Chong Cheung-lam and Another v. The Queen

CACC000363/1979

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Coram: Roberts, C.J., Huggins, J.A. & McMullin, J.

Date of Judgment: 26 June 1979

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JUDGMENT

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McMullin, J.:

1. The applicants appeal against sentences of twelve years' imprisonment imposed on them following upon their conviction of an offences under section of the Offences Against the Person Ordinance.

2. The circumstances of the offence are briefly as follows : the victim, an elderly businessman, was accustomed to take early morning exercises in a fairly remote area in the Western District of Hong Kong. On the 14th of August of last year he arose at about near 5.00 a.m. in the morning and repaired to his usual locality where he performed his morning exercises with two friends. In returning from those exercises he was approached by two men. One had a knife with him at the time. The victim was accosted and seized and his eyes were covered. He was bound and trundled away to a waiting taxi. He was then taken by the taxi in the company of these persons to a hut near Reclamation Street where he was untied and detained for the next twenty hours. He was not otherwise physically ill treated and was given food to eat on two occasions during that time. During that period the applicants phoned his family and various other relatives demanding initially a sum of $800,000 for his release. The family after consultation decided to call in the police and a son of the victim was supplied with money some of it of the character known as "stage money" and some of it real money to the amount of $100,000 because by this time, by subsequent phone calls, the sum had been reduced to that amount. A rendezvous had been arranged over the telephone by the first defendant with the son of the victim and that was carried out, the money was passed over but unfortunately the police who were lying in ambush lost sight of the defendant's car as it sped away and it was recovered some hours later, abandoned. The victim had been released from custody following upon the obtaining of the money and he made his way home in the early hours of the morning having been given by one of the defendants a sum of $15 for his taxi fare. The first defendant was arrested on the 23rd of August together with the second in a restaurant in Shanghai Street. When brought before the court the appellants pleaded guilty.

3. The appellants had clear records. They had both come from China some years prior to these events, and in mitigation it was urged that they had fallen into the hands of loan sharks and had been impelled to secure money quickly and to a large amount. Before this court upon the appeal Mr. Barretto has first of all urged upon us the fact that the circumstances thus briefly described do not put this particular offence among the worst offences of this kind. Then he points to the fact that the learned trial judge in imposing his sentences of twelve years on each of the defendants referred to the English case of The Queen v. Beagle⁽¹⁾ and to the comments of Lord Justice Scarman at page 151 of the report in that case where the kidnapping offence is described as being of a very grave character. The offence with which these defendants were charged is taken under section 42 a section in which the maximum imposable by the court is fourteen years. It was not charged as a common law offence of kidnapping for which the sentence could have been life imprisonment and the case of Beagle⁽¹⁾ was such a case, a case in which the maximum would have been life imprisonment. The learned trial judge we think may possibly have overlooked the distinction between the situation confronting him and that before the court in The Queen v. Beagle⁽¹⁾ and we must therefore deal with this case as one in which a sentence very close to the maximum was imposed. Now it must be stressed that nothing said by this court should be interpreted as meaning that an offence of kidnapping, whether the statutory offence as here charged or the common law offence, can ever be considered as other than one of the most grave character. It might well have been, had the offence been differently charged, that we would not have felt impelled to interfere. About that I say no more. We are satisfied however that charged as it was, and taking into account the possibility of error on the part of the trial judge as to the maximum imposable, that it cannot be said that the circumstances of this offence are such as to justify a sentence so close to the maximum. The application is allowed and treating the application as the appeal we allow the appeal and set aside the sentence of twelve years. For that sentence there will be substituted a sentence of nine years' imprisonment. I add only this : that nine years, a substantial term, is intended by the court to reflect the fact that the offence is, as I have said, one of great gravity.

Representation:

R. Barretto, instructed by (Director of Legal Aid) for appellants.

Stock, for Crown/respondent.

(1) (1976) 62 Crim. App. R. 151.