HKSAR v. KAM FAI

CACC 461/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 461 OF 2002

(ON APPEAL FROM DCCC NO. 676 OF 2002)

________________

________________

__________________

J U D G M E N T

__________________

Hon Yeung JA (giving judgment of the Court):

Background

1. The applicant, Kam Fai appeared in the District Court before Deputy Judge CP Pang on the 1st charge of "Attempted robbery", the 2nd charge of "Possession of instruments fit for unlawful purpose" and the 3rd charge of "Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong".

2. The applicant pleaded guilty to all 3 charges and was sentenced to respective terms of 4 years and 8 months, 4 months and 12 months imprisonment. The 4 months is concurrent sentence, so is 6 of the 12 months. The total sentence is one of 5 years and 2 months.

3. The applicant now seeks leave to appeal against the sentence. He suggests that the sentence on 1st charge is too heavy.

The Facts

4. The applicant is aged 22 and single. He has a clear record. On 20 May 2002, the applicant entered Hong Kong illegally by hiding underneath a cross border lorry. He had with him a 7 inch cutter blade and a U-shaped bicycle lock that he brought from Shenzhen for the purpose of robbery.

5. At about 10:00 a.m. on the same day, the applicant boarded the back seat of the victim's taxi in Kwai Chung and asked to be driven to Sheung Shui Railway Station. On arrival at the Station, the applicant instructed the victim to drive forward to a side lane. The applicant then grabbed the victim's bag that was placed on the front passenger seat. The bag contained some personal items and about $700.

6. When the victim resisted, the applicant produced a pair of scissors to attack him. A police officer on motorcycle patrol passed by and the applicant was subdued and arrested. The cutter blade and the U-shaped bicycle lock were found on the applicant's person. The applicant admitted that he assaulted the victim in order to snatch his bag.

The Judge's Approach

7. The judge referred to Mo Kwong-sang [1981] HKLR 610 which suggests that a proper starting point would be 6 years' imprisonment. The judge also referred to the warning of this court in Tran Van Anh [1993] 2 HKCLR 122 that 7 years' imprisonment for taxi robbery after trial would be justified.

8. The judge pointed out that the applicant committed the offences on the same day he arrived Hong Kong illegally and that he carried weapons. The applicant also used violence by attacking the victim with the pair of scissors. The judge indicated there was no mitigating factor other than the guilty plea.

9. For the 1st charge of "Attempt robbery", a starting point of 7 years was adopted and reduced by one-third to 4 years and 8 months for the guilty plea.

The Ground of Appeal

10. The only complaint by the applicant is that the sentence on the 1st charge is too severe. He emphasizes that it was the first time he came to Hong Kong. He also says he did not injure the victim and there was no loss of property.

11. This court did say in Tran Van Anh (supra) at page 124 of the judgment the following:

"The court has said that in the normal case of taxi robberies it will not interfere with sentences of five to 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. 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. Taxi drivers, as we have frequently observed, are particularly vulnerable to robbery, especially those 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 contest trial would be justified for offences similar to that in the present case."

12. On the other hand, it has to be pointed out that the facts in Tran Van Anh is more serious in that the robbery was committed by three robbers and the victim had been subject to more serious violence and threat when his hair was grasped hold of and a sharp object was pointed at his throat before robbery was declared. Although the applicant produced a pair of scissors when the victim resisted, the victim was not injured in anyway.

13. Taxi robbery is no doubt a very serious offence, but we are of the view that the present case is not the worst case of the type. We are persuaded that on the background of the case and that of the applicant, the starting point of 7 years for the 1st charge is manifestly excessive and that a more suitable one should be 6 years.

14. A charge of "Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong" normally attracts a consecutive sentence of 15 months' imprisonment. When the learned Deputy Judge only imposed a 12 months' imprisonment and ordered 6 months to be served concurrently, he must have the totality principle in mind.

15. The applicant came to Hong Kong for the purpose of committing a serious crime; there is no reason why the 12 months' imprisonment should not be a consecutive term.

Conclusion

16. The application for leave to appeal is allowed and we treat the application as the appeal. The appeal is allowed. The sentence on the 1st charge is reduced to 4 years' imprisonment. The sentences on the other charges are to remain and to be served consecutively except for 4 months on the 2nd charge.

17. The total sentence is reduced from 5 years and 2 months to 5 years.