Hung Tung Choi v. The Queen

Case No.CACC 882/1973

Court

Court of Appeal

Date21 Dec 1973

Judge—

Case Document

100%

CACC000882/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 882 OF 1973

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BETWEEN
	HUNG TUNG CHOI	Appellant
	and
	THE QUEEN	Respondent

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Coram: Pickering, J.

Date of Judgment: 21st December 1973

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JUDGMENT

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1. The appellant was charged with two charges of forgery of a document and with two related charges of uttering the same documents, namely provisional driving licences. The method of forgery was, in each case, to substitute upon the licence the photograph of the legitimate holder of the licence by that of an experienced driver. The uttering consisted of presenting the document to the driving examiner, the experienced driver being at the same time introduced as the pupil of the appellant who was a driving instructor. The experienced driver would then take, and not surprisingly pass, the driving test. The appellant was sentenced to 12 months' imprisonment on each count, the sentences upon the two related charges of forgery and uttering being concurrent in each case but consecutive to each other with the result that his total sentence was one of two years.

2. Mr. Ming Huang, for the appellant, raised three grounds of appeal the first of which related to disparity of sentence in that only on the day before the hearing of the appeal, another person concerned with the conspiracy to cheat the driving inspector, but who had been charged merely with two charges of forgery, was sentenced to a fine of $1,500 in respect of each charge. Since this was the very amount which that same man had received from each of the pupils too reluctant or too incompetent to take the driving test, the ponalties imposed appear to me to be extremely lenient - although admittedly not all of the $1,500 handed to the accomplice convicted on the day before the hearing of the appeal, was likely to have stuck to his hands.

3. In Criminal Appeal No. 34 of 1973, after reviewing the disarray of cases both in the United Kingdom and in Hong Kong concerning disparity of sentence the Full Court went on to say:

	"In Jeavons and KWAN Yiu-wing, this Court discerns the birth of a principle based upon logic and reason as opposed to the sentiment which, in so many cases, appears to have clouded this subject for the members of individual courts both in England and Hong Kong. As it seems to us, where the sentence is 'right', by which we mean appropriate to the offence and the offender, there can be no 'justifiable' sense of grievance however fortunate a co-accused may have been in regard to his particular sentence. We would suggest that the criterion is the appropriateness of the sentence passed upon the appellant and that only when it is shown that such sentence, considered in isolation, is 'wrong' should an appellate court begin to consider any disparity between that sentence and the more lenient sentence imposed upon a co-accused; that disparity is then only an added factor in the 'justifiable' sense of grievance which the appellant is entitled to feel by virtue of the fact that his sentence is 'wrong' in the sense of being excessive; in other words the true starting point of the enquiry is the appropriateness or otherwise of the sentence to the offence and the offender. If the sentence is appropriate there can be no justifiable sense of grievance however fortunate a co-accused may have been in regard to the leniency of the sentence imposed upon him. It may be difficult for an appellant, who has received a sentence much heavier (though nonetheless appropriate to his offence and to his personal circumstances) than one imposed upon a co-accused in respect of the same offence, to accept his situation with logic; it is almost inevitable that he will take a subjective view. Nevertheless, it is from the angle of logic and objectivity that an appellate court must regard his situation and in the circumstance we have postulated the logical approach is not 'How aggrieved am I' but 'How fortunate was he'.
	We are conscious that to expect such an approach from an appellant in the situation under discussion, is to counsel perfection where perfection is least likely to be found; but the court's approach must remain objective and objectivity is not to be fourd by asserting in one breath that disparity of sentence is not a ground for reducing sentence and, in the next breath, reducing an appellant's sentence for no other reason than that of disparity. The guideline should, we suggest, be the appropriatenes or otherwise of the sentence to the offence and to the appellant considered in isolation from any sentences passed upon his co-accused. Nor should this be interpreted as a licence to fickleness in the imposition of sentences. Comparable sentences in comparable circumstances are desirable in the extreme but where a court of first instance has failed to achieve that result - and this happens most frequently where, for one reason or another, different parties to a crime are tried before different tribunals, a situation to be avoided wherever possible - an appellate court is more likely to create confusion and disunity by attempting to redress the balance in a downward direction than by examining the appropriateness of the sentence upon appeal and then adhering to it if in fact it is found to be a proper sentence in the circumstances of the offence and the offender. The latter course makes for consistency; the former, for that morass of inconsistency, examples of which we have quoted. In the last analysis, an over-lenient sentence represents judicial error; attempts to redress the balance by reducing a perfectly appropriate sentence passed upon a co-accused, compound the error."

4. In conformity with that ruling I was wholly unimpressed by Mr. Ming Huang's argument based upon disparity of sentence and considered that the issue for me was whether or not the sentence was appropriate to the offence and the offender.

5. I was equally unimpressed with the second ground of appeal which overlaps with the first and was to the effect that the learned magistrate had given undue weight to the admitted facts and had never taken into consideration that the appellant in the present case had played only a small part in the transaction. This was incorrect. Although the man who was sentenced to mere fines, for offences of forgery, had been the introducer of the pupils reluctant to take the driving test, it was the appellant who, as Mr. Lucas, for the Crown, pointed out, carried out the design to introduce competent drivers as pupils and to accompany those drivers upon driving tests. The really serious aspect of the whole affair lay in the uttering of the forged original licences and it was the appellant who performed that uttering.

6. There remains one ground of appeal to which, and not without hesitation, I respond. The learned magistrate, considering that a deterrent sentence was required and taking into account the appellant's clear record and pleas of guilty, imposed what was undoubtedly and intendedly a severe sentence for a first offender. It has now been represented to me that the appellant has expressed remorse by volunteering to appear as a Crown witness in the subsequent proceedings against his accomplice. How far he thought he had any choice in the matter, how far he had in fact any choice, I do not know. But, giving the appellant the benefit of the doubt as to that - and it is a matter of which the learned magistrate was necessarily unaware at the date of the appellant's trial, the appeal, which is against sentence only, is allowed and the sentences of twelve months' imprisonment are, in each case, substituted by sentences of nine months' imprisonment with the result that the overall term to be served by the appellant will be 18 months instead of two years.

Representation:

Ming Huang (Hoosen & Co.) for appellant

Lucas, D.D.P.P. for respondent.