Lee Kwan-yim v. The Queen

CACC000727/1981

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 727 OF 1981

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Coram: Silke, Barker, J.J.A., Mr. Commissioner Gittins

Date of Judgment: 9th October 1981.

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JUDGMENT

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Silke J.A.:

1. This is an appeal against sentence by LEE Kwan-yim who was the 2nd Defendant in the court below and who pleaded guilty, with his co-defendants, to a conspiracy charge relating to the defrauding of officers of the Immigration Department by means of documents containing false statements, particulars and signatures. The charge also refers to divers fraudulent means.

2. The basis of the charge was that there were certain persons living in Indonesia who could not, by reason of their status, get travel documents without having a sponsor in Hong Kong at times when they wished to come to Hong Kong. Agents in Indonesia contacted the Appellant and his Manager, the 3rd Defendant for they traded as travel agents. In turn the Appellant contacted the 1st Defendant and arranged with him for the provision of what were in fact false sponsors. The Appellant received a sum of money from Indonesia which he passed on, as the Summary of Facts said, to the 1st Defendant. That was accepted by the trial judge. The benefit to the Appellant was the travel business generated by the use of this method.

3. Leave to appeal was granted by the single judge on the 9th day of September though he made reference to a disparity of sentence as between the Appellant and the 3rd Defendant, the Manager.

4. The Grounds of Appeal before us were first: that the trial judge did accept that none of the Indonesian Chinese who made use this facility remained after their falsely acquired visas had expired. On this it would be to be expected that, had this been a deliberate attempt to introduce staying illegal immigrants into Hong Kong, then the sentence upon the Appellant would have been substantially higher.

5. Secondly the fourth ground which relates to the trial judge failing to give full credit for his plea of guilty to the Appellant. In his judgment - or rather his Reasons for Sentence - the trial judge did bear in mind the fact that all three defendants had pleaded guilty, thereby avoiding the expense of a trial of sixteen days' duration. He adverted to the fact that they had pleaded not guilty on plea day and it was not until the actual day of hearing that they changed their pleas. He was perfectly entitled to take that into consideration and he did quite clearly bear in mind the plea. What discount - to use that word - should be given, in these circumstances, is a matter for the trial judge and it was a matter which he had in mind. He also referred to the fact that the evidence as against the Appellant would appear to be overwhelming. It has been suggested that this was a misconception but on the facts which appeared on the record that which he said would appear to be entirely correct.

6. The third ground related to a disparity of sentences here as between those imposed in two previous cases, which arose out of the same investigation, and involving similar charges. We do note in connection with this that the 1st Defendant in the instant trial was neither charged nor convicted with those offences, though apparently there was a reference to his involvement in them. In those cases, travel agents with clear records were given suspended sentences together with a substantial fine. It is our view that those sentences were inadequate in the circumstances generally pertaining to those offences and we take the view that it would not be right for us to perpetuate that which was a wrong sentence - and I am speaking at the moment generally in relation to the sentences imposed there and the ones imposed here.

7. The second ground on the papers, which was the main ground argued by Mr. Nguyen, was the disparity or the apparent disparity of sentence as between the 1st Defendant who got twelve months and the Appellant who received the same sentences. This is based on the premise that the 1st Defendant's culpability was considerably greater than that of the Appellant. We found difficulty in accepting that submission in that the Appellant who, although this does not appear upon the facts, may have been aware of the propensity of the 1st Defendant to enter into transactions of this kind, did go to the 1st Defendant and together with him made the arrangements which resulted in the joint charge which was brought against them.

8. On the last occasion we saw fit to adjourn this matter in order to ascertain what course would be taken by the 1st Defendant who was the accused in another trial concerned with similar matters. We are told that yesterday he pleaded guilty and was sentenced to a period of eighteen months concurrent with the sentence imposed in the instant case and to start on the same day.

9. We must consider whether if, there be a disparity at all as between the 1st Defendant and the Appellant, that disparity was gross. We have been referred to Stroud⁽¹⁾ and Potter⁽²⁾ which latter case was referred to in Stroud⁽¹⁾. There, Roskill L.J., as he then was, made reference to a case described as "Brown's case" which is unreported. He went on to cite the judgment of the Lord Chief Justice in that particular case - and this has bearing on the real sense of grievance issue raised by Mr. Nguyen. He quoted the Lord Chief Justice as saying:-

"This in our experience is a somewhat novel argument. The practice of the Court to give effect to what is popularly called 'the disparity argument' is itself a relatively new feature in the practice of this Court. It arises only when the would be appellant has received a sentence which the Court thinks proper in itself but which is so disparate when compared with other sentences passed at the same time - I would venture to italicise those four words 'at the same time' - 'that a real sense of grievance may thereby be engendered in the person upon whom it is passed. It was never intended that a sentence should be reduced on the basis of disparity unless there was such a glaring difference between the treatment of one man as compared with another that a real sense of grievance would be engendered in the case of a man suffering the more serious penalty. That practice is well established now. We would not wish to disturb it, but we would certainly wish to say as a matter of general principle that an argument based on disparity should he based on the circumstances prevailing when the sentence attacked was itself passed, and we do not think, save in the most exceptional circumstances, that it should ever be proper for the Court to listen to an argument based on disparity which involves bringing in subsequent sentences passed on other people before a different judge in another court. The argument should be based, if it is to be raised at all, upon the circumstances prevailing at the time when the criticised sentence is imposed, and that would mean in this case that the disparity argument would have to be based on the circumstances prevailing on July 25 and in the light of the sentences passed on that day."

Roskill L.J. commented that there could of course be cases in one or two in the books, one being Potter⁽²⁾ , where there were that which the Lord Chief Justice referred to in Brown as, "most exceptional circumstances" and he went on to say at p. 154:

"But the general principle is, as I have endeavoured to restate, by quoting from the judgment of the Lord Chief Justice. In BROWN's case the disparity was with a sentence passed subsequently. But the principle is the same whether the other contrasted sentence was passed before or after the sentence appealed from."

That which I have quoted from Stroud⁽¹⁾ applies to both grounds two and three in the instant appeal.

10. In our view there is no such gross disparity as between the participants in this case. In considering that which occurred yesterday, speaking for myself, I take the view that the sentence then passed simply reflects the greater culpability, in relation to offences generally of this kind, of the 1st Defendant. But at the time of the trial here there was very little difference as between himself and the Appellant and even now, in the light of the sentence imposed yesterday, there is no gross disparity. In relation to the previous sentences they were, as I said, inadequate and it would be wrong for this court to perpetuate their inadequacy.

11. In the event the sentence on the face of it and on the facts, and notwithstanding Mr. Nguyen's argument, is a proper one and we would dismiss the appeal.

Representation:

Peter Nguyen, Esq., instructed by Sousae & Hoosen for Appellant.

J. McNamara, Esq., for the Crown.

(1) [1977] Crim. App. Reports 150

(2) [1977] Crim. L. Rev. 112

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 727 OF 1981

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Coram: Silke, Barker, JJ.A., Mr. Commissioner Gittins

Date of Judgment: 9th October 1981.

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ERRATUM

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Please substitute for the final paragraph on page 4 of this judgment the following:

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12. In our view there is no such gross disparity as between the participants in this case. In considering that which occurred yesterday, speaking for myself, I take the view that the sentence then passed simply reflects the greater culpability, in relation to offences generally of this kind, of the 1st Defendant. But at the time of the trial here there was very little difference as between himself and the Appellant and even now, in the light of the sentence imposed yesterday, there is no gross disparity. In relation to the previous sentences they were, as I said, inadequate and it would be wrong for this court to perpetuate their inadequacy.

13. In the event the sentence on the face of it and on the facts, and notwithstanding Mr. Nguyen's argument, is a proper one and we would dismiss the appeal.

Representation: