Chiu Yan-biu v. The Queen

CACC000210A/1982

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Coram: McMullin V.-P., Li & Silke, JJ.A.

Date: 9 December 1982

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JUDGMENT

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Silke, J.A.:

1. The applicant, CHIU Yan-biu, was the 4th defendant at trial. He had appealed against his conviction, on the 1st March 1982, for burglary. That appeal was dismissed on 20th October of this year. He now seeks an extension of time within which to make application for leave to appeal against sentence of four and one half years.

2. His basic ground is disparity leading to a justifiable sense of grievance. That is, the disparity in relation to sentence passed on a co-defendant, the 3rd defendant at trial, and himself.

3. At trial the 3rd defendant was convicted of five counts of that which the trial judge described as "serious burglaries" and Mr. Poll, who appears for the Crown on this appeal, informs us that the total value of the goods involved in those five counts was about half a million dollars. He received a totality of sentence of five years.

4. The 3rd defendant was also sentenced to a further period of two years' imprisonment, consecutive to the sentences imposed on burglary charges, on a charge of handling - making an overall totality of seven years.

5. On his appeal that totality of seven was reduced to five as the Court of Appeal felt that the handling charge was so intermingled with the burglary charges that it could have been a sixth charge of burglary rather than a separate charge of handling. If this had been so then in all probability he would have received just five years.

6. We do note that there is a very considerable difference between the applicant here and the 3rd defendant.

7. First, as to the value of the goods involved in the respective burglaries - half a million dollars as opposed to about $20,000 - secondly, in the number of offences - five as opposed to one - and thirdly, the previous records of the two men.

8. The 3rd defendant had a much worse record. He had been previously convicted of a serie of burglaries in 1971, a robbery in 1974, and a further burglary and going equipped for stealing in 1979.

9. The applicant had in 1974 been sent to the Detention Centre for an offence connected with sexual matters. In 1977 he was fined for claiming to be a member of a triad society. In 1978 he was sentenced for two years for burglary.

10. In the light of the differences that I have just outlined, we think that the applicant, in relation to his sentence of four and one half years, could well have a justifiable sense of grievance. Because of that we are minded to allow the application for extension of time within which to make application for leave to appeal.

11. We allow the application and allow the appeal to this extent that the sentence of four and one half years is quashed and a sentence of three years' imprisonment is substituted therefor and that will run from the normal time.

Representation:

Applicant in person.

M.E.D. Poll, Esq., for Crown/Respondent.