R. v. CHOI CHUN WO

IN THE COURT OF APPEAL

1996, No. 320
(Ciminal)

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J U D G M E N T

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

1. The applicant, Choi Chun-wo, was charged with one Wong Kit-hak, who was the 1st defendant - the applicant being the 2nd defendant - in the High Court on three counts. The first count was robbery contrary to s.10 of the Theft Ordinance (Cap 210); the particulars being that the two of them on or about 6th September 1995 at Tai Tong, Yuen Long, New Territories, robbed Cheung Chi-choi of HK$500 in cash and two bank cash cards. The second count was murder contrary to common law; the particulars being that on the same day at the same place, they murdered Cheung Chi-choi. The third count was also of robbery; the particulars being that the two of them on 9th September 1995, three days later, at the roadside near Tai Fat Tsuen, Kung Um Road, Yuen Long together with a third person, robbed Chan Chung-wah of HK$300.

2. The applicant pleaded guilty before P. Chan J to the first and third charges, and to manslaughter on the second charge. The 1st defendant also pleaded guilty to the two robbery charges. The 2nd defendant was tried and convicted of murder on the second count and sentenced to life imprisonment. The applicant was then sentenced to 7 1/2 years on the 1st count and on the second count to run concurrently; and to 4 1/2 years on the 3rd count, 2 1/2 years of which was to run concurrently with the two other sentences, making a total of 9 1/2 years. He now seeks leave to appeal against sentence.

3. The facts of the matter can be taken quite simply from the judge's reasons when he imposed sentence to be found at p.61 onwards of the transcript. The two defendants obtained knives from a supermarket with the intention of using them to obtain money and decided to stage a taxi robbery. They hailed a taxi which was driven by the deceased, Mr Cheung Chi-choi. The pretext they used was their car was broken down somewhere in a remote area in the New Territories. They directed the driver to go there. After a while the driver was asked to stop in a quiet place. Knives were pointed at him. Adhesive tape was used to bind his head, eyes and mouth, and also his hands. He was dragged out of the taxi. The applicant took some cash and the driver's bank cards in the taxi. They kicked the driver in the head and the back to force him to give his PIN numbers which he ultimately did. They then took the driver to the hillside. The 1st defendant stood guard while the applicant went back to the taxi to search it. While the applicant was away, the 1st defendant inflicted a number of severe cut wounds to the driver's neck which ultimately caused his death. As we said, the 2nd defendant was not there although he heard the shrieks of the deceased. After the killing, the applicant assisted the 1st defendant. They cleaned off the fingerprints. They tried to push the taxi down the slope. When they failed to do so they set it alight. They used the cards to obtain about $10,000 which they shared equally.

4. In respect of the second robbery, three days later, the 1st defendant hailed a taxi. He asked the driver to go to a place in Yuen Long where he picked up the 2nd defendant and another person. They went to a quiet place. There a knife was pointed at the driver who was tied up. When they were driving later, this taxi collided with an approaching vehicle. The three robbers fled. But the 1st defendant and the applicant were later arrested.

5. In sentencing the applicant the judge noted that he was 23 years of age at the time of sentencing and 22 at the time of the offences. He had some previous convictions, totally unrelated. The judge took the view that taxi robberies were very serious offences. This had been noted time and again by the courts. In respect of the first robbery he bore in mind that weapons were taken along, the victim was tied around the head and hands, he was kicked and was manhandled. The judge quite rightly did not differentiate in the matter of culpability between the two defendants. They had taken part in the matter together. Bearing in mind previous Court of Appeal decisions, he took a starting point of 8 years for the first robbery. He then addressed the second count in respect of the applicant, the manslaughter offence. He accepted that the applicant did not strike blows or any blows on the victim and had no intention to kill or cause grievous bodily harm. He took it that the jury proceeded on the basis of joint enterprise. He then said this:

"Bearing in mind his degree of culpability in respect of the first incident involving the robbery and the manslaughter, I deem a total sentence of 15 years imprisonment, after a trial, would be appropriate."

He took into account the applicant's early confession, his plea of guilty, his having given evidence against the Crown which the Crown accepted as making a real contribution to the conviction of the 1st defendant. He also took into account the applicant's young age and relatively clear record and decided to give him a 50% discount. It was upon that basis that he imposed the sentences of 7 1/2 years in respect of the first two counts to run concurrently. For the second robbery, again he took 8 years as a starting point. He then took into account that the applicant would have assisted the Crown in giving evidence against the third person, but for the fact that the latter pleaded guilty. In consequence, he imposed a sentence of 4 1/2 years in respect of the second robbery of which, as we have said, he ordered 2 1/2 years to run concurrently.

6. Mr Loughran for the applicant, who did not appear below, really takes only one point in support of the application for leave to appeal. It is this that in taking 15 years as the starting point for the manslaughter charge, the judge took too high a starting point. It is true that in the very few authorities that seem to be available on such manslaughter sentences, 15 years does seem to be a rather high starting point and in excess of that adopted in the three authorities that he has drawn to our attention. Only two of them need be mentioned. Leung Yeung-ching v R CrimApp 378 of 1983, unreported, was a case of manslaughter and robbery and the starting point taken was 13 years. In R v Lee Yuk-wah CrimApp 74 of 1990, the starting point of 10 years was adopted in the burglary and manslaughter combination there. The third case, R v Ko Kam-hung [1991]2 HKLR 433, we do not really find of assistance; the circumstances are very different.

7. In the result, therefore, we are inclined to agree that the starting point of 15 years is high and apparently beyond any starting point that has been discovered by counsel. Had that been the only point in this case, it may well have proved material. But clearly here there were other factors and what the judge was doing was addressing the totality. He achieved what does not appear to us to be a manifestly excessive sentence in respect of the three offences in his ultimate total of 9 1/2 years. Had the slightly lower starting point indicated in Mr Loughran's submissions been taken, in effect it would have achieved a possibly slightly lower total. As we say, viewing the matter in the round, we do not feel able to say that the totality was manifestly excessive.

8. It has to be said in addition that the third offence which took place three days later was a totally different sentence. The judge could very well have ordered the whole of that sentence of 4 1/2 years to run consecutively. He chose to make 2 1/2 years of that sentence concurrent.

9. For those reasons we think that there is no good reason to interfere in this matter. We refuse leave to appeal.

Power, Atg C.J.:

10. I would like to add that I have some doubt whether the applicant was entitled to have any part of the sentence on the second robbery made concurrent with the sentence on the first robbery. He was fully aware of the murderous inclination of Wong but this did not deter him from, 3 days later, embarking upon the second robbery in which he was the one armed with a knife. This calculated, callous and manifestly culpable behaviour deserves no sympathy.