THE QUEEN v. CHUNG YUK KUEN AND OTHERS

IN THE COURT OF APPEAL

1986, No. 204
(Criminal)

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JUDGMENT

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Yang, J.A.

1. The facts of the case having been stated in the judgment delivered on the 23rd January 1987, we do not propose to repeat them here.

2. In this application for leave to appeal against conviction there are basically three grounds which have been advanced before us. Firstly, it is argued that the level of sentence is higher than that imposed in a number of cases which have been cited to us although these authorities are decisions of the District Court rather than of the High Court. The second complaint is that the judge failed to properly apportion the degree of culpability between the accused. Thirdly, in his Reasons for Sentence the judge increased the sentence of those accused who had previous convictions.

3. On the authorities it would appear that the sort of sentence that is imposed in the District Court for cases which involved more or less the same conduct, ranged from about 18 months' up to 4 years' imprisonment, depending on the gravity of the offence. We are of the opinion that on the facts of this case, and in the light of other sentences passed in similar or comparable circumstances, a sentence of one year on D1, D2, D3 and D4 on Count 3 would have been appropriate. It is clear from the judge's Reasons for Sentence that D4 was given 4 years, i.e. one year more than the other Defendants, because of his conviction. We think this is wrong.

4. It appears also that the judge has not sufficiently considered the difference in the degree of culpability between D5, D6 and D7. D5 and D7 were the original abductors though D7 played a slightly more active role than D5 in that he obtained from the victim the I.O.U. note as well as the watch. D6 is of course the instigator of the offence.

5. For these reasons we think the appropriate sentences for D5 should be 3 years on Counts 1 and 2, sentences to run concurrently. The sentence on D6 should be one of 4 years, and that on D7 should be years on Count 1 and 4 years on Count 2, the sentences to run concurrently.

6. We accordingly allow the application, treat the application as the appeal proper, allow the appeal and reduce the sentences to the extent already indicated.