HKSAR v. MAN KAM SHING

IN THE COURT OF APPEAL

1997, No. 10
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This applicant, who was D2 at trial, pleaded guilty to a single charge of robbery which was particularized as follows: that he together with two others on 12th July 1996 outside the Regional Services Department Refuse Collection Point in Anderson Road, Clear Water Bay, robbed Lau Kam Cheuk of an identity card, a driving licence, $5,500 in cash and a silver necklace chain with two silver pendants. Deputy Judge Barnes sentenced the applicant to four years and he now seeks leave to appeal against that sentence.

2. This was of bad case of armed robbery in company. Three men, one of whom was the applicant, boarded a taxi. They had it driven to an isolated place. They then tricked the driver into stopping and alighting. The applicant then menaced him with a knife and the men took his silver necklace and pendants and his wallet. After an unsuccessful attempt to tie him up, he was put into the boot which was closed. Fortunately for the victim, he had placed a safety handle in the boot and so was able to release himself. When he did so he found that his radio had been cut so was unable immediately to summon help. He also found that the money, the driver's licence and identity card were missing. He drove off and shortly thereafter, with the help of another driver, was able to summons the police who, having arrived at the scene, arrested D1. The applicant however escaped and was not arrested until about a week later.

3. The trial judge said:

"Both Mr. Tong and Ms. Ma (counsel then appearing for the defendants) asked me to be lenient to the defendants. I was told their family background, and frankly, apart from their readiness in co-operating with the police in admitting the offence(s) upon arrest and pleading guilty before me, nothing much could be said for them.

I was referred to a number of authorities, which includes Mo Kwong Sang [1981] HKLR 610, Wong Wai-por Crim. App. o. 464 of 1995, Tran Van Anh [1993] 2HKCLR 122. I myself also come across Shek Sui-tai [1989] 1HKLR 178.

........... For the 1st Charge, which could be conveniently named 'Taxi Robbery', a starting point of 5 1/2 years is appropriate.

The judge then dealt with the 1st defendant and went on:

"Regarding D2 (the applicant), I also bear in mind all that was said on his behalf by Ms. Ma. I consider a term of imprisonment of 4 years appropriate, giving him a 1/4 discount."

4. The applicant now complains that that sentence of four years was too severe and that the discount was insufficient. It is correct that he was entitled unless there was a good reason, which should have been stated by the judge, to a discount of one-third. No such reason was stated by the judge and, indeed, we cannot see that any such existed. We find difficulty, however, in understanding, given the authorities to which the trial judge referred, and in particular Mo Kwong-wang and Tran Van Anh, how she could have arrived at a starting point of 5 1/2 years. Mo Kwong Sang indicates that the appropriate sentence in an ordinary case of armed robbery where the accused carried a knife or other dangerous weapon which he displayed to the victim should be five years. If physical violence including tying up victims is used, a sentence of seven years should be considered. If other aggravating factors are present such as ill-treatment of victims, the sentence should be increased. Given the facts in the present case this indicates a starting point of at least six years. In Tran Van Anh's case which was a taxi driver robbery, Macdougall J.A. said:

"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."

This case would indicate a starting point of seven years. Given that the starting point should have been in excess of six years, the four years imposed, even though the appropriate discount was not given, was in no way excessive.

5. Nothing has been raised which in any way suggests that the sentence imposed was either excessive or wrong in principle, the application must, therefore, be refused.