HKSAR v. Sheung Lai-lar

CACC000262/2001

CACC 262/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST APPEAL

CRIMINAL APPEAL NO. 262 OF 2001

(ON APPEAL FROM HCCC NO. 331 OF 1999)

____________

____________

Coram: Hon Stuart-Moore V-P and Jackson J in Court

Date of Hearing: 19 November 2002

Date of Judgment: 19 November 2002

_______________

J U D G M E N T

_______________

Hon Jackson J (giving the judgment of the Court):

1.On 29 September 1999 the applicant pleaded guilty at Eastern Magistracy to an offence of forcibly detaining a person with intent to procure a ransom, contrary to Section 42 of the offences Against the Person Ordinance (Cap 212), and she was committed to the Court of First Instance for sentence pursuant to Section 81B of the Magistrates Ordinance (Cap 227).

2.The material facts of the offence as admitted to by the applicant are these.

3.At night on 14 March 1999 an elderly gentleman who was endeavouring to enter premises in Lockhart Road in Wanchai was suddenly grabbed by 2 men and bundled into a nearby car. His hands were tied and he was gagged and blindfolded before being driven to some premises where he was told that he had been kidnapped and that he would be released upon the payment of HK$70 million. He believed at that time that he was being threatened with a gun.

4.After discussions with his captors the victim agreed to speak to his relatives for them to arrange for the payment of HK$30 million and this was done. The police were informed and arrangements were made for the payment of the money under police supervision and surveillance.

5.In consequence of those arrangements there came a time on 15 March when the ransom money was collected by 2 men who took it to the Kowloon Hotel where they joined the applicant and another man before all 4 of them left the Hotel and drove off in the applicant's car with the money. The car was stopped by the police; the 4 occupants were arrested and the money was recovered.

6.At the same time that that was happening a party of police officers forcibly entered the home of the applicant in Chung Shan Terrace where they found the victim (who was still tied up, gagged and blindfolded); a man who was apparently guarding him, and a pistol and live ammunition. The victim was released and he told the police that he did not require medical attention.

7.When she was interviewed by the police the applicant said that some 6 months earlier she had been approached by a female former work colleague named Hui Sze-ping who asked her to take part in the kidnapping of the victim but at that time she (the applicant) had refused. However a few weeks prior to the 14 March that same colleague had approached her again, had given her details of the kidnap plan and had asked her if the intending kidnappers (who were armed men from the Mainland) could use her home in which to detain the victim. To this she agreed.

8.The applicant went on to tell the police that on 11 March, (and at Hui's request) she had driven to Tai Kok Tsui where she collected the 4 intended kidnappers and delivered them to a flat in Wanchai. She said that, in effect, it was Hui who planned the kidnapping; it was Hui who decided the amount of the ransom and that it was Hui who told the others where and when the kidnapping should be carried out.

9.In short then, the applicant's role in this dreadful crime was this: she met the intended kidnappers after their arrival in Hong Kong; she drove them from place to place; she permitted her home to be used for the detention of the elderly victim; she was aware that a gun might be used, and she assisted in the transport of the ransom money.

10.In the Court of First Instance on 12 January 2000 (having adopted a starting point of 12 years imprisonment) Bokhary J sentenced the applicant to a term of 6 1/2 years imprisonment by reason of her guilty plea and her willingness to give evidence against her co-accused. It is against that sentence that the applicant now applies, out of time, to appeal.

11.In her original grounds of appeal set out in the summer of 2001 the applicant said this:-

"1. I was sentenced in January 2000. At the same time, the mastermind of this case was wanted. The judge had said that if the mastermind was arrested and I testified against her in court, I could then make an application for sentence reduction. As the mastermind has been arrested recently, therefore I now apply for leave to appeal against sentence. I also volunteer to be a witness.

2. Last year, when I was serving my sentence, my 80 year old father got cancer. He is living on his own and is taken care of by a domestic helper. As all my siblings have moved overseas, there is nobody attending to his medical needs.

3. My young son used to live with my separated husband. However, beginning from last August, (my) separated husband had gone to work in the United States. My young son has been left behind in Hong Kong and is being taken care of by friend(s). I have not heard any news from them for 2 odd months. (I) hope my sentence can be reduced so that I can take care of my son soon."

12.On 9 September of this year the applicant wrote to the court in terms, which I paraphrase, as follows:-

"The applicant seeks a reduction in her sentence of 6 years and 6 months.

She pleaded guilty in 1999 and provided witness statements for the prosecution to use against main co-defendant Hui Tse-Ping who received 12 years imprisonment sentence recently. The applicant is the only main prosecution witness who has provided that evidences and information."

13.The applicant then went on to pray in aid the following matters:-

1. Her remorse for what she had done

2. Her assistance to the prosecuting authorities

3. The intimidation and threats suffered by her as a consequence of her co-operation and

4. Those matters concerning her father and her son which are referred to above.

14.Mr Lee on behalf of the respondent says, inter alia, this concerning the applicant's ground of appeal relating to her assistance to the authorities:-

"1. It is submitted that the Judge was right not to take into account the Applicant's, by then unfulfilled, promise to give evidence against HUI at the time of the Applicant's sentence. She did however continue to co-operate after her sentence and it is open to the Court of Appeal to have regard to that continuing co-operation and

2. The Applicant was listed as a prosecution witness against HUI, and was a key witness. HUI eventually pleaded guilty on 19.8.2002 to a Section 42 offence and was sentenced to 12 years' imprisonment. Although the Applicant was not needed to testify because of the plea of HUI, the Respondent accepts that the statement of the Applicant had contributed to the guilty plea of HUI, who remained silent under caution."

15.We respectfully agree with those submissions. We grant leave to appeal and we treat the hearing of the application as the hearing of the appeal. The sentence of 6 years and 6 months imprisonment will be reduced by 6 months to a term of 6 years.

Representation:

Mr Alex Lee, SGC of the Department of Justice, for the Respondent

Applicant in person