation to the dangers of convicting relying solely on the uncorroborated evidence of complainants in sexual cases). However, the Court decided that it’s entirely within the discretion of the trial judge to determine (taking into account the content and manner of the witness’ evidence, the circumstances of the case and the issues raised), whether to give any warning at all, and if so, in what terms. As a result, in exercising her discretion, the judge decided the girl’s age did not warrant a specific, separate warning other than the one given related to the danger of acting on uncorroborated evidence in a sexual case.
Blake v. R. Court of Appeal (2015)
The applicant pleaded guilty before the Circuit Court of Westmoreland for the offence of having sexual intercourse with a girl under the age of 16, in violation of section 10(1) of the Sexual Offences Act. He was in a serious relationship with the underage girl, but the matter was brought to the attention of the police when the complainant discovered she was pregnant and there was a dispute regarding the defendant’s paternity (tests showed he indeed was the father). He then argued that he was lured and tempted by the complainant, who would attend to his shop in revealing clothes and make sexual advances to him. The grounds for the defendant’s application was that the four-year sentence was manifestly excessive and that the judge was obliged to indicate, as a matter of law, the sentence that would have been imposed if the applicant had been convicted at trial and use that as a starting point for taking into account the fact that the applicant had plead guilty. In addition, his counsel highlighted as mitigating factors: the girl was just six months away from the age of consent and the sexual intercourse was consensual. His counsel also argued that the judge did not take into consideration the character and antecedents of the applicant, as well as the classic sentencing principles of retribution, deterrence, prevention and rehabilitation. However, the Court decided that, although the indication of a starting point for sentencing would have been desirable, they do not see the omission as being fatal to the reasoning underlying the sentencing. They also highlighted that it’s clear that Parliament has recognized this offence as a serious one, and their commitment against it. This case is particularly important because the Court stated that Jamaica has particular difficulties in dealing with offences involving young girls constantly being abused and exploited by older men, and that they have to get the message out that the children must be allowed to transition into adulthood without any molestation. Furthermore, the court stated that the pregnancy of the girl must not be taken as a mitigating factor, because that would send the message that a man who gets the girl pregnant is likely to be treated more favorably by the Court. Finally, the Court insisted that these pronouncements, in the context of the alarming local circumstances, should be guiding principles in sentencing these matters and cases.
Fletcher v. R. Court of Appeal (2015)
On 29 July 2009, the applicant was convicted in the Home Circuit Court for rape of a 17-year-old girl. She claimed that he hauled her to the back of an abandoned house while asking her indecent questions and threatening her, and then proceeded to forcibly have sexual intercourse with her. He confirmed that they had had sexual intercourse in the yard of a building, but claimed they were in a long-term relationship. As to prove this, a witness testified that the applicant introduced the complainant to her as his girlfriend. However, her testimony was contradictory and unclear. His application for leave to appeal was heard and refused by a single judge of the Supreme Court of Criminal Appeal. He then renewed application for leave to appeal, arguing that the learned trial judge failed to adequately address questions raised by the jury during their deliberations, only giving them broad and general directions concerning their role and legal duty. His application for leave to appeal was again refused by the full Court. The application was denied because the court determined that the lower court made an accurate comparison of precedents offered, and that the trial judge’s jury direction was appropriate and within the acceptable parameters of what has become known as the Watson direction (as established by the English Court of appeal in the case R v. Watson). The judge was found to have avoided giving the jury any hint of pressure, correctly advised them to apply both their individual and collective experiences, and urged them to share their perspectives, but also to be willing to adapt to the other’s view if they agreed.
Squire v. R. Court of Appeal (2015)
On 24 May 2013, the applicant was found guilty of the abduction and rape of a 14-year-old girl. He had a good relationship with the parents of the girl and thus was a trustworthy person to her. The applicant’s first appeal application was denied. He renewed his application and the Supreme Court of Criminal Appeal granted the application. This time his conviction was quashed, the sentences were set aside, and the Court ordered a new trial at the next sitting of the Circuit Court. The applicant criticized the quality of the representation given by his counsel at the trial, arguing that his attorney did not provide an adequate defense and did not take full instructions from him. The attorney defending the applicant at the first trial argued that the applicant was properly defended, that the prosecutor also submitted that the defense was adequate and that, as the case turned on the contest of credibility between the complainant and the applicant, the jury’s verdict would have been the same, regardless of any omission by the defense counsel at the trial. Despite the seriousness of the alleged crime, the Court held that the applicant was denied the substance of a fair trial and quashed the conviction, setting aside the sentences, without doing a balancing test between the rights of the 14-year-old girl who was a victim of a crime, and the sex offender’s due process rights.