The Queen v. Kau Ka-shing

CACC000148/1985

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Cons & Kempster, JJ.A.

Date of Hearing: 15th August 1985 & 10th October 1985

Date of Judgment: 10th October 1985

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application for leave to appeal against a sentence of seven years' imprisonment for forcible detention or what is more commonly known as "kidnapping". This Defendant was one of three defendants - all young men - who kidnapped a very young child and bundled him into a service room in a block of flats with the object of obtaining a ransom.

2. This was an amateurish crime in the sense that there was very little preparation, and the child was discovered within a few moments of his having been locked up and was returned to his parents before they were even aware of his having disappeared. The other two young men, who were then aged practically 18 in one case and 18 in the other, were sent to a training centre and the burden of Mr. Macrae's argument on behalf of this Applicant is that the distinction made by the judge in passing sentence between those two and this Applicant was totally unjustified.

3. There was before the judge evidence that the Applicant was the prime mover in this matter. It was at one time suggested that he was in fact the person who not only suggested it but who persuaded the others, and even applied duress to them. Duress was rejected by the judge, but he did accept that this man was the prime mover. I shoudl mention that his age was 20½ years. The other two had no previous convictions: this man had a previous conviction for blackmail as well as for one other minor offence. I say "minor" because, although blackmail is basically a serious matter, the sentence imposed was such that clearly the magistrate in that case did not consider the particular offence to be serious. We should, perhaps, also mention that there was in the Probation Report on this Applicant mention of another offence for which the Applicant had been tried in respect of which a finding of guilt had been entered but the magistrate had directed that no conviction be recorded. We have said before, and we repeat, that where a conviction is directed not to be recorded no mention of those proceedings should be made in subsequent proceedings. The whole purpose of directing that a conviction be not recorded is that nothing more should be heard about it. That form of order is appropriate only where the magistrate or judge takes the view that really the proceedings should never have been brought.

4. In our view, and we repeat what was said in Attorney General v CHAN Ka-shu Application for Review 1984 No. 4, anyone who is convicted of kidnapping must expect to receive a heavy sentence. We think that the learned judge in the present case did not sufficiently heed what was said in that case, and the other two defendants were in our view extremely fortunate that they received sentences only of detention in a training centre, but the fact remains that that is the sentence that was passed and we think that, as a result, this Applicant may well have a justified sense of grievance that such a large distinction was made between him and the other two. On that ground and on that ground alone we are disposed to interfere in the present case, and for the sentence of seven years' imprisonment we substitute a sentence of five years' imprisonment.

10th October 1985

Representation:

A.C. Macrae for Applicant.

J.L. Cogney for Crown.