The Queen v. Tam Pui Yan

IN THE COURT OF APPEAL

1986, No. 611
(Criminal)

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BETWEEN

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Coram: Hon. Yang, Hon. Silke, JJ.A and Penlington, J

Date of hearing: 17^th February 1987

Date of delivery of judgment : 17^th February 1987

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JUDGMENT

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Penlington, J:

1. This is an application for leave to appeal against sentences on charges of burglary and possession of an offensive weapon passed by Sanders D.J. in Kowloon District Court. The applicant pleaded guilty to both charges.

2. The facts of the case as agreed at the trial were that the cook of a congee shop in Cheung Sha Wan Road was awakened in the early hours of the morning of the 14^th October 1985 by noises of the sawing of iron bars. He called the police who arrived and found two men hiding beneath a stove. They were arrested and this applicant was then found on the 9^th floor of the building. He was carrying a wooden pole which he brandished at the police and shouted “Don’t come near”. At this hearing, he has tried to say that in fact he was not in any way attacking the police but had come by the pole because it had fallen from a door which he was trying to open. However, he pleaded guilty to the charge of being in possession of an offensive weapon at the trial and he cannot now put forward a different version which in effect is a plea of not guilty. There was however no evidence that the applicant brought the pole with him when he entered the shop.

3. The trial judge sentenced the applicant on the charge of burglary to 2½ years’ imprisonment and on the charge of possession of an offensive weapon to 3 months’ imprisonment, consecutive. He also activated a suspended sentence of 1 year’s imprisonment which had been passed in 1983 on a similar charge of burglary and commented that this sentence had probably not been activated in 1984 when the applicant was convicted of yet another charge of burglary, because it had not been brought to the Court’s attention. This made a total sentence of 3 years and 9 months. The trial judge said he allowed a discount of 6 months for the applicant’s plea of guilty.

4. The applicant’s main ground of appeal is that his fellow defendants were treated much more leniently than he was by a different judge. One received a sentence of 9 months’ imprisonment and the other also to 9 months’ imprisonment but suspended. The reason for the applicant not being sentenced with them was that he was granted bail pending trial but failed to appear. He surrendered himself a year later, having been back to China for a period, a fact which was not apparently brought to the trial judge’s attention.

5. On the facts of the case it is difficult to see that there was any great difference between the roles played by each of the 3 defendants. Mr. Bruce for the Crown points out each claimed to be a look-out.

6. This Court in R. V. So Hung-lee and Another, Criminal Appeal No. 408 of 1985 adopted the dicta of Roskill, L.J. in Stroud, 1977, 65 Cr. App. R. 150:

“It is said that there is here such a glaring disparity that this Court ought to interfere in order to remove what is said to be a grievance on the part of the appellant Stroud.

That argument pressed to its logical conclusion would mean, as Scarman, L.J. Pointed out during the course of the appeal, that because one inadequate sentence was wrong, the other prisoner must also get a glaringly inadequate sentence in order to produce what is said to be a proper adjustment between the two and to avoid disparity. In the view of this Court that is quite wrong.”

And said that in such a case the only consideration must be whether the sentence passed on the appellant was appropriate. While here there is clearly a very substantial difference in the sentences passed, what, however, does cause us some concern is that the fact that the applicant had surrendered himself to the police may not have been brought to the judge’s attention. For person to voluntarily surrender himself is a matter of substantial mitigation. What has clearly influenced the trial judge in passing sentences differing from those imposed on the other defendants was the fact that the applicant had two previous convictions for burglary, both recent. We feel he may have given too much weight to that factor ard, taking into account the fact that the applicant did surrender himself and did plead guilty, we consider that a sentence of 18 months on the burglary charge would be appropriate. We do not interfere with the sentence on the other charge on with the activation of the suspended sentence. This gives an overall sentence of 2 years and 9 months. The application for leave is therefore granted and the sentences amended accordingly.

Applicant in person

Mr. A.A. Bruce, S.C.C. and Eddie Sean, C.C. for Respondent