刑事檢控科各律師/高級律 - Department of Justice

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(5) Insofar as A3 and A4 complained of disparity of sentence,
two situations commonly arose where there was such a complaint.
The first was when there was a disparity between sentences passed
on the same occasion by the same judge. In this case the sentence
should only be varied if it could be shown that the judge failed to
apportion blame between the various defendants properly so that it
could be said that, notwithstanding that the appellant’s sentence
was otherwise appropriate, it was so disparate when compared
with the other sentences passed at the same time on his codefendants
as to engender a real sense of grievance on his part.
The second was when different sentences were passed on different
accused for the same offence or offences by different judges on
different occasions. In that situation the only consideration was
whether the sentence passed on the accused was proper: R v So
Hung-lee and Another [1986] HKLR 1049 and R v Lam Ho-kwong
Cr App 175/92;
(6) In R v Stroud (1977) 65 Cr App R 150, Roskill LJ said that it
had never been intended that a sentence should be reduced on
account of disparity unless there was a glaring disparity which
engendered a grievance. In R v Fawcett (1983) 5 Cr App R (S)
158, Lawton LJ, at 161, put the basis for an appellate court’s
intervention in a disparity argument as follows: ‘Would right
thinking members of the public, with full knowledge of all the
relevant facts and circumstances, learning of this sentence
consider that something had gone wrong with the administration
of justice?’ If the answer to that question was in the affirmative an
appellate court would consider interfering, not necessarily because
justice had not been done to a particular person, but because what
had been done offended against the appearance of justice: R v
Potter [1977] Crim LR 112;
(7) In this case there were four other defendants, each convicted
of a greater number of offences than A3 and A4, who each
received the same overall sentence of 6 years’ imprisonment that
they did. The judge failed to make a clear distinction in respect of
culpability regarding A3 and A4. This engendered a real and
legitimate sense of grievance in their minds and the commonsense
test of Lawton LJ in Fawcett (supra) was made out.
Result - Applications of A1 and A2 dismissed. Applications of
A3 and A4 allowed, and sentences on each of 4 years
and 6 months’ imprisonment substituted.
[For disparity generally, see Sentencing in Hong Kong,
4th ed, at pp 177 to 183: Ed]
CAs 550 & (1) KWOK Robbery/Victim assaulted in private premises/Theft of PIN