SECRETARY FOR JUSTICE v. TSO TSZ KIN

CAAR 1/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 1 OF 2003

(ON APPEAL FROM DCCC 477 OF 2003)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1. On 17 June 2003, the Respondent pleaded guilty in the District Court before Judge Whaley to a single charge of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210. The Respondent was sentenced on the same day to two years' imprisonment.

2. This matter now comes before us as an application by the Secretary for Justice (the Applicant), for a review of sentence under section 81A of the Criminal Procedure Ordinance, Cap. 221. Mr Kevin Zervos, SC, on the Applicant's behalf, submitted that the sentence, having regard to the facts of the case, was manifestly inadequate.

The facts

3. The Summary of Facts which was placed before the court revealed that this offence was committed by the Respondent on 18 March 2003 at about 4.15 a.m. The chosen victim was the driver of a taxi which the Respondent and Ho Wai-kit (D1) had got into at Mongkok. The victim was told to drive them to an address in Tsuen Wan. When the victim arrived there, D1 grabbed his neck from behind and pointed a pair of scissors at him. The victim, however, managed to disarm D1 and, in doing so, sustained minor lacerations over his chin and right hand. While this was happening, the Respondent had searched the victim's shirt and eventually took the cash box containing about $200 from the front seat. Both men then fled with the victim chasing after them. They then jumped over an embankment sustaining injuries in the process. The Respondent, in particular, suffered multiple injuries and fractures to several limbs.

4. The Respondent was later picked out by the victim in an identification parade as one of the robbers. He also admitted his involvement to the police.

Mitigation and sentencing

5. Defence counsel in the court below laid particular stress on the serious injuries suffered by the Respondent in the course of his attempt to escape the scene of the crime. Counsel referred to the Respondent being in hospital throughout the time since the commission of the robbery until the proceedings in the District Court, a period of some three months, having suffered what he described on instructions as a permanent injury to his left hand, double vision in his right eye and internal injuries. It was suggested also that the Respondent had committed the offence under the influence of drugs and alcohol.

6. The judge appears to have accepted the seriousness of the injuries as they were set out by defence counsel. However, no medical report was provided to support what had been said. It now seems that the Respondent's left wrist was broken. Mr Eric Kwok, on the Respondent's behalf, accepted in the course of these proceedings that in fact no permanent injury had been suffered by the Respondent.

7. In passing sentence, the judge adopted a six-year starting point for both D1 and the Respondent having given consideration to the guidelines set out in R v Tran Van Anh [1993] HKCLR 122. D1 was then given a one-third discount for his plea and a further discount of six months for good character, leaving him with a sentence of three and a half years after being given an overall discount of about 42%. This was, of course, too generous but we are not concerned with D1's case.

8. When the judge turned to the Respondent's case, he said:

"The 2nd defendant is also 23 years old, and he has a clear record. He was a man of good character before becoming involved in this offence.

Although he did not himself apply any force during the course of the robbery, he made common cause with the 1st defendant, it was a joint venture, and the 2nd defendant is in law responsible for everything his co-accused did in committing this robbery. However, it is right that for the purposes of sentencing, the roles played by the respective defendants are given due weight and in this respect I note that the 2nd defendant did not use or apply any force during the course of this robbery, and that the initiative for the robbery did, as I have said, come from the 1st defendant who brought the scissors onto the taxi...." (Appeal bundle pp. 22-23)

A little later, the judge went on to say:

"The 2nd defendant sustained by far the most serious injuries in this incident, including fractures to several of his limbs and multiple injuries all over his body. Indeed, his left forearm and wrist are still in a cast today as he appears in court, and (defence counsel) has informed me that he has been in hospital at Lai Chi Kok Reception Centre awaiting this court appearance. He also sustained injury to his right eye, as result of which he has a weakness in his eyesight in his right eye and double vision. His serious injuries led him, so it is submitted, to 'deeply reflect on his misdeeds' and he is very sorry for what he did to the victim." (Appeal bundle p. 23)

9. After dealing, lastly, with aspects of the Respondent's unhappy background, his remorsefulness and previous good character, the judge adopted the same starting point as he had done for D1. He then gave the Respondent a one-third discount for his plea of guilty and a discount of a further one-third for four reasons taken in combination. These, in summary, were that the Respondent had played a "less serious role" in the robbery, had no previous convictions, had suffered serious injuries in getting away and had displayed such remorsefulness that it was unlikely he would re-offend.

The starting point

10. The sentence imposed upon D1 is not the subject of review and, for present purposes, it was accepted by Mr Zervos that the six-year starting point adopted by the judge is the starting point with which we should begin. However, he pointed out, correctly in our view, that some of the features of this case were such that a starting point of no less than seven years' imprisonment might well have been expected. Those features are that this was a robbery committed in the early hours of the morning, in a quiet and relatively isolated location, with more than one assailant, who visited the driver with violence, using a weapon which occasioned injuries to the victim. In R v Tran Van Anh (above), the Court of Appeal said at p. 124:

"Taxi drivers ...... are particularly vulnerable to robbery, especially those who ply for hire late at night or in the early hours of the morning or who pick up or drop passengers in quiet locations. Henceforwards, sentences of 7 years' imprisonment after a contested trial would be justified for offences similar to that in the present case." (Emphasis Added)

11. A study of the facts of in R v Tran Van Anh reveal circumstances very similar to those in the present case, with one exception which is that in the case with which we are presently concerned injury was actually caused to the driver, whilst in Tran Van Anh's case there were no injuries. We note that in his Reasons for Sentence, the judge said:

"The guidelines provided by the Court of Appeal are not intended to be a straitjacket." (Appeal bundle p. 21)

That is correct, of course, but the judge did not give any reason at all for distinguishing this case from the starting point suggested in R v Tran Van Anh. We can see no reason why a starting point of seven years should not have been adopted on the present facts.

The application

12. Mr Zervos took issue with each of the matters taken into account by the judge as factors carrying weight in mitigation. He submitted that none of them merited an increase in the discount of one-third which, properly, had been given for the Respondent's plea of guilty. He accepted, however, that as D1 had been sentenced to only three and a half years' imprisonment, the Respondent would have to be given the same sentence if he were not to be left with a sense of grievance.

13. Firstly, Mr Zervos contended that the role played by the Respondent in this joint enterprise, namely, the searching of the victim while he was being threatened with the scissors by D1, should not have led to any distinction on sentence being made between his role and the part played by D1.

14. Mr Kwok submitted that as the judge had found that D1 had taken the initiative to commit this offence, this provided some basis for making the sentence imposed on the Respondent somewhat lower than D1's sentence.

15. With respect, we disagree with Mr Kwok. In the first place, there was no basis upon which the judge was justified in finding that the offence was initiated by D1 in the sense of being conceived or planned by D1 and Mr Kwok did not today seek to provide any basis for making a distinction of this kind between the Respondent and D1. The fact that D1 took the first step, by drawing out the scissors, was a point of no significance whatsoever.

16. It is trite that where two people set out to commit a crime together, each taking a different role, but with an awareness of what the other is proposing to do, there should be no distinction made between their sentences based on the roles they have played. Examples of this kind are commonly to be found in cases where a lookout is used at the scene of a crime or where the driver of a vehicle knowingly conveys the participants to and from the scene of the crime. Each plays a vital role in the joint venture and each is liable to be sentenced on an equal footing with the others engaged in the enterprise. If the mastermind of a sophisticated and serious criminal enterprise is revealed, he will, by reason of this additional factor, sometimes receive a heavier sentence than his accomplices.

17. In the present case, D1 and the Respondent were equal participants, each deserving the same sentence. There was no possible basis for making any distinction in their criminality. They were involved in the offence together in every sense.

18. Taking the second category of mitigation on which the judge reduced the sentence, the judge had given the Respondent an additional discount for his previous good character. Again, Mr Zervos was able to point out that this court has on numerous occasions indicated that this factor in mitigation can be recognised where positive good character is shown by, for example, the provision of unpaid service to the community, as opposed merely to the absence of a criminal record. As this court indicated in HKSAR v Lee Kwok-chuen, CACC 445/2000 (unreported), the element of good character is normally taken as being included in the one-third discount for a plea of guilty which is "usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time".

19. The third factor to be criticised by Mr Zervos, which was taken into account by the judge when reducing the Respondent's sentence by two-thirds, related to the injuries suffered by the Respondent in his escape. We were reminded that in Yip Kai-foon v HKSAR [2000] 3 HKCFAR 31, where the applicant had been paralysed by injuries he had received in the course of a gun battle with the police, Li CJ (at pp. 35-36) said:

"Under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity. See HKSAR v Tong Fuk Sing [1999] 3 HKLRD 710 at p.714C, [1999] 3 HKC 332 (Court of Appeal) at p.336D per Stuart-Moore V-P where the crime of gravity in question was domestic burglary for which the Court of Appeal substituted a sentence of 3 years in place of the 18 months imposed by the Trial Judge. See also R v Ho Mei Lin [1996] 4 HKC 491 (Court of Appeal) at p.493B where Nazareth V-P in a drugs trafficking case observed that '... it is well-established that ill health is not normally a reason for reducing a proper sentence.'

In these cases, the defendant's physical condition did not result from injuries received in the course of criminal acts. Where his condition did so result, the Court of Appeal held in R v Chak Shui-chung [1989] 2 HKLR 81 that as a general rule such injuries would not be a factor for consideration as regards the length of imprisonment to be imposed for those criminal acts. As Silke V-P observed at p.84G:

'... In the majority of cases the injured person has brought his misfortune upon himself and it is the criminal act which attracts the punishment, a punishment not lessened by virtue of damage to the perpetrator of that act while in the course of it.'

But it was held that there are exceptions where the injuries are very serious. What the Court of Appeal was saying was that, exceptionally, very serious injuries, even where suffered in the course of criminal activity, can be taken into account to reduce the sentence. There is of course no question of 'must be'. In deciding whether the sentence should be reduced for this reason, all the circumstances of the case would have to be considered. In Chak Shui-chung, the defendant lost both arms when dismantling bombs and had pleaded guilty to possession of explosive substances. The Court of Appeal, in deciding to reduce the sentence of imprisonment from 7 to 5 years, considered that in the circumstances of that case the loss of both arms was in itself both a deterrent to future criminal participation and a personal punishment of great severity.

The guidelines and principles for sentencing evolved in these cases are plainly sound and should be applied by the courts. ...."

20. The present case, whilst concerned with injuries suffered by the Respondent which were entirely of his own making, is in a different category altogether to Yip Kai-foon v HKSAR (above) and, despite Mr Kwok's contention that we should give weight to this factor, we can see no reason why the Respondent was singled out for special treatment by the sentencing judge when there were no proper grounds, based upon extensive earlier authority, for so doing.

21. Lastly, regarding the fourth mitigating factor which found favour with the judge, namely, that the Respondent was remorseful and was unlikely to offend again, it hardly needs to be said that the discount of one-third to the sentence which would have been imposed after trial provided the recognition in itself of the element of remorse.

22. Having regard to all these factors, the Respondent was left with a sentence which he might have expected to receive if he had given his full cooperation to the authorities to an extent, which is extremely rarely encountered, of being in the "supergrass" category, justifying a full two-thirds reduction from the starting point for sentence after trial. In fact, neither the Respondent nor his accomplice were deserving of a greater discount on the present facts than one-third. Nevertheless, as D1 received a fortunate windfall, leaving him with a sentence of three and a half years instead of the four-year sentence he should have been given when based upon a six-year starting point, it is apparent that the Respondent cannot receive more than him.

Conclusion

23. In all the circumstances, we have no hesitation in saying that this sentence was manifestly inadequate, brought about by the misapplication of fundamental sentencing principles.

24. Accordingly, we shall allow this application. Under the terms of section 81B of the Criminal Procedure Ordinance, we shall quash the two-year sentence imposed in the District Court and substitute this with a sentence of three and a half years' imprisonment. We would only add that on a proper application of the guidelines in R v Tran Van Anh (above) to the facts of this case, the appropriate sentence which ought to have been imposed on each defendant, following their pleas of guilty, was a term of four years and eight months' imprisonment.