HKSAR v. DHILLON KENNETH SIMON

CACC 90/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 90 OF 2002

(ON APPEAL FROM DCCC NO. 977 OF 2001)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 At about 8 pm on 26 September 2001, the applicant hailed a taxi at Kam Shing Road and directed the taxi driver to go to Fei Ngo Shan Road. When they were reaching their destination, the applicant grabbed the driver's neck from behind and ordered him to stop the vehicle. He then told the driver to surrender all his money. The driver gave him $360 and asked for some of it back for a meal. The applicant then threw back $20, and told the driver to drive on and not to look back. The applicant fled. He hailed the next taxi, although the victim of the robbery pursued it. The applicant told the second driver that he had had an argument over money with the taxi driver in the vehicle behind and, to lose him, he encouraged that driver to jump some red lights. The police had in the meantime been called, and intercepted the second vehicle, and the applicant was arrested, but he denied the offence.

2 He was charged with robbery, and pleaded guilty in the District Court before Deputy Judge Mierczak who sentenced him to a term of 3 years and 4 months' imprisonment. This is the applicant's application for leave to appeal against that sentence.

3 The judge took the following approach. He said that the range of starting points was between 5 and 8 years' imprisonment, and that given that in this case there was no weapon used, that the applicant acted alone, and that no injury was caused, he would take the lower end of the range, and adopt a starting point of 5 years. With the normal discount now given for pleas of guilty, the result was a sentence of 3 years and 4 months' imprisonment. Whether the judge had in mind previous utterances specifically related to taxi robberies we cannot be sure. But be that as it may, it is said by Mr Andrews, who today appears on behalf of the applicant, that the starting point was too high; and that there are cases in which the courts have approved a starting point of 5 years in taxi robberies where a weapon is displayed; and cases of 4 years starting points in lift robberies where no weapon has been used.

4 Reliance was placed on a passage in R v Tran Van Anh [1993] 2 HKCLR 122 at 124 where it was said:

"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."

Mr Andrews has also sought to draw comfort from the various steps which were taken in the judgment of the Court of Appeal in Mo Kwon-sang v R [1981] HKLR 610 in reaching particular starting points, dependent upon a variety of circumstances.

5 It suffices for present purposes to go back to Tran Van Anh, and to say that where the Court was there referring to sentences of 5 or 6 years' imprisonment, it was expressly referring to earlier instances in which reference had been made to normal cases of taxi robberies. The cases, or one of the cases, which the Court may well have had in mind was R v Li Lun-hoi, 1983, Cr App No. 1387of 1983, unreported, in which Sir Alan Huggins, V-P 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."

What, however, is of significance is the comment onto which the Court in Tran Van Anh moved, and which reads as follows:

"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."

That was a case in which there had been three men who robbed the taxi driver and had pointed a sharp object at his throat and held his hair.

6 In the case of R v Kan Kin Hung, Cr App No. 195 of 1996, unreported, two men engaged in a robbery and one pointed a paper cutter at the driver and without using physical violence upon him, made off with $546. The Court of Appeal there referred to Tran Van Anh, saying that although the trial judge in the court below had referred to the decision in Mo Kwong-sang, he had not referred to the decision in Tran Van Anh, and the Court concluded that, in the light of Tran Van Anh, a starting point of 7 years was an appropriate one for that particular case.

7 In these circumstances, we fail to see how it can be said that a starting point of 5 years' imprisonment in this case, and the resulting 3 years and 4 months' imprisonment, was manifestly excessive. This was a taxi robbery in which, although no knife was used, the driver was seized by his neck from behind and money was stolen. The applicant, who is not a person of previous good character, can point to no mitigation other than his plea of guilty, for which full credit was given. Accordingly, this application for leave to appeal against sentence is dismissed.