Chin (Rohan) v R

• Jurisdiction: Jamaica
• Judge: SMITH, J.A.
• Judgment Date: 26 July 2005
• Neutral Citation: JM 2005 CA 30
• Judgment citation (vLex): [2005] 7 JJC 2601
• Court: Court of Appeal (Jamaica)
• Date: 26 July 2005

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE P. HARRISON, J.A THE HON. MR. JUSTICE SMITH, J.A THE HON. MR. JUSTICE K. HARRISON, J.A

ROHAN CHIN

v.

R.

Delano Harrison, Q.C. for the applicant

Tanya Lobban, Assistant Director of Public Prosecutions (Ag.) for the Crown

STATUTORY INTERPRETATION -

SMITH, J.A.

1 The applicant, Rohan Chin, was tried on an indictment containing four counts. Counts 1, 2 and 3 charged him with having carnal knowledge of P.C, a girl above the age of 12 years and under the age of 16. Count 4 charged him with buggery committed against S.C. the sister of P.C.

2 The trial began in the St. Mary Circuit Court before G. Smith, J. and a jury on 10 ^th March 2004. On the 12 ^th March 2004 the jury returned verdicts of guilty in respect of counts 2 and 3 and not guilty in respect of counts 1 and 4. On the 19 ^th March 2004 he was sentenced to consecutive terms of 5 years imprisonment on counts 2 and 3. On the 31 ^st March, 2004 he applied for leave to appeal against his conviction and sentence on the following grounds:

• "a) The verdict of the jury in respect of counts 2 and 3 of the indictment are unreasonable and cannot be supported by the evidence.

• b) The verdicts of the jury in respect of counts 2 and 3 of the indictment are inconsistent with the verdicts to count (sic) 1 and 4 of which they found the accused man not guilty.

• c) The learned trial judge erred in law in summing up the case to the jury in that she failed to direct the jury as to how they should treat the complainant's credibility in relation to count (sic) 2 and 3 in the event they found him not guilty on the first count.

• d) That the consecutive nature of the sentences of five (5) years on each count is excessive in the circumstances."

3 His application for leave was refused by a judge in chambers. He has now renewed his application for leave before this court.

4 Counsel for the applicant, Mr. Delano Harrison Q.C., informed the court that he did not intend to pursue ground (c). He sought and obtained permission to argue two supplementary grounds:

• 1. The learned trial judge not only failed to warn the jury adequately about the danger of acting on the uncorroborated evidence of young children but rather sought to shore up the credibility of the young witness complainant, P.C. (See page 25 line 4 to page 27 line 1).

• 2. In her charge to the jury, just before their retirement to consider their verdict, the learned trial judge omitted to assist the jury as to how to approach the matter if they disbelieved the Applicant's evidence, in that she failed to direct them that, even if they rejected the Applicant's defence, they should not merely on that account convict him.

5 The Prosecution's Case

6 The following is gleaned from the summing up of the learned trial judge.

7 In 2002, P.C, a 14 year old student, lived in St. Mary with her grandmother, Miss Monica Henry and her two sisters S.C. and Adrian Cox. She met the applicant in 2001 when she started living with her grandmother. Her grandmother had a stall at the Port Maria market. The applicant operated a "cook shop" at the said market. P.C. helped her grandmother at the stall on Thursdays, Fridays and Saturdays. On Thursdays and Fridays she would assist her grandmother before going to school and sometimes after school. She would wear her school uniform when she went to the market. On occasion her grandmother sent her to buy meals from the applicant. She testified that she and the applicant became boyfriend and girlfriend. In January 2002 the applicant asked her to accompany him to a friend's house in Pagee. She went with him. The applicant escorted her into a house. He sat on a bed and she sat on a chair. He smoked a spliff (a cannabis cigarette). He invited her to sit beside him on the bed. She declined. He jumped up from the bed and pulled her from the chair. He removed her uniform pushed her on the bed, went on top of her and inserted his penis into her vagina. When he was finished, she bit him on the shoulder and pushed him off. She dressed herself and returned to school. She said she did not report the incident because of fear. That was the first occasion.

8 She described the second incident in this way:

9 On a Wednesday in March 2002, she went with the applicant to a house on Cox Street. Inside the house the applicant took off her school uniform and undressed himself. He lay her on a bed and had sexual intercourse with her. After this episode he threatened to "cut off her neck" if she told anyone. She went home and told no one.

10 The third incident took place on a day unknown between the 1 ^st day of March, 2002 and the 20 ^th of March 2002. The applicant, she said, took her again to the house on Cox Street. There he repeated what he did on the second occasion.

11 She further testified that on the 20 ^th March, 2002 her sister S.C. accompanied her to the applicant's "cook shop". She left her sister and the applicant at the back of the market and went to the front for awhile. When she returned she saw her sister "bending over and her shorts and her panties were down at her knees". Her sister, she said, "jumped up" and said that she was not going to do it. She saw the applicant pull up the zipper of his pants.

12 S.C. also gave evidence. She was also at the time a student. She knew the applicant from about January 2002. She used to buy things from him at his cook shop. She testified that on the 20 ^th March 2002 at about 7:00 p.m. she and her sister P.C. went to Port Maria to buy pencils. They went to the applicant's shop. She said that the applicant dragged her into a stall. He pulled down her shorts and panties. At this time P.C. left the stall. The applicant then told S.C. to bend over. She did. He put his penis "at the edge of her bottom". She "jumped up and said she was not doing it." The applicant told her to go away and called her a fool.

13 Miss Monica Henry the grandmother of the two complainants also gave evidence. She told the court that P.C. was born on the 28 ^th of September, 1988. Patricia Roberts is the mother of P.C. She resides in St. Maarten. She knew the applicant from he was a child. She testified that in 2002 she used to send her granddaughters P.C. and S.C. to buy food from the applicant. She admitted to beating P.C. with a fan belt when she heard that she and the applicant were seen kissing.

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