HKSAR v. Cheng Kam Wah

CACC000317/2002

CACC317/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 317 OF 2002

(On appeal from DCCC 336 OF 2002)

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Coram: Hon Stuart-Moore VP and Gall J in Court

Date of Hearing: 5 November 2002

Date of Judgment: 5 November 2002

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J U D G M E N T

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Gall J (giving the judgment of the Court) :

1.The applicant was convicted on 12 June 2002 in the District Court of one count of attempted robbery by Deputy Judge Mackintosh. He was sentenced to six years' imprisonment with a suspended sentence of three months activated and ordered to run concurrently with the term of six years.

2.The facts found by the Deputy Judge were that on 11 February 2002, the applicant armed with a paper cutter and his appearance masked by dark glasses, boarded a taxi at about 4 p.m. and sat next to the driver. He told the driver to go to Tseung Kwan O and on arrival there, directed him to a quiet road. The applicant produced the cutter and pointed it at the left chest of the driver. He demanded the sum of $200. The driver continued to drive slowly and, upon seeing a police car, sounded his horn. The police alighted from their car, saw the driver being threatened with a cutter, and arrested the applicant.

3.The applicant is 45 years of age and has a lengthy record of criminal convictions, a number of which are similar to this offence and many of which are for dishonesty. The Deputy Judge took as a starting point six years' imprisonment and found no mitigating circumstances which warranted a reduction of that term.

4.The applicant now seeks leave to appeal that sentence on the ground that the sentence is excessive. He also raises this morning before us a further ground that it was his intention to plead guilty to this matter but that he entered a plea of not guilty on the basis of advice from his counsel.

5.In R. v. Tran Van Anh [1993] 2 HKCLR 122, at page 124, Macdougall JA (as he then was) said :

" The court has said that in the normal case of taxi robberies it will not interfere with sentences of five or six years. This, however, applies only to cases where minimal or no violence is used, and a weapon, other than a firearm, is merely displayed."

Further, he said :

" Taxi drivers, as we have frequently observed, 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."

In that case, three men had robbed the taxi driver by pointing a sharp object at his throat and holding his hair.

6.On the basis of Tran Van Anh, the facts of this case warranted a starting point of six years and no complaint can be made of the starting point taken by the Deputy Judge. Further, the applicant was not a person of previous good character and could point to no mitigation.

7.In respect of the matter raised before us this morning, the applicant has had a total of 35 appearances in the criminal courts and we consider that his allegation that he otherwise would have entered the plea of guilty but for the advice that he was given to be an argument of no value.

8.The application for leave to appeal against sentence is dismissed and loss of three months' time is ordered.

Representation:

Mr P.K. Madigan, SGC of Department of Justice, for the Respondent

Applicant in person