HKSAR v. Leung Man Kwong and Another

CACC000057/2001

CACC 57/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 57 OF 2001

(ON APPEAL FROM HCCC 378 OF 2000)

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Coram: Hon Stuart-Moore VP and Stock JA

Date of Hearing: 5 October 2001

Date of Judgment: 5 October 2001

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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):

Introduction

1.On 8 February 2001, the Applicants, D1 and D3 respectively, pleaded guilty, together with D2, to a charge of forcibly taking or detaining a nine-year-old boy (the victim) on 6 July 2000 with intent to procure a ransom, contrary to section 42 of the Offences Against the Person Ordinance, Cap. 212. D1 and D3 were each sentenced on 12 February 2001 by Tong J to a term of ten years' imprisonment. D3's sentence was ordered to run concurrently with the sentence of fourteen months' imprisonment he was already serving for burglary. On the same date, D2 received a sentence of twelve years' imprisonment. D2's application for leave to appeal against sentence was abandoned in writing on 3 August 2001. D1 and D3 now seek leave to appeal against the sentences imposed on them.

Prosecution's case

2.The case presented by the prosecution in the Summary of Facts revealed a very serious offence of its kind. In essence, what was alleged was that on 6 July 2000, when the victim was being driven to school at about 7.20 a.m. by his family's driver (PW2), their car was blocked by another car. Three armed and masked men jumped out of the other car. Two were carrying what looked like pistols and the third had a hammer. PW2 was threatened by one of the men holding a pistol. He was given a piece of paper and told "Don't call the police, go home, give to master." At the same time, the child victim was taken out of the car. He was then driven away in the kidnappers' white-coloured car.

3.PW2 went back to his employers' house immediately. The piece of paper he had been given read: "You call the police, I kill him. You go home. Phone your boss." Police were then informed.

4.The victim's parents heard nothing more about their son until the telephone in their home rang at just after 10 o'clock that morning. The victim was on the line and he informed his father (PW3) that "uncles said they only want money". Thereafter all incoming calls were recorded. Between 6 July and 11 July 2000, fifteen calls were made by the same caller to PW3. These calls began with a demand for $15,000,000 as the ransom for the safe release of the victim. PW3 was threatened that if the ransom was not paid, the victim would be killed. After negotiation, the ransom was reduced to $8,000,000. All the calls were made from a mobile telephone using a pre-paid SIM card with no registration of any kind which connected the caller to the telephone he was using.

5.In the course of time, a skilful police investigation led them to conduct a surveillance in Mongkok outside the Newton Hotel. On 12 July 2000, at 10.20 a.m., D1 and D2 were seen to get out of a black Mercedes car. D2 waited by the car while D1 went into the hotel. D1 was observed to go into room 713 with a third man, D3. When D1 and D3 emerged from room 713, they had a large suitcase with them. They were both arrested. The suitcase was opened and the victim was found inside. He had been blindfolded but showed no signs of physical injury.

6.D1 admitted helping D2 and D3 to kidnap the victim and thereafter to take him to the Stanford Hotel. His job was then to keep a watch over the child. He stated that it was D2 who had planned the job. In his possession, D1 carried the keys for room 713 in the Newton Hotel, a Stanford Hotel room key and a third key for a room in the San Diego Hotel. He also carried an identity card bearing the name Wong Hoi-lin.

7.D3 had nothing of any significance to tell the police immediately after his arrest.

8.D2, meanwhile, was arrested outside the hotel as he stood by his car. He stated that he owed people a lot of money and had been left with no alternative. Whilst he and the others had kidnapped the victim, they had caused him no physical harm.

9.Further interviews took place later. D1 said that D2 had promised to give him $1,000,000 out of the ransom money. He stated that D2 had obtained the white car, masks, adhesive tape, handcuffs and the suitcase. He and D3 had grabbed the victim after D2 had blocked the car in which the victim was being driven to school. D1 said he had blindfolded the victim and D3 had put the plastic handcuffs on him. On arrival at the Stanford Hotel, D1 and D3 had put the victim into a suitcase before taking him up to the room. The victim was later let out and his hands were untied and the blindfold was removed. D2 made the ransom demands and on one occasion allowed the victim to speak to his father.

10.D1 went on to say that the location for keeping the victim was changed on 9 July 2000 when the victim was again put into a suitcase and this time taken to the Newton Hotel. D1 said that he used the identity card found on him to book a room there which he said he had found in the street about a month earlier. He admitted also using the card to book a further room at the San Diego Hotel on 12 July 2000, just before his arrest.

11.When D2 was interviewed, it is plain that he took responsibility for having been the ringleader. This indeed accounted for the fact that he was given a longer sentence than the two Applicants in court today. He stated that he had worked at the victim's house about eighteen months before the kidnap of the victim. He had been an apprentice worker with a company who were carrying out roof repairs at the victim's house. He discovered during the time he was working there that the victim's mother was a well known personality. He admitted he had suggested the idea of kidnapping the child victim to his accomplices. He then arranged for two air-pistols, three masks, a hammer and some adhesive tape to be put into a rucksack to use in the kidnap. He sprayed his own car to change its colour and fitted it with false number plates. D2 went on to admit the other details of his involvement including the fact that he had made the ransom calls. In due course, he showed police where he had concealed his mobile phone inside his residence. He also provided police with the information which led to the recovery of the two air-pistols which he had borrowed from a friend.

12.D3's admissions were in line with what had been revealed both by D1 and D2. He admitted he had been armed with the hammer during the act of kidnapping the victim.

13.The victim was himself able to identify all of the defendants and to some extent the roles they had played.

Sentencing

14.At the time of sentencing, D1 was aged twenty-three and D2 and D3 were each twenty years old. D1 had acquired nine previous convictions and D3 had five. D2, the organiser, had a clear record.

15.Having reviewed the facts of the case, the judge noted the general cooperation of each of the defendants towards the police investigation. He noted also their pleas and apparent remorsefulness. He rightly pointed out that the victim had not been physically ill-treated apart from a slap which D1 had administered to him and that when the victim had shown signs of asthma, he was given medication for this.

16.The judge reviewed a number of cases and, in formulating a starting point, took into account in particular the well-planned nature of the crime, the age of the victim, the length of his detention and the repeated threats to his family that the victim would be killed if a report was made to the police.

17.Before commending the police for their detective work, the judge stated:

"Defence counsel said that the boy was not ill-treated, but the reality is that the boy is only 9, and I doubt any violence was required to subdue him. In any case, although he is not physically injured, the incident must have brought harm to him psychologically. To put a boy of 9 in a suitcase while blindfolded is, in itself, a total disregard for his safety. I cannot accept this suggestion as a mitigation.

The defendants are relatively young, but should have the maturity to realise the very seriousness of their conduct. Now, they must face the consequences. I take the view that there must be strong deterrents to this type of criminal conduct. Considering all the circumstances, as the 2nd defendant is the mastermind in this case, I would think 18 years is a suitable starting point. I will give one-third discount for his plea. The sentence is 12 years.

For the other defendants, except the original idea, all appear to have (been) involved in the execution of the plan together. However, I would adopt a lower starting point for the other two defendants. 15 years, in my view, would be appropriate for the other two defendants. I shall also grant the one-third discount for their pleas. The sentence is therefore 10 years for the 1st and the 3rd defendants." (Tr. p. 14)

The application

18.The judge's comment that the incident must have brought harm to the victim "psychologically" has given rise to the first ground of appeal advanced by Mr Petrus Chan on behalf of D1 and D3. He submitted in what he described as his "main point" that there had been no suggestion, on the prosecution's case, that the victim had been injured in any way.

19.We are quite unable to accept this submission. An incident such as this was bound to have left its mark on the child and for the judge not to have taken this into account would have been to ignore the obvious. This was a ground of appeal which was wholly without merit and borders on the absurd.

20.In his other grounds of appeal, Mr Chan submitted that the judge had adopted too high a starting point by considering authorities which bore little relevance to the present circumstances and had thereby arrived at a sentence which was excessive.

21.Although we did not need to call on Miss Mary Sin, she had provided to the court a most helpful written response to this application. 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.

22.However, Miss Sin was able to draw attention to two cases which, for present purposes, may in some respects be rather more helpful than those to which the judge had been referred in the court below. In HKSAR v Lam Hung-hon CACC 251/1999 (unreported), to which Mr Chan also made reference, the Court of Appeal upheld a sentence of fourteen years after trial for the forcible taking or detention of a brother and sister aged twelve and nine respectively, and the administration of a noxious substance to the former in order to keep him under control. A ransom demand of $1,500,000 was made. The court agreed with the sentencing judge's remarks to the effect that the offences were "serious and reprehensible" and that the victim had been likely to have been caused "lasting distress", before concluding that the overall sentence was "not a day too long". Whilst it is true that the facts of that case were different in some ways to the matter presently before us, particularly with regard to the physical harm done to the male victim, there are many similarities.

23.The other case to which Miss Sin particularly referred us was HKSAR v Hung Wai-ping CACC 576/1999 (unreported). There, the victim was a boy aged ten who was enticed away from his school by deceit and detained for two days before the police discovered his whereabouts. He was found bound, gagged and blindfolded inside a filing cabinet. This court stated that the starting point of fourteen years' imprisonment which the sentencing judge had adopted was neither wrong in principle nor in any way excessive. Unlike the matter with which we are presently concerned, Hung Wai-ping's case involved little or no sophisticated planning.

Conclusion

24.We are satisfied that the sentences imposed on D1 and D3 have not been exposed to any valid criticism. Accordingly, these applications are dismissed.

Representation:

Miss Mary Sin, SADPP and Mr Robert K.Y. Lee, SGC, of the Department of Justice, for the Respondent.

Mr Petrus Chan, instructed by Director of Legal Aid, for the Applicants.