HKSAR v. HUSSAIN SHAKIL

CACC 387/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 387 OF 2011

(ON APPEAL FROM HCCC NO 81 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Barnes J (giving the judgment of the court):

A. INTRODUCTION

1.  The applicant was charged with two counts of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210.  He pleaded guilty to both counts before Line J and was sentenced to a total of six years imprisonment.  He now seeks leave to appeal against sentence.

B. ADMITTED FACTS

B.1    1^st count

2.  At about 11 pm on 19 August 2010, the applicant and another unknown South Asian male boarded a taxi driven by a certain Mr Lee (victim A).  After directing victim A to drive to a remote location in Pat Heung, Yuen Long, the applicant alighted from the taxi, smashed the beer bottle he held in his hand, pointed the broken bottle towards victim A’s neck and demanded for money.  The other male then stole $2,000 cash from victim A’s cashbox.  The applicant turned off the engine of the taxi and threw the ignition key into the bush.  He also took victim A’s wallet and mobile phone before fleeing with the other male.  Victim A alerted the police and he later positively identified the applicant at an identification parade.

B.2.   2^nd count

3.  Shortly after midnight on 22 August 2010 (ie three days after the 1^st offence), the applicant and another male FAISAL IQBAL RANA boarded a taxi driven by a certain Mr Chan (victim B).  After directing victim B to drive to Pat Heung, Yuen Long, the applicant threatened victim B with a beer bottle held in his hand and demanded for money.  He took away victim B’s mobile phone and backpack which contained about $3,000.  The other male then got out of the taxi and pulled the front seat‑belt in such a way that victim B feared he would be strangled with it.  The applicant and the other male then fled.

C. MITIGATION

4.  The trial judge heard that the applicant was a single man of previous clear record, that he had lived in Hong Kong since coming here in 2006 because of problems in Pakistan, and that he suffers from deterioration of eye‑sight.

5.  Emphasis was made on the applicant’s plea of guilty — which was indicated during the pre‑trial review stage — demonstrating the applicant’s remorse and sparing both victims from testifying.

6.  It was submitted on the applicant’s behalf that on both occasions there was a threat of using force, without the use of any actual physical force on the victim.  The values of the stolen properties were not great either.

7.  The trial judge was urged to pass concurrent — or at least partly concurrent — sentences on the applicant for the two offences which occurred within a few days of each other.

D. REASONS FOR SENTENCE

8.  The trial judge was of the view that both victims must have been terrified by what was happening: in the case of victim A, he was threatened with a broken beer bottle pointed at his neck; in the case of victim B, the seat‑belt was pulled in such a way as to make him think that he would be strangled.

9.  The judge referred to the authority of R v Tran Van Anh [1993] 2 HKCLR 122 and adopted a starting point of seven years for each of the two robberies.  He then gave the applicant the full one‑third discount, reducing the sentence to four years and eight months for each count.  After considering the totality principle, the judge ordered the sentence imposed on the 2^nd count to commence at the expiration of 16 months of the sentence imposed on the 1^st count, making a total of six years.

E. GROUNDS OF APPEAL

10.  The applicant, who is not legally represented, accepted that taxi robberies are serious offences and did not quarrel with a starting point of five to six years as a deterrent for such offences — after citing HKSAR v Dhillon Kenneth Simon, (unreported), CACC 90/2002 and R v Li Lun-hoi, (unreported), CACC 1387/1983.

11.  The applicant submitted that he had pleaded guilty, thus saving court’s time and public money, and showing his remorse.  He claimed he committed the offences in a “state of extremely deteriorating eyesight (1200 degrees)”.  He complained that his sentence “on count 2^nd after the expiry of 16 months of the sentence on count 1 is manifestly excessive and wrong in principle”.

12.  The applicant also prayed in aid Article 3 of the Hong Kong Bill of Rights, claiming that his sentence was a violation of the said article.

F. OUR CONSIDERATION OF THE SUBMISSION

F.1.    Article 3 of the Bill of Rights

13.  We will deal with the applicant’s submission in relation to Article 3 of the Hong Kong Bill of Rights first.

14.  Article 3 of the Hong Kong Bill of Rights provides:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

15.  It is clear that the applicant was sentenced to a term of imprisonment as a result of breaking the law, twice — which he openly admitted.  The punishment of imprisonment is provided by the law and the applicant has not been subjected to any “cruel, inhuman or degrading treatment or punishment”.

16.  Article 3 of the Hong Kong Bill of Rights has no application here.  The only question we have to decide is whether the sentences imposed were wrong in principle or manifestly excessive.

F.2     Were the sentences imposed wrong in principle or manifestly excessive?

17.  It is clear that taxi drivers deserve protection from the courts (as readily accepted by the applicant).  In R v Li Lun-hoi, Sir Alan Huggins VP (giving judgment of the court) said:

“The learned judge took a serious view of taxi robberies - very properly so: we accept that taxi drivers must be protected and we will not interfere in the normal case of taxi robberies with sentences of five and six years.”

18.  In Tran Van Anh, three men robbed a taxi driver in the early hours of one morning.  The driver’s hair was pulled and a sharp weapon was pointed at his throat.  He sustained no injuries and his wallet containing $550 was taken away.  The trial judge adopted a starting point of eight years, which was reduced by the Court of Appeal to one of six years — having taken into account the sentencing guidance prevailing at the time of the commission of the offence.  The Court of Appeal nevertheless has this to say:

“Taxi drivers … 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.”

19.  Tran Van Anh was cited and followed in the case of HKSAR v Dhillon (cited by the applicant), R v Kan Kin Hung (unreported) CACC 195/1996, and Secretary for Justice v Tso Tsz Kin [2004] 2 HKC 139.

20.  In Dhillon, one man robbed a taxi driver by grabbing the driver’s neck from behind and demanding for money.  He made away with $340 but was intercepted after a chase.  The trial judge adopted a starting point of five years.  The Court of Appeal cited Tran Van Anh and held that such a starting point was not manifestly excessive.  It should be noted that no weapon was used during that robbery.

21.  In Kan Kin Hung, two men robbed a taxi driver of $546 after pointing a paper cutter at him.  No physical violence was used on the victim.  The trial judge adopted a starting point of five years — after referring to R v Mo Kwong-sang [1981] HKLR 610 but not Tran Van Anh.  The Court of Appeal held that a proper starting point should have been seven years after a contested trial.

22.  In Tso Tsz Kin, two men robbed a taxi driver of $200.  The driver’s neck was grabbed and a pair of scissors was pointed at him.  The trial judge adopted a starting point of six years.  The driver sustained minor injuries.  The Court of Appeal was of the view that a starting point of seven years could have been adopted on the facts of that case.

23.  On the facts admitted by the applicant, there was indeed no actual force used on victim A or victim B, nevertheless, the circumstances of both offences were such that both victims must have been terrified while the robbery was taking place.

24.  Whilst a beer bottle is not normally considered a weapon, the applicant was using such an ordinary item as a weapon to threaten both victims.

25.  It was particularly frightening for victim A when the applicant smashed the bottle first before pointing the broken bottle towards victim A’s neck.  In all the circumstances of the 1^st offence, a starting point of seven years was warranted and such a starting point was neither wrong in principle nor manifestly excessive.

26.  In the case of the 2^nd offence, though an intact beer bottle was not as frightening as a broken one, bearing in mind this was the second time the applicant committed the same offence within a few days, and that his co‑perpetrator frightened victim B by pulling the front seat‑belt during the robbery, a starting point of seven years could not be said to be either wrong in principle or manifestly excessive in all the circumstances of this offence.

F.3.    One-third discount for guilty plea

27.  The one‑third discount is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time: HKSAR v Lee Kwok-chuen, (unreported), CACC 445/2000.  The deteriorating eye‑sight of the applicant is not a ground to further reduce the sentence. 

F.4.    Concurrent/consecutive sentences and the Totality principle

28.  As the two offences were committed at different times, involving different victims, the sentences imposed should be served consecutively to each other but for the totality principle.

29.  The trial judge did consider the totality principle and came to the conclusion that a total sentence of six years was appropriate.  We cannot find fault with the judge’s decision.

G. CONCLUSION

30.  For these reasons, we dismiss the applicant’s application for leave to appeal against sentence.