HKSAR v. Balakrishnan Mahendran

HCCC 2A/2019

[2021] HKCFI 455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 2A OF 2019

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

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COURT: The defendant, Balakrishnan Mahendran, was charged with one count of forcible taking away and one count of forcible detention of a person with intent to procure a ransom for liberation, that is the 1st and the 3rd count, and one count of kidnapping which was an alternative count to the 1st count. The first two counts involved a person known as Kingsley, whereas the 3rd count involved a person known as Inars.

The defendant was tried in his absence. The jury unanimously found the defendant not guilty of the 1st count but guilty of the alternative 2nd count of kidnapping of Kingsley. The jury also unanimously found the defendant guilty of the forcible detention of Inars with intent to procure a ransom for Inars’ liberation, that is the 3rd count.

Facts of the case

The fact of the case disclosed that a Latvian businessman, Inars, was visiting Hong Kong on 25 September 2017 when he met up with his friend, Kingsley, and they went to a bar in Jaffe Road, Wan Chai, as Kingsley was going to have a discussion with someone and had asked Inars to accompany him.

After Kingsley went alone to meet with someone for the discussion, Inars witnessed Kingsley being chased by some Africans. Kingsley was eventually caught and manhandled into a private car and was driven away. CCTV cameras installed in bars, shops and buildings nearby captured the incident of Kingsley being grabbed and bundled into a car which sped away and that is the 2nd count.

Inars found himself being followed by some Africans and he was not able to leave freely to go home. He was given a mobile phone by those people and spoke with Kingsley. Inars then went to withdraw money from an ATM nearby followed by the Africans. After withdrawing the maximum amount, that is $6,000, he was told that was not enough. Inars was eventually taken against his will to a place which turned out to be a converted container, I will designate that as “container A”, in Tuen Mun, rented by the defendant.

Inars was poked or hit by a stick and his ankles were chained at first. Inars was not allowed to leave and those Africans detained him were quite aggressive at the beginning, having at one stage held knives over his head and threatened to chop him up and eat him, saying that they were cannibals.

Inars was told to contact friends and relatives to raise money as Kingsley owed them money. Inars called his sister and business partner in Latvia, telling them his true position in Latvian language and asked them to call the police. To his friend in Hong Kong though, Inars did not disclose the fact that he was being detained against his will but only asked for a loan. His Hong Kong friend, Eric Mak, was contacted by Inars’ business partner and he was asked to report the case to the police. Mak was sceptical at first but after someone took over the phone from Inars and told him that if no payment was made, he should expect not to see Inars again, Mak was frightened and reported the matter to the police.

In the meantime, the defendant made arrangement with his friend, Li Wai-lun, who agreed to provide his business bank account to be used to receive some payment from overseas. Li’s bank account details was sent to Inars’ phone which was in turn sent to Inars’ sister. A fake remittance slip bearing the name of Li but with the wrong account number and wrong company name was sent over to buy time. Inars was released on 29 September 2017.

With the assistance of Li, the defendant, who was a torture claimant holding a Form 8 recognisance, was arrested. Data from the defendant’s mobile phone was retrieved by an officer of the CSTCB, Cyber Security Technology Crime Bureau, and among the photos retrieved, images of Inars being inside container A and Kingsley being chained by the ankles inside the container next to container A, which was designated “container B”, were found. Further, a photo of the fake remittance slip was also found on the defendant’s phone.

The defendant attended a total of four video-recorded interviews. The defendant admitted he had contacted Li to ask for the use of Li’s account. When he was shown CCTV capturing the incident in Wan Chai on 26 September 2017, he identified himself being one of those Africans who had grabbed hold of Kingsley. He also confirmed the mobile phone which was later sent to the CSTCB for retrieval was his phone.

Though the defendant gave Inars an explanation as to why Li’s account was required and why he was grabbing hold of Kingsley, it was clear that his explanations were not accepted by the jury who had found him guilty, that is the 3rd count.

Background of the defendant

According to the antecedent statement prepared by the police, the defendant is an Indian male born in May 1988. He is a Form 8 recognisance holder and the serial number was mentioned in the statement. I will not mention it here.

The defendant had two appearances in court before and had one conviction of breach of condition of stay for which he was sent to prison for two months and a conviction of criminal damage for which he was fined $2,000. The defendant claimed to have received education up to Form 4 standard.

The law and the authorities submitted

Section 42 of the Offences against a Person Ordinance, Chapter 212, provides that the offence of forcible detention of a person or a taking of a person as well, with intent to procure a ransom for liberation if convicted on indictment is liable to life imprisonment. For the offence of kidnappings, since no penalty is set for this common law offence, pursuant to section 101I of the Criminal Procedure Ordinance, a person convicted of this offence is liable to 7 years’ imprisonment and a fine.

Mr Ken Ng, upon my request, submitted a number of authorities in relation to these two offences together with the relevant extracts from the sentencing in Hong Kong for my consideration.

Now, first I will deal with the cases that have been submitted to me. The first one is HKSAR v Mohammad Nadim, unreported, CACC 172/2009. That involved the abduction of a 7-year-old with the demand of $200,000 ransom. The boy was detained for 15 hours. He was placed in a nylon bag and put in the boot of a car and the car was intercepted by the police.

The boy suffered superficial abrasions on his wrist, upper abdomen and shin. The trial judge adopted a starting point of 17 years and reduced it to 11 years and 4 months upon the defendant’s plea. The Court of Appeal found the starting point manifestly excessive and reduced the sentence to 9 years and 4 months with reference to a 14-year starting point.

Second case is HKSAR v Chiang Sai Wah, Brandi. The defendant was convicted of one count of conspiracy to commit forcible detention and he was sentenced to 14 years’ imprisonment upon his plea of guilty, the trial judge having adopted a starting point of 17 years.

The case involved the failed abduction of Dr Leung Ding-bong inside a building where Dr Leung had his office. Three men tried to tie Dr Leung up and put him into a wooden box in which Dr Leung would have been transported to a deserted pig farm for the purpose of procuring a ransom. The defendant was the driver of the lorry in which Dr Leung would have been transported inside the box. While no weapon was used, there were three men against a 73-year-old victim. Dr Leung was roughly handled and put up fierce resistance which foiled the plan to abduct him. The Court of Appeal did not find the starting point of 17 years excessive and dismissed the appeal.

The third case is HKSAR v Zheng Xingwang, again unreported, CACC 218/2016. Now, the defendant pleaded guilty to one count of forcible taking away or detention of a person with the intent to procure a ransom for liberation. He was sentence to 12 years’ imprisonment, the trial judge having adopted a starting point of 18 years.

Now, this case involved the abduction of a woman from her own home by a gang of six Mainland Chinese, the intruders having subdued both the victim and her boyfriend and having tied them up and covered their mouths with adhesive tapes.

The victim was taken to a cave and a ransom of $58 million was demanded from her father. The victim was kept inside a tent in the cave with men guarding her from outside. After four days of negotiation, the ransom was reduced to 28 million. The victim’s father deposited 28 million as instructed in Fei Ngo Shan Road. The serial number of 12.5 million having been scanned and kept. After the victim was released, that is after having been detained for four days, most of the money were recovered.

The Court of Appeal said the trial judge had properly directed himself on the relevant sentencing principles and analysed significant features of the case, commenting that, “To say that this was a carefully planned and executed kidnapping is, if anything, an understatement”.

The gang had purchased inside information about the home and the victim’s family and had kept the home under surveillance. The victim was kept for four days. She was alone with armed men during this time and in fear of her life. There is also incalculable psychological trauma to the victim and her family. The Court of Appeal dismissed their application for leave to appeal against sentence.

The fourth case is HKSAR v Muhammad Rizwan and Others, again unreported, CACC 232/2015. Now, this case involved three Indian Sikhs who were lured to Hong Kong to finalise a deal relating to a piece of land in Punjab region of India. Upon arrival, they were kidnapped and a ransom of 100 million Rupees was demanded for their release. The applicants before the Court of Appeal were D3, D4, and D5 during the trial, D1 and D2 having absconded before trial and were tried in absentia.

The case of the prosecution was that all five took part and played a role in the offence. From the evidence of the owner of the land, that is PW2, he and his two friends came to Hong Kong to meet a rich boss who was interested in buying the land. Instead the three were taken to altogether three locations. In the second location they were surrounded by seven persons with D2, D4, and D1 holding choppers. D4 also pointed a gun at PW2’s head telling him he will be shot if he tried to run away. D1 was said to be the leader in second place after D2. D5 was the one who held an iron rod and helped to tie them up. A ransom was demanded for their release, otherwise they would be murdered or handed over to a Chinese gang. They were told to make arrangement for their release quickly otherwise they would be cut up and thrown into the sea. D5 told PW2 if he tried to run away, he will be killed.

D4 slapped PW2’s face on day 2. D2 passed a phone to PW2 to call his brothers. D1, D2, D4, D5, took part in assaulting PW2’s friends with kicks, punches, and an iron rod, causing them injuries. D4 threw hot tea at PW2, burning his mouth. The victims were tied up again. The victims were taken to location 3 the next day and being guarded by D3.

On day 4, D2 and D4 told PW2 there were negotiations made with his brothers and that they needed to pay what had been promised upon their return to India. The victims were then released and had their passports returned to them by D2, D4, and D5. D3 gave them food and water and D3 accompanied them to the airport.

PW2’s brother, that is PW1, gave evidence about being contacted by PW2 and later spoke to the kidnappers who told him if a ransom was not paid, the victims would be killed. PW1 then met some members of the gang and paid 500,000 Rupees. The kidnappers were not satisfied and asked for more money, so PW1 made a report to the Indian police.

Now, the trial judge imposed the following sentence after trial. D1 and D2, 19 years’ imprisonment; D3, 12 years’ imprisonment; D4, 19 years’ imprisonment; and D5, 15 years’ imprisonment. The trial judge described the offence as a very well planned and professional criminal enterprise. Victims were detained for three days and made to fear that at all times, their lives were at risk. A deterrent sentence was needed.

In sentencing D1 and D2, the trial judge described them as leaders. D1 was also the tenant of location 2. Aggravating features included international element, detailed planning, use of weapons, threats of death were made, victims were detained in squalid conditions. The trial judge adopted a starting point of 18 years and enhanced it to 19 years for D1 and D2. As for D3, the trial judge was of the view that his role was relatively minor. The trial judge adopted a starting point of 14 years as D3 has shown some remorse towards the victims, the sentence was reduced by 2 years. As for D4, the judge assessed his culpability to be on a par with D1 and D2 and adopted 19 years as starting point. Regarding D5 who threatened and assaulted the victims with an iron bar in location 2, also threatened to kill PW2 should the latter try to escape, the trial judge assessed D5’s role as more serious than D3’s but less serious than D1, D2 and D4 and sentenced him to 15 years’ imprisonment.

D4 was the only one who applied for leave to appeal against sentence and D4 argued that a starting point of 18 years was too high and that the enhancement of 1 year for the international element was erroneous and that the judge’s assessment of his culpability to be on a par with D1 and D2 was also wrong.

The Court of Appeal found no merits in D4’s complaint on the first two grounds. The trial judge’s adoption of 18 years as starting point for the leader in the circumstance of this well planned criminal enterprise could not be said to be manifestly excessive. There was no error in enhancing to allow this cross-border crime when the victims were lured to Hong Kong. As for the last ground, the Court of Appeal was of the view that the trial judge’s conclusion that D4’s role was comparable to that of D2 and D1 could not be faulted. D4’s application for leave to appeal against sentence was therefore dismissed.

Now what I can derive from reading the extracts from sentencing in Hong Kong, I will not refer to them here now. And the authorities already cited above is that there are no guidelines for this offence but there is a need for deterrence and the sentencing judge needs to assess the particular circumstances of the offence to arrive at the appropriate sentence.

Apart from the cases that I have already cited, I have also looked up another case which is HKSAR v Kan Charn Hung and So Wai, again unreported, CACC 489/2002. That was an appeal conducted in Chinese. Kan and So were husband and wife. They were charged with an offence of attempting to forcibly take away a person with intent to procure a ransom for liberation. Kan, that is the husband, admitted the offence and was sentenced to 6 years and 8 months’ imprisonment. So, that is the wife, pleaded not guilty and was convicted of the alternative offence of attempting to kidnap and So was sentenced to 5 years’ imprisonment.

The facts of the case were that the victim, a woman, had just taken her 5-year-old son to school and was about to drive away when Kan suddenly got into her car, pointing a gun at her and told her not to make any noise and to follow him. The victim shouted for help. Kan then pointed a gun at the victim’s head and told her to put on a pair of sunglasses. The victim complied. Kan then instructed the victim to climb through the middle of the two front seats to the back seat. The victim did so as told, and Kan also went to the back seat and sat next to her. And then So, that is the wife, calmly boarded the car and told the victim not to make a noise otherwise the gun would be fired. So So then handed a pair of handcuffs to Kan. The victim banged her hand on the window of the car, wanting to shout for help. Kan then put down the gun and took out a cutter, pointing it at the victim’s bellybutton area and wanted her to put on the handcuffs.

Upon seeing that Kan had lowered the gun, the victim put up fierce resistance and during the resistance, the victim pushed the front passenger seat forward and managed to open the car door to flee. The victim then sought help from a group of students nearby, a report was made to the police.

In respect of Kan’s application for leave to appeal against sentence, the Court of Appeal referred to the facts of the case and came to the conclusion that a starting point of 10 years adopted by the trial judge for this offence was not only not manifestly excessive, it was in fact on the light side. Kan’s application was dismissed.

In respect of So, after dealing with her ground for leave to appeal against conviction which was dismissed, the Court of Appeal said that although the offence So was convicted, that is kidnapping, was different from that of Kan’s conviction, the seriousness mentioned in Kan’s case was, to a certain extent, applicable. The Court of Appeal was of the view that a 5-year sentence was a light sentence in all the circumstances and also dismissed So’s application for leave to appeal against sentence.

Consideration for the sentence in this case

As can be seen, both offences are serious. The main difference between the two offences is the procurement of ransom for the liberation of the victim. The defendant, acting in concert with the group of people, openly grabbed and manhandled Kingsley into a car and took him away, kidnapping Kingsley. From the evidence, it would appear that Kingsley was in some sort of financial dispute with other or others and he was taken when he was unable to pay the money. Nevertheless, there was no lawful excuse for the defendant and the others to do what they did.

The kidnapping of Kingsley appeared to be planned. Kingsley was asked to go out alone to talk to the boss. Shortly after he had done so he was seen running away from some Africans who were chasing him even after Kingsley had run into a bar to escape from the group, he was taken out and forcibly taken to board a car which was obviously prearranged.

The defendant in the video-recorded interview positively identified himself to be the one who was seen grabbing Kingsley’s hand. The excuse he gave during the video-recorded interview as to why he was grabbing Kingsley that he was acting on impulse. He did not know what was going on, that he just happened to be in a gap and Kingsley’s hand was available for him to grab and so on were clearly rejected by the jury. Indeed, the footages captured by various CCTV installed in the vicinity did not support the defendant’s version at all. I bore in mind the defendant was acting in a joint enterprise and some form of violence or force was used to manhandle Kingsley into the car to take him away.

Whilst no weapon was used during the taking away, Kingsley was chained and also suffered injuries around his eyes as Inars noticed bleeding there. Now, I will not take into account the allegation that Kingsley’s leg was broken as the evidence did not show what Inars was told to be correct. I am of the view that a starting point of 4 years is appropriate for the 2nd count of kidnapping.

Now in the present case, while the taking away of Kingsley is planned because the car had been prearranged to take Kingsley forcibly away, the taking away and detention of Inars did not appear to be planned beforehand. After all, whatever dispute Kingsley had with anyone had nothing to do with Inars. Inars just happened to be present when he had agreed to keep Kingsley company. Nevertheless, Inars was taken away and was detained from 26 to 29 September 2017. During the detention, violence and threats of violence were practised on him. Inars was quite candid when asked how he felt when the Africans held knives over his head and threatened him. He said he had been in similar situations before so he was in control of himself.

Inars’ ankles were chained at first. The chain was released and his hands were bound by rope instead. A ransom of 1 million was demanded and Inars had to call relatives and friends to raise money to pay the ransom.

The defendant did not take part in taking Inars away from the Wan Chai area, however, he was the one who had rented the container in which Inars was kept for a few days, that is from the early hours of the 26th to the afternoon of 29 September 2017. The defendant was also the one who contacted Li Wai-lun to use Li’s bank account for the remittance. Not only that the role played by the defendant in this offence cannot be said to be minor, the defendant was actually actively involved in this joint enterprise. Having considered all the circumstances, I am of the view that a starting point of 15 years is appropriate.

The defendant was tried in his absence. I do not see any ground for reducing the starting point. Now, I actually need to consider the aggravating point that he was a Form 8 recognisance holder and yet committed such serious offence in Hong Kong. I actually forgot about that so I need to add that back in.

For the second offence of kidnapping, I will enhance the sentence by 9 months for the fact that he was a Form 8 holder. For the 3rd count of 15 years, I will enhance another 9 months. So the actual sentence for the 2nd count is 4 years and 9 months and for the 3rd count is 15 years and 9 months.

Then, of course, I need to consider the totality. I am of the view that a totality of 17 years would properly reflect the culpability of the defendant, so I will need to do some adjustment.

So 4 years 9 months and 15 years 9 months would be 1 year and 3 months added to 15 years 9 months would make 17 years.

So what I would do then is for the 4 years and 9 months’ sentence for the 2nd count, 1 year and 3 months to be served consecutively to the 15 years and 9 months imposed on the 3rd count then making a total of 17 years. Thank you.