Leung Hoi v. The Queen
Read the full judgment text of CACC 34/1973 on BabelCite. This Court of Appeal judgment was delivered on 2 May 1973.
1. The Appellant, who at the time of the commission of his offences was a serving policeman, was originally charged in the District Court with three other men upon a large number of counts of blackmail. In those proceedings the appellant, together with another of the four, failed to surrender to his bail. In the result the Crown proceeded upon four charges only against the remaining two of the original quartet. Those two men were found guilty and one of them, known by the soubriquet of “the Chie
Cited by 6 cases
|
IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 34 OF 1973 ________________________
________________________ Coram: Huggins, McMullin & Pickering, JJ. Date: 2 May 1973 ________________________ JUDGMENT ________________________ Pickering, J.: 1. The Appellant, who at the time of the commission of his offences was a serving policeman, was originally charged in the District Court with three other men upon a large number of counts of blackmail. In those proceedings the appellant, together with another of the four, failed to surrender to his bail. In the result the Crown proceeded upon four charges only against the remaining two of the original quartet. Those two men were found guilty and one of them, known by the soubriquet of “the Chief Inspector” and who was the ringleader of the operation, was sentenced to 15 months imprisonment upon each of the four charges, those sentences to run consecutively. That particular accused had 14 previous convictions, mostly in connection with false pretences and menaces, and had asked for 13 other offences to be taken into consideration. The appeal of “the Chief Inspector” against conviction and sentence was subsequently dismissed by this Court. 2. His co-accused was convicted upon three charges and asked that three other offences be taken into consideration; he was placed on probation with which order there were coupled orders for restitution of the monies he had obtained by blackmail, and for payment of costs. 3. When subsequently the appellant in this case was apprehended and charged before a different District Judge, the Crown proceeded upon four charges; after the trial was under way, following the appellant’s pleas of not guilty, he reversed his pleas and, having been convicted, was sentenced to four years imprisonment upon each of the four charges, those sentences to be served concurrently. At the same time the appellant was found not guilty upon seven charges in connection with which the Crown offered no evidence. This appellant has a clear record and had not asked that any other offences be taken into consideration. 4. He now appeals against his sentences of four years imprisonment and his counsel relies heavily upon the disparity between those sentences and the probation order applied in respect of one of his accomplices on the one hand, and between the sentences totalling five years imprisonment imposed upon the ringleader of the group – a man with fourteen previous convictions, who had asked that numerous other offences be taken into consideration on the other hand. 5. The modus operandi of this group was to visit premises in which unregistered medical clinics were situated and there to inform the person operating the clinic that his operations were unlawful and that he was liable to arrest but that the matter could be settled by the payment of money. In the course of these conversations the ringleader would be referred to by his colleagues as “the Chief Inspector” – hence his soubriquet – though he, unlike the appellant, was not a member of the police force. Each of the victims concerned in these charges did in fact hand over money and it was said that “the Chief Inspector” received the lion’s share of these monies and that the share of the appellant amounted in total to $1,075. 6. It is the contention of Mr. Sanguinetti, for the appellant, that more mitigating features existed in regard to his client than in regard to the individual who was placed upon probation and, comparing the cases of the two men the only aggravating feature in regard to the appellant was that he was, at the time of the commission of the offences, a serving policeman. Thus, counsel urged, the appellant had changed his plea to guilty thereby saving time and costs; like the probationer he was a married man but had heavier financial responsibilities, having to support a wife, two daughters and his mother upon a salary of $900 per month; the Crown had conceded that he participated in these activities for the purpose of supporting his family and not in order to use the proceeds for gambling or mere self-enrichment; he had twelve years service with the police force and had been commended upon two different occasions and would now suffer loss of his pension and other benefits; like the probationer he had a clear record and had been tempted and recruited by “the Chief Inspector”, a former government servant who, over the years, had recruited different people in different walks of life to assist him in his illegal activities; moreover the appellant had, before the stage of sentence, offered to make restitution. 7. In our view these mitigating factors do not tip the scales at all heavily and are very considerably outweighed by the fact that the appellant was indeed a policeman when he committed these offences. We observe that the trial judge said that in assessing sentences he would take into account the change of plea and bear in mind the probation order made in respect of one of his accomplices. Counsel queried whether in fact effect had been given to these declared intentions of the trial judge and pointed out that if in fact those factors had resulted in as small a reduction as six months from the sentence which would otherwise have been imposed, it followed that the trial judge appeared to consider that, but for the mitigating circumstances, a sentence of 4½ years imprisonment was a proper one, and this was only six months short of the total sentences imposed upon the admitted ringleader. 8. The reduction of an appellant’s sentence by virtue of disparity between that imposed upon him and that visited upon a co-accused is a vexed question and one in regard to which clear principle is difficult to discern. Attempts have, from time to time, been made to lay down guidelines but the principles thus stated are not infrequently at variance and sometimes actually contradictory, as a review of some of the cases reveals. 9. In the case of Stutter([1]) the Lord Chief Justice said:
thus indicating a clear principle that disparity of sentence as between co-accused was irrelevant upon appeal unless the appellant’s sentence was in itself unfair. The test there enunciated had the merit of simplicity and intelligibility and had it been adhered to the subject would create no difficulty. In fact, however, whilst the test in Stutter has frequently been accorded the politeness of lip-service, it appears to have been departed from as frequently as it has been followed. 10. Thus in Richards([2]) another Lord Chief Justice said:
11. This represents the lip-service to which I have referred. But it was speedily followed by an about-face in these terms:
12. In other words the court reduced the sentence upon no other ground than that of disparity. 13. A similar result was reached in Dermody([3]) where the court said:
14. Both Richards and Dermody were quoted in the Hong Kong case of Reg. v. CHAN Kat-lam-hoi([4]) where the ringleader in offences involving forcible detention, had his sentences totalling eight years imprisonment reduced to six years purely on the ground of the disparity between those sentences and sentences totalling four years imprisonment imposed upon three co-accused. Again in Hong Kong, in LEUNG Kam-luk v. Reg.([5]) the appellant, who had been convicted of conspiracy to effect a public mischief, and sentenced to nine months imprisonment whereas his two co-conspirators were bound over, had his sentence reduced, on the ground of disparity, to a fine of $500 or three months imprisonment. 15. The English case of Coe([6]) saw a reversion to the principle laid down in Stutter’s Case(1). There Parker, L.C.J. said:
16. In the earlier case of Reeves([7]) the court said that
17. The offence in that case was receiving property worth £20 and the appellant had been sentenced to nine months imprisonment whereas his accomplice had been fined £25. 18. But at about the same time in Reg. v. Frost & Hale([8]) the Court of Criminal Appeal, whilst reducing the appellants’ sentences upon the merits, said that their Lordships were deliberately putting out of their minds a disparate lenient sentence passed upon a co-accused. 19. More recently in Reg. v. Robson & East([9]), the court upheld sentences despite considerable disparity with those of a co-accused, observing that the true principle was expressed in Coe(6). The court also said that it was unable to accept as an accurate statement of its attitude, the proposition that it is “more important that sentences should be proportionate to one another than that they should be proportionate to guilt”(10). 20. In Reg. v. Dillon(11) the court reduced an extended term of imprisonment of twelve years to one of eight years upon the ground of the disparity between that original sentence and sentences of six years passed upon accomplices. 21. In Reg. v. Slevin and Harrison([12]) the court refused to interfere with sentences of three years imprisonment for affray despite the fact that the leader of the gang, who had stabbed a youth, had received only the same sentence. The court observed that the leader should have received not less than five years and said that the appellants had no ground for a sense of grievance for their sentences were in no way too severe. 22. A similar result was arrived at in Reg. v. Tabi & Garratt([13]). 23. More recently, in Hong Kong, in the unreported case of SIU Tsang-kwai v. Reg.([14]), the Full Court though considering a sentence of four years imprisonment, imposed upon a first offender for unlawful custody of forged banknotes and possession of implements for forgery as “entirely appropriate”, reduced the sentence to one of three years on account of the disparity between the original sentence and that of three years passed upon an accomplice, a skilled counterfeiter with a number of previous similar convictions. 24. In Reg. v. Kelly([15]) the appellant, who had pleaded guilty to being carried in a vehicle taken without authority, had his sentence of twelve months imprisonment reduced, somewhat reluctantly, to a suspended sentence. This was because two of his co-accused had been sentenced to six months imprisonment, the judge intending them to go to prison but overlooking the provisions regarding mandatory suspension. Later, the judge suspended the sentences of those two and the court felt that since the co-defendants had benefited from the judge’s slip, the appellant would feel that he had been unfairly treated, the more so since their conduct was more serious than his. 25. In Reg. v. Pitson([16]) a sentence of 15 months imprisonment, imposed for theft, was regarded as an appropriate one but, having regard to the suspended terms of imprisonment passed upon other thieves and receivers, the court felt that justice could only be done by suspending the appellant’s sentence. 26. We think the foregoing a plenitude of examples to the effect that the law regarding the course to be adopted upon appeal, where sentences are shown to be disparate, offers no clear principles. Anybody avid for further examples can find them in Thomas’s Principles of Sentencing at pages 64 to 70 but, unless we are mistaken, he will also find that the examples there given afford no clearer principle than the cases which we have cited. 27. If any glimmer of principle is to be discerned it possibly has its beginnings in the case of Reg. v. Jeavons([17]) where the appellant was sentenced to nine months imprisonment for receiving 5,000 cigarettes from a thief; the thief himself had been dealt with in the magistrate’s court and fined £20. The court observed that the sentence imposed upon the appellant was not wrong in principle and said that the general rule was that discrepancy between the sentences of different defendants was not a ground for interfering. In that case, however, the court considered the discrepancy to be so great that if nothing were done the appellant would suffer a justified grievance. We emphasis the word “justified”. The sentence was varied so that the appellant, who had been in custody for two months, could be released upon the morrow. 28. The case of Jeavons was followed in Hong Kong in Reg. v. KWAN Yiu-wing([18]) where the learned president of this Court, Huggins, J., said that the premises that a prisoner should not be left with a sense of grievance was too widely stated and that he would limit it by saying that the prisoner should not be left with a “justifiable” sense of grievance. 29. In Jeavons and KWAN Yiu-wing, this Court discerns the birth of a principle based upon logic and reason as opposed to the sentiment which, in so many cases, appears to have clouded this subject for the members of individual courts both in England and Hong Kong. As it seems to us, where the sentence is “right”, by which we mean appropriate to the offence and the offender, there can be no “justifiable” sense of grievance however fortunate a co-accused may have been in regard to his particular sentence. We would suggest that the criterion is the appropriateness of the sentence passed upon the appellant and that only when it is shown that such sentence, considered in isolation, is “wrong” should an appellate court begin to consider any disparity between that sentence and the more lenient sentence imposed upon a co-accused; that disparity is then only an added factor in the “justifiable” sense of grievance which the appellant is entitled to feel by virtue of the fact that his sentence is “wrong” in the sense of being excessive; in other words the true starting point of the enquiry is the appropriateness or otherwise of the sentence to the offence and the offender. If the sentence is appropriate there can be no justifiable sense of grievance however fortunate a co-accused may have been in regard to the leniency of the sentence imposed upon him. It may be difficult for an appellant, who has received a sentence much heavier (though nonetheless appropriate to his offence and to his personal circumstances) than one imposed upon a co-accused in respect of the same offence, to accept his situation with logic; it is almost inevitable that he will take a subjective view. Nevertheless, it is from the angle of logic and objectivity that an appellate court must regard his situation and in the circumstance we have postulated the logical approach is not “How aggrieved am I” but “How fortunate was he”. 30. We are conscious that to expect such an approach from an appellant in the situation under discussion, is to counsel perfection where perfection is least likely to be found; but the court’s approach must remain objective and objectivity is not to be found by asserting in one breath that disparity of sentence is not a ground for reducing sentence and, in the next breath, reducing an appellant’s sentence for no other reason than that of disparity. The guideline should, we suggest, be the appropriateness or otherwise of the sentence to the offence and to the appellant considered in isolation from any sentences passed upon his co-accused. Nor should this be interpreted as a licence to fickleness in the imposition of sentences. Comparable sentences in comparable circumstances are desirable in the extreme but where a court of first instance has failed to achieve that result – and this happens most frequently where, for one reason or another, different parties to a crime are tried before different tribunals, a situation to be avoided wherever possible – an appellate court is more likely to create confusion and disunity by attempting to redress the balance in a downward direction than by examining the appropriateness of the sentence upon appeal and then adhering to it if in fact it is found to be a proper sentence in the circumstances of the offence and the offender. The latter course makes for consistency; the former, for that morass of inconsistency, examples of which we have quoted. In the last analysis, an over-lenient sentence represents judicial error; attempts to redress the balance by reducing a perfectly appropriate sentence passed upon a co-accused, compound the error. 31. It is sometimes said that disparity may be so great as to leave a sense of grievance which inhibits the rehabilitation of the individual suffering from it. We confess to some doubt as to whether, and how, anybody can be sure that such an effect exists – except in the extreme case where an individual avowedly threatens vengeance upon society. If in fact there be cases where the sense of grievance is so great as to retard rehabilitation, their incidence could be reduced, if appellate courts, as they should, were first to emphasise to the appellant, that his own sentence is deserved, if that be the case, and secondly, either to explain patiently the sound reasons for the disparity or admit frankly that the sentence with which comparison is sought to be made, was erroneous as being over-lenient. Much can be done at the appellate stage to remove a sense of grievance based upon disparity, where the appellant’s own sentence is “right”. 32. Applying the principles which we have attempted to formulate to the present case, the appellant, a serving policeman, eventually pleaded guilty to four charges of blackmail. His sentences of four years imprisonment, to be served concurrently, seem to all the members of this Court to be appropriate in all the circumstances. It is suggested that the learned judge did not mitigate the severity of sentences sufficiently to reflect the belated pleas of guilty. We think that he did and that his real difficulty was that in respect of the “Chief Inspector”, he was handicapped in the matter of sentence by the fact that the powers of the District Court were limited to sentences totalling five years imprisonment. The decision as to which court shall be asked to deal with any particular offender, is one for the Attorney General but we would not have considered it in any way inappropriate had the so-called “Chief Inspector” been tried on indictment and if that course meant that as a practical measure his co-accused, who was placed on probation, would also have had to be tried on indictment, that situation could have been faced. The truth is that the sentence imposed upon the “Chief Inspector” was perforce on the lenient side whilst the man placed upon probation, was in our view treated altogether too leniently. 33. Counsel for the appellant also argued, on the basis of three English cases which he quoted to us, that in England, for this type of offence, sentences tend to be in the region of two and a half to three years imprisonment. It is noticeable, however, that in each of the three cases quoted by counsel, the conviction was in respect of one offence only and if two and a half years to three years is considered an appropriate sentence in such circumstances, we see nothing untoward in sentences of four years imprisonment in respect of four offences. 34. Counsel also pointed out to us that in the case of Green and another v. Reg.([19]) the sentence upon a police officer of fifteen years standing, convicted on charges of obtaining money by false pretences, was reduced from thirty months imprisonment to eighteen months. None of the members of the present court were members of the Full Court in that case and the nature and number of the false pretences do not appear from the report. From such material as is available in the report, it is our impression that the original sentence tended to leniency and that the appellant in that case was fortunate indeed to have his sentence reduced. The case, in our view, is no more a ground for interfering with the sentence imposed upon the present appellant than is the disparate sentence of probation imposed upon one of his accomplices. 35. The application for leave to appeal is refused. Sanguinetti (David Tsang & Co.) for Appellant. Soh, C.C. for Respondent. ([2]) (1955) 39 Cr. App. R. 191 ([9]) 1970 Crim. L.R. 354 (10) Smith & Hogan: Crim. Law (2nd Ed.) p.10 (11) 1971 Crim. L.R. 107 (12) 1970 Crim. L.R. 475 (13) 1970 Crim. L.R. 475 (14) Cr. App. No. 567 of 1971 | ||||||||||||
Other judgments that cite this case