HKSAR v. Tang King Fai

DCCC 249/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 249 OF 2013

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of kidnapping, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Chapter 221. The maximum sentence is 7 years imprisonment.

2.The following is a summary of the events taken from the admitted facts and the witness statement of Madam Chan which was submitted during mitigation.  Madam Chan and the defendant were involved in a relationship for about one year, which ended in November last year.  At around 21:00 hours on the 22 December last year Madam Chan was on her way home to meet her son when she was intercepted by the defendant, who asked her to board a van. 

3.Madam Chan was allowed to take some food home she had bought for her son and then went with the defendant into the van.  In the van the defendant kept asking for a re-union with Madam Chan but Madam Chan refused and asked to leave.  The defendant became emotional and suddenly pulled Madam Chan down and covered her mouth with a cloth, which emitted an odd smell.   As a result Madam Chan was rendered unconscious. 

4.Madam Chan woke up to find her wrists and ankles had been tied up with plastic cable ties.  The defendant was driving the van and Madam Chan begged to leave but the defendant ignored her and continued to drive.  At one stage the defendant stopped the van and covered Madam Chan’s mouth with adhesive tape.  The defendant then drove the van to a stone hut in Yuen Long, which belonged to his father.

5.After cutting the cables and removing the tape the defendant pulled Madam Chan out of the van and into the hut.  Madam Chan felt very sick and vomited.  When Madam Chan asked to leave the defendant ignored her and threatened to bury Madam Chan.  Madam Chan begged to leave and promised to reconcile with the defendant.  Eventually the defendant drove Madam Chan home at 01:00 hours the next morning, some four hours after she had been intercepted.  As a result Madam Chan sustained abrasions to the face and redness on her arms and legs.  

6.In passing sentence I take into account everything said on behalf of the defendant by Mr Davies together with the mitigation letters and the content of the background report.  I take into account the defendant has no previous convictions and that by pleading guilty Madam Chan has not had to give evidence and thereby recall what must have been a very harrowing incident.

7.Mr Davies submits that the defendant did not plan to kidnap Madam Chan and explains that the van was supplied by his employer and the plastic cable ties were used in the course of his work.  The defendant says he did not know what was on the cloth.  I have grave reservations in accepting that the defendant did not know why Madam Chan was rendered unconscious and that he only decided to tie Madam Chan up and take her to the hut at the very moment she became unconscious.  However looking at Madam Chan’s witness statement she says that the defendant suddenly became emotional on seeing her current boyfriend arrive.  I therefore cannot exclude the possibility this is what made the defendant act in the way he did.  I therefore proceed on the basis that when the defendant intercepted Madam Chan he had not planned to tie her up and take her to the stone hut.

8.The offence nevertheless remains a very serious one.  Madam Chan having become unconscious the defendant tied her up and took her to the stone hut.  Fortunately Madam Chan was notseriously injured andsome four hours after being intercepted was taken home after she agreed to restore her relationship with the defendant.  This however was after the defendant threatened to bury her leaving Madam Chan no choice but to agree to reunite with the defendant.

9.Accepting that the defendant did not intend to kill Madam Chan by threatening to bury her must have added to what was already a terrifying and harrowing incident.  As can be seen from the medical and psychiatric reports submitted by the prosecution Madam Chan was in depressed mood and crying when admitted to hospital.  After discharge from hospital Madam Chan was again admitted on the 7 January for insomnia and referred to a psychiatrist who diagnosed Madam Chan as suffering from Adjustment Disorder with features of Post-traumatic Stress Disorder.  In this regard I note that prior to the incident the defendant had also acted emotionally which resulted in a report to the police for harassment.

10.There are no guidelines in Hong Kong in respect of kidnapping each case to be decided on its own facts and circumstances.  Mr Parry has helpfully referred the court to an extract from the sentencing manual published by the Crown Prosecution Service in the United Kingdom, which sets out a number of aggravating and mitigating factors in kidnapping and false imprisonment cases together with reference to a number of reported cases. 

11.Mr Davies has referred to three of the cases: R v Dzokamshure [2009] 1 Cr App R (S) 112; R v Saker [2012] 1 Cr App R (S) 16 and SB [2012] 2 Cr App R (S) 71.  I have read the full judgment in these cases together with the case of R v Spence & Thomas (1983) 5 Cr App R (S) 413 referred to in the same extract and in Archbold.  The end of the extract refers to recent cases arising out of emotional relationship which are to be found in section B3-4.3D of Current Sentencing Practice, which I have also read.   

12.Of the three cases specifically referred to by Mr Davies only Dzokamshure concerns kidnapping arising out of an emotional relationship.  I find no assistance from the cases of SB and Saker both of which concern the kidnapping of children of the defendants. 

13.In Spence & Thomas the court said that there was a wide variation in seriousness of offences of kidnapping.   At the top end of the scale came carefully planned abductions and at the other end of the scale offences which very often arise as a sequel to family tiffs or lovers’ disputes.  In these cases the court said they seldom require anything more than 18 months’ imprisonment, and sometimes a great deal less.

14.In Dzokamshure the defendant travelled to the victim’s home to make an unannounced visit.  He smashed the window to gain entry to the property and punched the victim in the face twice.  The defendant then dragged the victim out of the house and forced her into his car.  After a while the defendant stopped the car on a slip road of a motorway and allowed the victim to leave telling her to leave her new partner.  The victim sustained only minor injuries to her face and head. 

15.The defendant, who was a person of good character and had no history of harassment of the victim, pleaded guilty and was sentenced to 18 months imprisonment.  In dismissing the appeal the court said that the offence did not come within the expression “family tiffs or lovers’ disputes.”  I am satisfied the present case equally does not fall within that expression or as Mr Davies put in mitigation last time that this was a ‘lovers argument’. 

16.I have also considered the facts inHKSAR v Tsoi Sheung Ki DCCC 330/2011 submitted by Mr Davies.  This is a case arising out of a dispute between two lovers who were cohabiting at the time and by this reason alone can be distinguished from the present case where as in Dzokamshure the relationship had already ended.  In my view the present case is more serious than both Dzokamshure and Tsoi Sheung Ki.

17.Taking into account all the circumstances of the offence including that the kidnapping arose out of an emotional relationship; Madam Chan having become unconscious was tied up and taken to a stone hut; Madam Chan was detained against her will for about four hours during which the defendant threatened to bury her if she did not resume the relationship; Madam Chan has suffered Post-traumatic Stress Disorder as a result of the incident however by pleading guilty Madam Chan has not had to give evidence; and that the defendant has no previous convictions, I am satisfied the proper starting point after trial is 3 years imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years imprisonment.