HKSAR v. LAM CHI KEUNG

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JUDGMENT

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Liu JA:

1. Before Deputy Judge Jackson in the Court of First Instance, Lam Chi-keung (applicant) and his co-defendant were indicted on two counts. The 1^st count was one for trafficking in 3,484.92 grammes of a mixture containing 3,027.22 grammes of heroin hydrochloride. The 2^nd count was also one of trafficking in 1,393.46 grammes of a mixture containing 1,152.67 grammes of heroin hydrochloride on the same day in a different location. The 3^rd count was against the applicant's co-defendant alone. It was unlawful trafficking in a relatively smaller quantity of 208.06 grammes of a mixture containing 165.11 grammes of heroin hydrochloride in a further location on the same day. The applicant was convicted on the 1^st and the 2^nd counts. His co-accused was convicted on the 1^st and the 3^rd counts. The difference in quantities for which the applicant and his co-accused were found guilty was almost one kilogramme. The applicant was convicted of trafficking in a larger quantity.

2. The judge adopted 27 years as a starting point for sentence with respect to the applicant's 1^st count. Giving a third discount for plea, the applicant was sentenced on the 1^st count to 18 years' imprisonment. He was given a similar discount and received 14 years' imprisonment for the 2^nd count. Both sentences were ordered to run concurrently. His co-defendant was convicted after trial and given a 25-year imprisonment in the absence of mitigating circumstances with no discount. The co-defendant likewise received 10 years for the trafficking in the 3^rd count. Both sentences were ordered to be served concurrently.

3. The applicant was undisturbed by the lighter 10-year sentence imposed upon his co-defendant on the 3^rd count which involved a considerably less quantity. What is complained of by the applicant is his starting point of 27 years adopted by the judge for the 1^st count, which is claimed to be unjustifiably disparate to the effective starting point of sentence imposed upon his co-defendant also on the 1^st count. The applicant now seeks leave to appeal against sentence.

4. The applicant was sentenced on 28 July 1997 and his co-defendant after trial on 6 August 1997, 9 days later. In broad principle, disparity of sentences should be argued on the basis of the circumstances prevailing at the time when the sentence under complaint was passed. See R. v. Brown, [1975] Crim L R 177. The 27-year starting point of sentence for the applicant after plea was imposed by the same judge, for an identical offence and on the same 1^st count in the same prosecution which saw the conviction and sentence of his co-defendant, albeit 9 days later. For the closeness of association, the applicant should not be precluded from referring to his co-defendant's sentencing circumstances.

5. On the counts of which the applicant and his co-defendant were convicted, there was a difference of almost a kilogramme in drugs. The applicant had arguably also a more prominent role to play. But did the judge bring his mind to bear upon these matters? Far be it from this court to speculate as to how the evidence in the case impacted upon the sentencing judge, the real question for our consideration is: was the disparity justified on the views taken by the judge?

6. It is good law and sound logic that if culpability is indistinguishable between two defendants, the same sentence should be passed. Evidently, the 2-year difference in starting point is expected to evoke a real sense of grievance. In this appeal, neither the applicant nor his co-defendant had a clear record. "The only ...... difference between the situations of the (applicant and his co-defendant) that (was) apparent to (him was)", so the judge said, "that the (applicant) had a previous conviction" in 1990. (Emphasis supplied). It was a more serious offence than the offences his co-defendant had committed. A single previous conviction in the distant past could not aggravate the applicant's sentence beyond the level warranted by the gravity of the 1^st count, and the judge's sentencing process could not be legitimately linked to these varying previous convictions. The applicant was not to be sentenced on his previous record, and his sentence was to be determined by the immediate offences. Therefore, the applicant and his co-defendant could not be punished for any degree of culpability above that in the 1^st count. The judge clearly did not take into consideration the additional quantity of almost a kilogramme and what could perhaps be said to be a more prominent role of the applicant. The "only difference" in previous convictions would provide no good cause for the judge to adopt a higher 27-year starting point in the case of the applicant and 25 in that of his co-defendant for an identical offence in the 1^st count. Put another way, there were no individualised features taken in by the judge in his sentencing process to support a different starting point on the 1^st count with respect to the applicant and his co-defendant.

7. The underlying principle has always been whether there is such a glaring difference between the treatment of one man as compared with another that a real sense of grievance would be engendered. The judge did not account satisfactorily for the disparity. This court is also unable to identify any or any sufficient cause for the adopted 27-year starting point as opposed to 25 for the co-defendant of the applicant. For these reasons, we accept that the applicant is genuinely aggrieved by the extra 2 years and we may intervene.

8. In the circumstances, the starting point for the applicant on the 1^st count should be 25 years instead of 27. From that we deduct 8 years 4 months for plea and scale it down to 16 years 8 months. We allow the application and treat the application as the hearing of the appeal. We allow the appeal and set aside the sentence of 18 years on the 1^st count and substitute therefor a sentence of 16 years 8 months. We order that sentence to run concurrently with the sentence of 14 years on the 2^nd count. In conclusion, the applicant is to serve a total term of 16 years 8 months.

Stuart Moore J.A.:

9. I agree that the first applicant's sentence must be reduced to 16 years and 8 months.

10. This is another example of how difficulties can emerge when, without good reasons which will only rarely occur, sentence is imposed on one defendant at a different time to the sentence imposed on another defendant in the same proceedings. When the trial judge described the previous conviction as being the "only difference" between this applicant and his co-defendant, it seems that the judge must have overlooked the slightly more prominent role played by the applicant and the additional kilo of heroin for which the applicant bore responsibility. It is difficult to imagine that this could have avoided notice if the mitigation for the two defendants had been heard at the same time.

11. There were no proper reasons for the applicant to have been dealt with on a different occasion to the second applicant (A2). The applicant and A2 were arraigned together on 28^th July 1997. The prosecution was given time to prepare agreed facts which were made available in the afternoon. These facts were then read into the record before the judge heard mitigation and passed sentence. On the following day, the trial of A2 commenced. This lasted seven days, before his conviction and sentence on 6^th August 1997.

12. Mr. McGuinniety, who also appeared in the court below, was unable to suggest a reason why the applicant should have been sentenced with such haste although he believed that this may have been connected to the possibility of an adjournment of A2's case. If this was so, it was all the more reason why the judge should have adjourned sentencing the applicant until the outcome of A2's trial was known in order to avoid the risk [See: R v Chan Kwok-hung (1996) 4 HKC 559] of different judges having to pass sentence in the same case.

13. Apart from the obvious disadvantages of passing sentence in the manner which was done in this case, there are positive advantages to adopting the time-honoured course of sentencing all defendants together at the end of the trial. By this stage, all the facts are known and, on the basis of these, mitigation speeches can then more sensibly be heard together. This will, in turn, lessen the risk of the judge making a mistaken assessment of the facts and the role played by each of the defendants which may otherwise lead to real or apparent disparity in the sentences imposed.

Power V.P.:

14. I concur.