HKSAR v. LAI TING WAH and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 651
(Criminal)

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J U D G M E N T

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Mayo, J.A.:

1. These two Applicants who were aged 17 and 19 seek leave to appeal against their convictions for robbery and in respect of the sentences of five years each which they received.

2. In the trial below in the District Court before H.H. Judge Davies there were altogether four defendants. A1 was D1 and A2 was D4. We will refer to them as D1 and D4 respectively. D1 was convicted of two robberies and D4 of one.

3. In the early hours of the morning of 30th May 1997 police officers were on duty at Wan Hon Street. They saw three men walking briskly on the pavement. As their police vehicle came up alongside the men they started to run. The officers stopped their van and pursued the men on foot. One of them succeeded in catching D1. When he was asked why he had been running D1 said that he and the other two men had just committed a taxi robbery. The officers made a note of this and took D1 back to the police station.

4. The officers enquiries to locate the taxi driver were unavailing. Initially the information D1 gave to the police concerning the other culprits was insufficient to enable them to identify them. However after D1 had a visit from his elder sister he made a full statement and provided detailed information concerning the other men. In addition to this he gave information about the robbery referred to in the first charge which had occurred in September 1996. That case was a far more serious one as the taxi driver victim sustained quite serious injuries necessitating his being detained in hospital for some days. D1 informed the police that on this occasion D4 had been the other man involved.

5. The police arrested D4 and he made a statement in which he admitted his involvement in the September robbery. An identification parade was arranged when the driver was able to identify D4.

6. Both Applicants pleaded not guilty at their trial and contested the voluntariness of the statements they had made. After hearing voire dire the Judge was satisfied that the statements were voluntary and admitted them as evidence.

7. Neither D1 nor D4 gave evidence in the trial itself. The Judge was however satisfied of the truth of the contents of the statements and of the victim's identification of D4 on the first charge and convicted both these Defendants.

8. D1 did not put forward any Grounds of Appeal in his application.

9. Before us, he pointed out that the only evidence against him was his cautioned statement and it was therefore unfair to convict him.

10. D4 in his perfected Grounds of Appeal complains about the taxi driver's identification of him and the fact that he did make two wrong identifications on other occasions. It would appear from the Judge's Reasons for Verdict that he did refer to one of them and he must have been aware of the wrong dock identification.

11. The other complaint which is made is that the Judge did not sufficiently consider the medical evidence relating to the alleged assault on D4 by police officers.

12. Both these matters were entirely within the Judge's province who had the advantage of considering this evidence at first hand. We can see no justification in intervening with his assessment of the evidence.

13. Neither of these convictions were unsafe or unsatisfactory and these applications are dismissed.

14. We have been informed that D1 did not wish to proceed with his application for leave to appeal against sentence and this being the case the application is dismissed.

15. So far as D4 is concerned the main complaint which is made is that the sentence which was imposed upon him was manifestly excessive in all the circumstances. The taxi robbery was a particularly vicious one in which the victim sustained quite serious injuries. We consider that rather than being excessive this sentence was in fact a very lenient one. The 7 years starting point was in conformity with MO Kwong-sang v. R. [1981] HKLR p.610 having regard to the serious injuries sustained by the victim. However, there appears to have been no justification in reducing the sentence to be served on the basis of the youth of D4.

16. We propose increasing the sentence imposed on D4 from 5 years to 6 years.

Leong, J.A.:

17. I agree that 6 years is the appropriate sentence in the case of D4. I have nothing to add.

Stuart-Moore, J.A.:

18. This case gives rise to several factors as to the sentences which were imposed for this taxi robbery which was, on any view, a serious one. It was in these circumstances that the Applicants were warned of the court's powers under s.83(I) of the Criminal Procedural Ordinance, Cap. 221. On hearing this D1 abandoned, but D4 decided to pursue, the application for leave to appeal in relation to sentence.

19. In passing sentence in the District Court, Judge Davies said that, with regard to D4, he had confessed to committing this robbery by using a cutter to injure the taxi driver and that 7 years, as a starting point, was clearly appropriate. It may be that the Judge had in mind, when he said that, the case of HKSAR v. MAN Kam-shing, [1997] 3 HKC 469. That was a case in which a number of men had boarded a taxi and threatened the driver with a knife. They later unsuccessfully attempted to tie the driver up having robbed him, and he was placed in the boot of the vehicle which was then closed. The court held, relying on Tran Van Anh (1993) 2 HKCLR 122 to which the judge did refer, that where there is physical violence such as the tying up of a victim in an ordinary armed robbery, 7 years should be taken as the starting point and that this was appropriate also in taxi robbery cases.

20. In the present case, the driver was attacked in his taxi late at night by D4 with a sharp-bladed weapon of some kind. After the driver had been robbed, it was discovered later that he had multiple lacerations and wounds over both his arms and his abdominal wall. The left forearm muscle and his radial nerve had been cut. He was kept in hospital for two days.

21. The Judge, in passing sentence, having decided that 7 years was the appropriate starting point, went on to say about D4:

"He is about 2 years older than his accomplice, D1. He is now 19 years old. He also has a clear record. I feel, however, in his case also that a period in the Training Centre would not reflect the criminality involved and his culpability. I will take regard for his age and clear record, and give him a discount of two years. He is accordingly sentenced to 5 years' imprisonment on charge 1."

22. If discounts of the kind awarded in this case, amounting very nearly to one third, are going to be given to defendants who contest serious offences of this type who have little or no mitigation, it makes a virtual mockery of the discounts which are awarded to those who plead guilty where the courts almost invariably give credit.

23. Not only was this sentence not excessive, it was extraordinarily light for an offence of this gravity. The Judge seems to have attached a far too much significance to the Applicant's clear record and his age. In MO Kwong-sang v. R. [1981] HKLR at p.610, to which the Judge also in his Reasons for Verdict referred, this Court said that little account should be given for a clear record. Whilst the court was not entirely shutting the door upon this aspect, the Judge in the present case was wrong in his approach in dealing with D4 in the way he did.

24. The Judge said in the course of his Reasons for Sentence:

"The Court of Appeal had held in MO Kwong-sang v. R. that in imposing sentence, little account should be given to the previously clear record of anyone who takes part in an armed robbery. I note, however, that it says little account and not no account. It seems to me that age must be a material mitigating factor, notwithstanding that the most taxi robberies seem to be committed by persons in the same age bracket as these defendants, accordingly I give a further discount in sentence of 2 years."

25. That was said in relation to D1.

26. The sentences were out of line with sentencing tariffs for offences of this gravity and I entirely agree with the judgment already given by Mayo, J.A. I, too, would increase D4's sentence so that it more closely approximates the term that should have been passed in the first place.