HKSAR v. Pun Luen Pan and Another

CACC 555/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 555 OF 2003

(ON APPEAL FROM HCCC 86 of 2003)

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BETWEEN

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Before : Hon Ma CJHC, Stuart-Moore VP and Stock JA

Date of Hearing : 14 June 2005

Date of Judgment (re: D1’s conviction) : 14 June 2005

Date of Reasons for Judgment (re: D1’s conviction) : 29 June 2005

Date of Judgment (re: D1 and D4’s sentence) : 29 June 2005

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.On 12 December 2003, the 1^st applicant (D1 at trial) was convicted on the sole count of an indictment, following a trial before Nguyen J and a jury, of forcibly taking away a person with intent to procure a ransom for his liberation, contrary to section 42 of the Offences Against the Person Ordinance, Cap. 212.  He was sentenced to 21 years’ imprisonment on 19 December 2003 and thereafter he sought leave to appeal against both conviction and sentence.  At the conclusion of the hearing, on 14 June 2005, we dismissed the former application and now give our reasons for so doing.  In regard to the sentence application, we now give judgment. 

2.On 3 December 2003, after the judge had ruled D4’s confession to the offence to be admissible following a voire dire, the 2^nd applicant (D4 at trial) pleaded guilty.  On 19 December 2003, D4 was sentenced to 11 years and 8 months’ imprisonment against which he has sought leave to appeal.

3.The facts were straightforward.  There was no dispute that Lam Yick-ming (the victim) was, to use a colloquial term, ‘kidnapped’ and that a ransom was demanded for his safe release.  D2, D3 and D4 all pleaded guilty to the offence.  The issues in D1’s case centred on the correctness of his identification as the culprit who received the ransom money and the inferences to be drawn from his subsequent handling of some of the proceeds.  The two grounds of appeal in relation to D1’s conviction criticise the judge’s summing up on these two vitally important aspects of the case against him.

Prosecution’s case

4.On 4 September 2002 at about 7:00 p.m., the victim returned to his car on the 3^rd floor of a car park when he was accosted by a number of people who jumped out of a 7-seater van parked in the next bay.  His name was called out and one of these men was calling himself a policeman as he pointed to a white badge.  When the victim asked him which police station he was attached to, the man lifted his jacket to reveal a gun.  As the men began to push the victim into the van, he shouted out but he was hit on the forehead by the man with the gun causing him to bleed.  He was eventually forced into the van where he was handcuffed and blindfolded.  After a journey lasting about 50 minutes, he was taken to a hut where his feet were tied with metal wires.  He heard talk about bullets and at one stage saw a gun being taken out of a bag and opened up.  The ammunition then became visible.

5.The conversation soon turned to the subject of money.  The victim was told that his captors would “only ask for 50 million”.  He was asked to think about it as adhesive tape was put round his eyes and mouth.  At this time, he was bare to the waist and knives were used to scrape both sides of his body.  He was made to sit down for a long time and a man kept asking him if he had figured out the money.  At one stage when he was given water to drink, the victim said that at most he could pay $1.5 million whereupon he was accused by his captors, although only one of them ever spoke, of treating them like beggars.  Four or five times, the tape was removed from his mouth so that he could answer how much he could pay.  Eventually, at about 5:00 a.m. on 5 September 2002, he agreed to pay $5 million.  At that point, the victim was allowed to make a call to his wife using his mobile telephone as one of the captors listened in to the conversation on an earplug.

6.The victim was later taken to another address involving a journey by road of about 25 minutes during which he was blindfolded and handcuffed as before.  Inside the new premises, the victim could see only that the floor he was made to sit on was made of concrete.  Here, the victim made a call to his business partner, Lin Cheuk-chiu, in an attempt to raise the ransom money, telling him that he was not being allowed to leave having lost $5 million while gambling.  Mr Lin reported the matter to police.

7.Mr Lin was able to raise $5 million.  This was then dusted with a fluorescent powder unique to this investigation.

8.At about 10:45 p.m. on 5 September 2002, DSIP Wong Shu-bong (PW5) accompanied Mr Lin to a pre-arranged meeting place at a petrol station to hand over the marked money.  Soon afterwards, a white Honda Civic drew up.  They went to the nearside of the car where Mr Lin spoke to the passenger and gave him the money.  About 45 minutes later, the victim was released.

9.On the following day, D1 and his wife visited Madam Lam Yuet-lan.  D1’s wife gave $300,000 to Madam Lam for safe keeping and, at the same time, borrowed a black nylon bag from her.  The money handed to Madam Lam was later recovered by police and found to be marked with identical fluorescent powder to that which the Government Chemist had applied to all the ransom money.

10.At just after midnight on 8 September 2002, matters came to a head with D1’s arrest in a hotel.  D1’s wife had booked the room.  D2 and D3, who were with D1, were also arrested.  D1 told the arresting officer: “I did not kidnap. I helped my friend to collect from Lam Yick-ming a sum owed.  Ah Sir, you are not making it so serious, are you?”

11.The bag borrowed from Madam Lam was found on the dressing table in the hotel room.  At this stage, it was found to contain $297,000 and there was a further $92,000 in one of D1’s trouser pockets.  These sums of money and the sweater D1 was wearing all bore traces of the same fluorescent powder which had been used to treat the ransom banknotes.

12.An identification parade took place on 9 September 2002 when PW5 identified D1 as the front seat passenger of the white car to whom the $5 million ransom money had been handed.

Defence case

13.D1 did not give evidence at his trial.  However, a witness (DW1) was called on his behalf to say that he had met D1 in a restaurant between 1 and 2 p.m. on 6 September 2002 in order to discuss the transfer of shares in a mahjong school.  While they were together, D2, who was known to them both, came over to their table and placed a plastic bag on it.  According to DW1, after D2 had gone, D1 took out several wads of $1,000 notes from the bag and counted them.  He then made a telephone call, informing someone, in the process that the amount was “correct”.  D1 was said by DW1 to have explained that this was a repayment of money albeit later, in cross-examination, DW1 seemed to be saying that the money was a payment to D1 on behalf of someone referred to as ‘Ah Lam’ to purchase shares in D1’s mahjoing school.

Grounds of appeal against conviction

14.Mr Oderberg raised two substantive grounds of appeal against conviction on D1’s behalf.  These covered, firstly, the way in which the judge dealt with the issue of PW5’s identification of D1 as the alleged passenger sitting in the car to whom the ransom money was handed and, secondly, a complaint that the judge effectively misdirected the jury as to what had to be proved before the offence of ‘kidnapping’ was made out.

(1)  Identification

15.In essence, the first ground of appeal amounts to a criticism of the judge based upon an alleged failure to go far enough in warning the jury about the dangers of relying on the identification evidence given by PW5.  Mr Oderberg characterised this evidence as both “questionable” and “not of highest quality”.  It may be that to some extent Mr Oderberg had in mind, when describing PW5’s evidence in this way, an error which he now accepts he made when originally drafting his written submission.  He stated in his written argument that PW5 had said that “the person in the front passenger seat of the Honda Civic car on 5 September 2002 had an earring whereas there was no evidence that (D1) ever had a pierced ear”.  At no stage did PW5 give a description of D1 as having worn an earring.  It was Mr Lin who, in cross-examination, said: “It seems that the man was wearing an earring on his left ear”.  When PW5 was asked about this, he replied: “As far as I can recollect, I did not see any earrings because I paid much attention to the front of his (D1’s) face”. 

16.Mr Oderberg also criticised in his written submission the fact that PW5 had not provided any description of the culprit in the car to whom the ransom money was handed before making the identification on 9 September 2002.  We do not know whether any such criticism was made at trial but it goes almost without saying that there is no requirement in law or in practice that a witness should have given a description of a suspect before attending an identification parade to see if he can identify that person.  It is apparent, in any event, that the judge gave detailed directions in accordance with the guidelines in R v Turnbull & Ors [1977] QB 224 pointing out the dangers of relying on evidence of identification.

17.Mr Luk SC submitted, in a written argument which he adopted on the respondent’s behalf, that this was far from a weak identification.  D1 was observed for about 20 seconds at close quarters, in reasonably good light inside a petrol station, by an experienced police officer who was able to identify D1 no more than 5 days later at the identification parade.  This assessment seems clearly to be right and on any view this was not a ‘fleeting glance’ case.

18.The third of Mr Oderberg’s criticisms concerning PW5’s evidence was that, given all the circumstances, “it was incumbent upon the judge to warn the jury of the dangers of using (D1’s) handling of the alleged ransom money and being found in the company of the other (defendants) with money allegedly part of the ransom paid, to support the purported identification of (D1)”.

19.The judge did not suggest that the other evidence in the case of D1’s complicity could be used to support PW5’s identification although we can see no reason why he should not have done if he had chosen to do so.  Instead, the jury were directed that if they had any reasonable doubt about the identification evidence they should disregard it.  The judge continued:

“… what do you have left?  You have the fact that when the defendant was arrested in Room 902 he was inside that room with the other two arrested persons; and inside that room was the black nylon bag on the dressing table of that room which he, the defendant, together with his wife had borrowed from Madam Lam; and inside that black nylon bag was $297,000 in $1,000 notes which from the fluorescent powder which was found on those banknotes was ascertained to have come from the ransom money.

In addition, when the defendant was searched, banknotes amounting to $92,000 were found from the right rear pocket of his jeans and the $92,000 was also found to have been part of the ransom money because of the special fluorescent powder which was found on those $92,000 which were all in $1,000 notes.

In addition, you have the red sweater which the defendant was wearing, which again was found to have the special fluorescent powder which means that the red sweater must have come into contact with the ransom money or some of the ransom money which had earlier on been dusted with the special fluorescent powder by Dr Leung.

In addition to that, you have the defendant and his wife on the evening of 6 September handing over $300,000 to Madam Lam and asking her to keep that money.  The $300,000 was also found by the special fluorescent powder present on them to have been part of the ransom money.  If you look at paragraph 15, members of the jury, you will see that it says there “on 9 September at 00:10 a.m., Madam Lam Yuet-lan handed over to the police $300,000, which are produced as Exhibits 12 to 14. They were seized as exhibits.”  And then in paragraph 16, “All the aforesaid seized exhibits bore the special fluorescent powder.”  And this applies to all the exhibits mentioned from paragraph 10 onwards except the black nylon bag P69.  The black nylon bag did not have any special fluorescent powder but all the other exhibits mentioned there had this powder on them.

Now, without the identification by Inspector Wong (PW5), if that is your conclusion, the rest of the evidence against the defendant is what we call circumstantial evidence.” (Appeal bundle pp. 27-28)

20.The wealth of circumstantial evidence against D1 was in itself sufficient to convict him subject only to the jury’s approach to DW1’s evidence which, if accepted, provided an innocent explanation for D1’s handling of the ransom money.  The judge directed the jury to acquit if they considered that DW1’s evidence either was or might be true.

21.There was no substance to the first ground.  The judge’s directions, which if anything were more favourable to D1 in regard to the approach to be taken to the evidence of identification than they needed to be, were not open to proper criticism.

(2)  Directions on ‘kidnapping’

22.In his second ground of appeal, Mr Oderberg submitted that the judge’s directions to the jury “effectively extended the doctrine of recent possession to the offence of kidnapping”.  The passage in the summing up to which this complaint refers came about in the context of how ‘inferences’ might be drawn which the judge was seeking to illustrate by a frequently used example.  The judge stated:

“Let me give you an entirely unrelated example.  Let’s say that the charge is one of burglary – a man entering another man’s house to steal – and the evidence shows that a man is found at about midnight, 10 yards away from the scene where a burglary has just occurred, and the man is carrying a bag over his shoulder inside of which he has got a lot of candlesticks, and we know from the evidence that the candlesticks, in fact, came from the house which had been broken into, and the evidence also shows that the man’s fingerprints are found on the candlesticks.” (Appeal bundle pp. 4-5)

23.This was, as the judge said, an “unrelated example”.  Recent possession, often described as no more than a rule of common sense, was not put forward at any stage as a basis on which the jury might convict and we do not accept Mr Oderberg’s contention that they may have convicted on such a basis.  On the other hand, the powerful combination of circumstances showing D1’s close involvement with the ransom money and the manner in which it was handled soon after the commission of the offence was put forward by the prosecution at trial as a sufficient basis in itself for convicting.  In our opinion, the jury was properly directed that they should decide whether an inference of guilt could be drawn from the circumstantial evidence. 

24.If there is anything further to be said about this ground it is, perhaps, that it might have been preferable if a wholly unrelated example had been selected to illustrate how an inference could be drawn to avoid the possibility of any direct comparison being made by the jury to the facts of this case.  In the event, however, we are satisfied that no harm was done.

Conclusion on conviction

25.In our opinion there was nothing unsafe or unsatisfactory about the jury’s verdict.  Accordingly, the application, so far as it relates to D1’s conviction, is dismissed.

Sentence

26.We have set out already the essential facts which form the background to the case.  In essence, this was a well planned kidnapping where four men waited inside a 7-seater vehicle for their victim to return to his car which was parked alongside.  When he eventually did so, his name was called out.  One of the perpetrators impersonated a police officer and revealed that he was carrying a gun.  When the victim tried to attract attention by shouting out, he was struck across the forehead with the butt of the gun.  He was punched and kicked as he was forced to the van.  During the whole course of a journey of some considerable distance, he was blindfolded and handcuffed. 

27.At the first destination, the victim was softened up with talk of bullets and he was allowed to see the gun again before having adhesive tape put over his eyes and mouth.  His feet were tied and knives were scraped down the sides of his upper body.  Threats were issued that his safety could not be guaranteed if it took too long to wait for the ransom money.  A ransom of $5 million was eventually demanded for his safe release and he was told that if the money was not raised, there would be harm done to himself and members of his family.  The victim, a married man with children, was detained some 30 hours before he was released just after payment of the $5 million ransom had been made.  Only about $1.2 million was eventually recovered.

28.Mr Burkett, who dealt with this application, submitted that a 21-year starting point which the judge adopted in D1’s case was out of line with other sentencing decisions related to cases of similar gravity.  He accepted for the purposes of argument that D1 had rightly been identified as the ringleader of the gang.  As to this, the judge had said:

“… of the four persons who took part in the abduction I am satisfied that you, the 1^st accused, not only took part in the abduction but you were the ringleader of that gang.  I am satisfied that you, yourself, went to collect the money because you did not want to take any chances that the collector might disappear with the money.  And I am satisfied that you were the person who had been on the phone with Mr Lin prior to the latter’s arrival at the car.  I am  satisfied that you were the person who throughout the incident spoke to the victim and Mr Lin.

As stated above, you were the only person who spoke throughout the incident and I am satisfied that it was you who decided on the amount of the ransom to be collected.  All this is borne out by the active role that you played in booking a hotel room after your own residence was raided by the police at 2:30 p.m. on 6 September; in your trying to hide $300,000 cash by passing it to your friend’s wife, and your carrying $297,000 to the hotel room in the black nylon bag borrowed by you from that friend; and in you being in control of $92,000 found in your pocket.

I am also satisfied that you were the man posing as a police officer, and you used the butt of the gun to hit the victim on the head” (Appeal bundle pp. 91-92)

29.Added to these factors, D1 had a bad criminal record, having previously served a 10-year sentence for a robbery committed at a time when he was in possession of an imitation firearm.  The others involved in the present offence, including D4, had comparatively minor criminal records.

30.In D4’s case, Mr Bruce SC submitted that a starting point of 16 years’ imprisonment taken by the judge was too high for those whose role was less than that of a ringleader.  In this regard, he rightly made no criticism of the judge’s failure to provide the usual one-third discount for D4’s plea of guilty which, from a 16-year starting point, would normally have resulted in a sentence of 10 years and 8 months.  This was, as we indicated earlier, a late plea.  Hence, D4 was given a reduced discount, leaving him with a sentence of 11 years and 8 months’ imprisonment

31.We were taken by all counsel to a number of previous sentencing decisions of this court in cases of forcible detention with intent including HKSAR v Leung Man-kwong & Anor, CACC 57/2001 and HKSAR v Hui Sze-ping, CACC 426/2002. Inevitably, the differing facts emerging from other cases make it difficult to derive much assistance from them despite similarities between them.

32.This offence was a thoroughly professional criminal enterprise which was, to the extent that it reinforced the threats being made to the victim, carried out with the use of a firearm.  The perpetrators were playing for high stakes, hoping to gain a comparatively large sum of money by creating great fear in the mind of the victim both for himself and his family.

33.We are in no doubt that sentencing in cases of this kind should carry with it a large measure of deterrence.  Those who enjoy the benefits of wealth in Hong Kong have constantly to be on their guard against an event such as the victim was subjected to in the present case.  Consequently, the courts must provide adequate protection against those who offend in this way and deter others who may be minded to do so. 

34.It was accepted by all counsel that there does not appear to have been any sentence which has gone beyond an 18-year starting point after trial for an offence where the facts are comparable to those in the present case.  We do not propose to set an upper limit for future cases of this kind, but we have concluded, leaving D1 aside, that the 16-year starting point adopted for D4 (as well as D2 and D3) was not inappropriate.  However, in our opinion, the margin of 5 years between D1, the gang-leader, and the remaining members of his gang was, on the present facts, manifestly excessive.  We consider that in D1’s case a sentence of 18 years would have been more in line with the sentences received by the others.

Conclusion on sentence

35.Accordingly, having in the particular circumstances concluded that 21 years’ imprisonment demonstrated a measure of disparity which was manifestly excessive, in D1’s case we grant leave and, treating the hearing as the appeal, we reduce his sentence by 3 years to 18 years’ imprisonment.  To this extent, D1’s appeal succeeds.

36.We are satisfied, as we have indicated already, that the 16-year starting point adopted by the judge in D4’s case was in no sense excessive.  In his case, it may well be that a starting point of 18 years would not have been open to criticism and the fact that D4 was not sentenced in such a way has, to the extent we have indicated, benefited D1 whose sentence has had to be brought more into line with the others in his gang.

37.D4’s application, therefore, is dismissed.

Mr Arthur Luk, SC, DDPP and Mr Edmond Lee, SGC, of the Department of Justice, for the Respondent.

Mr Keith Oderberg and Mr Francis Burkett, instructed by Messrs Ong Hean Cheng & Co., for D1/1^st Applicant.

Mr Andrew Bruce, SC, instructed by Messrs Jal N Karbhari & Co., for D4/2^nd Applicant