HKSAR v. Zheng Xing Wang

HCCC 6/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 6 OF 2016

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REASONS FOR SENTENCE

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Introduction

1.In the early morning of 25 April 2015, while Queenie Law (Queenie) and her boyfriend were asleep in her bedroom, a gang of six mainland Chinese men raided her family home.  All the intruders wore hoods and labour gloves.  The intruders subdued both Queenie and her boyfriend by physically restraining them and covering their mouths with adhesive tape.  Two of the intruders were armed with knives and they threatened Queenie and her boyfriend not to make a sound.  The boyfriend had his hands and legs bound by the intruders. His hands were tied behind his back. 

2.The intruders forced Queenie to reveal the combination of two safes in the changing room of the bedroom.  The intruders opened the safes and depleted the contents consisting of some money and valuable jewellery worth about HK$3 million.  

3.The intruders then blindfolded Queenie and tied her up.  Once the intruders established that Queenie was the daughter of the owner of the house, she was strapped to the back of one of the intruders and taken away to be held for ransom. 

4.The kidnappers initially demanded a ransom of HK$58 million but this was later reduced to HK$28 million.  They threatened that Queenie would be killed if the money was not paid and that the police should not be contacted.  She was held hostage for some four days while her family desperately tried to raise the HK$28 million ransom demand which they paid.  Sometime after the ransom monies had been dropped off as instructed, Queenie was released and reunited with her family.

5.The defendant admits that he was a member of the kidnapping gang.

Offence of kidnapping

6.The defendant has pleaded guilty to the offence commonly referred to as kidnapping, contrary to section 42 of the Offences against the Person Ordinance, Cap 212.  The maximum sentence for this offence is life imprisonment. 

7.In so far as material, the offence is committed where a person, by force, takes away or detains another person against his or her will, with intent to procure a ransom or benefit for such person’s liberation.  The particulars of the charge to which the defendant has pleaded guilty is that he, between 25 and 29 April 2015, together with other persons, by force, detained Queenie against her will, with intent to procure a ransom for her liberation.

8.The offence of kidnapping is a wicked and heinous crime involving the forcible taking of a person and holding him or her up for ransom under threat that he or she will be harmed or killed.  In kidnapping the stakes are high, with the life of the victim hanging perilously in the balance.  Kidnappers prey upon the emotions and fears of the family of the victim in their callous efforts to extort money from them.

Summary of facts

9.The agreed facts giving rise to the offence can be summarised as follows. 

10.In April 2015, a gang of mainland men came to Hong Kong to carry out a kidnapping.  The home of Queenie had been under surveillance by the gang and paid information had been given to them about Queenie’s family.  It was their intention to kidnap a member of the family and hold that person for ransom.  Originally it was intended that they would kidnap Queenie’s mother, Mrs Law, but there was a change of plan when they realised they had the daughter of the owner of the house.  In preparation for the kidnapping, they identified a remote cave some considerable distance away from her home in a country park.  When they raided the house, the gang members were all hooded and wore gloves.  Some of them were armed with knives and they had adhesive tape and rope in order to carry out the abduction. 

11.The Law family home is a three-story house in a large fenced off block in Sai Kung.  It is surrounded by barbed wire fencing. 

12.It was at about 3:00 am on 25 April 2015 that the gang carried out their planned kidnapping.  They forced entry into the compound of the home by breaking through the barbed wire fencing and once inside they prized open a window of a vacant room on the 1^st floor of the three-story house. 

13.Queenie’s bedroom was on the 2^nd floor.  At the time she and her boyfriend were asleep in the bedroom.  The gang consisting of 6 men entered Queenie’s bedroom.  The gang grabbed both of them and tied her and her boyfriend up with rope and covered their mouths with tape.  Two of gang members pointed knives at them and threatened them.  The gang forced Queenie to reveal the combination to two safes in the adjoining room.  Having obtained the combination, they stole the contents, consisting of different currency worth around HK$7,000 and jewellery worth around HK$3 million.  

14.Queenie was asked about her family background and she revealed she was the daughter of the owner of the house.  She was then told to get dressed.  After that, she was blindfolded, tied to the back of one of the gang members and taken away.  The boyfriend was asked to relay the message to Queenie’s father that a ransom of HK$58 million had to be paid to procure her safe return and that no report should be made to the police.  After the gang left with Queenie, the boyfriend untied himself and relayed the incident to Queenie’s parents who were asleep in their bedroom at the time.  

15.After about 1½ hours of walking, Queenie was taken to a cave on a hill.  She was asked to stay inside a tent that had been set up in the cave.  The kidnappers, still wearing their hoods, stood guard outside. Inside the tent were some mattresses, blankets, sleeping bags, a torch, some biscuits, Bonaqua bottled water and coke.  She was asked to write down her father’s mobile telephone number in a book and further asked about her family background.  She was given a pair of men’s trousers and a pair of flat shoes to change into.  The clothing had been taken by the kidnappers from her home.

16.At 8:19 am on 25 April 2015, Queenie’s father received the first call from the kidnappers.  A Putonghua speaking male demanded a ransom of HK$58 million for the release of Queenie and threatened that she would be killed if the money was not paid.

17.The matter was reported to the police later in the early afternoon at about 2:15 pm on that day.

18.Negotiations between Queenie’s father and the same gang member took place over the telephone and the ransom was lowered to HK$28 million.  It was demanded that it had to be ready by 27 April 2015.  During another telephone call that night, Queenie’s father was allowed to speak to Queenie to confirm that she was alive and safe.

19.Negotiations in relation to the ransom continued on 26 and 27 April 2015.  On each occasion, Queenie’s father was allowed to speak with her to confirm that she was alive and safe.  Queenie’s father requested the release of Queenie at the same time when the ransom was to be paid but this was refused.  He was told to have HK$28 million ready by 28 April 2015 and that Queenie would be released 2 hours after receipt of the ransom.  

20.Throughout her captivity, Queenie remained in the cave and had been fed with McDonalds, a rice box and some bread.  Her captors stood guard outside and she could smell cigarettes.  She had the impression that the telephone she was given when she spoke to her father was a Nokia mobile phone.

21.In readiness to make the ransom payment, the HK$28 million was packed in 28 packs and put into 14 brown envelopes, which were placed in two luggage bags.  Some of the notes were scanned for identification.

22.In the afternoon of 28 April 2015, Queenie’s father informed the same gang member that the ransom would be ready by 5:00 pm that day.  He was told to wait for further instructions.  At about 6:13 pm, Queenie’s father was told to deposit the ransom behind a public toilet at Fei Ngo Shan Road.  At 6:35 pm, Queenie’s father drove his vehicle there and dropped off the ransom in the two luggage bags as instructed and returned home.

23.In the meantime, Queenie was told to change and put on some shoes.  She was blindfolded, carried on one of the kidnappers’ back, and taken away from the cave.  After walking for about an hour, she was told that before sunset, she should run downhill where she could return home.  She then ran for about 2 minutes and saw two police officers at 7:50 pm on the roadside of Clear Water Bay Road.  She was safe.

24.During her detention, Queenie was restricted to a tent inside a cave.  Although not harmed, she was in constant fear that she would be killed.  She lived in degrading circumstances and was denied basic comforts and needs.  She was given some food and water from time to time. 

25.On 29 April 2015, the two luggage bags, which contained 12 and 3 pieces of torn brown envelope used to contain the ransom, were found on the hillside of Fei Ngo Shan. 

26.At 11:02 pm on 3 May 2015, the defendant was stopped at Lo Wu Control Point when he attempted to cross the border to return to mainland China.  He was arrested and under caution remained silent.  At the time of his arrest, he was in possession of a two way permit, cash of HK$75.5 and RMB1,400.

27.In subsequent cautioned interviews, the defendant told the police that:

(i)   he came to know ‘Tung Gor’ in around March or April 2015 and was asked to come to Hong Kong to deliver food in return for HK$1,000 per delivery to which he agreed;

(ii)   he was given an Octopus card, a Nokia mobile phone and about HK$5,000 to $6,000 for transport and food purchases;

(iii)  he came to Hong Kong alone and stayed from 21 to 26 April to make these deliveries and during this period he either slept in parks or plazas at various unknown locations;

(iv)  for the first purchase, ‘Tung Gor’ instructed him over the phone where to take it and he arrived at a cemetery about 30 to 50 metres ahead of Pak Shek Wo;

(v)   during the period he had bought pork rib rice (from a wet market), hamburger (not sure if it was from McDonalds), bread, coke and water (from a 7-11 store), sufficient for several people, in Choi Hung, as instructed by ‘Tung Gor’; after the purchases he would place the items at the cemetery and leave but he did not check if anyone picked up the items; ‘Tung Gor’ would contact him after the items had been picked up;

(vi)  ‘Tung Gor’ had asked him to purchase 4 SIM cards which he bought from a 7-11 store inside a MTR station (he could not recall which one) and delivered them to the cemetery together with food;

(vii)  he had also topped-up the Octopus card ‘Tung Gor’ gave him and his own Octopus card;

(viii)  he had made several deliveries (he could not recall the exact number) and he had received HK$3,000 as reward; the reward was left at the cemetery on separate occasions which would be there when he left the food behind;

(ix)  ‘Tung Gor’ had also asked him to purchase 4 mobile phones and as a result he returned to Shenzhen via Lo Wu Control Point on 26 April to make the purchase and came back to Hong Kong on the same day;

(x)   after the last delivery, as instructed by ‘Tung Gor’, he had placed both Octopus cards, the mobile phone and his rucksack at the cemetery;

(xi)  he had no further contact with ‘Tung Gor’ thereafter;

(xii)  he only learnt from the newspapers that his photo was shown in relation to a kidnapping case and out of fear he wanted to flee.  He tried to find a way to return to mainland China illegally but failed and then decided to return to mainland China by legal means;

(xiii)  he feared because he made food deliveries he would be in trouble;

(xiv)  he had no knowledge of the victim, her home, the ransom monies or the lost property.

28.Upon a forensic examination, it was confirmed that the defendant’s right and left thumb prints and right index fingerprint appeared on one of the torn pieces of brown envelope used to contain the ransom.

29.It would appear therefore that what the defendant had stated in his cautioned interviews was false in various respects.

30.Movement records showed the defendant had entered Hong Kong from Lo Wu on 21 April 2015 and had made a day return trip between Hong Kong and mainland China via Lo Wu on 26 April 2015 (which, according to the defendant was for the purchase of mobile phones).

31.On 18 June 2015, a black plastic bag containing a blue bucket which contained HK$15 million (7,499 pieces of banknotes matched with scanned ransom monies) was found hidden in the ground underneath a rock inside a bush at Mau Ping, Ma On Shan.  In the vicinity of the bucket was a hideout hut constructed with bamboo.  Some old cooking utensils, empty cans and bottles and two Double Happiness cigarette boxes were found in the vicinity.

32.In the meantime, HK$6.54 million of the ransom monies and most of the jewellery taken from the safes inside Queenie’s bedroom were recovered by the Chinese Public Security Bureau in mainland China from persons who were believed to be accomplices of the defendant.

33.The police continued to comb the area where it was believed that Queenie had been held captive.  On 6 August 2015, the police located the cave at Tsim Fung Shan, Sai Kung.  They found the tent, the blankets, the book on which Queenie had put down her father’s mobile number, empty Bonaqua bottles, a radio (which had been played to Queenie during her detention), and a spoon and rice box used by Queenie.  Cigarette butts were also found at the scene.  

34.The records of the Octopus card used by the defendant showed his trip from Lo Wu to Choi Hung on 21 April 2015 (his day of arrival) and his trip to and from Lo Wu and Choi Hung on 26 April 2015.  Also, on 26 and 28 April 2015, he had purchased Bonaqua bottled water and “Red Bull” bottled drink at two different convenient stores at Choi Hung MTR station; on 29 April 2015, he had purchased “Vita Green Tea” and Double Happiness cigarettes at two different convenient stores at Chevalier Garden, Ma On Shan (which was adjacent to Mui Tze Lam Road, the easiest accessible route to Mau Ping, where the hideout hut of kidnappers was located).  The records further showed that on 29 April 2015, he had taken bus trips which stopped at Chevalier Garden.

35.CCTV cameras installed at the relevant convenient stores captured the defendant making the purchases as mentioned.

36.In March 2016, a further HK$6.35 million of the ransom monies was recovered from a different spot underneath a rock in the same area in Mau Ping.

37.The following is accepted and admitted by the defendant:

(i)   He was a party with other mainland Chinese men, including ‘Tung Gor’, to a joint enterprise to unlawfully and forcibly detain a person residing at the family home of Queenie with the intent that a ransom be paid for the person’s liberation.

(ii)   He entered Hong Kong on 21 April 2015 for the purpose to remain free to move around and to supply logistical support to the gang members whilst the victim was being detained in a remote location.

(iii)  He had been supplied with money, an Octopus card and means of communication to carry out this task.

(iv)  Subsequent to the initial detention of Queenie, he over the next day supplied logistical support in the form of food, drink, communication devices which he obtained in mainland China where he had briefly returned on 26 April 2015, to his fellow gang members which enabled them to remain undetected in the location they had chosen to detain Queenie and to communicate with Queenie’s family in making their demands.

(v)   During this period he knew that Queenie was being detained against her will in a remote area of Sai Kung by his fellow gang members. 

(vi)  During this period he knew that his fellow gang members negotiated with Queenie’s family as to the amount of ransom that was to be paid to secure her release.

(vii)  After agreeing the amount of ransom to be paid and upon receipt of it on 28 April 2015, he had handled the monies prior to the release of Queenie (as evidenced by his fingerprints on the torn envelope containing some of the ransom monies). 

(viii)  He attempted to leave Hong Kong on 3 May 2015 after Queenie had been released and when his role in the kidnapping was complete.

The impact on the victims

38.A very important function of a sentencing court is to hear from the victims of crime.  This is particularly so in a case of this kind where the victim is used as an instrument of the crime against the victim’s family. This type of kidnapping is an attack on a family and as a consequence there will be a range of victims.

39.I requested the prosecution to provide victim impact statements in the present case.  I was provided with a victim assessment report of Queenie.  I was informed that Queenie’s father and mother are so severely affected by the incident that they declined to relive the experience by making a statement to the Court.  That is understandable in the circumstances.

40.In any event, I can safely conclude that the kidnapping of Queenie would have been a terrible ordeal for her and her parents. There is no doubt it will have a lasting effect on all of them.  Queenie throughout this ordeal was in fear of her life and her parents would have been in a state of devastation, living with the fear every minute of the four days Queenie was held captive that they would never see their daughter again.  It was a race against time as the father desperately tried to gather the necessary funds demanded of him for the return of Queenie.  The outcome was never certain and Queenie’s parents must have thought the worst, even when the ransom was paid.  The traumatic experience that the Law family went through is beyond description. 

41.Queenie is 29 years old.  She was born and raised in Hong Kong and comes from a respected and successful family.  Her grandfather was the founder of the Bossini clothing empire.  Her father is a successful property developer.  The family consists of her parents, her older sister and younger brother.  Queenie attended local schools and went on to complete a tertiary qualification in graphic design at the University of the Arts London in 2009.  Since 2015, she has operated her own business in graphic design. 

42.From the assessment report, Queenie presents as a sensible and level headed young person with a quiet but confident disposition.  She recounted how she was terrified throughout this ordeal.  She explained that she had no idea where she was being taken and was very afraid.  She was deeply frightened when she realised she was being detained for ransom.  She was worried as to whether her father could raise the amount demanded.  She tried to engage in conversations with her captors in an effort to convince them to lower the amount of the ransom and not to hurt her.  Even though her captors told her they would not kill her, and did not physically harm her, she felt that she could not trust them and remained deeply fearful throughout her captivity.  She was also worried that they would kill her after receiving the ransom monies.  In fact, she felt even more frightened for her life on the fourth day when she heard that her captors had received the ransom.  She thought she would be killed. She was surprised when she was released but even then she was still extremely scared and when she was found by two police officers she was trembling with fear.  She was unable to calm down and it was only when she saw her father that she realised the ordeal was over and broke into tears of relief.

43.Queenie explained that her fear and suffering from the kidnapping did not end with her release.  The impact the case has had on her life as a result of the ordeal that she went through and the media attention that she received subsequently, has been life changing for her.  The investigation and reliving the ordeal has also had its toll on her as one would imagine.  For several months after the ordeal she has experienced significant sleeping difficulties, waking up in the middle of the night and having nightmares. 

44.Even now, one year after the incident, Queenie still remembers clearly the details and her feelings during her captivity.  She still has sleepless nights and is now very conscious about own safety, afraid that she may be harmed again.  The kidnapping has had a major impact on the whole family.  They have had to uproot themselves and move to different residences.  While Queenie has now settled in her own apartment.

45.Queenie reported that the major impact this terrifying and life-threatening experience has had on her, is slowly subsiding and she is trying to come to grips with her life in an effort to get over what she went through.  She reported she has received great support from her family and friends and she is keen to pursue a career in her chosen field.  It is reported that Queenie’s family support and positive disposition bode well for the future and will assist in her adjustment to a normal life.

46.The clinical psychologist in her report concluded that Queenie had suffered considerable psychological fear and suffering during the life-threatening experience of a four-day kidnapping.  She explained that the incident had also caused a significant impact on her life in the months that followed, including the investigation and media coverage of the case.  She concluded overall that notwithstanding the experiences that Queenie has gone through even a year after the incident, it is of relatively low intensity and gradually subsiding.  This, the clinical psychologist stated, is due in large measure to Queenie’s positive attitude and determined desire to put the matter behind her and to get on with her life.

47.From my overall assessment of the information and material before me, Queenie went through a harrowing experience during which she was in constant fear of her life but in the face of extreme adversity she displayed tremendous courage and strength of character.  The fact remains that she went through a terrible experience that she will no doubt live with for the rest of her life.  The same applies to her parents and loved ones, probably more so for her parents, who for four days did not know whether they would see their daughter again.

Mitigation on behalf of the defendant

48.Mr A.M. Omar, counsel for the defendant, in mitigation submits that the defendant, a mainland Chinese from the Guizhou Province, is 30 years of age, married with a 2 year-old daughter.  He received form 3 education and thereafter worked as a phosphate supplier from 2005 to 2015 earning RMB1,000 per month.  At the time of the offence he was unemployed.  Given the grievousness of the offence, no weight can or should be given to his personal circumstances as mitigating his crime.

49.The defendant in a letter to the Court acknowledged that he was involved in the kidnapping for which he is now remorseful.  He acknowledged that he has caused emotional harm to the victim and that he hurt the people around her, causing them “emotional and psychological torture”.  He understands that what he has done is wrong and he hopes to be given a second chance to mend his ways.  He also acknowledges that through his time in custody he has experienced the lost of liberty and appreciates what the victim must have endured.  He apologises to his family. 

50.It is acknowledged in the defendant’s written submission that during the whole of the incident he was in charge of buying food, drinks and Nokia phones and was asked to place them in a cemetery near the gang’s hideout and that they would be collected by others.  It is also acknowledged that he was involved in the collection of the ransom monies.  From the agreed facts his involvement was far greater than disclosed in his written submission. 

51.He has admitted in the Summary of Facts to being a member of a gang that planned and executed the kidnapping of Queenie where he was providing logistical support and assistance to the gang members that held Queenie captive in a cave in Sai Kung.  He clearly played an instrumental and pivotal role in the kidnapping and any suggestion that it was minor is clearly refuted by the facts now agreed and his fingerprints being found on pieces of the ransom envelope. 

52.Even according to the defendant, as a member of the gang, he acted as the outside contact, keeping an eye on things for the gang who were guarding Queenie at the hideout.  He provided the supplies and support.  It seems to be accepted by the prosecution that the defendant was not one of the six men that carried out the abduction.  I find however that he would have been involved in the planning of it and was clearly involved in the events that followed after Queenie had been abducted and taken to the hideout.

53.Mr Omar submitted that the defendant was not at the abduction and did not know that property had been stolen at the time.  That is implausible given he was a member of the gang and the role that he played in the kidnapping.  He was obviously in constant communications with his fellow gang members in particular ‘Tung Gor’.  He would have known what had been planned and what had been done.  He was with his fellow gang members at the end when the ransom monies had been received.  Hence his fingerprints on the envelope that contained the ransom monies. 

54.It is worth noting the comments of the Court of Appeal in HKSAR v Chan Kau Hung and Others [2002] HKLRD 354, which was concerned with the sentencing in a kidnapping case where the applicants sought to distinguish their roles in carrying out the kidnapping in the circumstances of that case.  The Court rejected the attempt by the applicants to distinguish their role in the crime and concluded that there was no reason to treat each one differently from the others so far as sentence was concerned.  The Court said at §20:

“…There can be no doubt that those who participate, in whatever capacity, in an offence of this type are as equally culpable and should be held as equally accountable for the consequences of their crime.”

55.It is clear that the defendant came to Hong Kong as a member of the gang from mainland China to carry out the kidnapping.  He entered Hong Kong for this purpose on 21 April 2015 and left on 26 April 2015 and returned in the afternoon having purchased mobile phones for use by his fellow gang members to negotiate the ransom with Queenie’s father.  He provided logistical support and supplies and was there at the end when collecting the ransom monies.  He played an instrumental and important role as a member of the kidnapping gang from beginning to end.

Sentencing the defendant

56.At the outset it should be acknowledged that the Court of Appeal has not laid down guideline tariffs for the offence of kidnapping and the drawing of comparisons with sentences passed in other cases is of very limited, if any, assistance when it comes to sentencing a particular case of this type.  It is very much a matter of looking at the individual circumstances of each case.  See HKSAR v Leung Man Kwong and Another, CACC 57/2001, 5 October 2001, unreported, at §21 per Stuart-Moore VP.

57.Serious cases of kidnapping for ransom warrant exemplary punishment that will act as both a specific and general deterrent and appropriately reflect the community’s opprobrium for crimes of this kind.

58.The task before me is to make an overall assessment of the circumstances of the kidnapping in the present case.  Here we have a group of mainland Chinese men who carried out what is commonly referred to as cross-border crime, namely, they came here to commit a crime and immediately leave in the hope that they would not be detected or traced because of the difficulties the Hong Kong authorities would have in pursuing them outside the jurisdiction.  This is a serious aggravating factor. 

59.A sentence for this type of offence should punish the defendant and deter others from coming here and violating the peace and stability of Hong Kong people by committing such offences.  People who have worked hard and made a success of their lives in Hong Kong should not live in fear of, or made to take protective measures against, kidnapping. 

60.It is well to remember the comments of Stuart-Moore VP in HKSAR v Pun Luen Pan and Another [2005] HKEC 996, when he was addressing sentencing of kidnapping cases at §§32 and 33:

“32. … The perpetrators were playing for high stakes, hoping to gain a comparatively large sum of money by creating great fear in the mind of the victim both for himself and his family.

33.   We are in no doubt that sentencing in cases of this kind should carry with it a large measure of deterrence.  Those who enjoy the benefits of wealth in Hong Kong have constantly to be on their guard against an event such as the victim was subjected to in the present case.  Consequently, the courts must provide adequate protection against those who offend in this way and deter others who may be minded to do so.”

61.A sentence for cases of this kind should be severe and carry with it a large measure of deterrence.  It is a nasty crime committed purely for personal gain and with total disregard for the wellbeing of the victim and the victim’s family which will no doubt cause lasting distress to them.  The courts must respond to such crimes to protect the public and provide a sentence with strong deterrence.

62.This was a premeditated and planned kidnapping. It is acknowledged that the gang carried out surveillance of the Law family home for some time and paid for information about the family.  (The immigration records of the defendant revealed that he had made four short trips to Hong Kong from the end of January to mid April but this was not part of the Summary of Facts.) 

63.Throughout this ordeal, there was the constant presence of force and the threat that Queenie would be killed.  Two of the gang members had knives when Queenie was first abducted.  She and her boyfriend were threatened, bound and gagged.  The abduction was carried out with the force of six men and Queenie was held captive under constant guard by them.  Queenie was subjected to an element of physical harm when she was abducted but clearly from the ordeal that she and her family went through, the harm they suffered was more psychological. 

64.With these matters in mind, I find that this was a very serious case of kidnapping which had the following features:

(1)   The victim was a young woman who was a particularly vulnerable captive.

(2)   The kidnapping was perpetrated by a gang of at least six men.

(3)   The gang was from mainland China.  They came here specifically for the purpose of carrying out a kidnapping and leaving immediately from the jurisdiction. 

(4)   The kidnapping was premeditated.  It was meticulously planned and executed.  This was evidenced by carrying out surveillance on the Law family home and paying for information about the family; carrying out the abduction by a house invasion in the early hours of the morning; the wearing of hoods and labour gloves; the carrying of knives in order to be armed; the selection and preparation of the cave where the victim was to be held captive; the role of the defendant to be free to observe outside the hostage location and to provide logistical support and supplies; and the purchase by the defendant of mobile phones outside Hong Kong and SIM cards to be used to communicate with Queenie’s father in arranging the ransom.

(5)   Invasion of the Law family home in the early morning.  The gang invaded the home by breaking through security fencing and opening a window on the 1^st floor to gain entry into the home. 

(6)   Weapons were used.  Two of the gang members had knives which they used to threaten Queenie and her boyfriend.  There was always a risk that they could be used and the potential for injury was high.  The gang also had strength in numbers in that there were six men. 

(7)   Committing robbery.  The gang forced Queenie to reveal the combination of the two safes and stole money and jewellery to the value of around HK$3 million. 

(8)   Mistreatment of Queenie and her boyfriend. Queenie and her boyfriend were threatened with knives and physically subdued by being bound and gagged.  Queenie was blindfolded when she was taken to the hideout.

(9)   The nature and length of detention.  Queenie was held captive in a makeshift tent in a cave located in the country park of Sai Kung.  She was subjected to degrading conditions for a period of four days. She was given some food and water. 

(10)  The ransom demand involved high level profit. Initially the demand was for HK$58 million but it was reduced to HK$28 million.  The ransom was paid.  (It would appear that most of the ransom and the stolen items have been recovered but only due to the efforts of the relevant law enforcement authorities.)

(11)  The effect of the kidnapping on Queenie and her family.  It is apparent that the Law family members have suffered serious psychological trauma.  They have had to move residences and their lives have severely changed as a consequence.  The parents in particular have experienced great difficulty in getting over the ordeal.

65.It is argued by Mr Omar for the defendant that he played a different role from the other members of the gang.  I see no justification to distinguish his role from the others as he clearly came to Hong Kong with them with the sole purpose of carrying out this kidnapping.  It is argued that he was not the mastermind.  From my point of view, if it had been shown that he was the mastermind, that would have been an aggravating factor warranting an enhancement of the sentence. 

66.Mr Omar submitted that the defendant was not involved or aware of the robbery at the Law family home that took place at the time of the abduction of Queenie and therefore this should not be held against him when sentenced.  No doubt committing the robbery at the time of the abduction is an aggravating factor although it would seem in the overall scheme of things that there are many other factors aggravating the offence that would mean that the robbery may add only a little extra to the starting point.  The other aggravating factors I have already mentioned.  Mr Newman Wong, for the prosecution, suggests that I can draw the only reasonable inference that the defendant was a party to the robbery as well.  It would seem on the facts agreed and given his involvement and admission that he was a member of the gang, that as far as I can take it, is that he would have known that property had been stolen at the time of the abduction. 

67.In light of the foregoing, it is clear that every member of the gang were party to the common design to abduct Queenie (or a person from the Law family) for a substantial ransom.  Every member of the gang played a particular role which was essential for the kidnapping to be carried out.  I do bear in mind that Queenie was not subjected to any significant physical harm but she and her family members were put through a terrifying ordeal.  The factors that I have identified and the overall circumstances of this kidnapping warrant a very high starting point.  I would therefore impose a starting point of 18 years’ imprisonment.  This is taking into account the overall criminality involved and the defendant’s role and involvement as a member of the kidnapping gang. 

68.The only meaningful mitigation that can be relied upon by the defendant is his plea of guilty for which he will receive a one-third discount.  In those circumstances, I sentence the defendant to 12 years’ imprisonment. 

The importance of a Summary of Facts

69.The importance of a true and accurate Summary of Facts cannot be over emphasised.  It plays a fundamental and vital role in the acceptance of a guilty plea and in the sentence of a guilty person.  Anything short of this requirement can lead to serious injustice and undermine public confidence in the criminal justice system. 

70.When a crime is investigated it is expected that all relevant evidence is uncovered and obtained so as to ensure that the full criminality and culpability of the offender is properly reflected and presented at any subsequent trial.  Sometimes that may not be achieved at its highest, but at the very least evidence would have been gathered to support any charge against the offender.  At trial, the prosecution presents its case through the evidence in order to prove to the requisite standard that the offender has committed the charge.  Based on the evidence against him, an offender may accept and admit his guilt for his wrongdoing.  In support of a plea of guilty a summary of the facts is prepared and agreed between the prosecution and the defence.

71.The Summary of Facts plays a very important role in a guilty plea.  It should represent a full and accurate synopsis of the case.  The court must be satisfied that the facts amount to the criminal offence as charged and upon which a plea of guilty has been entered.  It must be made clear to the court on what basis the plea is advanced and accepted. However, it is incumbent on the court to satisfy itself that there is a factual basis for the plea.  It is for the prosecution to ensure that the Summary of Facts fully and correctly reflects the criminality and the culpability of the offender.

72.The Summary of Facts also has a major bearing on the sentence to be imposed.  With this very important function in mind, the prosecution provide a Summary of Facts.  If the defence disagrees with the Summary of Facts, the court can hold an inquiry in relation to the disputed facts to resolve the issue.  The court will then hear evidence about the offending and will make appropriate factual findings.

73.In the present case, the initial Summary of Facts as they stood provided that the defendant delivered food and purchased SIM cards and mobile phones for a person by the name of ‘Tung Gor’ which he dropped off at a cemetery and that he had no knowledge of the kidnapping or the ransom monies.  It was added that his fingerprints were found on pieces of an envelope used to contain the ransom but no more.  The Court expressed its concerns about the contents of the Summary of Facts.

74.Subsequently, a revised version was submitted which added paragraphs 5, 9 and 26 to the current Summary of Facts.  Just a perusal of the contents of paragraph 26 reveals the importance of ensuring that a Summary of Facts accurately discloses the overall criminality and the culpability of those involved (paragraph 37 in these reasons for sentence reflect the contents of paragraph 26 of the Summary of Facts).  It should be stated that even this revised version does not fully reflect the accounts given by those involved of the events that unfolded during the four day ordeal of the kidnapping of Queenie. 

75.The Court of Appeal has repeatedly stressed the important duty on the prosecution to ensure that all the facts are placed before the court.  In another kidnapping case of HKSAR v Mohammad Nadim [2010] 1 HKC 281, Lunn J (as he then was) giving the reasons for judgment of the court stated at §36:

“36. There is no doubt that the Summary of Facts was an anodyne, skeletal description of the circumstances of the commission of the offences. It was bereft of much relevant, material information. For example, although there was no dispute about the issue, the Summary of Facts did not condescend to any description of the circumstances of the boy at the time that he was discovered by the police in the bag in the boot of a car. It was accepted that at that time the boy was gagged, blindfolded and tied up. As the Court of Appeal of England and Wales noted in Beswick (p. 346):

“It is axiomatic that whenever a court is to sentence an offender it should do so on a basis which so far as is relevant to the determination of the correct sentence is true. It follows from this that the prosecution should not lend itself to any agreement whereby a case is presented to the sentencing judge to be dealt with so far as that basis is concerned on an unreal and untrue set of facts concerning the events to which appeared guilty is to be tendered.” ”

76.Similar sentiments were expressed in the following paragraph, in particular the last sentence, by Stock JA (as he then was) in HKSAR v Yee Yiu Sam [2002] HKEC 921 where he said at §37:

“37. Where upon the delivery of a verdict or the entering of a plea of guilty to an offence, the verdict, or the plea, is consistent with more than one version, or suggested version, of facts underlying the verdict or plea, then it is for the sentencing judge to determine that factual basis, although in doing so he must not sentence on a basis which is inconsistent with the jury’s verdict, or contrary to the constituent elements of the offence to which that the defendant has pleaded guilty. The judge is not bound to accept whatever mitigation is advanced, nor is he bound to adopt the version most favourable to the defendant. Where, after a guilty plea, a version is put forward which is clearly implausible, then a judge is not bound to hear evidence; nor is he bound to do so where a choice between the two versions will make no practical difference to sentence. Otherwise, the sentencing tribunal should hear evidence to enable it to determine the proper factual basis for sentence. These principles emerge from a compendium of sources. See in particular Part L2 ‘Current Sentencing Practice’ by Professor Thomas; Archbold ‘Criminal Pleading Evidence and Practice’ 2002, para. 5-9 et seq; Cheung v R [2002] 185 ALR 111; R v Olbrich [1999] 199 CLR 270; R v Isaacs [1997] 41 NSWLR 374. So, too, it seems clear, and in accordance with fundamental principle, that where a judge is invited to adopt a factual premise adverse to the interests of the defendant, he may do so only if he is sure that that is the proper and correct view of the facts to take; whereas it is for the defendant to establish, albeit not to the same degree, matters advanced in his favour. See Olbrich pp. 280-281; Isaacs p. 378D. I would add two further general principles which are touched by this appeal: that a judge is not generally bound to accept such factual basis for sentencing as is agreed between the prosecution and the defence: R v Myers [1996] 1 Cr App R(S) 187; and that the prosecutor should not lend himself to an agreement which is based upon an unreal and untrue set of facts: R v Beswick [1996] 1 Cr App R(S) 343.”

77.It may be viewed that a Summary of Facts does not have to address fully or all the elements of the offence.  This in my view would be a mistake.  Whilst in HKSAR v Agara Isaiah Bishop [2015] HKEC 2664, McWalters JA in giving the judgment of the court said in relation to an offence of trafficking in a dangerous drug that the element of knowledge of the drugs was contained in the applicant’s guilty plea, he was there addressing the issue as to whether the applicant’s guilty plea may have been equivocal.  He explained for a number of reasons why it was not, including:

“53. Thirdly, there was nothing in the Summary of Facts inconsistent with the elements of the offence of trafficking in a dangerous drug. The absence in it of an assertion that the applicant had knowledge of the drugs is irrelevant. It is irrelevant because his admission of such knowledge was contained in his guilty plea. The plea of guilty was an admission to all of the elements of the offence and necessarily included an admission of knowledge that he had drugs in his possession. The Summary of Facts supports the offence and though somewhat bare in its contents was an adequate basis for sentencing.”

78.In the case of Agara, the court was not making a statement of principle.  It was concerned with whether the guilty plea was equivocal but it did note however that the Summary of Facts was bare in its contents although adequate for the purposes of sentencing.  That case was concerned with drug trafficking which is strongly influenced by tariff guidelines.  The court seems to suggest that even though the summary of the facts were sufficient, more could and probably should have been done. 

79.A Summary of Facts upon a plea of guilty is fundamental to fulfil two important legal requirements.  First, a Summary of Facts provides the factual basis for the plea of guilty.  If the facts do not support the charge, the court is obliged not to accept a guilty plea in such circumstances.  Secondly, a Summary of Facts assists the court in arriving at a just and appropriate sentence in the circumstances of the case.  The prosecution owes a duty to assist a court in these two important imperatives of the criminal justice system.

80.I would add that a Summary of Facts is not a matter of differences of view but a matter of legal principle and the prosecution should ensure that it is true and accurate when accepting a plea of guilty from a defendant. 

81.The importance of a true and accurate Summary of Facts cannot be overstated and should not be overlooked. 

Mr Newman Wong, counsel on fiat, for HKSAR

Mr Ackber Mohamed Omar, instructed by Haldanes, assigned by Director of Legal Aid, for the defendant