HKSAR v. Lam Kai Shun

CACC000461/1998

CACC 461/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

____________

____________

Coram: Stuart-Moore J.A. and Keith J. in Court

Date of Hearing: 11 May 1999

Date of Delivery of Judgment: 11 May 1999

_______________

J U D G M E N T

_______________

Keith J. (giving the judgment of the court):

Introduction

1. On 27th August 1998, the Applicant was sentenced by Deputy Judge Muttrie to terms of imprisonment totalling 7 1/2 years. He had pleaded guilty to four charges in the Magistracy, and had been committed to the Court of First Instance for sentence. The charges to which he had pleaded guilty were attempted robbery, robbery, taking a conveyance without authority and reckless driving. He was sentenced to 3 years' and 4 years' imprisonment on the two robbery charges, to be served consecutively to each other. He was sentenced to 6 months' imprisonment on each of the other two charges, to be served concurrently with each other, but consecutively to the terms of imprisonment imposed on the robbery charges.

2. In due course, the Applicant applied for leave to appeal against those sentences. He has told us today that his application relates only to the sentences imposed on the two robbery charges. However, some months ago, he filed a notice of abandonment in the prescribed form. Accordingly, by virtue of rule 39 of the Criminal Appeal Rules, his application for leave to appeal was deemed to have been dismissed. He now seeks to resurrect his application. To do so, he has to persuade the court that his previous abandonment of the application should be treated as a nullity. We have not considered whether it should be treated as a nullity, because we have concluded that, even if the application for leave to appeal had been heard on its merits, that application would have been refused.

The facts

3. The robberies to which the Applicant pleaded guilty were taxi robberies. They occurred at night within three days of each other. On each occasion, the Applicant was alone. On the first occasion, he grabbed the taxi-driver by the neck from behind and pointed a sharp object at his neck. The taxi-driver resisted and the Applicant ran off. Nothing was stolen, which is why the charge was one of attempted robbery. On the second occasion, the Applicant was in the process of grabbing the taxi-driver's neck when the taxi-driver realised what was about to happen. He quickly bent down and crawled to the passenger seat next to him. He saw that the Applicant had a 5" long pen-knife, and tried to get out of the taxi. The Applicant's response was to climb into the driver's seat, and the taxi-driver then climbed out of the taxi onto the roof. The Applicant drove the taxi forward about 5 metres, whereupon it crashed into a stationary car in front. The Applicant reversed the taxi, and then drove forward again trying to escape. At a nearby junction, the taxi was stopped by a group of pedestrians. The Applicant then ran off with the driver's takings which were about $300 but was caught. The charges of taking a conveyance without authority and reckless driving relate to that incident.

Were the sentences unduly excessive?

4. The Applicant had been 20 years old at the time of these offences, but he had reached the age of 21 by the time he was sentenced. His only mitigation was that he had no previous convictions and had pleaded guilty. The judge took 5 years' and 7 years' imprisonment as his starting-points on the two robbery charges. He had in mind the case of Tran Van Anh [1993] 2 HKCLR 122. That case concerned a taxi robbery involving three men. The taxi-driver had had his hair seized and a sharp weapon had been held to his throat. The Court of Appeal said that a proper starting-point would have been 6 years' imprisonment, but it added this warning for the future at p.124:

"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 those circumstances, the judge's starting-points cannot be said to have been unduly excessive. As for the other two charges, the judge took 6 months' imprisonment as his starting-point on the charge of taking a conveyance without authority, and 12 months' imprisonment as his starting-point on the charge of reckless driving. We do not think that these starting-points can be said to be unduly excessive either. The aggregate of these starting points was 13 1/2 years' imprisonment, not 13 years' imprisonment as the judge thought.

5. What has made us pause is the judge's application of the totality principle. He reduced the sentences which he would otherwise have imposed to a total of 7 1/2 years' imprisonment. It is unnecessary for us to consider the appropriateness of the various components which make up that sentence. For example, it does not really matter whether the sentences on the "driving" charges should have been ordered to be served consecutively to the sentences on the robbery charge. What is important is whether the global sentence reflected the Applicant's overall criminality. A global sentence of 7 1/2 years' imprisonment which reflects the Applicant's pleas of guilty and the absence of previous convictions amounts, assuming a one-third discount, to a global starting-point of 11 1/4 years' imprisonment after conviction following pleas of not guilty. We are inclined to think that that is slightly on the high side, but having considered the matter with care, we cannot say that this global starting-point was unduly excessive for two taxi robberies, one of which was seriously aggravated by the Applicant's panicky but potentially dangerous reaction when he was confronted by resistance from the taxi-driver.

Conclusion

6. Since any application for leave to appeal against sentence would therefore have been refused, it follows that this application to treat the abandonment of the application for leave to appeal as a nullity must likewise be refused.

Representation:

Miss Lily Wong, of the Department of Justice, for the Respondent

Lam Kai Shun in person