The Queen v. Chi Pak Keung

CACC000086/1991

BETWEEN

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Coram: Hon. Silke, V.P., Power & Penlington, JJ.A.

Date of hearing: 19 December 1991

Date of delivery of judgment: 19 December 1991

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JUDGMENT

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Penlington, J.A.:

1. This is an application for leave to appeal against sentence. The facts of the matter were that two men, one of whom was the applicant, went to a funeral parlour where the applicant produced a knife and the proprietor of the funeral parlour was robbed of his watch and other valuables.

2. The applicant pleaded guilty at the trial and was sentenced to five years' imprisonment. No real complaint can be made of that sentence in view of the guidelines which have been set down for the offence of robbery in business premises involving the use of a knife. Mr. Westbrook has argued this matter on the basis that the other accused, who pleaded not guilty and was sentenced after trial, received a sentence of only four-and-a-half years, i.e. less than that received by the applicant despite his plea of guilty. The trial judge found that the role played by the two men was different; the applicant was the man who carried a knife, he was the ringleader and planned this enterprise; also he was older than the other accused - 30 as against 22 - and he has a relevant previous conviction for possession of an offensive weapon in a public place.

3. The test as set out in The Queen v. So Hung Lee and Another [1986] HKLR 1049 is that where more than one person is sentenced at the same time by the same judge there can only be complaint if the disparity in sentences is such that clearly the judge has not properly apportioned the blame between the accused. If the sentence is otherwise appropriate, which clearly it was here, and the judge was under no misapprehension of the roles of the various accused, that sentence should stand. Here, while at first sight it may seem wrong that one person involved in what was clearly a joint criminal enterprise should receive a higher sentence, despite his plea, than the other person, there were the factors which the judge has considered and in particular that the applicant was the person who suggested the robbery and who identified the victim. Indeed if it had not been for him the offence would probably never have been committed. The judge was also entitled to take into account the fact that although this was a joint enterprise and both men were aware that a knife was to be carried it was the applicant who did produce the knife. He also took into account the difference in age between them and the fact that the applicant had a previous conviction.

4. It may be that the applicant does have a sense of grievance but we are satisfied that it is not a justifiable sense of grievance as regards the sentences passed on himself and the other accused.

5. The application for leave to appeal against conviction is refused.

Representation:

Mr. Simon Westbrook (D.L.A.) for Appellant

Mr. Paul Leung for Crown