R. v. SHEUNG HOI CHEUNG

IN THE COURT OF APPEAL

1996, No 139
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This case reveals an unfortunate state of affairs. On January 30 this year, this applicant, an illegal immigrant in his early 20s, pleaded guilty before HH Judge Jackson in the District Court to one charge of remaining in Hong Kong without authority having landed unlawfully and to two charges of robbery, and was sentenced to a total of five years' imprisonment.

2. That total was achieved by way of concurrent terms of four years and of three years and four months for the robberies and a consecutive term of 12 months for the remaining.

3. The robberies were committed by three robbers acting in concert, and in each a knife was used.

4. After he pleaded guilty and it looked as if the trial would proceed against the other two robbers, the present applicant made some offer to give evidence against the others; but nothing came of it.

5. On the prosecution's file is something which suggests that the applicant resiled from his offer; and the applicant has not quarrelled with that view of the facts. His memory apparently fails in this matter and he does not place any reliance on the offer which he had made. In any event, he would not have had to go into the witness-box because, as it happened, the other two robbers, later on and before another judge, pleaded guilty. One of them was sentenced to a total term of 4 1/2 years; and the other was sentenced to a total term of four years.

6. Looking at the position of the man who got 4 1/2 years, it is not apparent to us that there was any difference between his position and that of the present applicant who got five years. But the trouble is this. The sentences were passed by different judges on different occasions. And although the disparity is worrying for us and galling for the applicant, the present state of law is that we are not warranted in interfering with the applicant's sentence unless there was something wrong with that sentence itself on its own. That we are unable to say. It was unfortunate that the sentencing of the other two robbers was not listed before the same judge. The result is that the law does not present a very satisfying picture in the present case.

7. Nevertheless, on principle, this man cannot justifiably complain about what happened to him for what he did. He can only feel aggrieved that other people were dealt with perhaps too leniently. That is perhaps their good fortune, the law does not allow us to convert it to his good fortune too.

8. With some misgivings but no doubt, we dismiss this application for leave to appeal against sentence.