HKSAR v. Lam Hung Hon

CACC000251/1999

CACC 251/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 251 OF 1999

(ON APPEAL FROM HCCC 287/1998)

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Coram: Hon Stuart-Moore VP, Leong and Wong JJA in Court

Date of Hearing: 25 January 2000

Date of Judgment: 25 January 2000

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J U D G M E N T

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Hon Leong JA (giving the judgment of the Court):

1. The applicant Lam Hung Hon was convicted after a trial before a jury and Deputy Judge McMahon of two offences of forcible taking or detention of a person with intent to procure a ransom for liberation. The victims in these two offences were a 12-year old boy (the boy) and a nine-year old girl (the girl). They were brother and sister. The applicant was also convicted of a third offence of administering a noxious thing with intent to the boy. He was sentenced to 14 years imprisonment for the first offence, 12 years imprisonment for the second offence of forcible detention and 18 months imprisonment for the third offence of administering a noxious thing with intent. The applicant now seeks leave to appeal against conviction and sentence.

2. The prosecution case was mainly based on the evidence of the boy, PW1, the girl, PW2 and Ah Hung, PW7 the co-habitant of the applicant. PW7 was employed by the parents of the children and she used to take them to and from school. She left their employment and started to live with the applicant but after she left she had on one occasion together with the applicant taken the children to McDonald's.

3. On 10 December 1997 the applicant and PW7 met the children after school and told the children to go to their house to get some toys. They went with them to 82D Cheung Kong Wai and there the children were not allowed to phone their parents. The children then slept in the house. When the boy woke up, he found his feet were tied up. He was untied when he spoke to PW7. He stayed in the house with his sister all day long, while the applicant went out and came back with food for them. The boy wanted to phone his mother but was not allowed to do so. During the second night, the boy woke up at night and found his nose and mouth covered by a piece of cloth with a bad smell. He found his feet were tied and he was blindfolded but he struggled. He was hit five or six times, and his hands were tied up. He identified the applicant as the one who did these to him. He was tied up and gagged until the next morning and was only released later. He found his mouth injured and was bleeding and he could not eat. He and his sister were then detained in the house for the next few days. Then the applicant and PW7 took them in a red Mercedes Benz car to a new house where they were further detained. But that night the police came to the house and rescued them. The boy told the jury during the trial that during the time he was detained, the applicant seldom stayed at the house during the day.

4. His sister PW2 gave similar evidence that the applicant and PW7 told them there were toys for her and her brother at their home and told them to go to their house to get them. When they got there, there were no toys. They were not allowed to use the phone and they were told that their father had allowed them to stay away from home for a few days but PW2 did not believe that. That night she saw the applicant tie up her brother's feet and that his mouth was covered up by a piece of cloth. The next morning her brother was still tied up and she was frightened. She did not leave the house and did not make a phone call or speak to her family during the whole time she was in the house. No other male was in the house except the applicant. Some days later, she was taken to a new house in a red Mercedes Benz car driven by the applicant.

5. Ah Hung, PW7 was the 2nd defendant in this case but she pleaded guilty and became a prosecution witness. She told the court that on 10 December 1997 she went with the applicant to the children's school and the children went with them to their house after the applicant told them that he would buy them some toys. At the house they gave the children food and the applicant told them that their parents had allowed them to miss school for two days. The applicant then told her to demand money from the children's parents. That night they all slept in the house. The next day, the applicant went out and came back with food and toys for the children and then went out again. That night they all slept in the house until she woke up in the middle of the night and found the boy's wrists were tied up and his lips were swollen. She found a piece of cloth with the smell of alcohol. She tried to clean up the boy's lips but the applicant came up and put tapes over the boy's eyes and around the boy's wrists.

6. During the next day, the applicant went out on occasion with the girl but PW7 noticed that the applicant had with him horse betting slips and cards which looked like ATM cards. One day, the applicant put into her purse $10,000. She asked him when the children could be released, the applicant told her that he had not received all the money yet. Eventually on 16 December 1997 they moved to a new house in a red Mercedes Benz car. That night the applicant came back with police officers and the applicant was arrested.

7. During the time when the children were detained by the applicant and PW7, the children's elder sister, PW3, their mother, PW4, their mother's brother, PW5 and their father, PW6 received a series of telephone calls during the night of 10 December 1997 and the following day from a man who told them that the children were with him and told them not to report to the police. The man spoke to the father on the phone and demanded one and a half million dollars. He told the father not to report to the police otherwise the children's arms and feet would be cut off. The father then discussed the matter with the family and decided not to report to the police. The next day the man phone again. The father recognised the voice. He told the court it was the same man. There was a negotiation over the phone and eventually the father agreed to pay $700,000. The man gave the father two Hang Seng Bank account numbers, the name of one of the accounts was Li King-wai, into which the money should be paid.

8. The father then made arrangements for depositing $350,000 each into the two accounts. After that, the man on the phone rang to tell the father that he had received the money and would release the children soon. But the children remained not to be seen. The father therefore reported to the police on 15 December 1997.

9. The applicant was arrested by the police on 17 December 1997 when police officers saw a man using two cards to take out cash from an ATM machine and thereafter tear up the withdrawal receipts and throw them on the ground. The man then drove away in a red Mercedes Benz car. The police followed this Mercedes Benz car to Nam Hang Village and there they stopped this car. The applicant was the man in the car. He tried to move his vehicle out of the spot but could not. He got out of the car and tried to escape but was caught by police officers some 50 meters away from the hut where the children were found. The applicant was searched and two ATM cards were found in a wallet on his person. The account numbers on these two cards corresponded with the account numbers of the two accounts into which the father had deposited the ransom money. These account numbers were given to the father by the man on the phone. The torn withdrawal receipts were picked up by police officers and they were found to relate to the two accounts to which the ransom money had been deposited. These torn slips contained the applicant's fingerprints.

10. The owner of 46, Wong Uk Tsuen where the applicant lived told the court that the applicant rented the village house in January 1996 but had fallen in arrears of rent for some time. He told the court that around 13 to 15 December 1997 the woman who lived with the applicant gave him $80,000 to clear off some of the debts incurred by the applicant.

11. Police officers searched the applicant's home and found a Hang Seng Bank bank-in-one account card in the name of Li King-wai and bank documents relating to the two accounts.

12. The two accounts were opened on 12 November 1997 with the identity card in the name of Li King-wai. Li King-wai told the court that he intended to purchase a car from the applicant and the applicant asked for his identity card and his driver's licence so that the applicant could get cheaper insurance for him. Li agreed and handed over his identity card which the applicant kept for two days. The applicant denied he had ever opened an account with the Hang Seng Bank.

13. The applicant's case was that he had spoken to the parents of the children before and they should have known his voice. If he had made a demand over the phone, the parents would have recognized his voice. He said he had agreed to sell his car to Li King-wai. At the time, he was in the car park trying to sell a car to a stranger. He never took possession of Li King-wai's identity card. The sale of his car was on 17 November 1997. He said that he met the children by chance on 10 December 1997 when he and PW7 went shopping. He had earlier promised to get the children some toys and when they met the children, the children asked him for the toys. PW7 then invited the children to go to their house at 82D Cheung Kong Wai to sleep. That night he asked PW7 why the children did not go home and PW7 told him to let them stay there for two days. He then left the house until the morning of 12 December 1997. When he returned he saw the boy had an injury on his mouth and had tapes over his mouth and nose. On 16 December he took PW7 and the children to a new house because PW7 wanted a larger place. He denied that he had the two ATM cards on his person and alleged that these were planted in his wallet by the police. He said he was beaten when he was arrested. He also said he was tricked by the officers to have his fingerprints put on the withdrawal slips because the officers told him to tear up the slips if they were not his. So, he tore them up, thus leaving his fingerprints on the torn slips. His explanation for the money deposited in the two accounts was that he had received a large sum of money, $1.5 million, in November. The first instalment was $700,000 and later he received an addition of $500,000.

14. The applicant had put up a number of grounds of appeal on 28 May 1999 and these were elaborated on 14 September 1999.

15. First, the applicant said that a juror had fallen asleep during the trial. His barrister complained to the judge but the judge dealt with it briefly.

16. According to his ground, the judge had dealt with it upon complaint by his barrister, albeit briefly. But, if indeed there was such an instance and the judge had not sufficiently dealt with it, his counsel would have asked the judge to discharge the jury. But nothing of this sort had happened. This complaint is groundless.

17. Secondly, the applicant complained that the judge had failed to mention the evidence which was in his favour. He said that the judge dealt with the applicant's evidence without emphasising those which were in his favour.

18. The judge in fact dealt with the applicant's evidence in his summing-up in detail and that took up almost 8 pages of his summing-up starting from the bottom of page 44 to the end of page 52. No complaint can be made based on this ground.

19. Thirdly, the applicant said the boy failed to identify him because the boy mistakenly identified in court the foreman of the jury to be the culprit. He said the boy had mistaken him to be the kidnapper when it was in fact Ah Hung's ex-boyfriend called "Chilli" or "Pepper".

20. The matter of identification of the applicant as the only male person in the house was dealt with by the judge on page 16 of his summing-up where the judge said this:

"... An issue which has arisen in this trial is as to the children's possible mistake or confusion in identification between Pepper and the defendant. You have heard Mr Chan submit to you that the children have misidentified the defendant; they have mistaken him for the person who was or may have been spending time at the house where they were kept... . And you have heard evidence from the defendant that the description of Pepper is pretty much the same as the defendant, roughly the same age, roughly the same build.

The children were called back to give further evidence, and you will remember in their evidence the children said they noticed no one but Ah Hung's husband in the 82D Cheung Kong Wai house. They noticed nobody else except Ah Hung's husband at that house, no other male, no other male person. And you will remember that it is common ground, it is common ground that the defendant took them there in the first place with Ah Hung, and the children referred to that person who took them there with Ah Hung as Ah Hung's husband."

21. The judge then directed the jury along the guidelines in R v Turnbull and others (1976) 63 Cr App R 132 as to the need for special caution before relying on the evidence of identification and the matters they had to take into consideration and he then referred them to the special circumstances of the present case.

22. There was in addition the evidence of PW7 who was at the house at all material times, that the applicant was with her when the children were detained in their house. The jury was left in no doubt that if they accepted the evidence of the children and PW7, that it was the applicant who had lured the children to their house and detained them there. There is no substance in this ground.

23. Fourthly, the applicant complained that there was no video-recording that he was the person who went to open the two accounts and the bank clerk had not identified him to be that person.

24. There was ample evidence for the jury to conclude that the applicant was the person who opened the two accounts on 12 November 1997. There was the evidence of Li King-wai that on 10 November 1997 the applicant took his identity card away for two days on the excuse that it was required for documentation in respect of the sale of the car and insurance purpose, there was the evidence of the two ATM cards found on the applicant, the bank documents relating to the two accounts and the bank-in-one card found in his house. There was also the evidence of the withdrawal receipts relating to the two accounts which the applicant was seen to have torn up after withdrawal was made at the ATM counters. This ground must also fail.

25. The fifth complaint was the police planted the two ATM cards on him. This allegation was made by the applicant before the jury but there was no evidence to substantiate this allegation. The jury in convicting the applicant must have accepted the police evidence that the ATM cards were found in his wallet and rejected his allegation of planting evidence. The fact that no fingerprint was found on two cards does not take the applicant's allegation any further.

26. Sixthly, the applicant complained that Ah Hung, PW7 had lied because while she was detained in Lai Chi Kok Reception Centre, she sent two letters to the applicant. These letters could show that the applicant had nothing to do with the kidnapping.

27. The judge dealt with these two letters on page 30 of his summing-up. Suffice to say that the judge had referred to these documents as documents which the jury could use to test PW7's credibility. The documents were before the jury and it was for them to assess their weight. They did so. By convicting the applicant, they must have concluded that despite these documents, they did not doubt PW7's credibility. The jury was entitled to reach this conclusion. There can be no complaint about this.

28. For all the reasons given above, the application for leave to appeal against conviction is dismissed.

29. As for sentence, the only ground of appeal against sentence put forward by the applicant is that the sentence is too high. He also mentioned that there is another culprit which has not been arrested and he was merely a scapegoat.

30. The applicant was sentenced to a total of 14 years imprisonment for the two kidnapping offences and the administration of a noxious substance offence. The noxious substance offence was choloform. The judge considered the application of the noxious substance by the applicant was an aggravating factor. In addition, the victims were small children. The boy was bound up and he suffered injury. The judge observed in sentencing that as a result of the application of the injurious substance to the mouth of the boy, he would very likely have long-lasting injuries, though the judge accepted that the application of the substance by the applicant was reckless and was for the purpose of keeping the boy quiet and under control.

31. The judge said these offences were serious and reprehensible offences and the applicant had likely caused lasting distress to the boy and had put his parents and family through no doubt great anguish and the applicant had displayed no remorse. To these remarks we agree.

32. The kidnapping offences are indeed very serious offences especially in the present case where the boy was subjected to assaults, being tied up, gagged and blindfolded and being injured by the applicant applying a noxious substance to him.

33. According to the doctor's report, the boy on first admission could only be fed on liquid diet and despite treatment by a dermatologist and management on the scar tissue cosmetically, the scarring was serious. The doctor was of the view that there would not be 100% recovery and that the boy might be scarred for life.

34. In all these circumstances, the overall sentence of 14 years imprisonment for the three offences is not a day too long. The application for leave to appeal against sentence has no merit whatsoever and must be dismissed.

Representation:

Miss Anna Y K Lai, SGC of the Department of Justice, for the respondent

Lam Hung-hon, applicant in person