COURT: The defendant, Law Cheuk-yin, was charged with the following two charges, one is kidnapping, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Chapter 221, that is the 1st count and the 2nd count is robbery, contrary to section 10 of the Theft Ordinance, Chapter 210. The defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Now the facts admitted by the defendant.
The facts admitted by the defendant disclosed that on 28 March 2021, the victim, X, was lured to board a 7-seater vehicle driven by the defendant. There were two other males, we will call them, M1 and M2, on board the vehicle who assaulted X when the defendant was driving. X was taken to the Shing Mun Country Park and he was not allowed to leave. X was made to kneel down and was interrogated by the defendant and one of the males, M1.
The defendant and M1 accused X to have conspired with someone nicknamed ‘Four-Eye’ to cheat the defendant. The defendant hit X with a one-metre long plastic rod and M1 used a metal rod of similar length to hit X. X was hit on his head and four limbs. X was then ordered to remove all his clothes and defendant and M1 continued to hit X’s head and limbs. X’s head bled as a result.
Defendant threatened X to disclose the whereabouts of Four-Eye, otherwise X would die on the street. After, the defendant and the two males took cash, $4,000, one Samsung mobile phone, one bank card, and X’s ID card from him.
X was given two days to surrender Four-Eye otherwise X would die and “wait for others to collect his corpse”. X was then driven to Kwai Chung Road and told to get off. The whole incident lasted around three hours. In the course of the incident, M2 took at least two videos.
X was taken to the hospital and he suffered from the following: one-centimetre scalp laceration and scalp haematoma; right little finger fracture; right ring finger laceration; and multiple abrasion and bruises on his limbs. X was discharged from the hospital on the next day.
The defendant was arrested on 14 April 2021. Two videos related to this incident were retrieved from the defendant’s mobile phone. Video 1 captured X squatted down with blood from his head. Defendant and M1 each held a rod-like object, both were asking X about X’s bank account. Defendant hit X’s left arm once while M1 hit X’s right arm and leg.
Video 2 captured X being naked and looking scared. And he was squatting and his head was bleeding, and defendant and M1 repeatedly hit X’s limb with their weapons. They accused X as conspiring with Four-Eye to cheat the defendant. X promised he would surrender Four-Eye to defendant and M1 within two days.
Psychological report on the victim
According to a report dated 6 February 2024 by a clinical psychologist who had interviewed the victim on the same day, almost three years after the traumatic incident, X manifests chronic and significant symptoms of post-traumatic stress. He is fearful and confines himself at home most of the time, giving up social gatherings.
He was taken care of by his girlfriend. He had nightmares and flashbacks of the incident. He thought he would die during the incident as he was hit by a metal rod and he was alone and helpless during the attack. X still needs to wear a brace on his right hand. He was unable to overcome his fear of venturing outside. He would benefit from psychotherapy targeting his post-traumatic stress symptoms.
Background and Mitigation
The defendant was born in December 1979, so he is now 44 years of age. He is not a first offender. He has seven previous convictions, four of them were for possession of dangerous drugs, the other three related to driving offences. For the drug-related offences, he was fined and put on probation order for 15 months and was given a gaol sentence of 3 months, suspended for 12 months.
According to the antecedents statement, the defendant was educated up to Secondary 3 level and was unemployed at the time of the offence.
In mitigation, his counsel, Mr Dick Lee submitted that prior to his arrest, the defendant worked as a lorry driver earning about $26,000 a month. I should add that actually, Mr Dick Lee is assisted by Mr Lai Ho-yeung, counsel.
The defendant was the primary carer of his parents before his remand. He and his ex-wife had a 9-year-old son, currently living with his parents. His father had worked to support the family.
Both counsel submitted that while the defendant did not have a clear record, his previous records are mostly related to possession of dangerous drugs and questionable driving manner. There was no previous conviction of violence or dishonesty. The defendant urges this Court to attach no or little weight to those records.
The defendant came from a religious background and since his remand, he got in touch with Christianity again. He took part in a life-changing certificate course organised by the Christian Prison Pastoral Association Limited. He became a devout Christian and wishes to give back to the society including registering as an organ donor and becoming a regular blood donor.
Mr Lee submitted that the defendant had been a keen volunteer all along and has obtained different awards before his arrest. The defendant had been in remand for almost 3 years and he had been reflecting on his own blunder since his arrest. The defendant had written to this Court and I will refer to his letter shortly.
Defence counsel submitted that the defendant is truly remorseful and regretted his misdeed. The defendant is also grateful for the support of his girlfriend and his family as demonstrated by letters from his siblings.
Referring to the circumstances of this case, defence counsel conceded that the kidnapping was a planned scheme involving the defendant and two others. However, the weapons used were not prepared beforehand but being found at the scene.
Both counsel accepted that there are or there were aggravating factors regarding the kidnapping charge. Threats were made to the victim, victim told to take off all his clothes, videos were taken during the incident one of which showed that he was being naked, and also the victim was suffering from post-traumatic stress symptoms.
Defence counsel submitted that the incident spanned for about three hours and the victim would be benefitted from psychotherapy if he is willing to do so. The kidnapping does not sit at the most serious end of the spectrum. The defendant asked this Court to adopt the lower starting point.
As to the robbery charge, after referring to the well-known case of Mo Kwong Sang, defence counsel conceded that violence was used against the victim, threats were made and there were a total of three offenders, and also he was told to take off his clothes and videoed.
Defence counsel submitted that the incident did not start out as a robbery, meaning that the defendant and his accomplices did not set out to rob the victim. During their interrogation of the victim, they saw the opportunity and took the money and mobile phone from the victim. Defence counsel again asks this Court to be as lenient as possible.
Finally, in relation to totality, defence counsel submitted that the circumstances of this case is different from that in the case of HKSAR v Yang Chao. In that case, the Court of Appeal agreed with the prosecution that robbery and kidnapping for ransom were different in nature warranting partial consecutive sentences. In that particular case, the appellant and other culprits broke into a couple’s house, threatened them with knives and forced them to leave the house. The husband was kidnapped while the wife was instructed to buy valuables and withdraw money from ATM for her husband’s release.
Defence counsel submitted that the present case is different in that the robbery happened where the kidnapping happened. So the two offences were committed in the course of the same transaction and invited this Court to pass concurrent sentence.
Letter from the defendant
The defendant expressed his deep regret for having committed these serious offences, causing pain and suffering to those he loved and not being able to watch his son growing up. He has rediscovered Christianity and after having attained certificate for working in the construction and hygiene business, he vowed to start afresh and be a responsible son and father.
The defendant said while in remand, he was chosen to assist CSD officers regarding inmates’ daily lives and helping new inmates to assimilate into life in custody, which helps him in developing leadership skills and re-establish his sense of responsibility. He begged this Court to pass a lenient sentence.
The defendant’s siblings also wrote to Court. The defendant was described as a filial son and a helpful and polite person. The defendant’s sister said the family would always support the defendant. The defendant’s brother emphasised how indispensable the defendant was to his family being the one who took care of their parents and his own son. Both begged this Court to pass a lenient sentence.
Consideration of the sentence
For the offence of kidnapping, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Chapter 221, a person convicted of this indictable offence is liable to imprisonment for 7 years and a fine.
For the offence of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Chapter 210, a person convicted of this offence on indictment is liable to imprisonment for life.
I will first deal with the kidnapping offence. As considered by the defence, there are many aggravating features. The defendant acted together with two other persons to kidnap X. After bringing X to a remote area at a country park, X was assaulted by rods, a plastic one held by the defendant and a metal one held by M1. X was accused of having cheated the defendant and was forced to own up the whereabouts of another person nicknamed, Four-Eye. X was further humiliated by being ordered to remove all his clothes. He was again assaulted by rods while he was naked. He was hit on the head drawing blood and he was also hit on his limbs.
Videos of X being assaulted were made, one showing his naked body. The whole ordeal took about three hours. X still suffers from significant post-traumatic stress symptoms and is unable to live a normal social life.
Having considered all the circumstances of this kidnapping and how this incident still haunts and greatly affects X’s life, I am of the view that a starting point of 6 years is appropriate.
X was robbed of $4,000, one mobile phone valued at $7,000, his identity card and his bankcard during the kidnapping incident.
Although the defendant and M1 did not use any knives during the robbery and the plastic rod used by the defendant might not amount to a dangerous weapon, the fact that M1 was acting together with the defendant used a one-metre long metal rod to assault X, in particular on X’s head, causing bleeding. I am of the view that the guidelines set down in the case of Mo Kwong Sang is applicable here, as the metal rod is a dangerous weapon.
The defendant was acting in concert with others. There is no evidence that the bank card had been used by the defendant or his co-culprits. However, one can imagine the inconvenience caused to X having to have his ID card and bank card replaced.
Having considered all the circumstances of the robbery, I am of the view that a starting point of 7 years is appropriate. The defendant is not a man with a clear record. Four of the seven previous convictions were for possession of dangerous drugs.
Whilst I do not intent to increase the starting point on account of the defendant’s previous convictions, such convictions cancel out his previous good behaviour in doing voluntary work. In other words, I will not increase or decrease the starting point stated.
So the defendant pleaded guilty at the earliest available opportunity and is entitled to a one-third discount. For the offence of kidnapping with a one-third discount, the sentence is 4 years. For the offence of robbery with a one-third discount, the sentence is one of 4 years and 8 months.
Totality
Although the kidnapping and the robbery occurred in the same incident, they are two separate offences and a completely concurrent sentence would be wrong in principle, see the paragraph 4.5 of the case HKSAR v Yang Chao.
While I agree with the defence counsel that the circumstances of the present case is not the same as those in Yang Chao, I do not agree a completely concurrent sentence is warranted here.
Having considered the totality principle, I am of the view that a total sentence of 6 years would probably reflect the criminality involved. Such a sentence would be equivalent to an overall starting point of 9 years.
I appreciate the defendant’s parents and son need his support, however, the defendant must bear the consequence of having committed such serious crimes. His personal circumstances are not such that I would consider reducing an appropriate sentence.
So to achieve this result, 2 years of the sentence for the robbery will be served at the expiration of the 4 years imposed for the kidnapping offence.
Actual sentence
1st count, kidnapping, 4 years’ imprisonment. 2nd count, robbery, 4 years and 8 months, 2 years of which to run at the expiration of the 4 years imposed on the 1st count, making a total of 6 years’ imprisonment.