The Queen v. Chan Yuk-lun

CACC000369/1984

BETWEEN

Coram: Hon. Cons, Silke, JJ.A. & Kempster, J.

Date of Hearing: 7th Septemeber, 1984

Date of Judgment: 7th September, 1984

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J U D G M E N T

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Kempster, J.:

1. On 28th of March of this year CHAN Yuk-lun, the applicant for leave to appeal against sentence, entered a private house at Shousan Hill as a trespasser. It is the home of Mr. and Mrs. Lee. When CHAN Yuk-lun got into the house he entered a room where that couple's elder daughter was playing. He seized the child and pointed a paper-cutter at her chest; a scene which was witnessed by the mother when she reached the room. The mother offered to pay CHAN Yuk-lun money if he would release the child. She left the room and came back with a number of items of jewellery and $1,000 in cash. The applicant looked the items of jewellery overl and took five of them together with some of the cash. This did not satisfy him. He demanded a further $80,000. The mother offered to write out a cheque for that sum but the applicant was not agreeable to this suggestion and said that he would detain the child until the cheque had been cleared. He added that if the cheque were to be dishonoured he would kill the child. The mother agreed to go with the applicant in her car to Wanchai in order to raise this money in cash.

2. The applicant instructed the mother to tie up the Filipino servant before they left and, as they did so, the mother was able to warn her driver who left the car and ran off to a neighbouring block of flats where he sought to raise the alarm. I should interpolate that the mother had been expecting to meet her husband in Wanchai that evening for dinner and, as is apparent, both she and her husband demonstrated considerable courage and presence of mind.

3. The applicant told the mother to drive the car. He sat in the back with the daughter; announcing that if there was any trouble he would stab the child to death. Not only the driver of the car but one of the domestic servants who had overheard what transpired at Shousan Hill called the police and the father. As a result something of a reception committee awaited the motor-car as it drew up to a particular restaurant in Wanchai.

4. The mother got out. She walked past her husband, more or less ignoring him so as not to arouse the suspicion of the applicant, following which Mr. Lee approached the car. He saw the applicant still holding the paper-cutter with his daughter in the back-seat. Mr. Lee got into the front of the car and attempted to converse with the applicant who still indicated that he wanted $80,000 that very night and was prepared to kill the child if he did not cooperate in providing that money. The applicant went on to threaten the father by saying that he was a member of the Big Circle Gang and that if he didn't manage to secure the money his criminal associates would see that the father suffered some harm.

5. The father went back into the restaurant on the pretext of seeking the money and came back with two policemen. He opened the off-side rear door, caught hold of the applicant's hand and attempted to snatch the knife. After a brief struggle he succeeded in so doing and the police seized, overpowered and arrested the applicant. The items of jewellery taken from the mother were found in his possession.

6. On l7th July last the applicant came before Garcia, J. charged both with robbery and with the forcible detention of the child contrary to section 42 of the Offences against the Person Ordinance, Cap. 212. He pleaded guilty and also admitted the facts which I have just outlined. Mr. Spicer represented him at trial as he does before us today. The learned judge sentenced him to 8 years imprisonment for robbery and to 7 years imprisonment for what is colloquially described as kidnapping; those sentences to run consecutively.

7. Chan's grounds for appeal are set out in a home-made document dated 30th July; in grounds submitted by the Director of Legal Aid and signed on behalf of counsel in a document dated 29th August and in a further document called "Supplementary Application for Leave" dated 28th August, signed by counsel and containing a bowdlerized version of the facts.

8. The three documents urge a number of considerations on this Court the first of which is that the applicant previously had a clean record. Having regard to the terms of the judgment of the Chief Justice in MO Kwong-sang v. The Queen⁽¹⁾ at p. 611 cited to us by Mr. Spicer, there is nothing in this. Secondly, the plea of guilty. Thirdly, the fact that the child was never separated from her mother. Fourth that the incident lasted only l½ hours. Fifthly, the applicant's subsequent cooperation with the police. And sixthly, no one, except perhaps the applicant on his arrest, was hurt. Further, we are asked to regard these two crimes as comprising one incident so that the sentences may be ordered to run concurrently.

9. All these matters were argued before the learned judge and taken into account by him. It was also argued that the judge should take into account the consideration that the applicant was in debt at the time. These matters have been further canvassed before us and the question arises as to whether or not there is any basis upon which we could properly interfere with the sentences imposed; whether to the advantage or disadvantage of the applicant.

10. As Garcia, J. pointed out the second count related to an attempt to secure a further $80,000 at a time when the applicant had already secured nearly $1,000 in cash and five items of jewellery; an example of unmitigated greed and continuing cruelty. In the final analysis the sentences of the Courts reflect the relative degrees of wickedness involved in offences and the revulsion of society to, for example, violence and unbridled avarice. In 1982 the maximum sentence for an offence under section 42 of the Offences against the Person Ordinance, that is kidnapping, was increased from 14 years to life imprisonment. A substantial element of deterrence is also called for in such circumstances as gave rise to the present proceedings.

11. We do not consider that the totality of the sentences passed by the learned judge, though lenient, warrants our interference. We do, however, consider that the gravity of this offence of kidnapping was not adequately recognized by a sentence of 7 years imprisonment. In the circumstances we allow the application for leave to appeal against sentence and treat this hearing as that of the appeal. The sentence of 8 years imposed for robbery will stand but for the sentence of 7 years for forcible detention we substitute a sentence of 14 years. We do not consider that the two crimes are to be regarded as parts of one incident but, by reason of our conclusion in relation to the overall length of sentences imposed 7 of the 14 years for kidnapping will run concurrently with the sentence passed in relation to the robbery leaving the total period of imprisonment at 15 years.

(1)    1981 H. K. L. R. 610

Representation:

Mr. Rupert Spicer (D. L. A. ) for applicant

Miss Crebbin for respondent