HKSAR v. Chan Kam Fung and Another

[English Translation]
CACC533/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL No. 533 OF 1998

(ON APPEAL FROM HCCC No. 439 OF 1997)

BETWEEN :

Coram: Hon. Chan, CJHC, Liu & Leong, J J.A. in court

Date of Hearing : 12 March 1999

Date of Judgment : 12 March 1999

JUDGMENT

Leong, J.A. (giving the judgment of the Court)

1. On  11March 1998, the 1^st Applicant, Chan Kam-fung and the 2^nd Applicant, Wong Kam-lun each pleaded guilty to a charge of kidnapping in the Court of First Instance in the High Court.  The Applicants were each sentenced to imprisonment for 6 years and 8 months.  On 13 October 1998, they applied for leave to appeal against sentences out of time on the grounds that they were illegal immigrants and were ignorant of the laws of Hong Kong and that they were not aware of the time limit for appeal prescribed by the rules with respect to appeals.

2. The facts of the case, as admitted by both Applicants, are as follows:-

3. On 4 June 1997, the 1^st Applicant falsely represented to Mr. YU Tai-shu who was the proprietor of a decoration company that his house needed to be renovated. Together with the 1^st Applicant, Mr. YU went to a village house in Wang Chau Village in Yuen Long.   As soon as Mr. YU went into the house, the 2^nd Applicant tied him up, blindfolded him with a piece of cloth and gagged him with a towel.  They then took away the property Mr. YU had on his person and his bank card.  They then coerced him into telling them the Personal Identification Number of his bank account.  Furthermore, they ordered Mr. YU to telephone his wife, and one of them told Mrs. YU over the telephone that her husband had fallen into their hands and that she had to pay $300,000 to see her husband again.  Mrs Yu was given a few days to raise the money.  Mr. YU was not ill-treated while being detained in the house and guarded by the two Applicants for several days thereafter.

4. At about 7.00 p.m. on 7June 1997, Mrs. YU, having raised the required sum of money, received a telephone call from the two Applicants telling her to take the money to the Light Rail Transit Station in Shui Pin Wai.  At about the same time, the two Applicants told Mr. YU that they were leaving.  After they had gone, Mr. YU freed himself and escaped from the house.

5. At 7:30 p.m. the same day, the two Applicants were intercepted by police officers in the street inTuen Mun.  The police officers found on their persons Mr. YU’s bank card, a piece of paper with the Personal Identification Number of Mr. YU’s bank account on it and some cash. They admitted to the Police that they had sneaked into Hong Kong from the mainland and planned with others to kidnap Mr. YU for a ransom of $300,000 and they expected to share the ransom after their plan came off.  Subsequently, Mr. YU positively identified the 1^st Applicant as the person who had induced him to go to the village house and the 2^nd Applicant as the one inside the house at the material time.   

6. After they were arrested but before they were sentenced on the kidnapping charge in this case, the two Applicants pleaded guilty on 7 July, 1997 to a charge of unlawfully remaining in Hong Kong and were each sentenced to 15 months’ imprisonment.

7. When passing sentence, Deputy Judge Wong, held that kidnapping was a very serious offence and the law safeguards citizens’ personal freedom and property.  To effect deterrence, it was appropriate to sentence an offender who had unlawfully detained and robbed others to a substantial term of imprisonment.  Deputy Judge Wong also held that this was a planned kidnap in which the victim was tied up, blindfolded and thus subjected to inhumane treatment.  Therefore, the Applicants had to be sentenced to a long term of imprisonment. Deputy Judge Wong adopted a 10 years’ starting point and reduced it by 1/3 to reflect the discount for pleas of guilty and co-operation with the Police.  He therefore sentenced each of the Applicants to 6 years and 8 months’ imprisonment. As these sentences were consecutive to their sentences of 15 months which they were serving, they were sentenced to a total of 7 years and 11 months’ imprisonment each.

8. The Applicants’ grounds of appeal against the sentences are as follows:- the 10 years’ starting point is excessive in the absence of any manifest aggravating factor. Ms. Tsang, Counsel for the two Applicants submitted that the two Applicants merely used slight force in the course of kidnapping Mr. YU and did not do him any harm during his unlawful detention. They gave him food and allowed him to talk to his wife over the telephone.  What is more, they used no weapon, did not receive the ransom or make any gains after all.  The sentences of 6 years and 8 months’ imprisonment imposed by Deputy Judge Wong were, in the circumstances of the case, manifestly excessive.  Another ground of appeal was this: the sentences of 6 years and 8 months are to run consecutively to those of 15 months for their unlawfully remaining in Hong Kong and these add up to a total of 7 years and 11 months.  For the offences committed by the Applicants, the overall sentences are thus manifestly excessive and wrong in principle.

9. In support of her argument for the view that the sentences are excessive, Ms. Tsang cited the following authorities.

1.   R. v. Ngan Chiu-man [1994] 2 HKCLR 182 - the defendant in that case faced one charge of conspiracy to kidnap, one charge of attempted kidnapping and one charge of wounding with intent.  The Judge adopted 8 years, 9 years and 10 years as starting points for those respective charges. After discount, a sentence of 8 years in total was imposed.  On appeal, it was reduced to one of 7 years.  However, the defendant in that case surrendered himself to the Police and pleaded guilty before the Magistrate court. The Court of Appeal found that he deserved a greater discount on account of those two mitigating factors but did not consider the starting point adopted by the Court below either too high or inappropriate.

2.   AGv. David Lee Po-man [1992] 2 HKCLR 70 - the defendant in that case caused an 8-year-old boy to lose consciousness with chloroform and kidnapped him.  The defendant then demanded a ransom of $200,000 from the boy’s parents.  The Court of Appeal considered that the 10 years’ starting point was not inappropriate.  The Court of Appeal pointed out that the crime of kidnapping would inevitably cause the victim and his family harm, severe anxiety and pain, and for this type of offence, a deterrent sentence was necessary.  The Court of Appeal nevertheless reduced the sentence to one of 7 years on account of other factors in the case.

3.   R v. Tam Ping-man Cr.App.No.161 of 1992 - the defendant of that case was sentenced to 6 years’ imprisonment for a comparatively less serious offence of which the maximum sentence was just 7 years’ imprisonment.

4.   R v. Sung Chin-pang [1995] 2HKC 352 - in that case a 4-year-old girl was kidnapped by the defendant with an imitation gun. The Court of Appeal found that the appropriate sentence was one of 12 years’ imprisonment.

10. Apart from the above cases which were also cited by Mr. Lo for the Government, he referred this Court to the authority of HKSAR v. Chung Hon-fai and Liu Chi-fung Cr.App. No.92 and 99 of 1998.  In that case the two defendants carried out their plan to kidnap the victim by subduing him with chloroform.  The Court of Appeal did not consider a starting point of 15 years manifestly excessive in the circumstances of that case.

11. As demonstrated by the above authorities, the Court has long taken the view that kidnapping is a terrible crime, the most frightful aspect of which is the possibility that the kidnapper might kill the victim.  The victim, while being kidnapped, lives in fear and trepidation and worries about being harmed.  Therefore, the sentence must be such as to provide deterrence. With that view, this Court fully agrees.  In the present case, although no great violence or weapon was used in committing the crime, the two Applicants had Mr. YU tied up with a hem rope, blindfolded him and gagged him with a towel.  They let him use the telephone merely for the purpose of putting pressure on his wife in order to extort money and not for letting him tell her that he was safe.  It was fortunate that the victim was not ill-treated and did not suffer any grievous harm. Otherwise, this case would not be short of aggravating factors.

12. This is a case of kidnap planned and carried out by the two Applicants who had sneaked into Hong Kong unlawfully. The maximum sentence for kidnapping is life imprisonment.  So far as the circumstances of the case are concerned, it was not inappropriate for Deputy Judge Wong to adopt a starting point of 10 years to emphasize the need of deterrence.  Nor did he err in passing sentences of 6 years and 8 months’ imprisonment after the discount for pleas of guilty.  Although Deputy Judge Wong, when passing sentences, made no reference to the overall criminality of the offences or the totality of sentence, the sentences of 7 years and 11 months are by no means manifestly excessive for the offences committed by the two Applicants, namely sneaking into and remaining in Hong Kong unlawfully to carry out a planned kidnap.  Despite Ms. Tsang’s best effort on behalf of the Applicants to persuade this Court to reduce the overall sentences imposed on the two Applicants by whatever amount we deem fit, this Court, for the reasons given above, cannot interfere with the sentences of 7 years and 11 months.  Accordingly, the applications of Chan Kam-fung and Wong Kam Lun for leave to appeal out of time are refused and their appeals dismissed.

Representation:-

Ms. Alice Tsang M. L. (assigned by the Director of the Legal Aid Department) for the 1^st and 2^nd Applicants

Mr. Lo Hing Cheung, ADPP(Ag.) of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Jackson Ng, Solicitor