R. v. TRAN VAN ANH

IN THE COURT OF APPEAL

1992, No. 143
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, J.A.:

1. The applicant, who was a resident with his wife and two daughters in an open camp for Vietnamese refugees, was convicted of robbery after pleading guilty before Deputy Judge Jones in the High Court and was sentenced to imprisonment for five years and four months. He now applies for leave to appeal against that sentence.

2. The admitted facts were that in the early hours of 9 February 1991 a taxi driver picked up three male passengers, in Kweilin Street, Kowloon. One of the men, the applicant, sat in the front passenger seat and the other two sat in the rear of the taxi.

3. The taxi driver was about to ask his passengers to state their destination, when one of the men seated in the rear seat grasped hold of his hair and pointed a sharp object at his throat. One of the men declared that it was a robbery. The victim then felt his wallet containing $550 being taken from his waist bag. The three men ran from the taxi with the victim chasing then and shouting robbery.

Some police officers joined in the chase and eventually caught up with and apprehended the applicant, one of whose fingerprints was later found in the taxi. The wallet and money have not been recovered.

4. In mitigation counsel who was then appearing on behalf of the applicant submitted that there was no evidence as to the nature of the sharp object that had been used to effect the robbery and that the applicant had not taken an active part in the crime. Counsel accepted that the courts take a serious view of taxi robberies and suggested that the tariff for this type of offence was in the region of 5 to 6 years' imprisonment. He also suggested that there should be a one year reduction in sentence on account of the applicant's plea of guilty.

5. The deputy judge in passing sentence stated that the starting point for sentence was 8 years but expressed compassion for the applicant owing to the fact that he was a long term refugee with a family who had been in Hong Kong since 1981, and allowed a one third discount in sentence.

6. It is now contended that the starting point for sentence was too high and that the resulting term of 5 years and 4 months' imprisonment was therefore manifestly excessive.

7. The court has said that in the normal case of taxi robberies it will not interfere with sentences of five or six years. This however, applies only to cases where minimal or no violence is used, and a weapon, other than a firearm, is merely displayed.

8. In the present case the seizing of the driver by the hair and the holding of a sharp weapon at his throat constituted a measure of violence, albeit not serious violence.

9. Taxi drivers, as we have frequently observed, are particularly vulnerable to robbery, especially those who ply for hire late at night or in the early hours of the morning or who pick up or drop passengers in quiet locations. Henceforwards, sentences of 7 years' imprisonment after a contested trial would be justified for offences similar to that in the present case.

10. We consider that it is only right, however, to deal with the applicant on the basis of the guidance that has been given earlier by differently constituted divisions of this court, and was applicable at the time of the commission of this offence. That being so, we think that the starting point for sentence of 8 years which the judge adopted was too high and that a proper starting point would have been 6 years.

11. Against that, however, we are of the view that the discount of 30% given by the judge was far too generous. The applicant was caught red-handed. The evidence against him was overwhelming. His circumstances were not such as to justify the grant of such a large discount. There can be little doubt that the great majority of those who live in refugee camps and, indeed, those residents of Hong Kong who otherwise live in difficult circumstances, manage to lead their lives without resorting to crime.

12. In all the circumstances of the case we consider that the proper sentence was one of 5 years' imprisonment. We therefore grant the application and, treating it as the hearing of the appeal, allow the appeal, set aside the sentence and substitute one of 5 years' imprisonment.