Fung Siu-keung v. The Queen

CACC000516/1981

Case No.: Criminal Appeal No. 516 of 1981

Date of hearing: 7th August, 1981.

Date when judgment was delivered: 7th August, 1981.

Coram: Roberts, C.J., McMullin, V.P. and Li, J.A.

Date of Judgment: 7th August, 1981.

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JUDGMENT

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Roberts, C.J.:

1. FUNG Siu-Keung, the second defendant at the trial, was granted leave to appeal against sentence by a single judge.

2. The essence of the appellant's complaint is that although he played a lesser role in the events which led to the conviction of himself and his co-accused, he nevertheless received a sentence of five years' imprisonment, whereas his colleague, the first defendant, was sentenced to three years' imprisonment.

3. It is indeed apparent, from an examination of the facts of the case that the principal role was played by the first defendant CHAN Shing-chau, and that the second defendant's part was a more limited one.

4. The general tariff to be adopted by courts in drug trafficking cases was set out by this court in R. v. CHAN Chi-ming⁽¹⁾ in 1979, when it was said that the normal tariff for drug trafficking if it involved between 150 and 1,000 grammes of mixture containing heroin, was five to eight years. In sentencing the first defendant to three years' imprisonment, Judge Cruden makes no reference to this tariff and gives no reason as to why his sentence was substantially below it.

5. The first defendant was sentenced on the 2nd April, this year, by Judge Cruden and the second defendant, the appellant, was sentenced by Judge Evans on the 27th May. Judge Evans considered carefully the guidelines set out in R. v. CHAN Chi-ming⁽¹⁾, to which I have just referred, and concluded, rightly in our view, that the appropriate sentence for this offence, to which the defendant had pleaded guilty was one of five years' imprisonment.

6. Judge Evans stated in his reasonsfor sentence that he was confronted with the difficulty that a sentence of five years could not easily be reconciled with a sentence of three years passed on the first accused. Nevertheless, he decided that his correct course was to follow the normal tariff.

7. In our view, Judge Evans was correct. The sentence imposed by Judge Cruden was clearly below the normal sentence for an offence of this nature. It is not uncommon for this court to be asked to reduce a sentence on the ground that an appellant feels a sense of grievance because someone else involved with him in the same offence has received a lesser sentence than himself.

8. In general terms, however, if a sentence is a proper one it should stand, even though a sentence less than the proper one may have been imposed on a co-defendant, or on other defendants in similar cases.

9. The appeal is dismissed and the sentence of five years imposed by the district judge is upheld.

Representation:

Appellant in person.

J.W. Dick, S.C.C. for Respondent.

(1) Crim. App. No. 1167/78