R. v. Tsang Chiu Man

CACC000757/1995

1995 No. 757
(Criminal)

Headnote

[The principle that a judge should identify his starting point when sentencing a defendant applies not merely to the actual offences for which the judge is sentencing the defendant, but also to those cases in which the judge is approaching the question of sentence as if the current offences and any previous offences for which the defendant is already serving sentences of imprisonment had been heard together.]

IN THE COURT OF APPEAL

1995 No. 757
(Criminal)

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Coram: Yang C.J., Power V.-P. and Keith, J. in Court

Date of Hearing: 26 April 1996

Date of Delivery of Judgment: 26 April 1996

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J U D G M E N T

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Keith, J. (giving the judgment of the Court):

1. On 14th November 1995, the Applicant pleaded guilty to 6 counts of robbery. He was sentenced by Yeung J. in the High Court to 7 years' imprisonment on each count concurrent. He was ordered to serve 2 years of those terms of imprisonment concurrently with sentences of imprisonment which he was then serving. He now applies for leave to appeal against those sentences.

2. The 6 robberies which the Applicant committed were taxi robberies. They were committed over a period of 2 months. Five of them were committed in the early hours of the morning, though the earliest was committed at about 9:00 p.m. In each case the Applicant had hailed a taxi. During the journey or on arrival at the destination, the Applicant held a knife or a paper cutter (or in one case "a hard object") at the taxi-driver's neck and demanded all his cash. In the last case, the Applicant also took two automatic teller machine cards from the taxi-driver's wallet, and made the taxi-driver give him their personal identification numbers. In two of the six cases, force was used: one of the taxi-drivers had his hair pulled, and another had his collar grabbed.

3. Three of these robberies were committed while the Applicant was on bail following his arrest for other taxi robberies. He had pleaded guilty in the District Court to three such robberies, and had on 5th October 1995 been sentenced by Judge Caird to terms of imprisonment of 4 years and 6 months, 4 years and 8 months, and 4 years and 10 months on each of the three charges to run concurrently, amounting to 4 years and 10 months' imprisonment in all. The modest differences in the length of each sentence was said to be accounted for by the level of the use of force on each occasion. Yeung J. was told that serious bodily injury had been inflicted on one of the three occasions, but the agreed facts which had presumably been placed before Judge Caird were not placed before Yeung J.

4. The Applicant was 26 years old when he committed these offences. The mitigation which was advanced on his behalf was that he had been told by members of his family that he had to raise the equivalent in Chinese currency of $30,000.00 for emergency surgery for his mother in China. The only way he could raise that amount of money was to borrow it from moneylenders at an exorbitant rate of interest. The Applicant claimed that he resorted to these robberies because that was the only way he could service the interest, let alone pay off the debt. However, he claimed that there was one thing to which he would not stoop: he was not prepared to persuade his girlfriend to become a prostitute, which was what he claims his creditors were trying to get him to do.

5. The judge did not attempt to decide whether any of that was true. That was because the judge did not believe that any of those matters could amount to mitigation for offences of this nature. We do not go along with that observation in its entirety. We think that there could be extreme cases in which the age, standing and character of the defendant, coupled with the overwhelming nature of the financial pressures on him and the dire consequences to him and his family if they were not resolved, could be relied upon as mitigation even for offences as serious as these. However, we agree with the judge that in the circumstances of this case the financial difficulties in which the Applicant found himself were not by themselves such as to justify a reduction in the Applicant's sentences.

6. The judge's approach was as follows. He took as his starting point for the 6 robberies which the Applicant had admitted 9 years' imprisonment. He reduced that to 7 years' imprisonment to reflect the Applicant's pleas of guilty. In determining whether the sentences of 7 years' imprisonment should be served concurrently with or consecutively to the sentences of 4 years and 10 months' imprisonment imposed in the District Court, the judge correctly looked at the totality of the sentences. In doing that, we understand him to have adopted the approach recommended in Tong Hoi Fung [1988] 1 HKLR 610, namely to approach the question of sentence as if the two cases had been heard together. In deciding that 2 years of the 7 years' imprisonment for the current offences should be served concurrently with the sentences imposed by Judge Caird, Yeung J. was concluding that the Applicant deserved sentences totalling 9 years and 10 months' imprisonment for the 9 offences to which he had pleaded guilty.

7. The judge did not state what his starting point would have been if he had had to sentence the Applicant for all 9 offences. That is unfortunate. The principle that the judge should identify his starting point applies not merely to the offences for which a judge is sentencing a defendant, but also to those cases in which the judge is approaching the question of sentence as if the current offences and the previous offences had been heard together. Had he identified his starting point, he would have realised that sentences totalling 9 years and 10 months' imprisonment following pleas of guilty were equivalent to a starting point in the region of 121/2 or 13 years' imprisonment.

8. In our judgment, a starting point in that region for both sets of offences would have been too high. We bear in mind that in Tran Van An [1993] 2 HKCLR 122, this Court expressed the view that a sentence of 7 years' imprisonment would be appropriate after trial for a robbery of this kind on a taxi-driver. Looking at both sets of offences in their totality, we think that a starting point of 10 years' imprisonment would have been appropriate. The Applicant is entitled to a discount for his pleas of guilty to both sets of offences, though in that connection we bear in mind that 3 of the offences were committed while he was on bail. The discount we propose to apply in all the circumstances is 25%. Accordingly, we think that the terms of imprisonment which the Applicant should serve for these 9 robberies should total 71/2 years.

9. We propose to give effect to this view by confirming the sentences of 7 years' imprisonment which the judge imposed on the 6 robberies for which he had to sentence the Applicant, but by ordering that the period of 2 years which the judge ordered to be served concurrently with the sentences imposed by Judge Caird be increased to 4 years and 4 months. We therefore grant the Applicant leave to appeal against his sentences, we treat the hearing of this application as the hearing of the appeal, and we allow the appeal to the extent which we have indicated.

Representation:

Mr. Peter Callaghan, instructed by the Director of Legal Aid, for the Applicant

Mr. Jackson Poon, of the Attorney-General's Chambers, for the Respondent