HKSAR v. CHOI KA TAI

IN THE COURT OF APPEAL

1996, No. 721
(Criminal)

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J U D G M E N T

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

1. The applicant who was D3 at the trial below pleaded guilty to two robberies. He was sentenced to a total of 6 years' imprisonment. He now seeks leave to appeal against this sentence.

2. Both robberies were typical taxi robberies. One took place on 12 December 1995 and the other on 29 December. Both occurred in the vicinity of Pokfulam Road. According to the agreed facts a knife about 12 inches long was produced by one of the robbers, not the applicant, and the victim was required to disgorge all his takings. Unfortunately in the first robbery the victim's face was slashed with the knife with the consequence that he will have a small permanent scar. After being injured the victim attempted without success to escape from the robbers. They caught up with him and got his wallet from which they extracted $1000. After they left the victim drove to the Queen Mary Hospital where he received treatment.

3. The modus operandi of the 2nd robbery was similar but fortunately on this occasion the taxi driver was not injured. On this occasion the robbers got a bag which contained items valued at about $7000. A report was made to the police who promptly attended to the matter. The applicant was found nearby shortly after this and admitted his participation in the offence.

4. As earlier indicated the applicant pleaded guilty at his trial to both these offences. In addition to this he offered to give evidence at the trial against his accomplices. This offer was never taken up. It was however probably the case that D2 pleaded guilty as a consequence of being shown the applicant's statement. In the perfected grounds of appeal one of the main complaints which is made is that the judge failed to give sufficient credit for this.

5. The approach adopted by the trial judge Deputy Judge Wilson was to adopt 6 years for each of the robberies and to consider imposing consecutive sentences. He realised however that 12 years' imprisonment would offend against the totality principal and he adopted 8 years as a starting point which he reduced to 6 years to reflect both the pleas and the assistance the applicant had offered to the prosecution.

6. The question which we have to consider is whether the total sentence at the end of the day was right. However it is approached the total of 6 years' imprisonment on the face of it for the two taxi robberies was neither manifestly excessive nor wrong in principle. The first case in particular was a very serious one in which the victim sustained a small permanent injury. This of itself would justify a starting point of at least 7 years' imprisonment.

7. Having regard to the fact that the second robbery was a separate and distinct offence it was inevitably the case that some of the sentence would have to be served consecutively to the term imposed on the first one.

8. There is however one matter upon which the judge was wrong in principle. That is he should have given some credit for the assistance the applicant gave to the prosecution. This being the case we allow this application and treating it as the appeal we order that the total sentence be reduced by 6 months. To this extent this appeal is successful.