Chun Man-chuen v. The Queen

CACC001044/1977

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Coram: Huggins and Pickering, JJ.A. and McMullin, J.

Date of Judgment: 6th January 1978.

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JUDGMENT

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1. This Appellant was one of four men who broke by force into a restaurant after it was closed, held up the proprietor, who was residing in the premises, and then escaped with property stolen from the premises. One of the four, a man called WONG Yim-chuen, was arrested by the police a short distance from the restaurant. He was convicted and was sentenced to a term of eighteen months' imprisonment. This Appellant was arrested subsequently, charged and convicted. He appealed to this court against his conviction on the ground of the insufficiency of the evidence and that appeal was dismissed. We are now concerned with his application for leave to appeal against sentence.

2. He was sentenced to five years' imprisonment and the burden of the argument addressed to us has been that this Appellant suffers a sense of grievance because he was sentenced to five years' whereas his companion sentenced previously by another judge received only eighteen months' imprisonment. It is pointed out quite properly that this Appellant is two years younger and that WONG Yim-chuen not only took a more active part in the robbery but seems, as the learned judge said, to have organized it, and it was he who encouraged this Appellant to join in. Judge Hopkinson in the present case took the view that the sentence imposed on WONG Yim-chuen by a brother judge was totally inadequate and, basing himself on decisions of this court, he took as his starting point a sentence of six years' imprisonment as being appropriate for those who took part in this robbery as the main offenders. He accepted that the present Appellant played a lesser role than WONG Yim-chuen and on the basis of a notional sentence of six years on WONG he imposed five years on the present Appellant.

3. The Appellant had two previous convictions - one as long ago as 1970 which the learned judge expressly said that he disregarded. In the year 1977 he was convicted of burglary and sentenced to six months' imprisonment. That burglary was in fact committed after the offence with which we are now concerned. The learned judge said that, although the present offence was committed first and although he was disregarding the 1970 offence, he was not prepared to treat the Appellant as a first offender. In a sense, of course, he could be regarded as a first offender, but he had already been treated as a first offender - or should have been so treated but for the 1970 conviction - when he was convicted of burglary, and it is certainly questionable whether the Appellant was entitled to be treated as a first offender both on this occasion and on a previous occasion. However, we have to decide whether or not the main argument addressed to us is one which should be adopted. There is no doubt that the courts in England have accepted that co-defendants, or defendants tried at different times by different judges for the same offence, should receive parate sentences and that, where they have not, the court will interfere on the ground of disparity and of the sense of grievance which may result among the immediate parties. We have been referred to a number of cases from England where that principle appears quite clearly and they continue up to the last year. We have also been reminded of a decision of the predecessor of this court in LEUNG Hoi v Reg. 1973 H.K.L.R. 238. There the court, constituted as is this court today, decided that the law in Hong Kong should not follow the principles which have been adopted as to disparity in England, and my brother Pickering gave the judgment of the court, reviewing a large number of cases and setting out the reason why we took a different view. I would only add that it seems to me that the contrary view overlooks, or does not give full weight to, the sense of grievance which may be suffered by many other persons convicted of similar offences, and sentenced to a term of imprisonment which this court would consider appropriate, if not only WONG Yim-chuen were to get what we regard as a totally inadequate sentence but that error were to be compounded by the reduction of the sentence on the present Appellant simply because WONG Yim-chuen had been given the wrong sentence. We therefore do not attach any weight to the disparity between these two sentences.

4. However, we are satisfied that the learned judge did not give sufficient weight to the difference between the roles of these two defendants in the particular robbery. Assuming that WONG had been given a sentence of six years' imprisonment we think that a proper sentence on the present Appellant would have been one of four years' imprisonment and we allow this appeal against sentence to the extent that we reduce the sentence to one of four years' imprisonment. 

6th January 1978.

Representation: