R. v. CHIK CHI WAI

IN THE COURT OF APPEAL

1994, No.622
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant pleaded guilty to one count of robbery in which two others had been involved. That count read as follows - that he, together with Leung Wai-bun and Ho Man-hon, at an open space outside On Lung Tsuen, Lok Ma Chau, robbed CHENG Kiu-kei of cash HK$1,000, one gold necklace and one bunch of five keys. The circumstances of the offence were set out by the trial judge as follows:

"... that the offence was committed by this defendant with two others, at night, on 15 December 1992 in a remote location against a defenceless woman who was known to this defendant. She had been taken there, against her will, by this defendant's associates at knife point. This defendant apparently joined his associates in the car after she had been abducted. Upon arrival at the location, the woman who was then aged 23 was bundled into an abandoned vehicle and punched. Thereafter her handbag and its contents were taken from her as was her gold necklace. She was then tied up with tape and wire and a tape was put across her mouth. She must have been absolutely petrified. Fortunately she managed to free herself in due course and to make a report to the police."

2. The judge goes on to set out the way in which the other two offenders, Leung and Ho, were dealt with by another judge. They were aged 26 and 23 and both were of prior good character. Both were convicted after trial not only of the robbery in which the present applicant was involved but also of a count of false imprisonment. Each was sentenced to a term of three years imprisonment in respect of each charge, and the sentences were ordered to be concurrent. This defendant pleaded guilty to the single count of robbery but he does have previous convictions. The trial judge noted that by pleading he had spared the victim the necessity of giving evidence and reliving her frightening experience.

The judge went on to say:

"Let me make it abundantly clear that I regard this robbery as an appalling offence for which there can be no excuse whatsoever, and one for which the defendant (convicted after trial) could reasonably and normally have anticipated a sentence of some six years imprisonment. However, as I say, this defendant has pleaded guilty and I give him credit for that plea and I am also conscious of the sentences imposed upon his co-defendants by another judge. The fact that they were sentenced by another judge, and not by me, is nobody's fault but this defendant's, who elected to abscond whilst on bail and thus effectively severed his trial from that of his co-defendants. In my view he cannot now properly complain, despite Mr. McGuinniety's protestation that to do so would be unfair if, despite giving him credit for his plea of guilty, I impose upon him a more severe sentence than was imposed upon his co-defendants if, on the facts of the case, as is most certainly the case, I consider that such is merited. Were it not for the sentences imposed upon his co-defendants, I would have sentenced this defendant this morning to a term of four years imprisonment, but giving some allowance to him in respect of that matter, I'll reduce that sentence to a term of three years and six months imprisonment".

3. The applicant, represented before us by Mr. McLanachan, appeals against that sentence, urging that 3 years and 6 months was out of proportion to the sentences imposed on the co-defendants and that no right thinking member of the public could, upon learning of that sentence, consider other than that something had gone wrong with the administration of justice. In our view the trial judge cannot be faulted in his assessment of the seriousness of the offence. If any criticism can be levelled, it is that the starting point of six years which he took could properly have been longer. The sentences imposed on the other two offenders appear on their face to be extraordinarily lenient. We remind ourselves when saying this that we do not have before us the matters that were urged in mitigation before the hearing judge. We refer to R. v. Wong Siu-yee Crim.App. No. 36 of 1992 where it was said that:

"This court has held that it will not interfere upon the basis of disparity except where the same judge sentencing defendants for the same offence has misapprehended the roles of the defendants. If another judge has sentenced a defendant for the same offence and imposed a lower sentence upon him than the sentence imposed upon the applicant, this will not of itself constitute a legitimate sense (sic) of grievance. The court, in such circumstances, must look to see whether the sentence imposed on the applicant was unduly severe. He can only succeed in having that sentence disturbed if he can demonstrate that it was unduly long given the facts of the offence."

There is nothing that has been urged before us today which demonstrates that the sentence was unduly long given the facts of the offence. Indeed it was a lenient sentence. We certainly cannot feel that a right-thinking member of the public would consider that a lesser sentence should have been imposed. There is no proper ground for interfering with the sentence imposed and the application must, therefore, be refused.