HKSAR v. Li Chung

CACC000239/2003

CACC 239/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 239 OF 2003

(ON APPEAL FROM HCCC 44 & 45 OF 2003)

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Coram: Hon Stuart-Moore Ag CJHC, and McMahon J

Date of Hearing: 28 October 2003

Date of Judgment: 28 October 2003

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

1.On 21 May 2003, the Applicant pleaded guilty before Beeson J to a total of three counts contained in two indictments. On indictment HCCC 44/2003, he was sentenced in totality to six years and eight months for counts of kidnapping, contrary to common law, and carrying an imitation firearm with intent to commit an arrestable offence, contrary to section 18 of the Firearms and Ammunition Ordinance, Cap. 238. On indictment HCCC 45/2003, the Applicant received a consecutive sentence of eight years' imprisonment for possession of arms and ammunition without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance. The overall length of the term of imprisonment being served by the Applicant is, therefore, fourteen years and eight months. He now seeks leave to appeal against this on the ground that it was too severe bearing in mind that he had "all along admitted (his) guilt".

2.The facts of these offences were summarised by the judge in the following terms, taking indictment HCCC 44/2003 first:

".... the defendant arranged with the van driver, Mr Tsang, that he should be hired at $HK280 for a return journey from Fanling to To Kwa Wan. This was in August 2002.

Mr Tsang eventually could not do the job and arranged with Mr Chan Tak-wai, another van driver, who is the victim of the charge, to do the trip for him. The victim collected the defendant and another man at about 4.40 pm. During the journey that ensued, the defendant pointed a pistol-like object at the victim's waist and said that he aimed to get wealth. He did not want Chan's money, but wanted his van.

The victim was placed in the rear of the van, his hands and legs were tied with plastic cuffs.......

He was gagged with adhesive tape and covered with bedsheets and newspapers. The van drove around for some time, later waiting at Hong Lok Yuen for about 2 hours. In the course of that journey, two other men were collected and eventually the victim was told to drive the van to Tsim Sha Tsui.

At about 2 am, the van reached the Tsim Sha Tsui ferry pier and the victim and the defendant waited there while the other male went for (a) walk. Eventually, the defendant left the victim with another male in the van and went off, instructing the other man to stab the victim if he tried to resist or to escape. About 20 minutes later the victim seized an opportunity to escape and fled. He made a report at the Tsim Sha Tsui Police Station.

Police, acting on the report, found the van at about 3.30 am, but the men had fled. The victim did not, fortunately, sustain injuries where the plastic strips, or plastic cuffs, abraded his wrists. Police later found a silver-coloured plastic pistol in a flower bed in front of the Cultural Centre at Tsim Sha Tsui. It was confirmed to be a toy by the Ballistics Officer.

The defendant was not arrested until 11 November 2002. In a video interview, he told police that he and three others had kidnapped the victim, threatening him with a toy pistol to obtain the use of his van. His plan was to use the pistol to threaten his former girlfriend to repay $160,000 that she allegedly owed him. He planned to threaten her with a toy pistol at the Star Ferry bus terminal because he knew that she usually went there after finishing work at about 2 to 3 am.

When she did not show up on that occasion, he abandoned the pistol. The defendant was identified at an Identification Parade by the original van driver, Mr Tsang, with whom the arrangement had been made." (Appeal bundle pp. 24-26)

3.In regard to the second indictment, the judge described the facts as follows:

".... at 1.35 pm on 11 November 2002, Mr Hua Jian-ming and an unknown male checked into a room at the Gee Pak Villa in To Kwa Wan. The unknown male left soon after and the defendant went to the room at about 2.30 pm. Police, acting on information, raided the room at about 7.15 pm that day. A search revealed a pistol under the mattress, the defendant was arrested and cautioned and admitted that he'd brought the pistol with him.

He had asked the man, Mr Hua, to come to help him rob a goldsmith shop in Fanling. A ferrozine test for gun handling was done and the Forensic Firearm Examiner found that an unidentified iron object had been in contact with the defendant's right waist area.

In a later video interview, the defendant said that he'd been given the pistol and taught how to use it by a man called 'Ah Sing', in China. He, himself, sneaked into Hong Kong by sea, arriving at 11.45 am on the 11th. He had gone to the villa and hidden the gun. He wanted the gun either to rob a goldsmith, or to threaten his ex-girlfriend to collect money from her.

Next day, the defendant took the police to show them the shop that he had planned to rob. The Forensic Firearm Examiner examined the pistol. It was found to be a home-made self-loading pistol capable of discharging 7.62 mm x 17 mm Chinese-made ammunition. There was also a magazine suitable for use with the pistol and three rounds of rimless calibre ammunition suitable for use in the pistol......." (Appeal bundle p. 26)\

4.The judge then reviewed the Applicant's criminal record. Following a suspended sentence for assault occasioning actual bodily harm in 1990, the Applicant was sentenced in 1992 to a total of eight years' imprisonment for a series of three robberies and the possession of a firearm and ammunition. On a separate indictment for two offences of robbery, he received sentences of fourteen years' imprisonment to run concurrently with each other and with the sentences he had received on the other indictment.

5.The judge, in the present case, reviewed the salient points which had been raised in mitigation. It had been contended on the Applicant's behalf that he had lent $160,000 to his girlfriend before he went to prison in 1992 and, on his release, he had asked for its return. In fact, the "girlfriend" denied the existence of such a loan. In any event, it was said that the Applicant borrowed money in the Mainland from loan-sharks to assist his father. When he was unable to repay the money, he was thrown out of a second floor window. As a result, he suffered fractures to his hip and legs. He then came to Hong Kong for the purposes of threatening his girlfriend, who allegedly still owed him money, and robbing a jewellers shop, so that, it was said, the loan-sharks could be repaid.

6.The judge described the offences as very serious, pointing out, on the first indictment, that the Applicant was:

".... prepared to enforce a debt - a debt which is denied in fact by the girlfriend - using the van of somebody else, presumably because he was unwilling, or unable, to rent a commercial van. The driver was tied up and gagged, he was threatened with a gun, later he was threatened with being stabbed. He spent 10 hours in the vehicle being driven around ....

This case is one of many that comes before the courts at the present time, where people use kidnapping as a means of debt enforcement; whether the debt is real or imagined. It is a matter that should be dealt with very seriously by the courts and for that reason, I take the maximum starting point of 7 years for this offence. I give the defendant a one-third discount and he is sentenced to 4 years and 8 months' imprisonment in respect of the 1st charge in 44/2003." (Appeal bundle pp. 27 & 28)

7.The judge took a six-year starting point on the second count and, having reduced this to four years to take into account the plea of guilty, she ordered that two years should run consecutively to the sentence on count 1, making six years and eight months in total.

8.On the other indictment, the judge took a twelve-year starting point having regard to the fact that the firearm and ammunition had been acquired for use in a robbery. This was reduced to eight years for the plea of guilty and ordered to run consecutively to the sentence on the other indictment as it was a wholly separate matter. The two incidents giving rise to these indictments were, as the judge remarked, several months apart. As to this, she said:

"I've considered the totality principle in this case and I note that these offences are separated in time by several months, that they were separate offences and there is no justification for making them partly consecutive and partly concurrent. I order that the sentence in respect of 45/2003 will be consecutive to the sentences imposed on 44/2003." (Appeal bundle pp. 28-29)

9.For the reasons given by the judge, we can find no justification for interfering with any of the sentences imposed.

10.Accordingly, this application is dismissed.

Representation:

Mr P.K. Madigan, SGC, of the Department of Justice, for the Respondent.

Applicant in person.