HKSAR v. Chiang Sai Wah, Brandi

CACC 342/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 342 OF 2008

(ON APPEAL FROM HCCC NO. 101 OF 2008)

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BETWEEN

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Before:  Hon Tang VP, Yeung JA and Saw J in Court

Date of Hearing: 4 May 2010

Date of Judgment: 4 May 2010

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JUDGMENT

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Hon Tang VP:

1.The applicant was convicted of one count of conspiracy to commit forcible detention, contrary to section 42 of the Offences against the Person Ordinance, Cap. 212 and sections 159A and 159C of the Crimes Ordinances, Cap. 200.

2.He was sentenced to imprisonment for 14 years.

3.He has filed a notice of appeal against both conviction and sentence.

4.By a notice of abandonment dated 7 April 2010, he has given notice to abandon his appeal against conviction.  However, in the document accompanying the notice of abandonment, he stated that:

“I would like to abandon my application for appeal for the time being on the following grounds:

1)      I do not have money to hire a lawyer;

2)      (I) cannot find any solid grounds of appeal;

3)      (I) do not want to waste the court’s resources.

I would like to reserve (my right) to apply for appeal until (I) have found some solid grounds and I will ask a lawyer to apply for appeal on my behalf.”

5.Having regard to that statement, we had not treated the notice of abandonment as an abandonment of the applicant’s appeal against conviction.  This morning, we have explained to the applicant that if he wished to abandon his appeal against conviction, he must do so unequivocally, and that once abandoned, he would not be able to appeal in the future.

6.He has indicated to us, he understood his position and wished to abandon his appeal against conviction.  On that basis, we have earlier dismissed his application for leave to appeal against conviction.

7.I turn to his application for leave to appeal against sentence.

8.The fact can be stated quite briefly.

9.On the morning of 6 November 2001, the victim, Dr Leung Ding-bong (“Dr Leung”), was surprised by three men on 10^th Floor, No. 22 Yee Wo Street, Causeway Bay, where Dr Leung had his office.  The three men tried to tie him up and put him into a wooden box, which measured 110 cm by 54.5 cm by 61 cm, in which Dr Leung would have been transported to a deserted pig farm in Ki Lun Tsuen in Yuen Long.  It is quite clear that the purpose was to abduct Dr Leung for ransom.

10.The three men were never apprehended.  The driver of the lorry in which Dr Leung would have been transported inside the box, was arrested and was the 2^nd defendant at trial.  However, he was acquitted by the jury.

11.However, because as the learned judge said, Dr Leung, who was 73, had:

“… used a strength to resist his kidnappers that was not to be expected in a man of his years.  He was clearly desperate. … ”

12.As a result, the abduction was aborted.

13.The applicant, both in his written submission and orally this morning, has told us that he is remorseful and there was never any intention to harm the victim.  He pointed to the fact that:

1)      no weapon was used;

2)      there was an oxygen supply in the wooden box; and

3)      the lack of any violent attack on Dr Leung, during or immediately after the unsuccessful attempt to subdue him.

14.It is true that no weapon was used, but there were three men against a 73 year-old victim.  There was indeed a supply of oxygen but it is obvious that, dead, Dr Leung would have been quite useless to the kidnappers.  As for the use of violence, Dr Leung had been roughly handled and suffered some injuries.  It is clear from the evidence that from the commotion and Dr Leung’s shout for help, people were coming to his assistance and there was no way in which the three men could have taken Dr Leung with them in the box or otherwise.  That and Dr Leung’s resistance is why the abduction was aborted.

15.The applicant also claimed that he was not after the money.  And that he had turned a new leaf and having since been converted, will in future be able to preach the gospel to other prison inmates.  Dr Leung is by reputation a wealthy man.  No doubt if the attempt had been successful, a substantial ransom would have been demanded.  This morning, the applicant told us that he wanted to teach Dr Leung a lesson.  That was not a mitigation which was put forward before the learned judge.  It is not something that we can give any credence to.  In any event, if the applicant was not after the money, it is difficult to understand the purpose of the enterprise. 

16.He is to be congratulated on his conversion, but that is not a reason for any reduction of sentence in an offence of this type.

17.In his written submission, the applicant has also claimed to have offered assistance to the authorities.  The respondent confirms that he had given a witness statement to the police on 1 April 2010 but we are told that it is of limited value.  So no weight would be given to that either.

18.The applicant is about 49 years old and has a MBA degree from an English University.  He claimed that he was not the mastermind, but that does not matter.  It is clear however that the attempted abduction was well planned and that the applicant had prepared a false alibi.  It is clear from the evidence that he played a very substantial role.

19.There is no tariff for the offence.  Mr Wesley W C Wong, SADPP, appeared for the respondent, has put before us several cases regarding similar offences.  But as Stuart-Moore VP said in HKSAR v Leung Man-kwong and Anor, unreported, CACC 57/2001:

“21. …  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.”

20.Leung Man-kwong involved a nine-year-old boy.  On 6 July 2000, when the victim was being driven to school by his family’s driver, 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.  The driver 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 victim was taken out of the car and was then driven away in the kidnappers’ car.  Luckily, the police were informed.  As a result of skilful police investigation, the defendants were arrested when they left a hotel with a large suitcase.  The suitcase was opened and the victim was found inside.  He had been blindfolded but showed no signs of physical injury.  The 1^st defendant, who had pleaded guilty, was sentenced to a term of 10 years’ imprisonment which was equivalent to a starting point of 15 years.  The appeal against sentence was dismissed by the court.  But that is not to be taken as authority that 15 years is the upper limit for such an offence.

21.In HKSAR v Mohammad Nadim, unreported, CACC 172/2009, a seven-year-old schoolboy was abducted whilst waiting to board his schoolbus, when the appellant and his co-accused tricked him into boarding their car by telling him that the school bus had broken down and offering to take him to school.  He was taken to the appellant’s flat where he was blindfolded with his hands tied with a towel and his mouth covered with adhesive tape.  Later, he was allowed to make two telephone calls, first to his mother and then to his father.  In each of the calls, he requested that they pick him up.  In the second call he broke down and cried.  A few minutes after the second call, the appellant called the boy’s father and demanded payment of $200,000, informing him not to report the matter to the police and warning him that if the ransom was not paid the boy would be killed.  Fortunately, the boy’s father ignored the threat and reported the matter to the police.  The appellant, together with two other males, placed the boy inside a large nylon bag in the boot of a car.  The boy was rescued when the appellant’s car was intercepted by the police.  The boy, who was conscious, was then released.

22.On such facts, the trial judge had adopted a starting point of 17 years which was reduced to 14 years on appeal.  This court (differently constituted) compared the facts with those in Leung Man-kwong and said:

“49.   In all the circumstances of this case, in particular given that no weapons were brandished, violence used or threatened in the abduction and in view of the relatively short length of the detention, namely about 15 hours, in our view an appropriate starting point for sentence is 14 years’ imprisonment. …”

23.I do not believe it is necessary to discuss the other cases which Mr Wong has supplied to us. 

24.In the present case, there was violence used.  Also, the planning was at a much higher level of sophistication altogether.  Instead of children, we have an elderly man.  Fortunately, the abduction was foiled, but only because Dr Leung had put up a desperate struggle.

25.In such circumstances, I cannot agree that the sentence of 14 years after conviction is manifestly excessive.  I would therefore dismiss the application for leave to appeal against sentence.

Hon Yeung JA:

26.For the reasons given by the Vice-President, I too would dismiss the application for leave to appeal against sentence.

Hon Saw J:

27.I agree with the reasons given by the Vice-President.  I would also dismiss the application for leave to appeal against sentence.

Mr. Wesley W. C. Wong, SADPP and Miss Hermina Ng, PP, of the Department of Justice, for the Respondent.

The Applicant, in person, present.