THE QUEEN v. SO HUNG LEE AND ANOTHER

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JUDGMENT

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Barker, J. A.

1. Five men, whom we shall call hereinafter Dl, D2, D3, D4 and D5 appeared before a District Court, on various charges. D1 was charged with common assault, blackmail and conspiracy to blackmail, D2 with blackmail and conspiracy to blackmail, D3 with conspiracy to blackmail, D4 and D5 with conspiracy to blackmail and common assault.

2. The facts may be shortly stated. Dl and D2 hatched a scheme whereby they would falsely accuse CHAN Chau-kin, the son of CHAN Shing-kam, with stealing a bicycle, a scheme which they put into effect on the 24th January, 1985. Two days later D1 and D2 returned to the home of CHAN Shing-kam, and assaulted his son.

3. Thereafter, a number of talks were held with a view to "settling" the matter. D2 was familiar with the Chan family and pretended to act as arbitrator. Dl demanded $5,500 and Mrs. Chan eventually paid $1,500 on the 5th February, 1985.

4. It was at that stage that D4 and D5 entered into the conspiracy. They, together with D2, decided that since money had been so easily obtained, a larger sum should be demanded on the pretext that the incident had not been satisfactorily settled. Accordingly, on the 15th March, 1985 D4 and D5 stopped Mr. & Mrs. Chan, who were on their way to work, and told them of the situation.

5. The next day, D4 and D5 took Mr. Chan to a cemetery and told him they had been paid to beat him up, but if $15,000 was paid within two days the matter would be at an end. On saying that he had no money, he was beaten up by D4 and D5. On leaving the cemetery they were met by D2, who "persuaded" D4 and D5 to allow Mr. Chan more time to pay.

6. On 17th March, 1985 further so-called negotiations took place, and after D4 assaulted Mr. Chan a second time, a figure of $7,500 was agreed. On the following day, Mr. Chan reported the matter to the police, who supplied him with bank notes to the amount of $7,500, which had been chemically treated.

7. On the 20th March, 1985 in the evening, D2 and D3. came to Mr. Chan's home, where the police were keeping observation. D3 claimed to be the "Big Brother" of D4 and said that if the money was paid there would be no more trouble. Mr. Chan then handed over the money and D2 and D3 were arrested.

8. Dl, who was 21 years of age, was ordered to attend a Drug Addiction Treatment Centre. D2, aged 18 years, was sent to a Detention Centre. D3, aged 31 years, was sentenced to 18 months imprisonment suspended for two years. D4, aged 27 years, and D5, aged 28 years, were each sentenced to 3 years' imprisonment.

9. D4 and D5 applied for leave to appeal against their sentences.

10. A number of arguments were addressed to us by counsel for D4 (and adopted by D5 who was unrepresented) but it is necessary only to deal with two of them.

11. The first was that the Judge did not properly apportion the blame as between the five accused, and misapprehended the importance of their respective roles. The second was that there was an unfair disparity between the sentences imposed on D4 and D5 and those passed on D1, D2 and D3.

12. As will emerge later in this judgment, these arguments coalesce.

13. There are, unfortunately, conflicting decisions in the Courts of Hong Kong as to the principles to be applied when it is alleged there is such disparity. Thus in Leung Hoi⁽¹⁾, Ngai Sum-tin^(2), Fung Siu-keung⁽³⁾ and Chun Chi-cheung⁽⁴⁾, the approach of the Courts was to ignore the sentence passed on a co-accused and to consider merely whether the sentence actually passed on the accused was appropriate. As was said by Pickering, J. in Leung's Case at p. 247-

"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 the more lenient sentence imposed on a co-accused."

And later -

"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 sentenced imposed upon him."

14. However, in other cases, namely Lee Kwan-yiu⁽⁵⁾,Wong Siu-ching⁽⁶⁾, Mok Sin-wah⁽⁷⁾ and Sae Lo Vimun ⁽⁸⁾ , the Court of Appeal appears to have taken the view that disparity is of itself a ground for interfering with a sentence.

15. An examination of the four later cases suggests that in none of them was any reference made to the earlier Hong Kong cases.

16. They should therefore be regarded as having been decided per incuriam, in view of the earlier Hong Kong cases cited above, and should not be followed.

17. For the sake of completeness we should add that reference to the English cases on disparity of sentence shows that there are conflicting decisions, and in the circumstances it is not necessary or indeed desirable to cite any of them.

18. We therefore restate the principles set out in the four earlier Hong Kong cases, which we see as follows.

19. Two situations can arise. The first is where there is a disparity between sentences passed on the same occasion by the same judge. In this case the sentence should be varied by this court if, but only if, it can be shown that the judge has not properly apportioned the blame between the accused. If the sentence was otherwise appropriate and the judge was under no misapprehension of the roles of the various accused, then the sentence should stand.

20. It is in this context that Reg. v. Wong Tat Sing & Ors.⁽⁹⁾ (which was the subject of criticism in 1985 15 H. K. L. J. 228) is explainable. In that case the applicants had carried on business in partnership as metal and hardware merchants. They conspired to offer money to the employees of building contractors as. inducements or rewards for contracts placed with them by the builders. It was not possible to distinguish between the degree of moral culpability of the givers and that of the receivers, there being no evidence as to which side initiated the transactions. Nevertheless the receivers were given far more lenient sentences than the givers. In these circumstances the Court was of the view that the judge had wrongly apportioned blame as between the receivers and the givers.

21. The second is when different sentences are passed on different accused for the same offences by different judges on different occasions. In this case, the only consideration must be whether the sentence passed on the appellant was appropriate. As Roskill, L. J. (as he then was) said in Reg. v. Stroud⁽¹⁰⁾ at p. 152-

"It is said that there is here such a glaring disparity that this Court ought to interfere in order to remove what is said to be a grievance on the part of the appellant Stroud.

 

        That argument pressed to its logical conclusion would mean, as Scarman, L. J. pointed out during the course of the appeal, that because one inadequate sentence is wrong, the other prisoner must also get a glaringly inadequate sentence in order to produce what is said to be a proper adjustment between the two and to avoid disparity. In the view of this Court that is quite wrong."

We respectfully agree.

22. Since these were sentences passed on the same occasion by the same judge, the only question we had to consider was whether the judge had properly apportioned the blame between the five accused. We are not persuaded that he was at fault. It is true that D1 and D2 were the instigators of the scheme and that Dl was convicted of two charges, but looking at the overall picture we consider that they played minor roles in the whole affair. Moreover D2 was guilty of no violence. D3, although the eldest of the five, came into the conspiracy at a very late stage and he too committed no violence. We think that Judge was right to take the view that D4 and D5 each played a leading role in the conspiracy. Moreover it was proved that D4 had committed two assaults and D5 one assault upon Mr. Chan.

23. We accordingly dismissed the applications for leave to appeal against sentence.

24. We feel it necessary, however, to make one, further comment. The Judge, having heard evidence on the assault charges against D4 and D5 and having, as we have said above, found them proved, nevertheless directed that they be left on the file. This is not the correct procedure. If a Judge hears evidence in respect of a charge and finds the charge proved, it is his duty to enter a conviction and pass an appropriate sentence. A charge should be ordered to be left on the file only at the beginning of the case, before evidence is given, where the prosecution is prepared to accept pleas of guilty in respect of other charges.

(1)     (1973) H. K. L. R. 238

(2)     (1978) H. K. L. R. 136

(3)     (1981) H. K. L. R. 608

(4)     (1983) 13 H. K. L. J. 123

(5)     (1981) Cr. App. 727

(6)     (1984) Cr. App. 333

(7)     (1984) Cr. App. 419

(8)     (1984) Cr. App. 532

(9)     Cr. App. 1984 No. 529

(10)     (1977) Reports on Sentencing from the Criminal Division of the Court of Appeal p. 150