HKSAR v. FAN SIU KI

CACC 388/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 388 OF 2010

(ON APPEAL FROM HCCC NO. 307 OF 2009)

________________________

________________________

J U D G M E N T

________________________

Hon Fok JA (giving the Judgment of the Court):

Introduction

1. The applicant was convicted after trial before M. Poon J and a jury on 19 October 2010 of one count of robbery and three counts of wounding.  He was sentenced to 7 years’ imprisonment on the robbery count (count 1) and 12 months’ imprisonment on each of the wounding counts (counts 2 to 4), with 6 months of each of those sentences to run consecutively, so that the total sentence imposed was 8 years and 6 months.

2. Against those convictions and sentences, the applicant now seeks leave to appeal.

The facts

3. The case for the prosecution was that on 8 June 2009, at about 7.50 pm, the applicant boarded a taxi driven by PW1 in Sham Shui Po and asked to be taken to Beacon Heights.  When they had arrived there, the applicant told PW1 to pull off to the side of the road where he then tried to tie a nylon rope around PW1’s neck and used a stun gun on PW1.  PW1 fled from the taxi and was chased by the applicant.  There was a struggle in which PW1’s shirt was torn or pulled off and PW1 fell to the ground at which point the applicant used the stun gun on him again.  The applicant went back to the taxi and took a yellow bag containing PW1’s money and then came back and tried to tie him up with the nylon rope.

4. At this point another taxi driven by PW2 happened to pass by.  PW2 and his two sons, PW3 and PW4, who were with him, stopped and came to PW1’s assistance.  The applicant then went to PW1’s taxi and got in the driver’s seat. PW3 managed to take the key out of the ignition and the applicant then got out of the driver’s seat and went into the rear compartment of PW1’s taxi.  PW1 and PW2 then held the back door of the taxi shut to prevent the applicant from escaping.  The applicant, however, wound down the window and in the ensuing struggle injured PW1 and PW2 with a paper cutter.

5. The applicant then got out of the taxi with the yellow bag.  He was holding the paper cutter and chased after PW3.  He then climbed into the driver’s seat of PW2’s taxi and stepped on the accelerator.  PW3 again managed to take the key out of the ignition.  A struggle ensued between the applicant and PW2 and PW3, during which the applicant bit PW3 on his left forearm just above the wrist.

6. The applicant was eventually subdued and police officers arrived and arrested him.  A Samsung mobile phone belonging to PW1 was found in the applicant’s left front trouser pocket, which PW1 kept on the dashboard of his taxi.  The stun gun was recovered from the driver’s seat of PW1’s taxi and, on examination, was found to be functioning properly.  The forensic evidence disclosed that it was capable of causing pain, muscular contractions and even temporary incapacitation of a human, even when applied through clothing.

The defence case

7. The applicant pleaded not guilty to all the charges.  It was his case that he had boarded PW1’s taxi and asked to be taken to Riviera Gardens in Tsuen Wan.  On arriving at Beacon Heights and discovering he had been taken to the wrong place, he and PW1 entered into an argument during which PW1 said “robbery” and ran out of the taxi.  The applicant said he had taken out the stun gun from his bag to scare PW1 and that PW1 might have bumped against it once but he never intended to attack PW1.  He followed PW1 when he ran out of the taxi and carried the nylon rope because he thought PW1 was a robber and wanted to catch him.  While he was running after PW1, he found the Samsung mobile phone on the ground and picked it up, thinking it was one of his.

8. When PW2’s taxi arrived, the applicant went back to PW1’s taxi because, he said, there was no need for him to struggle with PW1 any more after the others arrived.  He said he got into the driver’s seat to switch on the engine to turn on the air-conditioning because he felt hot after the struggle.  After PW3 took the ignition key, he tried to get into the rear compartment of the taxi to collect his belongings.  He said that others tried to press the rear door against him and his leg became trapped in the door so he wound down the window and was punched through the window by PW1.  He then took out the paper cutter and waved it about to scare the others and defend himself during which PW1 and PW2 may have sustained their injuries.

9. After the others backed off, he left PW1’s taxi with his bags.  He said PW2 and PW3 tried to snatch his bags so he struggled with them during which he seemed to have bitten PW3 once.  He pushed them off and got into the driver’s seat of PW2’s taxi and stepped on the accelerator. PW3 then dragged him out and pressed him onto the bonnet of the taxi, at which point the police arrived.

The verdicts and sentences

10. The jury clearly did not believe the applicant. He was found guilty on all four counts, unanimously on the first three and by a majority of 6-1 on the fourth.  For these offences, the Judge imposed the sentences I have already referred to.

This application

11. By this application, the applicant seeks leave to appeal against both the convictions and sentences.

12. The applicant applied for Legal Aid but this was refused in January 2011.  At a mention hearing before Yeung JA, in March 2011, he indicated he had found a legal representative but had not decided whether to engage him or not and the matter was adjourned for 3 months.  At a further mention hearing before Kwan JA, in June 2011, he was directed to submit perfected grounds of appeal within 8 weeks.  A further mention hearing took place in January this year before Hartmann  JA, at which the applicant was given until 30 March 2012 to file his perfected grounds of appeal, failing which the matter would be listed for hearing.

13. As at today’s hearing, the applicant has yet to submit perfected grounds of appeal.  In his handwritten statement attached to his Form XI application for leave, the applicant says:

“I now apply for leave to appeal against the aforesaid conviction and sentence because it is too heavy.”

Appeal against conviction

14. We have carefully read through the transcript of the Judge’s summing up to the jury and we are entirely satisfied that she fairly summarised the evidence for both the prosecution and the defence and properly gave directions to the jury on the relevant matters of law, including the prosecution’s burden and standard of proof and the relevance of the defendant’s clear record.

15. The case was a straightforward one, in which the only real issue at trial was one of credibility.  In our view, the evidence against the applicant was overwhelming and his defence was one which had very little prospect of being believed and, indeed, was disbelieved by the jury.

16. At the hearing before us today, the applicant has contended that there was evidence suggesting he could not have had any motive for committing the robbery.

17. However, we are satisfied that the applicant has not identified any proper basis for challenging the convictions and that there is nothing unsafe or unsatisfactory in them.  The application for leave to appeal against conviction is without any merit and we dismiss it.

Appeal against sentence

18. The Judge adopted a starting point of 7 years for the robbery and in doing so referred to R v Mo Kwong Sang [1981] HKLR 610, R v Tran Van Anh [1993] 3 HKCLR 122 and HKSAR v Lai Ting Wah [1998] 3 HKC 509.

19. We agree with the Judge who said, in sentencing the applicant, that this was a planned robbery rather than a spur of the moment snatching case.  The applicant had brought with him the implements to commit the robbery, he directed PW1 to drive to a quiet location at night and proceeded to use a stun gun on him repeatedly and tried to tie him up with a piece of rope.

20. Not only was the robbery planned but considerable violence was used in its execution: PW1 suffered a 10 cm cut wound over his right upper limb, a superficial abrasion over his left elbow and a burn mark over his right shoulder; his cut wound required 13 stitches.  The applicant also tried to tie a nylon rope around PW1’s neck and used the stun gun on him several times.  He chased PW1 out of the taxi and tried to tie PW1 up even after he had taken his money.  Had PW2 not arrived in his taxi with PW3 and PW4 to come to PW1’s rescue, PW1 might well have come to more serious harm and would certainly have suffered more than he did.  This was a particularly bad case of its type involving as it does a section of the community particularly vulnerable to robbery and, in all the circumstances, the 7 year starting point imposed after a contested trial was fully justified, even in the absence of more serious injuries to PW1 than those he actually suffered.

21. As for the wounding offences, in addition to the injuries sustained by PW1 from the paper cutter, PW2 sustained a 3 cm laceration of his left forearm from the paper cutter and PW3 sustained a bite wound over his left forearm and an abrasion wound of his lower lip.

22. The wounding offences were separate offences and, in relation to PW2 and PW3, happened after the robbery and while the applicant was trying to flee the scene.  Although they related to the same incident, three different victims were involved.  PW3’s bite wound carried with it the risk of infection.  There is no basis for complaint against the starting point of 12 months adopted by the Judge for each of the wounding counts and for her ordering part of each of the sentences for those offences to run consecutively.

23. We are satisfied that the overall sentence of 8 years and 6 months was neither wrong in principle nor manifestly excessive and, in the circumstances, the application for leave to appeal against sentence is also without any merit and we dismiss it.