Chun Chi-cheung v. The Queen

CACC000362/1982

BETWEEN

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Coram: Roberts, C.J., Li & Silke, JJ.A.

Date: 28 October 1982

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JUDGMENT

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[Sentence: co-accused sentenced 1980: applicant sentenced 1982: differences in sentence: Disparity not a reason for alteration of higher sentence.]

Silke, J.A.:

1. The applicant was convicted on his own plea on the 6th April 1982 of an offence of attempted robbery and was sentenced to a period of 5Yz years' imprisonment. He applies for leave to appeal against that sentence.

2. On the 31st day of March 1980 when a gang of men armed with beef knives rushed into the Buckingham Ballroom at Nathan Road; tied up the denizens and cut the telephone wire. They were frustrated in their attempts to open a safe. The police arrived and several were arrested on the roof and others in the immediate vicinity.

3. Bail was allowed to the applicant but he did not surrender to it on the day of trial. At that trial, five of his co-accused were convicted and received sentences, in September 1980, ranging from three years to Detention Centre.

4. He was re-arrested in March of 1982 and convicted on the 6th April on his own plea. At the time of the offence he was aged 19.

5. There is nothing wrong in principle in the sentence of 5.5 Years passed upon him. The only matter which has given us cause for concern is the difference between his sentence and the sentences passed upon his co-accused.

6. In 1980, had he appeared at his trial, is likely that he would have received a sentence somewhat less than 5.5 years. The scale in those days was lower than it is now. The "tariff" case of Mo ⁽¹⁾ had not yet been decided.  We emphasize that the course we have in mind is not to be taken as any indication that, of itself, disparity between one sentence and another would be a good ground for the reduction of the higher sentence.

7. In the unusual circumstances of this case, we allow the application for leave to appeal; allow the appeal and quash the sentence of 5.5 years substituting therefor one of 4 years' imprisonment.

(1)    1981 H.K.L.R.610

Representation:

Appellant in person.

Mr. J.W. Dick for Grown/Respondent.