HKSAR v. LI WING SZE

CACC 528/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 528 OF 2003

(ON APPEAL FROM DCCC 953 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):

1. On 14 November 2003, following a trial before Judge Day in the District Court, the applicant was convicted of attempted robbery and taking a conveyance without authority (charges 1 and 2). At the outset of his trial, the applicant had pleaded guilty to a third charge of failing to surrender to custody without reasonable excuse, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap. 221. The applicant was sentenced to five years' imprisonment on charge 1, twelve months' imprisonment on charge 2 of which six months was made consecutive to the sentence on charge 1, and four months' imprisonment (reduced from six months in recognition of his plea) on charge 3 which was ordered to run consecutively, making five years and ten months in all.

2. The applicant now seeks leave to appeal against conviction and sentence on charges 1 and 2.

3. The facts can be shortly stated. At about 2 am on 6 January 1997 in Wanchai, a taxi-driver picked up two male passengers who sat in the rear seats of the taxi. One of the passengers produced a knife which he pointed at the taxi-driver's neck. At the same time, he declared robbery and threatened to stab the taxi-driver. The other passenger also had a knife. They made the driver stop his taxi and move from the driver's seat to the front passenger's seat. The passenger who had threatened the taxi-driver got out of the taxi through the offside rear door and went to the driver's door. At that moment the taxi-driver escaped from the taxi and the passenger then drove away in it.

4. The applicant's left palm print was found on the rear offside window inside the taxi and his right thumbprint was discovered on the driver's rear-view mirror.

5. The judge concluded in his Reasons for Verdict:

"13. The only evidence against you is the fingerprint evidence, and if there were only one fingerprint, then I agree the prosecution might have been in difficulties. There was not only one fingerprint. There were two, one on the rear-view mirror in the front of the taxi and the other on the rear offside window inside the taxi. Anyone might innocently have left one print. Innocent passengers, however, do not habitually move from the front seat to the rear offside seat of the same taxi or vice versa and yet that must be what has happened here.

14. And what does Mr Liu, the taxi driver, describe? He describes one of the robbers getting out of his taxi from the rear offside and getting in again on the driver's seat. The idea that your two fingerprints are found in two different areas of the taxi which the robber sat in and that there is no connection is simply absurd, Mr Li. The only inference I can draw is that you were the man, passenger 1, whom Mr Liu described as holding a knife to his neck from the backseat and who drove off in the taxi." (Appeal bundle p. 13)

6. The judge rejected the applicant's explanation that the applicant had once got into a taxi and, because he had got his hair wet, he checked his appearance in the rear-view mirror of the taxi.

7. The taxi-driver did not identify the applicant at the formal identification parade which took place on 4 May 1998, about sixteen months after the incident.

8. The applicant's homemade ground of appeal complains about the prosecution's sole reliance on his fingerprints in the taxi when he might simply have travelled innocently in that taxi.

9. In our opinion, the judge was entitled to have drawn an inference from the fingerprint evidence that the applicant was the passenger who threatened the taxi-driver.

10. There is no merit whatever to this application and it is dismissed.

11. So far as sentence is concerned, the judge made reference to the applicant's criminal record for the possession of drugs and also the fact that he had twice been brought back to court for breaching the probation orders made on his two previous court appearances.

12. The judge went on to explain the basis of the sentences he was passing. He said, amongst other things:

".... The courts recognise that taxi drivers provide a service to the public and that they are particularly vulnerable, especially late at night. It is for these sort(s) of reasons that sentences of 5 to 7 years are commonly imposed after a trial. See, for example, R v Tran Van Anh [1993] 2 HKCLR 122.

9. This case was aggravated by the fact that the robbery was committed late at night and that two armed men were involved. I accept that no property was stolen but that does you no credit, Mr Li. That was the result of the driver's timely escape rather than anything positive on your part. I do accept, however, that the weapons were displayed, not used, and that no injury was caused to Mr Liu.

10. In all of these circumstances, I propose a starting point for the attempted robbery of 5 and a half years' imprisonment. ...." (Appeal bundle pp. 15-16)

13. Perhaps over-generously, the judge then discounted this sentence to five years in view of the applicant's agreement with the whole of the prosecution's case which had shortened the trial. As the judge rightly commented, the applicant had effectively little option to have done otherwise.

14. None of the sentences imposed was open to any criticism. The same, in our opinion, applies to the totality of the sentences.

15. The application concerning the sentence was wholly devoid of merit and is dismissed. Having regard to the unmeritorious nature of the applications made by this applicant, we shall order that three months of the time the applicant has spent in custody shall not be reckoned as part of his sentence.