Lam Kwan-ngai v. The Queen

CACC000350/1980

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Coram: Li, J.A., Power and Barker, JJ.

Date of Judgment: 3rd July, 1980.

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JUDGMENT

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Li, J.A.:

1. This is an application for leave to appeal against sentence. The applicant was charged with a co-accused who was a police detective constable before the District Court with a set of offences, namely, obtaining property by deception. The applicant faced a total of six charges of that nature whereas the co-accused was charged with a total of seven offences. The applicant pleaded guilty to five counts of obtaining property by deception, one court of attempt to obtain property by deception and was sentenced to a term of two and a half years' imprisonment for each offence to run concurrently. His co-accused, the detective constable, pleaded not guilty to all the identical offences charged. He was convicted, in the end, of five of these identical offences of which he was charged together with the applicant. The constable was acquitted of the offence of an attempt to obtain property by deception and the 7th charge of obtaining property by deception which charge the constable faced alone.

2. In the course of the trial the applicant gave evidence against the constable and he stood firm in his evidence. As a result the constable was rightly convicted and was sentenced only to a total of two years' imprisonment.

3. The modus operandi of these offences was such that the police constable concerned made use of his position, obtained certain gold ornaments and jewellery which should be returned to the victim of another robbery case which has no connection with any of the offences with which the applicant and the constable were charged. The victim of that robbery case had signed a receipt for the aforesaid gold ornaments and jewellery though he had not yet been given possession of them. How this came about was not in evidence. However the constable was able to make use of such ornaments and jewellery once their owner had signed the receipt. Having obtained such ornaments and jewellery this constable set about with the applicant in a joint venture. On various dates in October last year the constable provided the applicant with such gold ornaments and jewellery which the constable obtained from his police station. The appellant would pretend to pawn them to various pawnshops on all those occasions. Having pawned those articles by giving false identities the appellant then left the particular pawnshop. A short while later the constable who conspired with the applicant would handcuff the latter, bring him in to the pawnshop which had accepted the articles in pawn and say that he had caught the thief, the applicant, and want the articles to be used as exhibits in court or to further his inquiry. Invariably the constable would sign a receipt giving a false number and a false name of the station to which he was attached. They got away with no less than five occasions until the sixth occasion when they were caught while they were in the job. These are, generally, the facts of this case. How the constable could have been acquitted of the sixth charge of attempt to obtain property by deception is not clearly understandable though it is not our concern.

4. The ground of appeal against sentence is one of disparity of sentence. While the facts disclose that the applicant was neck-deep in guilt we cannot help feeling that the prime mover was the constable. He, in fact, was the leader of the two. The applicant co-operated with him. He abused his position of trust. He led the applicant in all these offences. Those deceptions would not have been practised without the gold ornaments etc. and the constable's pretence.

5. In ordinary circumstances two and a half years' imprisonment for these offences, which are serious offences, are not manifestly excessive. The Court of Appeal has said recently that when determining sentences on appeal the court will consider whether the sentences are appropriate and adopt that as the criteria. However, there are previous cases in which the full court, as it was then entitled, have said on many occasions that an appellant should not leave the court with a sense of grievance.

6. Here, in this case, there was a prime mover who was given a sentence, for exactly the same set of offences, of imprisonment for two years. It was the same judge who tried the case before whom the applicant pleaded guilty, gave evidence on behalf of the prosecution. And yet the appellant was awarded two and a half years' sentence. We do feel that in this instance the grounds of appeal must succeed.

7. Had the two accused been tried by different judges in respect of the same offences we may be justified in finding a distinction by saying that different judges have different reactions to the circumstances and merits of the case and that if there is any inequality the detective constable who had taken a more active part was fortunate to have received a lighter sentence. We cannot say the same in this case.

8. For these reasons we feel that the application for leave should be allowed. We treat the application as an appeal and reduce the sentence to a term of eighteen months' imprisonment.

Representation:

Kemal Bokhary (D.L.A.) for appellant.

Nicholas Adams for Crown.