HKSAR v. So Ho Yin

HCCC 181/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 181 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Defendant you have pleaded guilty to a charge of Forcible Detention of a Person with the Intent to Procure a Ransom for his liberation contrary to s 42 of the Offences Against a Person Ordinance. This offence is commonly known as kidnapping.

Your plea was entered before a Magistrate at the Eastern Magistracy on 29 May 2017. Upon your plea of guilty and admission of the facts you were committed to the Court of First Instance to be sentenced. Here at the Court of first Instance you have further admitted further facts which is contained in the supplementary summary of facts which are dated 14 August 2017.

You have admitted that between 29 June 2001 and 5 July 2001 you, by force, detained the victim Fung Wai-kit against his will with intent to procure a ransom for his liberation. The victim in this case whom you kidnapped was aged 6. As to the facts of this case they are as follows. On 29 June 2001, the mother of the victim parked her car outside Sui Lin Shopping Centre in Tuen Mun so as to pick up her son, the victim, from kindergarten. After collecting the victim, she returned to her car and no sooner had the mother sat in the driver’s seat and the victim in the rear passenger street, two males suddenly emerged. One of the males, male A boarded the rear passenger seat to control the victim while the other male, male B threatened the mother with an object which looked like a fingernail file and declared “robbery”.

Male B pushed the mother to the front passenger street, he got on to the driver’s seat and drove the car away. Inside the car male A gave the mother a pair of opaque glasses to wear so as to block her sight and tied up her hands at her back loosely. He then took away her handbag which contained her credit cards and other personal belongings. The mother was told to divulge the PIN of her credit card.

After a while the car stopped, the males then covered the mother’s head with a piece of garment and asked her not to move. The mother heard her son, the victim, crying and the sound of her car door opening and shutting. She sensed that the males might have taken her son away. She immediately struggled to loosen her hands and alighted from the car.

The mother realised her son was missing from the car and saw a red Toyota car with the registration number FX4111 speeding away from the scene. She suspected that the two males had boarded on to this car and had taken her son away in there.

The mother found herself in an open area near Castle Peak Road. She walked to a nearby bus stop and used a mobile phone borrowed from a male to call the police and her husband, the victim’s father. The victim’s father later received phone calls from the kidnappers demanding HK$5 million for the release of his son.

During the period from 29 June 2001 and 3 July 2001 a number of phone calls were made to the father by the kidnappers. The kidnappers instructed the father to go to the public toilet at some KCR train stations to pick up a photograph depicting the victim holding newspapers of that day to prove his safety.

After some negotiation, the sum of the ransom was agreed to be HK$950,000. At around 11 pm on 4 July the father placed the ransom in the boot of a private car at an open car park near Jockey Club Road in Sheung Shui as instructed by the kidnappers. On 5 July at around 12.38 am the parents received a call from the kidnappers telling them to wait for their son outside their home. A taxi then arrived outside their home and their son was inside the taxi. Their son did not sustain any physical injury.

Approximately two and a half hours after their son had been returned to the parents, police officers intercepted you and a co-accused called Cheng Kai-lai in Sheung Shui. That would have been about 3 am. They asked you to produce your HK ID cards which you did but having done so, you both fled and left your ID cards with the police officers.

On 6 July Cheng surrendered himself to the police and admitted his participation in this present case. He was later charged and pleaded guilty to this present kidnapping case. On 5 July 2001 police officers searched your residence at 45 Man Kok Tsuen, 1st Floor in Sheung Shui. They found two brown envelopes which looked identical to those used to contain the ransom by the victim’s father and an envelope bearing the words, “Chiu, 470,000; Jun 320,000 and Kai Lai 160,000.”

On 7 July, after Cheng had surrendered himself, he led police officers to find part of the ransom cash in the sum of $949,500 near to your residence. This ransom money was eventually returned to the victim’s family by the police. After investigation police found that the red Toyota bearing the registration mark FX4111 which was the car suspected to have been used to drive away the victim by the kidnappers, was registered in your name as the registered owner at the time of the offence.

The 6 year old victim had been detained by you, the kidnappers, in a flat on 1st Floor, 28 Wing Ning Tsuen, Lung Yeuk Tau. This flat, at the time, was rented by a person named Yuen Yip-chiu. Your fingerprints were found on a glass and a roll of plastic tapes seized from within that flat. You, of course, had fled and it was not until you returned 15 odd years later on October 24 2016 you were arrested at the Lo Wu control point when you returned to Hong Kong.

At the time you surrendered yourself, you were 37 years of age. At the time you committed this offence you were 21. At the time Cheng committed the offence he was 23.

In your video recorded interview under caution you made a full and frank admission under caution. You admitted that you participated in this present kidnapping case with your friend, Yuen and Cheng. You said that you were only responsible for keeping an eye on the child who had been taken away to be held for ransom by Yuen and Cheng. You were the one also responsible for collecting the ransom money. You admitted that after the commission of this offence you fled to China by speed boat.

You also frankly admitted that you were imprisoned in China between 2005 and April 2016 for a drug trafficking case committed in China. You stated that you were the youngest amongst your co-accused in committing this offence. You had only been complying with the instructions of Yuen who was older than you. Yuen had told you about his plan to commit the kidnapping case and you committed this offence out of greediness.

You said that you did not participate in negotiating the amount of the ransom with the victim’s family. You did not know the child nor the family but that you, Yuen and Cheng had been following the child’s father for a few weeks. Yuen did not reveal to you why he had chosen this victim. Yuen kept the child in a flat rented by Yuen. You and Cheng then went to look after the child who was already inside the flat when you arrived.

Yuen would deliver food to the flat whilst you and Cheng stayed at the flat to look after the child. You said that when you saw that the child appeared to be scared or cried you would play TV games with the child as you wanted to comfort him and hoped that he would not be scared. You looked after him by feeding him and, when he appeared unhappy, playing games with him. You helped him bathe and kept an eye on him while he was sleeping.

No one used violence against the child. When the child occasionally mentioned he wanted to go home, you comforted him by saying that he could return home after a few days.

After a few days, the father agreed to pay the ransom and that is when Yuen instructed you to collect the ransom. You then found the envelope containing the money in the boot of the car and returned to your home at Man Kok Tsuen in Sheung Shui with the money. You then counted the money and confirmed the amount was HK$950,000. You then called Yuen to confirm the ransom had been received and Yuen released the victim and then went to your house with Cheng.

Yuen divided the ransom and gave you about $300,000. After dividing the ransom Cheng left your home. However, he returned a short while later to tell you and Yuen that there were many police officers around. Yuen then placed all the ransom money into a plastic bag and threw it on to the ground from the balcony of your home. You all then left separately from the village where you lived. You met up later that night. Yuen arranged for you to go to China by speed boat.

You said at the time of the commission of this offence, you thought no harm had been done to the child because you did not inflict any physical harm to the child. However, you subsequently understood that this incident could have cause psychological harm to the child and his family. You knew you had done something wrong, you felt regretful and, therefore, you surrendered yourself. After your release from prison in China you spent about six months accompanying your family but then decided to return to Hong Kong to admit your wrongdoing in this kidnapping case.

At the time of the commission of this offence you were 21 years of age. You had a clear record. We know now at age 37 you have served many years in prison in China. You said that you committed this offence out of greediness and naivety. In your letter written to me dated 20 July 2017 you state that your parents were divorced when you were young; you lived with your father who was busy at work and therefor you lacked parental guidance. You acquainted with bad peers, were influenced by others and, therefore, committed this offence.

Your counsel, Ms Kamina Lai has said that despite growing up in a middle class family, you chose not to work for your father who owns a garment factory in China. After quitting school, you worked as a cleaner, transportation worker and construction worker. It appears it has taken you some years to realise and understand the care now that your father has for you, as your father has been paying you regular visits during your incarceration here and in China. It is your intention to turn a new leaf and repay your father once you are discharged from prison.

Your father, in his letter to this court, has also understood his lack of supervision on you but that was to earn a living. I see that he regrets his negligence in caring for you but he has stated that he will try his best after your discharge from prison to guide you on the right path and start your career.

It appears that during your period of incarceration in China you reflected on all your wrong doing and realised it is the time for you to change and therefore it was your intention to come back to Hong Kong to admit to this offence.

The prosecution has contacted the victim and his family. They have refused to testify. Yet, despite the lack of evidence, you have still admitted your guilt. Ms Lai has said, furthermore, you raise no objection to the supplemental summary of facts even when you knew the prosecution would not have been able to adduce evidence if you had refused to admit it.

Your voluntary surrender and full admission to the police, Ms Lai states, indicates you are extremely remorseful for what you have done and illustrates how determined you are to turn a new leaf.

Ms Lai had mitigated on your behalf to say that she realises, and you do, that this is a very serious offence. However, she urges this court to take into account the fact that you were immature at the time of the offence, your role that you played and there was no physical violence used on the victim. And not only had you surrendered yourself but you also made full confession. She asks this court to impose a lenient sentence as is possible.

I have considered the cases put forward by the prosecutor, Ms Lilly Wong and the defence, Ms Kamina Lai. The kidnapping cases referred to are the Attorney General v David Lee Po Man 1992 2HKLR 70; Hong Kong SAR v Hung Wai Ping CACC576/1999; Hong Kong SAR v Lam Hung-hon CACC251/1999; Hong Kong SAR v Leung Man Kwong & another CACC57/2001. I have also considered the case of Hong Kong SAR v Ma Ming 2013, 1 HKLRD 813 on the frank admission made by the defendant which provides the early evidence supporting the charge. Hong Kong SAR v Sun Yu Ping CACC398/2010, the defendant’s act of fleeing after committing the offence. Hong Kong SAR v Ngo Van Nam 2016 5 HKLRD1; the Court of Appeal’s recent guideline cases taking into account the one-third discount and Tsang Kai On CACC79/2010 and Hui Chi Tong, CACC414/2007.

It is of note that I mention here that the co-accused, Cheng, pleaded guilty on 13 March 2002. At that time, Cheng was aged 24 and had a clear record. His role was similar to that of the defendant in that he was to guard the boy in the flat during that five-day period. He played video games with the boy and he fed him and then put him in the taxi after the ransom was paid. Cheng surrendered himself to the police the following day after the ransom was paid. He led the police to recover the $945,000 odd ransom from a slope in a village in Fanling.

Cheng also provided the details of Yuen and the defendant to police and complied with police requests to phone them in order to lure them out. These facts I have mentioned have been stated by Ms Wong in her bundle MFI1 and of which Ms Lai does not dispute. Despite the court looking at the file of Cheng, there is no sentencing transcripts or reason for sentence within that file. I do note that this defendant played a similar role to Cheng and that there should not be a significant, if any, disparity in sentence.

It appears from the facts that Yuen was the instigator of this kidnapping, nevertheless the defendant and Cheng still played a significant role in the offence. His car appeared to be used as the get-away the car to take the child away; his flat was used to divide the ransom; he was together with Cheng who accompanied the boy in the flat for the five days. Although I accept that no violence was used, there is no doubt this would have been a very frightening and lonely time for the very young victim, aged 6, to be with strangers and away from his parents for five days. This, as the defendant himself recognises, would have had quite a high psychological effect on the young boy. This also has clearly caused enormous emotional distress to his parents.

As indicated now by the prosecution, the victim nor his parents wish to testify for the prosecution. It is clear that they do not want to recall this incident as it had been harrowing and distressing which they, no doubt, do not wish to be reminded of. The psychological harm and effect is clearly there on victims and families of kidnapping cases.

The youth of an offender, whilst it is a fact to be borne in mind it is not a predominant one; deterrence is for kidnapping cases. Kidnapping is a nasty crime committed purely for personal gain and in total disregard of the wellbeing of a victim. Although the boy was detained in what appears to be quite subdued circumstances, as I mentioned, this would have caused him much harm in being away from his mother and, as the defendant in his video recorded interview has said, asking when he can go home and crying.

It is clear that the Court of Appeal has, at no stage, attempted to lay down guideline tariffs for this kind of offence. The circumstances of each case must be looked at individually. Anybody, however, convicted of kidnapping must expect to receive a custodial sentence and a heavy one.

In this case I see that fairness should prevail and I consider that the starting point taken by my colleague, Judge Esther Toh, in sentencing Cheng is an appropriate starting point, that is, of 12 years’ imprisonment. In Cheng’s case, he received the one-third discount for his guilty plea but also one further year for his criminal record. The Court of Appeal has stated that the clear record should be subsumed in the one-third discount.

The distinguishing factors in Cheng’s case, if I were to sentence Cheng, would be that Cheng not only surrendered to the police but significantly he led the police to recover the ransom money and also tried to assist the police to lure the defendants out and gave the defendants’ names. For that reason, I would have given the further year’s discount. Cheng eventually was sentenced to seven years’ imprisonment.

In this particular case defendant, this was premeditated and well planned. In broad day light you targeted a very young vulnerable victim, although no physical violence was caused to him undoubtedly there was psychological harm. A 12 year starting point is appropriate.

In this case, defendant you fled after the commission of this offence, therefore if you pleaded guilty you would not have been given the usual one-third discount. On the other hand, you surrendered to the police therefore this cancels each other out and you will still get your one-third. The question is whether you should get more than the one-third discount. Not only did you voluntarily surrender and frankly admit this offence but you admitted it when the prosecution accepted that they would not be able to commence any prosecution against you as the victim and his family had refused to come forward.

Your frank confession provides, therefore, the only evidence which supports this charge. In those circumstances, I am prepared to give you a further discount apart from the one-third. So for sentencing purposes had you been convicted after trial, defendant, I would have imposed a sentence of 12 years’ imprisonment giving you one-third discount for your guilty plea which makes 8 years’ imprisonment. I also give you a further year for your confession in light of the fact that there is no other evidence to support this charge and you are, therefore, sentenced to seven years’ imprisonment.