Case Document

CACC000494/1999

CACC 494/1999

HEADNOTE

Dissimilarity of sentences received by co-defendants. (So Hung Lee and Another [1986] HKLR 1049, and R v Stroud (1977) 65 CrApp 150 followed). Simultaneous sentencing of co-defendants desirable.

CACC 494/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 494 OF 1999

(ON APPEAL FROM HCCC 394 OF 1998)

____________________

BETWEEN
	HKSAR	Respondent

	AND

	LEUNG YIU MING	1st Applicant
	CHAN TSZ KEUNG	2nd Applicant

____________________

Coram: Hon Nazareth VP, Stuart Moore VP and Wong JA in Court

Date of Hearing: 24 December 1999

Date of Judgment: 24 December 1999

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J U D G M E N T

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Nazareth VP (giving the judgment of the Court) :

1. These are applications for leave to appeal made out of time by the two applicants who were sentenced by Gall J on 4 March 1999 after pleading guilty before him. They are made solely upon the claimed disparity between the sentences passed on them and those upon three co-accused who pleaded not guilty and were tried and sentenced by Mr Recorder Ronny Wong in August 1999. The 1st applicant made his application for leave on 14 September 1999 and the 2nd applicant on 9 December 1999. Both were substantially out of time. However, both have good reasons for the delay. The dissimilar sentences were imposed only in August and they learned of them only a few days before applying for leave. We think that in the circumstances they had good reason for the delay.

2. In their written notices of application for leave, the applicants relied on substantially the same ground of dissimilarity in the sentences. As the 2nd applicant put it in his notice of application for leave, the judge took 24 years as the starting point against him whereas that taken for the three co-defendants who pleaded not guilty was 22 years and they were sent to prison for terms of 20-22 years. Neither added to such ground before us.

3. Miss Denise Chan, who appears for the respondent, the Hong Kong SAR, confronts the applicants' ground head on. She submits, and we accept, that in its judgment which binds us, this Court in R v So Hung Lee and Another [1986] HKLR 1049; 1052 after addressing previous inconsistent decisions held that two relevant situations can arise. The first is where there is a disparity between sentences passed on the same occasion by the same judge, in which case the sentence should be varied by this Court but only if it can be shown that the judge has not properly apportioned the blame between the accused persons. That is not the case here. The second situation is when different sentences are passed on different accused for the same offences by different judges on different occasions. In such a case, the court held that the only consideration must be whether the sentence passed on the appellant or applicant was appropriate, following the approach of Roskill LJ (as he then was) in R v Stroud (1977) 65 CrAppR 150; 152. In the case of the applicants here, it can plainly be seen that although they fit within the second situation, the sentences imposed by Gall J are well within the relevant guidelines that are to be found in R v Lau Tak Ming [1990] 2 HKLR 370. However, it can be seen from p.154 of Stroud that what it restated was in the nature of a general principle that would apply save in the "most exceptional circumstances". In that regard, Miss Chan very properly drew our attention also to the judgment in R v Wong Kai Kong [1999]1 HKC 279, a case to which this is similar in that it was both, first, an application for an extension of time in which to make the application for leave to leave, and second, if that were granted, also for leave to appeal. Silke VP, having addressed certain authorities, said this at p.281B-D:

"The proposition emerges from those authorities that it is open to this court to take that which Hunter JA in Ip Chung Hang described as an 'unusual course', that the court look at the grounds of appeal to see if they seem to its members to be impressive and to check:

That by refusing leave to appeal, we were not shutting out a substantial and plainly arguable ground of appeal.

In this exercise, this court should bear in mind that substantial grounds must be shown for the delay before the granting of the indulgence. The longer the delay, the more onerous is the duty of the person making application ..."

4. As to the delay in making their applications, as we have already noted, the applicants had good reason. We turn then to whether their grounds appear to us to be impressive and to check whether by refusing leave to appeal we may be shutting out a substantial and plainly arguable ground of appeal.

5. In addressing the starting point in respect of the 1st co-offender, the Recorder, having noted the undisturbed trial court starting point of 24 years for 5,825.57 grammes in Lau Tak Ming and its approximate adoption by Gall J, went on to say this:

"The amount of drugs involved in the 2nd Count is, however, less. I am of the view that a starting point of 22 years should be adopted. I see no relevant ground of mitigation in relation to the 1st accused. He showed no remorse in contesting the indictment to the end. He is sentenced to a term of 22 years imprisonment in respect of the 2nd Count."

6. It would seem at first sight that the Recorder was saying that the amount of drugs charged in count 2 before him (i.e. 4,901.53 grammes) was less than the approximately 5,825.57 grammes charged in Lau Tak Ming. But that does not make sense in the particular circumstances and we are satisfied that he was in fact referring to the totality of drugs charged before him in relation to the totality before Gall J, for the purpose of assessing the total sentence to be achieved by way of concurrent sentences. The totality before the Recorder was the lesser, albeit by a relatively small amount, but it entitled him to take a lower starting point (see HKSAR v Yip Pik Kwai [1993] 3 HKLRD 42). He was also entitled, in our view, to rely on the lower number of offences as involving in the circumstances a lower range of criminality.

7. It can thus be seen that any sense of grievance on the part of the applicants at the higher starting points taken in respect of them is misconceived, and cannot found any claim for a lower sentence.

8. For the reasons we have given, we grant the extension of time sought but having done so, we refuse leave to appeal.

9. Before we leave the matter, we have to refer to the numerous occasions on which this Court has pointed to the desirability of all the defendants in a particular case being sentenced at the same time. This application before us has come about only because that was not done. Sometimes there is good reason why simultaneous sentencing cannot be achieved. But in this case, the two applicants pleaded guilty. It was plain that even so they were facing sentences of the order of about 15 years. Therefore, there does not appear to have been any good reason for sentencing to have immediately been carried out. The matter could have been deferred until the co-defendants came up for sentence. Apparently, no application to defer sentencing was made by the prosecution. It would have been desirable for such an application to have been made. We learn from Miss Chan that appropriate steps have been taken to avoid repetition in that respect. We also feel bound to say in the absence of any good reason that would warrant that course, that it is unfortunate that the judge decided not to defer sentencing. To a much less extent, it would also seem unfortunate that the same starting point was not used in respect of the co-offenders. This could so easily have been done to avoid the dissimilarity that so often results in similar unmeritorious appeals, given that in both lots of sentences the heaviest fell closely together in the broadest band of Lau Tak Ming.