HKSAR v. Hui Sze Ping

CACC000426/2002

CACC426/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.426 OF 2002

(ON APPEAL FROM HCCC 329 OF 2001)

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Coram: Hon Stuart-Moore VP and Gall J in Court

Date of Hearing: 26 February 2003

Date of Judgment: 26 February 2003

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J U D G M E N T

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Gall J (giving the judgment of the Court) :

1.The applicant was found guilty on her own plea on 19 August 2002 by Nguyen J of one count of forcibly taking of a person with intent to procure a ransom for his liberation, contrary to section 42 of the Offences against the Person Ordinance, Cap.212 and was sentenced to a term of imprisonment of 12 years. She now seeks leave to appeal that sentence.

2.In or about July/August 1998, the applicant met one Sheung Lai La ("Sheung") and her husband and proposed to them that they could make money by kidnapping. She suggested that the victim in this case be kidnapped as she knew he had plenty of money and that her younger sister was his mistress and thus knew his general whereabouts.

3.Early in 1999 at a further meeting, the applicant told Sheung that she had made preparation for the kidnapping in China and had organized people to assist her. Sheung was told to find a village house in the New Territories for the purpose of hiding the victim. During a later discussion in early 1999 between the applicant and Sheung, the applicant said she would be responsible for the arrangement of people from the mainland to carry out the kidnapping and that Sheung would be responsible for arranging housing and transportation for the victim. The seizure of the victim was to take place in April as the victim would have a considerable sum of money on hand to bid for a construction site. She knew that he was to have an operation on his heart after April and proposed the kidnapping take place before that operation.

4.On 26 February 1999, the applicant and Sheung met again. The applicant told Sheung that the mainlanders had been waiting in Shenzhen for a long time and that she was going to meet them. She left Hong Kong for the mainland on 27 February 1999 and returned to Hong Kong the same day. On about 28 February 1999, the applicant met with Sheung. She said that she had spoken with the mainlanders in Shenzhen and had spent money on their travelling expenses and on the purchase of a gun to be used in the kidnapping. She said the gun was to be used to give the victim a fright. She suggested that Sheung use one room in her apartment to hold the victim. At a meeting on 10 March 1999, the applicant told Sheung that the victim's family would not report the matter to the police. She said that after the kidnapping she would get the men from the mainland to collect the ransom from the family of the victim and she would keep it at the trading company of a friend. She said if they failed to collect the ransom the victim would be released and no harm should ever be inflicted upon him.

5.On 11 March 1999, the applicant met Sheung and told her that the men from the mainland would arrive that night and Sheung was to go with her to meet them. On the same day at about 6:30 p.m., the applicant and Sheung drove to the container handling pier at Tai Kok Tsui. The applicant alighted from the car and returned about an hour later. She said that the men were on a ship and that she had hired a vessel to take them ashore. She returned a short time later with four men, the four mainland Chinese who took part in this offence and who, on 12 January 2000, were sentenced to a term of imprisonment of seven and a half years each for their part in the forcible detention of the victim on 14 March 1999.

6.On 12 March 1999, all parties met to discuss the kidnapping at a guests house where the applicant had arranged for the men to stay. There, the applicant told Sheung and the four men the kidnap plan was to be executed within the next few days because the applicant's younger sister would be returning from the mainland to Hong Kong soon. The applicant told them they should ask for a ransom of HK$60 million but be prepared to reduce it to HK$30 million in the course of negotiation. It was agreed that the ransom money would be collected near the Causeway Bay MTR station and that the applicant told Sheung to take two of the mainlanders on a drive to familiarise them with the streets. This Sheung did.

7.On 13 March 1999, the applicant supplied and provided Sheung and the four men with information relating to where the victim was expected to be on 14 March 1999. The parties met in the afternoon of 13 March 1999 and the applicant explained the role that each was to perform in the kidnapping. She said after being kidnapped, the victim was to be taken to Sheung's apartment. On 14 March 1999, the applicant telephoned Sheung and said she was having morning tea with the intended victim. She told Sheung to collect the four men from where they were staying and take them to her home. This she did. At about 3 p.m., the applicant arrived in the premises where Sheung and the four men were. A pistol was on the table in the living room and two of the men said the applicant had purchased it. The applicant said the victim was to be threatened with it if necessary. She gave final instructions to the four men as to where the victim would be later that evening and instructed the men to kidnap the victim at about 8 p.m. She told Sheung to take three of the men for a drive to familiarise them with the streets in the area of the kidnap. This Sheung did. About 9:10 p.m. on 14 March 1999, the victim left a restaurant in Wanchai and proceeded on foot to premises in Lockhart Road. On arrival the outside of those premises, the four men appeared, grasped the victim and forced him into the rear of Sheung's car. His eyes and mouth were covered and his hands tied with masking tape. He was taken to Sheung's residence. His shoes were removed and he was made to lie in an empty bathtub, blindfolded and gagged. A sum of $70 million was demanded from him. There were discussions between the victim and his captors during which the victim was told by one of them that he had a pistol and the victim then heard the sound as if someone was firing an unloaded pistol. A hard object was then pushed against his head. The only conclusion that can be drawn from this series of events is that he was intended to think that a pistol was being pointed at his head. Eventually, the sum of HK$30 million was agreed for the release of the victim and at 8:30 a.m. on 15 March 1999, the victim's daughter received a telephone call from the victim telling her that he had been kidnapped and in this and another telephone conversation, the victim told his son-in-law the amount involved and how to raise the sum. His son-in-law was told not to make a report to the police. The matter was reported to the police.

8.At about 3:20 p.m. the same day, the victim again telephoned and was told the ransom money was ready. It was arranged that his wife would drive to a place in Jordan where she would be contacted. The money was placed in four bags on the rear seat of her car. When she arrived at the appointed place, she was telephoned and told that she was seen. She was then approached by one of the four men who took the bags containing the sum of HK$30 million. The police officers kept this man and another with him under surveillance. They also mounted surveillance in the area of Sheung's apartment. Later that night, Sheung and three of the mainlanders were arrested. The police recovered the ransom money and the four bags. At the same time, a police party entered Sheung's premises and the fourth men was arrested. He was guarding the victim who was inside. The victim was found in the bathroom in the bathtub with his hands and face covered with adhesive tape. He was released and did not require medical attention.

9.In the premises was found a pistol and a bag containing three rounds of ammunition. It was a home-made weapon, capable of being fired and the three live rounds of ammunition were capable of being fired from the pistol. We note that in the case of The Queen v. Ho Chun [1992] 1 HKCLR 86 this court held that where a pistol with ammunition was possessed without a licence after trial an appropriate sentence would be 12 years giving with the usual discount, a sentence of eight years upon a plea. This is a factor which we bear in mind in considering the seriousness of the possession of a pistol in this case. A pistol which was used to threaten the victim and which had with it ammunition which it was capable of firing. The applicant was arrested at her home on 15 March 1999 and was subsequently released. She left Hong Kong for Mainland on 10 May 1999 and was arrested when she returned on 5 July 2001.

10.There are two grounds of appeal. Firstly that the sentence of 12 years' imprisonment imposed was manifestly excessive and thereby wrong in principle and secondly that the disparity in sentences between the applicant and others involved in the commission of the offence was so disparate as to give the applicant a genuine sense of grievance and/or injustice.

11.In respect of the first ground it is argued by Mr Selwyn Yu for the applicant that the judge failed to give any or sufficient weight to the intention of the applicant that the victim would not be harmed regardless of whether a ransom was paid and that the victim would be released even if a ransom had not been received. Further, that the period of detention of the victim was short, there was an absence of any threat of injury and/or death to the victim and the applicant did not participate in any of the events of 14 and 15 March 1999, not participating in the actual taking of the victim or the negotiation of the ransom.

12.Mr Yu has referred us to a number of cases involving offences of this nature. One of those was a case of HKSAR v. Leung Man Kwong & Anor, CACC57/2001 where Stuart-Moore VP delivering the judgment of the court said :

"... It is clear that the Court of Appeal has at no stage attempted to lay down guideline tariffs for this kind of offence. The circumstances of each case must be looked at individually."

13.In his very useful and well-prepared skeleton argument, Mr Yu refers us to a number of cases, all dealing with this offence and invites us to extract from those cases a starting point of a maximum of 15 years' imprisonment.

14.The first matter to be noted as to the circumstances of this case is that the applicant was the mastermind and the ring leader of the scheme. She proposed the scheme; she located the victim; she purchased the pistol; she recruited four men from the mainland; she paid for them to come to Hong Kong; she recruited Sheung; she formed the actual plan for kidnap and directed every step of the way until just before the offence was committed. It is obvious that she did not participate in the commission of the offence because she was well-known to the victim. Although it is argued that other offenders played an equally important role, we do not accept this to be so. The victim was chosen by the applicant and was a 69-year-old man with, to her knowledge, a heart condition which needed to be operated within a short period after these events took place. He was a man known to the applicant. His mistress was her sister. He was by his age and medical condition a particularly vulnerable captive. He was uninjured despite having been bound and gagged and forced to lay on an empty bath for over 24 hours during which time he was forced to negotiate his own release and had a gun pointed to his head but the potential for injury was high.

15.Mr Yu argued that the sum demanded of HK$70 million was in excess of that suggested or directed by the applicant, that she did not intend him to be harmed and that he was to be released once the ransom was paid or to be released in any event even if the ransom were not paid must be placed in context with the rest of the circumstances of this case. The applicant placed the gun and the ammunition in the hands of those who committed the actual kidnapping with the instruction that it may be necessary to use it to threaten the victim to obtain his cooperation. Although it may have been her intent that the gun not be used, and in fact it was not, there was a direction by her that it be at least used to threaten and the risk of the men going further with it was always there particularly given that the ammunition accompanied it.

16.We were referred to the case of HKSAR v. Chan Kau Hung & Ors (unreported), CACC533/2000 where Lugar-Mawson J said :

" The drawing of comparisons with sentences upheld in previous cases is clearly of very limited assistance when it comes to sentencing kidnappers. ..."

17.In the circumstances of this case, bearing in mind the role played by the applicant and notwithstanding the victim was unharmed and rescued, the starting point adopted by the judge cannot be criticized. The only mitigation available to the applicant was her plea. To acknowledge that mitigation, the judge reduced the sentence to 12 years' imprisonment which, in all the circumstances of this case, we find to be a proper sentence.

18.Mr Yu argues that the other accused involved in this matter received lesser sentences than the applicant who therefore has a legitimate sense of grievance. We note that the other accused were sentenced by a different judge. He took as a starting point 12 years and reduced it by one-third to reflect their pleas.

19.In HKSAR v. Leung Yiu Ming & Anor [2000] 1 HKLRD 247, Nazareth VP said :

"... The second situation is when different sentences are passed on different accused for the same offences by different judges on different occasions. In such a case, the court held that the only consideration must be whether the sentence passed on the appellant or applicant was appropriate."

20.Mr Yu also refers us to the case of R. v. Kenneth John Fawcett and Others (1983) 5 Cr.App.R.158. There, Lawton LJ said :

" In our judgment, the approach is that which is set out in the decision of this court in PITSON (1972) 56 Cr. App. R. 391, namely, would right-thinking members of the public, with full knowledge of all the relevant facts and circumstances, learning of this sentence consider that something had gone wrong with the administration of justice. ..."

21.The principle set out in Fawcett is in no way inconsistent with that set out in Leung Yiu Ming. The sentence passed by a different judge would be a matter taken into account by the sentencing judge in deciding in all the circumstances of a case what was the appropriate sentence. If a right-thinking member of the public would consider the sentence with full knowledge of all the relevant facts and circumstances, on learning of the sentence, that something had gone wrong with the administration of justice, then clearly the sentence would not have been appropriate and it would be proper for a Court of Appeal to interfere with it.

22.In this case, the judge was invited by Mr Yu in the court below to adopt the same starting point as had been adopted for the other accused. I refer again to the case of Ho Chun (above) where a starting point of 12 years would have been appropriate for possession of the pistol and ammunition. For the purposes for which it was used in this case, if this had been an offence before the court such a starting point would clearly have been appropriate for this offence above. In the court below, Mr Yu invited the judge to adopt the same starting point but the judge declined to do so on the basis that the applicant was the sole instigator, planner and mastermind of the commission of the offence and the differences in the roles played between the applicant and the other accused warranted a different and higher starting point. The difference in the roles played by the applicant and the other accused does in our view warrant the difference in starting point and this ground of appeal must fail.

23.The application for leave to appeal against sentence is dismissed.

Representation:

Mr Jackson Poon, SGC of Department of Justice, for the Respondent

Mr Selwyn Yu, instructed by Messrs C.D. Kan & Co. assigned by Director of Legal Aid, for the Applicant