Choi Wah-hing v. The Queen

CACC000859/1981

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Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 16 March 1982

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J U D G M E N T

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McMullin, V.-P. :

1. The appellant was given leave to appeal out of time against sentence on the 22nd February, 1982.

2. We have already dealt with his appeal against conviction which was dismissed on the 7th January, 1982.

3. The circumstances of the offence, an offence of robbery, were very briefly as follows.

4. On the 7th April, 1980 at 1.00 a.m., a taxi driver by the name of Leung, picked up three men near Nam Cheong Street, Tai Po Road. They got into the taxi and directed him to go to Tai Wor Ping, a temporary housing estate. One of the men sat in front and the two others sat behind.

5. When they got to Tai Wor Ping, the man, who was in front, suddenly grabbed Leung round the neck with his arm, and one of the men sitting at the rear of the taxi produced a knife and pointed it at him. He was then relieved of $140 which was about his person and $20 more was taken from his cash box.

6. He was then pushed out of the taxi and the men drove away in it. He chased them in another taxi and followed them to Yiu Tung Street. He then got out and went along Tai Po Road looking for help and by good fortune came upon four uniformed police constables. They got into the taxi and drove with the victim along Tai Po Road. He then saw three men whom he alleged were the robbers. The police constables alighted and seized the three men.

7. The victim went back and found his own taxi abandoned in Yiu Tung Street. He found some wire there. His hands had been bound by wire when he was first assaulted. He also found a bunch of keys in his taxi which did not belong to him and these he gave to the police.

8. Subsequent to the arrest of this appellant, he was granted bail and we understand that he absconded and left Hong Kong. That would have been shortly before September 1980. He didn't return until the latter part of 1981 and he was then arrested and brought before a different judge for trial. He was tried and convicted.

9. The other two had appeared before Judge Davies and had pleaded guilty. They received detention centre treatment.

10. The only point of substance in this appeal is that there is a very considerable disparity between the detention centre treatment meted out to the other two robbers and the five years' imprisonment imposed in the present case.

11. We have come to the conclusion, not without some reluctance, that we must interfere in this case.

12. The judge who imposed sentence in this case, Judge Clough, referred to the fact that the defendant's accomplices were under 25 when they were sentenced and that they had been sent to the detention centre. He remarked that the defendant is not a young offender. That is true, the defendant is in fact 27 years of age.

13. The judge considered that it would not be unfair discrimination if this defendant received a sentence appropriate to his age and the circumstances of his offence.

14. He took into account the fact of a clear record prior to the committing of this offence.

15. It must be said that a sentence of five years' imprisonment for a taxi robbery of this kind is not, in our view, excessive. It may, perhaps, be on the high side but for a single offence of this kind, four to five years is by no means excessive.

16. In previous cases, the court has considered the plea of disparity of sentence. It has been held, in a judgment by the late Mr. Justice Pickering some three or four years ago (KONG Ming & others v. R.⁽¹⁾), that disparity is not a good cause for interfering provided the sentence is in itself a proper sentence. A plea of grievance by virtue of disparity will be entertained by the appellate court only when the grievance is considered to be justified. A grievance is not justified merely because other offenders have received a lesser sentence for the same offence when the sentence being considered by the appellate court is appropriate to the offence and the offender.

17. We do not wish to depart from that principle. We are minded, however, to interfere with this sentence wholly on the basis that the disparity between the sentences imposed is so gross. This case is, therefore, not to be taken in any way as a headline in future cases where disparity is raised upon appeal.

18. In a sense, the appellant is the author of his own misfortune by jumping bail. It may well be that had he appeared before the same judge who sentenced the other defendants he would have been considerably more leniently dealt with.

19. So far as the circumstances of the offence itself are concerned, this appellant would appear to be neither more nor less guilty than his co-accused of every act which occurred in the course of the robbery.

20. All three therefore merited the same kind of considerations so far as the circumstances of the robbery are concerned and there is, so far as we know, nothing in the personal background of this appellant to distinguish him from the other accused. We think that in view of this gross disparity we should intervene.

21. The appeal is allowed to the extent that the sentence of five years will be set aside and instead there will be substituted a sentence of three years only.

(1) (1977) H.K.L.R. 674

Representation:

Appellant in person

G. Alderdice, for respondent/Crown