Chan Hung Leung v. The Queen

CACC000750/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 750 OF 1971

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Coram: Pickering, J.

Date of Judgment: 25th November, 1971.

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JUDGMENT

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1. The appellant was charged with assault occasioning actual bodily harm contrary to s.39 of the Offences Against the Person Ordinance, Cap. 212, the circumstances being that on the 24th September last, he was one of about forty men attending a class in a classroom of Chi Ma Wan Prison. The appellant left the classroom to attend the barbers' shop and on his return found that a certain TONG Sing-ming was occupying the seat which he himself had previously occupied. Upon being asked to vacate the seat, TONG Sing-ming refused and was thereupon pulled off the seat and kicked by the appellant; a scuffle ensued and the class prefect, who was also charged with the appellant, intervened and punched TONG Sing-ming when the latter disregarded his warning to stop the fight. At this stage the fighting in fact ended and the three again seated themselves.

2. Preliminary medical examination of the three men revealed no injuries but TONG Sing-ming was subsequently admitted to Queen Elizabeth Hospital where he was found to have a ruptured kidney and was detained for about one week.

3. The learned magistrate sentenced the appellant to six months imprisonment and the class prefect to one month's imprisonment. It is apparent from his Statement of Findings that the learned magistrate was aware of the sharp distinction in sentence and that this was deliberate and the magistrate points out that the appellant started the fight, the second defendant intervened in his capacity of class prefect and there was no warder in the classroom at the time of the incident. He considered these matters to constitute strong mitigating factors in favour of the second defendant and with that view I entirely agree.

4. At the same time however, the disparity of sentence is enormous, the accused having received six times the sentence of imprisonment imposed upon the second defendant. Whilst disparity of sentence is not a ground upon which an appellate court will necessarily or even usually interfere, it will do so if the disparity is such as to leave an appellant with a justified sense of grievance. An example is the case of Richards v. The Queen⁽¹⁾ where Lord Goddard, C.J. said:

"          The fact that one of two prisoners jointly indicted has received too short a sentence is not a ground on which this court necessarily interferes with a longer sentence passed on the other; what has to be shown is that the prisoner appealing has received too long a sentence. If both these women had been sentenced to 4 years' imprisonment, we probably should not have interfered; but there is a very considerable disparity between the sentences, the daughter having received just twice as much as the mother. Although we think that the applicant did deserve the sentence passed on her, the disparity is one which in our opinion this court ought to take into account."

Other instances of sentences being reduced as a result of the disparity of sentence imposed upon another accused, arose in Dermody's case⁽²⁾ and in CHAN Kat-lan-hoi and others v. The Queen⁽³⁾ and see the observation of Huggins, J. in KWAN Yiu-wing v. The Queen⁽⁴⁾.

5. Had the sentence in the present case stood alone I would be far from saying that it was unmerited, but viewed against that imposed upon the second accused, it must inevitably leave the appellant with a justified sense of grievance and it is for that reason and for that reason only that I allow the appeal, set aside the sentence of six months imprisonment and substitute a sentence of three months imprisonment.

Representation:

(1) 39 Cr. App. R. 191

(2) 1959 Cr. L.R. 63

(3) 1965 H.K.L.R. 289

(4) 1966 H.K.L.R. 752 @ 764.