Leung Hin-kwong v. The Queen

CACC000878/1979

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Coram: Roberts, C.J., Huggins, J.A. and Leonard, J.

Date of Judgment: 9 November 1979

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JUDGMENT

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1. This is an application for leave to appeal against sentence by LEUNG Hin-kwong, who was committed for sentence after pleading guilty to an offence under section 42 of the Offences against the Person Ordinance, which is more generally known as "kidnapping".

2. Very briefly, the facts were that a girl of 8, named LEUNG Yuen-hon, left school at about 5.30 on the evening of the 27th April and went out to the car park to get the normal "pak pai" which took her home from school each day.

3. The appellant and a friend of his, who was jointly charged with him, stopped the girl in the car park and invited her to board a van, which was similar to the one which normally picked her up. They told her that the usual driver could not come. She was then taken away by the appellant and his co-defendant.

4. The girl was detained by the two accused in the van overnight. It is fair to say that the girl was at all times treated with consideration and care by the two accused.

5. In the course of that same evening, one of the accused telephoned the victim's father and demanded money. The phone caller told the parents that those who had custody of the daughter had been paid $100,000 to have the daughter killed but if the parents would pay $200,000 the daughter would be released unharmed.

6. Further calls were made during the course of the evening and the victim's parents were told to get $200,000 and bring it to the Star Ferry near the five flagpoles on the following morning.

7. After some further discussion, the time was extended to 5 o'clock in the evening of the following day and the caller agreed to accept $100,000.

8. On the following afternoon, the victim's father took a bag, containing $63,000 in dollar notes, to the agreed place, and there handed it over to a man, who turned out to be the first defendant and whom the father was able to identify because of instructions which had been given to him over the phone.

9. The first defendant took the money and disappeared. Soon afterwards the police were able to arrest the two accused.

10. The judge, when passing sentence, did not entirely accept that the offence was unpremeditated. He said it is a little too much of a coincidence that the defendants went to a girl's school in a van similar to the normal pak pai which picks up the particular girl at that school. He also bore in mind the fact that the parents had been the subject of a terrible threat, namely that, unless a huge sum of money was paid by them, the daughter might very well be killed.

11. Our attention was drawn to HO Kau v. Reg.⁽¹⁾. That report contains a quotation from the judgment of MacKenna J. in Reg. v. Curran⁽²⁾ in which he said -

"As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed, as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence."

12. Addison, J. further on in his judgment, quotes Reg. v. Garthwaite⁽³⁾ in which the Chief Justice said -

"Finally, it is not desirable that the first sentence of imprisonment passed on an offender should be a deterrent sentence in the sense of a general deterrent to deter other persons from behaving as this appellant did."

13. We feel obliged to say that, while we do not challenge this as being the general rule, we regard kidnapping as an exception. This is a crime of such a grave and vicious nature that all offences of kidnapping should normally attract a heavy deterrent sentence. The previous good record of a person convicted of this offence can have very little weight.

14. In the recent case of CHONG Chueng-lam v. Reg.⁽⁴⁾ a sentence of twelve years' imprisonment for kidnapping was reduced to nine. That reduction was due to the fact that the maximum penalty for the offence with which the accused was charged was fourteen years, and we did not consider that the circumstances of that case were so bad as to attract a sentence near the maximum.

15. In the course of that judgment appears the following passage -

"It must be stressed that nothing said by this court should be interpreted as meaning that an offence of kidnapping, whether the statutory offence as here charged or the common law offence, can ever be considered as other than one of the most grave character."

16. We would like to repeat that passage as representing the correct position.

17. We see no reason to interfere with this sentence and the application for leave to appeal against it is refused.

Representation:

Miss M. Moosdeen (P.H. Sin & Co.) for appellant

Duncan for the Crown/Respondent

(1) 1978 H.K.L.R. 197

(2) (1973) 57 Cr. App. R. 945

(3) Cr. App. 1977 No. 566 (unreported)

(4) Cr. App. 1979 No. 363 (unreported)