22. Corrupted conduct of a public officer as senior as Chief Secretary would no doubt be committed secretly and insidiously. It is naïve to think that such an officer would necessarily leave a trail for his corrupted conduct to be detected. Further the corrupted conduct could simply take the form of an approving nod or a knowing wink and it would not be possible in such cases to identify any specific or generic act of misconduct. However, it did not mean that the failure to allege or prove such approving nod or knowing wink would mean that a charge of misconduct in public office could not be established when the officer in the position of Rafael Hui, having received very large sums of money, agreed to be or to remain favourably disposed towards his “paymaster” in his official capacity.
這種不一致, 就帶入鄧飛校長的宏文提出的論據。我講了不是要反駁, 而是用香港案例來展示香港法院的思維。在吳敏兒案 (HKSAR v Ng Man Yee CACC 278/2013), 上訴庭副庭長 Stock及上訴庭法官McWalters (不好意思, 那些不喜歡老外法官的, 這兩位是老外, 而且以前都是在律政司工作的), 在判辭中講了判刑是否一致的原則:
40. When disparity of sentence is the ground of appeal we note that in the High Court of Australia decision of Lowe v The Queen (1984) 154 CLR 606 Mason J expressed the view that the fact that the sentence is not a just sentence is a ground for appellate intervention notwithstanding that the injustice is generated by error arising in proceedings other than those of the appellant. At page 613 he said:
“The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.” 
41. These views were subsequently followed by the majority of the High Court in Green v The Queen (2011) 244 CLR 462 where French CJ, Crennan and Kiefel JJ said at page 475, paragraph 32:
“32 A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal’s discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error (88). It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself (89). Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed.”
42. It is important to recognize that whether a disparity between sentences is an unjustifiable one, thereby resulting in an unjust sentence, does not fall to be determined by the subjective feelings of the offender whose sentence is under appeal. As the majority said in Green at page 474, paragraph 31:
“31. … The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity …”
43. In Hong Kong the objective test that has been applied is that expounded by Lawton LJ in Fawcett (1983) 5 Cr App R (S) 158 which he described at page 161 as:
“… 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?” 
44. The argument in the present case seeks to extend disparity of sentence as a ground of appeal beyond co-offenders to a disparity in sentence between wholly unrelated offenders; here the applicant and other persons sentenced for the same type of criminal activity but in respect of completely unrelated crimes. In considering whether such an extension should be permitted it is helpful to have an understanding of the legal foundation of the parity principle. This was explained by the majority in Green. They said at page 473, paragraphs 28-29:
“28. … Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice” (75). It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner (76). As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances (77). 
29. … The consistency required by the parity principle is focused on the particular case. It applies to the punishment of “co-offenders”, albeit the limits of that term have not been defined with precision.” 
45. As can be seen from this passage the parity principle is confined in its application to co-offenders. Likewise, in Hong Kong where there is long line of authority that limits disparity of sentence as a ground of appeal to co-offenders sentenced differently by the same judge. It has never been extended to offenders charged with the same offence arising out of completely unrelated criminal conduct.
46. Nor, has it been so extended in England. In the English case of Large (1981) 3 Cr. App. R (S) 80 the Court of Appeal refused to entertain a submission that there was disparity of sentencing between the sentence imposed on the appellant and sentences imposed by the same judge on other offenders for the same offence but who were participants in completely unrelated crimes. At page 82 the Court said:
“This Court declines to entertain such a submission. By reason of the appeals which consistently come before it the Court is aware of the general level of sentencing throughout the country. If, when individual sentences are being considered, it was permissible for counsel to analyse sentences passed by other judges on other occasions for other offences the work of this Court would come to a standstill. It would occupy the time of the Court to an inordinate extent and would do no more than draw its attention to the sentencing practice of a particular judge on a particular occasion in circumstances quite different from those with which the Court is immediately concerned. We will consider the matter of disparity when it arises in respect of participants in the same offence who have received different sentences for the parts that they played in the offence. Where it appears that for similar involvement in the offence the offenders have received very different sentences it is a warning sign that something may possibly have gone wrong with one or more of the sentences.”
47. The New South Wales Supreme Court adopted a similar view in Kardoulias v The Queen (2005) 159 A Crim R 252. After accepting that what in Australia is referred to as the parity principle applies to co‑offenders, the Court of Criminal Appeal said at page 274, paragraph 106:
“However, the parity principle is not to be applied when a ground of appeal invites comparison between sentences imposed upon two offenders who are not co-offenders simply because the two offenders may have similar characteristics and may have committed similar crimes.”
48. There is nothing in the judgment of the High Court in Green to suggest that the parity principle can inure to the benefit of persons other than co-offenders; nor is there in English or in Hong Kong case law. All three jurisdictions speak with one voice. The only occasion that relativity to other offenders’ sentences will create a justified sense of grievance is when the relativity concerns sentences imposed on persons who participated in the same offence as the offender. That is not, of course, the position here.
49. Outside of this situation it is for each applicant to demonstrate error or excessiveness in his own case. A sentence otherwise appropriate for the level of that offender’s culpability does not become unjust simply by reference to an erroneous or unduly lenient sentence imposed on another offender in an unrelated crime.
50. That being so, it cannot be said that other erroneous or unduly lenient sentences imposed in unconnected cases involving the same offence, provide an offender receiving a heavier sentence than those imposed in these other unconnected cases, with a justified sense of injustice. It does not seem to us that it matters what the reason is for the alleged disparity between the cases; whether it be one judge being more lenient than another or the prosecutor selecting the wrong venue for trial. Whatever the reason, the principle remains the same – the parity principle only applies to co-offenders.
51. We do not doubt that this applicant and his family may not understand why others involved in more serious money laundering activity have been sentenced apparently more leniently but, for the reasons we have given, this does not entitle this applicant to harbour a justified sense of injustice.