HKSAR v. CHAU YAN KIT

IN THE COURT OF APPEAL OF THE HIGH COURT

1996, No. 667

(Criminal)

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J U D G M E N T

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Liu JA (giving judgment of the court):

1. In Criminal Appeal No. 667, applicant Chau seeks leave to appeal against sentence. In Criminal Appeal No. 668, applicant Yeung applies also for leave to appeal against sentence. By consent, both applications were entertained at the same time.

2. The charges involved burglaries by a group of youths in the rural districts. Applicant Chau was found guilty after trial of four burglaries and one charge of going equipped for stealing, committed between February and March 1996. Applicant Yeung pleaded guilty in another District Court prosecution before a different judge to one attempted burglary and four burglary offences, committed between November 1995 and January 1996.

3. Applicant Chau was convicted together with a co-defendant Lee Ka-wai. He was sentenced to a total term of imprisonment of 3 1/2 years and his co-defendant Lee was given a 2-year sentence. On his behalf, Mr Paul Tong of counsel complains of disparity. It is submitted that there is no significant difference between the culpability of applicant Chau and that of his co-defendant, Lee Ka-wai in the same charges of which they were both duly convicted, particularly when applicant Chau was 20 at the time of the offences while Lee Ka-wai was then 23.

4. Applicant Chau had previous convictions when he was 17 for burglary and theft. He was fined for theft and ordered to perform 200 hours of community service for the burglary. He defaulted in completing his community service and was sent to a Detention Centre. The judge described his background report as providing "depressing reading". Applicant Chau's work pattern in mostly menial positions was highly unstable. Little was or could be said in his favour in mitigation. The judge, nevertheless, gave him a 6-month discount for his youth as an act of mercy.

5. Lee Ka-wai was a person of previously good character. The judge found in him a man of relatively low intelligence, misguided by his peers. His remorse was accepted as genuine. In those circumstances, the judge gave considerable weight to his clean record and extended to him an opportunity to turn over a new leaf after a comparatively shorter period of incarceration. He was sentenced to prison for 2 years as opposed to applicant Chau's sentence of 3 1/2 years. We are unable to find any unjustifiable disparity for interfering with his overall sentence. His application must therefore be dismissed.

6. Applicant Yeung in Criminal Appeal No. 668, faced a great many dissimilar charges in the District Court before another judge. He pleaded guilty to one attempted burglary and four burglary offences. Having given him a third discount for his guilty plea and an extra 3-month discount for his clean record, the judge arrived at 73 months for an overall sentence in respect to these five offences, which was "adjusted" under the totality principle to ultimately 40 months i.e. 3 years and 4 months. On the judge's basis of an overall sentence of 73 months, without the one-third discount given for applicant Yeung's guilty plea and the extra 3 months for his clean record, the court's computation of the overall sentence would have reached the level of almost 114 months i.e. 9 years and 6 months.

7. The Grounds of Appeal of applicant Yeung do not include any criticism against a high starting point. The Crown does not accept that applicant Yeung and applicant Chau in these criminal appeals were members of the same youth gang, preying on victims of like calibre in these rural districts. We are asked not to speculate as to why applicant Chau faced separate charges with his other co-defendants and why applicant Yeung faced different charges in a different court with another co-defendant. But the offences in the charges were very similar in nature, targeting very similar premises and establishments in the same rural districts, committed by youths belonging to the same age group. The stark contrast between applicant Yeung's overall term of 9 years and 6 months without the given discounts and the 3 1/2-year overall sentence of applicant Chau's would understandably give rise to a justifiable sense of grievance, as it did in the case of applicant Yeung. We admit his affirmation insofar as it reflects his genuine grievance of injustice. Although the applicants faced different charges in different periods before different courts, the stark contrast in the overall sentences cannot be ignored whatever the true basis for comparison is. Criminal appeal No. 668 involves a somewhat unusual sentencing exercise in which the initial sentence passed on applicant Yeung suffered from an error both in naming the right charge, Charge 14 of which applicant Yeung was convicted and in calculating the accurate adjusted period which was later corrected from the pronounced 39 months to 40 months (i.e. 114 months without the given discounts and the "adjustments") in a "Supplemental Reasons for Sentence". Principle aside, such an incredible disparity in the overall sentences has engendered a true sense of injustice which warrants our intervention.

8. We therefore set aside his overall sentence, be it 39 months or 40 months, and substitute therefor one of 30 months, that is to say, 2 years and 6 months. The individual sentences are reduced pro rata.