香港特別行政區 訴 周德祥

[1] Cheng Ka Wing [2001] 2 HKLRD 206 at page 264: “We accept that there may be an objectionable disparity of sentences where one of two, or more, defendants receives, from the same judge and at the same time, a more severe sentence than the other, or others and the difference is not justified by any relevant distinction in their culpability or personal circumstances.＂

[2] Cheng Ka Wing (above also at page 264): “However the judge was not dealing with adult offenders, the defendants before her were young offenders and it was incumbent upon her to ensure, so far as she could, that each received a sentence that was appropriate for his needs and would best give him a chance to reform.”

[3] [1996] 2 Cr App R(S) S248, at page 249 to 250: “This brings us to the question of disparity.  On the face of it, the appellant could have expected to receive a sentence somewhat less severe than that imposed on King whose culpability was greater, whose record of offending was significantly worse and who had pleaded guilty to other serious charges.  One can see from the sentencing remarks that in King’s case, the learned judge was originally thinking in terms of a lengthy term of imprisonment presumably significantly in excess of that which he passed on the appellant.  In the event, he was persuaded by what he had read and heard about him that King had reached the point at which he had sufficient motivation to change his ways.  For that reason, the judge was persuaded to take what he himself described as the exceptional course of putting King on probation with condition that he participate in a residential project.  It has been recognised on a number of previous occasions that it may be appropriate to take this course with a persistent offender who otherwise faces a significant term of imprisonment if there is sufficient reason to think that it may be possible to break the cycle of offending once and for all.  Clearly, the learned judge took that view in this case and took the view that there were sufficient grounds for thinking that King may be able to change his ways if given the chance, and we would not wish to criticise him for doing so.  Unfortunately, however, the appellant was not in the same position.  There were not the same reasons in this case for believing that he was highly motivated to change his ways.  Moreover, having been sentenced by the magistrate to a term of imprisonment for his driving while disqualified, he was not at liberty.  In the circumstances, the judge cannot be criticised for taking the course he did, having regard to the differences between these two men’s personal circumstances which satisfactorily account in our view for the different treatment accorded to them in this case.”