KAN KIN HUNG v. R.

IN THE COURT OF APPEAL

1996, No. 195
(Criminal)

----------------------

J U D G M E N T

----------------------

Ching, J.A. (giving the judgment of the Court):

1. The applicant was found guilty on his own plea to one charge of robbery committed with Yiu Kwai-fung. He was sentenced to imprisonment for a term of three years and six months and now seeks leave to appeal against that sentence.

2. At about 0100 hours on 2nd October, 1995, the applicant and Yiu Kwai-fung stopped and boarded a taxi and were taken to the Stage 6 Carpark in Nassau Street, Mei Foo Sun Chuen. There Yiu Kwai-fung pointed a paper cutter at the driver and declared robbery. They took or were given a plastic box and a bag containing $546.00. They demanded the car keys from the driver who refused and fled from the taxi. The two men also alighted and ran away with the driver chasing them and raising a hue and cry. A policeman who was off duty in the area joined the chase. They jumped into another taxi which drove off pursued by the policeman in his own car. When they alighted from the second taxi they ran off again, pursued by the policeman and two other policemen who were in the vicinity. They were caught and the applicant was found to be in possession of the plastic box and the money. They both admitted the offence under caution.

3. The applicant has 14 criminal convictions, none for violence but one for dishonesty. At the time of his trial he was serving a sentence of a total of eight months' imprisonment imposed in February, 1996, for theft, loitering and possession of an offensive weapon. The Judge below accepted that the paper cutter was held by Yiu Kwai-fung but rightly, in our view, said that the applicant had taken the risk of a weapon being used in taking the money from the taxi driver. The Judge referred to the vulnerability of taxi drivers to robbery and took a starting point of five years in accordance with the decision in MO Kwong-sang (1981) H.K.L.R. 610. There was nothing in mitigation of the sentence except for the plea of guilty and the Judge gave a discount of 25%. However, having regard to the fact that the applicant had played the minor role he gave a further reduction of three months, to be served concurrently to the sentence then being served by the applicant.

4. While the Judge referred to the decision in MO Kwong-sang (supra) in adopting his starting point of five years, he did not refer to the decision of this Court in Tran Van Anh (1993) 2 H.K.C.L.R. 122. In that case three men, including the applicant, had boarded a taxi in the early hours of the morning, the applicant being in the front passenger seat. One of the men sitting behind grabbed the driver by the hair and pointed a sharp object at his throat. The robbery was completed and the men fled. They were chased by the driver and some policemen and they were apprehended. A fingerprint of the applicant was found in the taxi. This Court stated that where minimal or no violence is used in the robbery of a taxi driver and a weapon other than a firearm is merely displayed it would not interfere with sentences of five or six years. A sentence of seven years would be justified after a contested trial.

5. It will therefore be seen that the starting point of five years adopted by the Judge in this case was too low. He ought to have adopted a starting point of seven years. There was nothing to the mitigation other than the plea of guilty and on the other hand the circumstances were such that the applicant could hardly have expected to contest the charge successfully. The Judge was perhaps, in the circumstances, generous in giving the applicant a discount of 25% for his plea but we are content to proceed on that basis and that would reduce the sentence to one of five years and three months. We do not consider that the Judge was justified in giving a further discount of three months for the fact that the applicant played the minor role. The Judge found that the applicant had accepted the risk of a weapon being used. In addition, the offence was committed while the applicant was on bail pending the hearing of another offence of theft, loitering and possession of an offensive weapon, the sentence for which as already seen was eight months' imprisonment imposed in February of this year. The Judge below did not feel that the totality principle was applicable and we agree.

6. The applicant was warned that if he persisted in his application, he might well find that his sentence would be increased. He chose to continue but said nothing which could assist him. In these circumstances the application for leave to appeal against sentence is granted. We treat this as the appeal, quash the sentence of imprisonment for three years and six months and substitute therefor a sentence of imprisonment of five years and three months.