R. v. Tu Wing Shan and Another

CACC000535/1996

IN THE COURT OF APPEAL

1996, No. 535
(Criminal)

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Coram: Hon Bokhary and Liu, JJ.A. in Court

Date of hearing: 11 March 1997

Date of delivery of judgment: 20 March 1997

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J U D G M E N T

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Liu, J.A.:

1. The 1st applicant, TU Wing-shan, and the 2nd applicant, CHAN Kwok-tai stood charged with two robbery offences in the District Court before His Honour Judge Chung. The robberies were the usual type of taxi robberies, with one following the other in a relatively short space of time. The first was committed in the late evening of 12 April 1996 and the other in the early morning of the next day.

2. The 1st and 2nd applicants were girlfriend and boyfriend, aged 17 and 19 respectively. The judge did not accept the 1st applicant's claim that she had no prior knowledge of either of these two robberies. In each case the boy seized the taxi driver by his hair, pointed a knife at his throat and declared robbery. An amount of cash was thereupon taken from the taxi driver. The girl then tied the driver's hands with nylon string before both applicants fled with the stolen cash. What went wrong for these applicants was that in the course of tying up the taxi driver with a piece of string in the second robbery, the girl was not quite successful because the taxi driver had asked for a moment to pull up the handbrake. In the second robbery, the two applicants escaped or attempted to escape with the taxi driver running after them. The taxi driver managed to report the robbery to the police who found the girl hiding in the bushes with $900.00 found on her. The boy later surrendered to the police with $520.00 stolen money and a finger-ring of the second taxi driver. Needless to say, both applicants pleaded guilty to the charges.

3. The judge hardly needed to remind himself that preying on taxi drivers was a serious offence which should not be lightly condoned. The girl had a clear record whilst the boy had previous convictions unrelated to robberies. The judge was prepared to and did treat the boy also as a first offender. The judge acknowledged the usual norm in sentencing offenders in taxi robberies in which a weapon was displayed but minimal or no violence was used. The judge also paid heed to the principle that little weight should be attached to youth or a clear record for this type of offences. The judge concluded that a 6-year starting point was appropriate. For the two robbery offences, the judge selected a starting point of 4 1/2 years for each. The judge gave the applicants a 1/3 discount for pleading guilty and an additional six months for being first offenders, thus reducing the relatively lower starting point of 4 1/2 years in each of the two robbery offences to 2 1/2 years. Such computation was not a matter of any great moment as the judge focused on totality. As to the consecutive sentences of 2 1/2 years' imprisonment, totalling 5 years, the judge regarded it as still being modestly excessive under the totality principle. Accordingly, he reduced it by a further year from five to four.

4. The judge put both applicants on equal footing in criminality. He was unable to discern any real distinction between the roles played by each in what he described as the criminal enterprise. Mr Bruce for the prosecution recognized that something might be said for treating the 17-year old girl more leniently than the 19-year old boy, especially as he had a criminal record while she did not. The question is one of anxious consideration. Having said that, these facts remain. The girl was a willing partner and an active member of the team. At least for her audacity of having so closely embarked upon two robberies, the judge's view is supportable given the ambit of the discretion which must be allowed to a sentencing judge. The judge was also clearly right in focusing on totality. The judge imposed a deserving total of 4 years' imprisonment for the two taxi robbery offences in which the hair of the taxi driver was grabbed by force with a sharp weapon pointed at his throat to allow the girl to tie up the victim. They are young offenders and, as treated by the judge, first offenders, but taxi robberies executed at such late/early hours and in the way I have described should clearly be visited with an immediate custodial sentence. Four years is appropriate. The sentence so imposed cannot be said to be wrong in principle or manifestly excessive. In this type of offences, there is nothing to be said on behalf of either of these two applicants. Their applications for leave to appeal against sentence are wholly unmeritorious. They should not be granted. We dismiss the applications.

Representation:

Mr. A.A, Bruce, S.A.C.P & Miss Lily Ho S.C.C., Crown Prosecutor for Respondent

TU Wing-shan (D1), Applicant in person

CHAN Kwok-tai (D2), Applicant in person