R. v. Wu Pui Kwan and Another

CACC000328/1995

IN THE COURT OF APPEAL

1995, No. 328
(Criminal)

-------------------------------------

Coram: Mortimer, Mayo and Ching, JJ.A.

Date of Judgment: 4 January 1996

----------------------

J U D G M E N T

----------------------

Mortimer, J.A. (giving the judgment of the Court) :

1. On 1 May 1995 the two applicants were convicted before Patrick Chan, J. and a jury of one offence of administering chloroform with intent to kidnap and one offence of kidnapping the victim, Chow Sau-ling. The 1st applicant was sentenced to a total of 4 years imprisonment and the 2nd applicant to 7 years imprisonment. They each apply for leave to appeal against their convictions and the 1st applicant applies for leave to appeal against the sentence passed upon her.

The facts

2. On 22 February 1994 the two applicants went to look for the victim. They had with them a towel and two bottles, one contained chloroform and the other petroleum ether. The victim, a girl, had previously lived with the 2nd applicant, but they separated in about August 1992. At the time of the offence she was living with another man on the 30th floor of an apartment building. It was apparently her habit to take the lift down from that floor to go to work at about 7 a.m. in the morning.

3. On this particular day, the lift stopped at the 27th floor, and the 1st applicant got into the lift and stood behind the victim. Shortly after, she grabbed the victim and covered her face with a towel which was soaked in a liquid which the victim said smelt of alcohol. A struggle ensued. The 2nd applicant came into the lift. The victim was hit. A towel was forced into her mouth and the victim lost consciousness.

4. Consequent upon a report, the caretaker of the building went to the 27th floor. There he saw the two applicants with the unconscious victim. They made the excuse that the victim was their daughter. As a result he assisted them to get the victim to a doctor and she was taken down to the lobby. They then pretended to wait for a taxi but the victim recovered and shouted, "kidnapping". The 2nd applicant then left. Shortly after, the 1st applicant left. The police were called. The caretaker gave chase and stopped the 1st applicant. She was arrested. After that the 2nd applicant was arrested.

5. There was a history of problems between the 2nd applicant and the victim. After separation she had complained of assaults and a demand from the 2nd applicant for $3,400. This she refused to pay but she became very frightened. In December 1992 she had reported the matter to the police. The applicant and the victim later settled the matter at the police station. But for some reason which is not clear the 2nd applicant was determined to try to make contact with the victim.

At trial

6. The 1st applicant's defence was one of duress. She made a statement to the police admitting her part in it. She claimed that she was in fear of the 2nd applicant. She complained of a number of assaults. She had been to China and had brought back two bottles which were present in a bag at the offence. She described a large number of visits to the victim's flat. Those visits to the victim's flat included three in which the "Reebok" bag and the bottles - used at the time of the offences - were taken.

7. The jury rejected the 1st applicant's defence of duress but in giving evidence in her own defence she gave evidence against the 2nd applicant. The 2nd applicant chose not to give evidence himself but he had made statements which were considered by the jury in which he blamed the 1st applicant.

The 1st applicant on conviction

8. The 1st applicant's application for leave to appeal against her conviction relies upon the same matters that were put before the jury. She has not been able to advance before this Court any further point which is relevant to an appeal. It is not necessary for this Court to deal with the points she raises. However, we have considered the summing-up and the defence. It suffices to say that the jury were properly directed in her case. There are no grounds upon which we can give leave to appeal or which would suggest that the verdict in her case was either unsafe or unsatisfactory. Her application is refused.

The 2nd applicant on conviction

9. We turn to the 2nd applicant. He has advanced detailed perfected grounds in which he makes a number of complaints about the evidence. Those are not matters upon which he can possibly obtain leave. So far as other matters are concerned, he makes complaints about the way in which his cautioned statement was dealt with. It suffices to say that there is absolutely nothing in any of the points that he makes. Also in his case, this Court has considered the summing-up. That summing-up - where it deals with the points raised by this applicant's counsel - can only be described as impeccable. There is no basis upon which we can give leave to appeal against the conviction. The application is refused.

The 1st applicant on sentence

10. We turn to the 1st applicant's application for leave to appeal against sentence. The offences themselves are most serious but perhaps this was not the most serious instance of kidnapping. The motive was unclear but this was not a case of kidnapping to hold for ransom. Further, she was by no means the prime mover in these offences and the judge accepted that she had been ill-treated and assaulted by the 2nd applicant. He accepted - although her defence of duress had failed before the jury - that she had assisted the 2nd applicant as a result of his threats and assaults and she was in fear of him. She had nothing to gain from the offences and no grudge against the victim because she did not even know her. The judge also took into account the 1st applicant's clear record, her family background, and her past hardship. Having taken all those matters into account, the judge passed the total sentence of 4 years. That sentence - even taking into account all those matters of mitigation - is one which was justified by the part which the applicant took in the offence. She had gone into the lift on her own and had applied the chloroform to the victim. That was an extremely serious and dangerous thing to do which must be marked by a substantial sentence. Although it may be that this Court - given the facts as we know them - may have passed a slightly lighter sentence, this is not a sentence which is either wrong in principle or manifestly excessive. It was one which was justified by the offences which had been committed and of which this applicant was convicted. The application for leave to appeal against sentence is refused.

Representation:

Applicants in person

Mr Jackson Poon, SCC for Crown/Respondent