R. v. CHAN WAI CHIU AND OTHERS

HEADNOTE

An offender who has received a proper sentence is, on appeal, entitled to consideration when he urges that a more culpable co-defendant, sentenced at the same time, received a lesser sentence. His sense of grievance is a legitimate one which will be recognised on appeal. Where a co-defendant receives a sentence in excess of that imposed upon a complainant but less than what he should properly have received, the complainant who received a proper sentence cannot urge a legitimate sense of grievance.

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicants faced two charges - one of conspiracy to rob and one of possession of an imitation firearm with intent to commit an arrestable offence. They pleaded to the first count and the Crown offered no evidence on the second. Each was sentenced to imprisonment of four years and each now seeks leave to appeal against that sentence.

3. The facts were that at about 2.05 on the morning of 13th January 1991, the three applicants were ambushed by a patrol of police officers in Tin Ha Road, Yuen Long. The van in which they were travelling was searched and a knife, three pick axe handles, white gloves and an amount of electrical wire were found. A search of the surrounding area discovered an imitation firearm. Later during police investigations a sketch plan of a proposed robbery scene was located. When the three applicants were interviewed it was ascertained that they were illegal immigrants from China who had been recruited to come to Hong Kong to carry out a robbery. They admitted conspiring together with a fourth person, who was the 4th defendant at trial, and that, at the time they were apprehended, they were on their way to Jardine's Lookout where they intended to commit a robbery.

4. The 4th defendant was later apprehended and he admitted to the police that he had recruited the other three in China, had assisted them to come to Hong Kong, had concealed them after their arrival, had planned the robbery and had provided the implements to be used therein. Quite clearly he had played a much more substantial part in the commission of the offence than did the other three offenders. He pleaded guilty only on the second day of the trial after he had been shown statements which the three applicants had made which implicated him. It seems clear that he was led so to plead because he realized that the evidence against him which would have come from the applicants when allied with his confessional statement would have been completely overwhelming. He agreed to the facts as outlined above.

5. The trial judge when sentencing said this was clearly a serious robbery as it was to be committed in the early hours o?the morning and envisaged that the victim would be tied up and that weapons might have to be used which included knives, imitation firearms and pick axe handles. He stated that it was unclear, on the admitted facts, whether the intention was for premises to be robbed or for a victim to be robbed but he considered that the presence of the sketch plan, the wire and the gloves pointed more strongly to a robbery within premises than to a robbery to be committed outside.

"Having regard to all the circumstances, I consider 8 years to be an appropriate starting point because of the serious aggravating nature of circumstances that are present and I start from 8."

He then said that he took into consideration the pleas of guilty, the applicants' cooperation with the police, their confessions and that it was obvious and apparent that they were going to give evidence for the Crown against the 4th defendant. he said:

"I there, starting at 8 years and taking into consideration all those matters which attract discount, sentence the first 3 prisoners to 4 years' imprisonment each."

He said that he was applying a 50% discount.

6. He then went on to deal with the 4th defendant. He said that his position was somewhat different. He was an older man and appeared to be a Hong Kong resident. He admitted being responsible for bringing the other three to Hong Kong and organizing the robbery. Clearly his culpability was different from that of the others and must be reflected in a higher sentence. The trial judge went on, however, to say that he was also entitled to consideration for his plea and his co-operaiton and that the fact that he pleaded guilty later was not a factor of any relevance. He sentenced him to five years imprisonment.

7. Miss Sze Kin in her Grounds of Appeal argued that there was a disparity of sentence which caused a real sense of grievance in the three applicants. She pointed out that they were recruited by the fourth defendant in China, that he organized the robbery, that he drew the sketch plan and that he was clearly the real instigator and organizer of the whole enterprise. She pointed out also that the applicant had placed themselves at risk by giving statements and indicating that they were prepared to give evidence against the 4th defendant and that it was, in all likelihood, this preparedness to give evidence that impelled him in the end to change his plea. She submitted that they were legitimately entitled to expect that there would be a much more substantial difference than one year between their sentences and that imposed upon the 4th defendant. She referred us to Stroud [1977] 65 Cr.App.Rep. 150 and in particular to the passage which reads:

"The Lord Chief Justice went on: 'This in our experience is a somewhat novel argument. The practice of the Court to give effect to what is popularly called 'the disparity argument' is itself a relatively new feature in the practice of this Court. It arises only when the would be appellant has received a sentence which the Court thinks proper in itself but which is so disparate when compared with other sentences passed at the same time' - I would venture to italicise those four words 'at the same time' - 'that a real sense of grievance may thereby be engendered in the person upon whom it is passed.'"

She submits that this passage has application directly to the circumstances of this case and that "a real sense of grievance" has been engendered. The Lord Chief Justice, however, went on to say:

It was never intended that a sentence should be reduced on the basis of disparity unless there was such a glaring difference between the treatment of one man as compared with another that a real sense of grievance would be engendered in the case of a man suffering the more serious penalty." (Emphasis supplied)

We are quite satisfied that Stroud only has application where an offender has suffered a more serious penalty than a more culpable co-defendant. In such circumstances he is entitled to urge that he has a sense of grievance of which the court is required to take cognizance, i.e. a legitimate sense of grievance. That was not the circumstance here. The applicants received proper sentences. Indeed they were, if anything, lenient. We agree that the 4th defendant received a sentence much more lenient than he deserved but it was a sentence in excess of that imposed upon the applicants and they are not, we are satisfied, entitled to hold any legitimate sense of grievance. An offender who has received a proper sentence is entitled to consideration when he urges that a more culpable co-defendant, who was sentenced at the same time as he was, has received a lesser sentence than that which was imposed upon him. The sense of grievance arising from such a situation is a legitimate one to which a Court of Appeal can properly give heed. Where the co-defendant has received a sentence in excess of that imposed upon the complainant however aggrieved he may feel, we are satisfied, that it is not a sense of grievance which can properly be regarded as legitimate.

We are satisfied that there is no ground for interfering in the sentences that were passed and the applications must, therefore, be refused.