R. v. Cheung Yuk Kwan

CACC000472/1996

IN THE COURT OF APPEAL

1996, No. 472

(Criminal)

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Coram: Bokhary, Mortimer & Liu JJA in Court

Date of hearing: 30, April 1997

Date of judgment: 30, April 1997

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J U D G M E N T

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Bokhary JA:

1. This application for leave to appeal against sentence comes to us from a case before His Honour Judge Whaley in the District Court.

2. The applicant is a man of previous good character in his early 40's.

3. Together with a co-accused in his late 60's, he faced 15 charges of obtaining property by deception. Both men were convicted after trial on all charges. That was on June 21 last year.

4. Background reports were obtained and considered.

5. Sentencing took place on August 12 last year.

6. The applicant received a total of four years' imprisonment by way of a concurrent term of that duration on each charge. His co-accused received a total of 1½ years' imprisonment by way of a concurrent term of that duration on each charge.

7. Turning to the grounds of appeal which have been lodged, there are three of them.

8. The first ground is that the applicant's sentence is manifestly excessive. The second is that he was "wrongly sentenced upon the basis of his having committed offences other than those with which he was charged". And the third involves a complaint of disparity between his sentence and that passed upon his co-accused.

9. Looked at on its own, consisting of a bare assertion that a sentence of four years' imprisonment is manifestly excessive, the first ground has no substance. Does it gain anything from an examination of the other grounds?

10. Since he prepared the second ground, counsel for the applicant has seen the difficulty in his way arising from this unequivocal statement by the judge in giving his reasons for sentencing this applicant as he did:

"I sentence him only on the basis of what has been proved on the evidence in relation to the charges."

The second ground was inspired by certain things which the judge had said earlier on. But the judge only said those things when he was quite properly noting the evidence which he had received in the course of the trial.

11. Coming to the third and final ground, it is to be observed that the judge made essentially three points of distinction between this applicant and his co-accused.

12. The first is that the co-accused was much older. That is an undeniable fact. It is equally undeniable that it lies within the discretion of a sentencing judge to take into account, in favour of a person to be sentenced, the fact that such person is of advanced years. That is especially so when the person is of good character. True, this applicant is also of good character. But unlike the other man, he could not say that he had almost reached his twilight years without ever having fallen foul of the law.

As to the second point of distinction which the judge made, it was expressed in these words:

"Although I have found that both defendants were involved in the joint venture in devising and implementing this fraudulence scheme, I do accept that, on the evidence which is to hand, the first defendant appears to have been more involved than the 2nd defendant and appears to, from the facts to hand, I have got his hands upon a far larger portion of the fraudulent profits than the 2nd defendant did.

13. The first element of that point of distinction rests on surer foundations than the second. That is because if one were to say that his co-accused got his hands on less money than the applicant did, then one would be looking at matters not strictly encompassed by the charges themselves. But at the end of the day, it is to be noticed that the judge qualified his observations by the formula "appears to".

14. In those circumstances, we think that we must take the judge strictly at his word when he says , as we have noted, that he sentenced this applicant on the basis of what had been proved on the evidence in relation to the charges.

15. Finally, the third point of distinction which the judge made was that the co-accused might have been driven to desperation by his son's gambling debts.

16. It is said that that might be speculation on the part of the judge. To us, it seems more like a humane awareness of the realities of life, of human frailties, and of why a man may act wholly out of character.

17. At the end of the day, it may well be that the sentence passed on the co-accused was a merciful one . Mercy is not a dirty word in the courts. And when a man has, as we have said, almost reached the twilight years of his life without having infringed the law, he stands on fairly sure foundations in seeking mercy. Certainly, the judge cannot be said to have strayed beyond his powers in showing mercy to the co-accused here.

18. The difference between the way in which the judge treated the two men before him does not enable this applicant legitimately to say that not only has he got a sense of grievance but that it is a justifiable one.

19. In our judgment, the sentence passed on this applicant was well within the judge's sentencing powers: neither wrong in principle nor manifestly excessive.

20. Leave to appeal against that sentence is accordingly refused.

Representation:

Mr Christopher Grounds & Mr Sher Hon-piu (instructed by M/s P Y Chan & Co) for the applicant

Mr John Reading (of the Attorney General's Chambers) for the respondent