Read the full judgment text of CACC 000757/1995 on BabelCite. This Court of Appeal judgment was delivered on 26 April 1996 before Yang CJ, Power VP, Keith J.
Criminal law – robbery – sentencing – totality – concurrent and consecutive sentences – duty to identify starting point – guilty plea discount – offences committed on bail. Sentencing – starting point – identification of starting point required not only for the offences being sentenced, but also where a judge approaches sentence on a totality basis as if the current offences and any previous offences for which the defendant is already serving imprisonment had been heard together. The Applicant pleaded guilty in the High Court to six counts of robbery of taxi-drivers committed over two months, in each case by holding a knife, paper cutter, or hard object to the driver's neck; on the last occasion he also obtained two ATM cards and their PINs, and in two cases minor force was used. Three of the six robberies were committed while he was on bail for three earlier similar taxi robberies to which he had pleaded guilty in the District Court, for which Judge Caird had imposed concurrent sentences totalling 4 years and 10 months. The Applicant claimed financial pressure from moneylenders after borrowing for his mother's emergency surgery in China, but the sentencing judge did not treat that as mitigation, and the Court of Appeal agreed it did not justify a reduction in this case, while observing that extreme cases of overwhelming financial pressure on a defendant of good character could amount to mitigation even for serious offences. Yeung J. took 9 years as the starting point for the six High Court robberies, reduced it to 7 years for guilty pleas, and ordered 2 years of those 7 years to be served concurrently with the 4 years and 10 months District Court sentences, producing an aggregate of 9 years and 10 months for the 9 offences. The Court of Appeal held that the principle requiring a judge to identify his starting point applies equally when approaching sentence on a totality basis as if the current and prior offences had been heard together, relying on Tong Hoi Fung [1988] 1 HKLR 610; the failure to do so here meant the judge did not realise that 9 years and 10 months after plea was equivalent to a combined starting point of about 12½ to 13 years, which was too high. Taking guidance from Tran Van An [1993] 2 HKCLR 122, in which 7 years after trial was considered appropriate for a single taxi-driver robbery, a combined starting point of 10 years for all 9 offences was appropriate, reduced by 25% for guilty pleas (having regard to three offences committed on bail), giving 7½ years in total. The Court confirmed 7 years on each of the six counts concurrent, but increased the concurrent period with the District Court sentences from 2 years to 4 years and 4 months, granting leave to appeal and allowing the appeal to that extent.
Legal issues: Duty to identify starting point when sentencing concurrently with prior sentences · Appropriate aggregate sentence for nine taxi robberies after guilty pleas
Outcome: Leave to appeal granted; appeal allowed to the extent that the period ordered to be served concurrently with the District Court sentences was increased from 2 years to 4 years and 4 months, with sentences of 7 years' imprisonment on each of the six counts confirmed.
Cited by 2 cases