R. v. PAU CHENG NA YUET

IN THE COURT OF APPEAL

1992, NO. 496
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. This is the judgment of the court.

2. The Applicant was convicted before Mr Justice Sears on her own plea of one count of forcible detention of a person with intent to procure a ransom for his liberation, contrary to Section 42 of the Offences Against the Person Ordinance, Cap. 212. The particulars of the offence were that she, between 12 April 1983 and 20 April 1983 in Hong Kong, together with CHAN Kam-yuen, YIP Wing-tim, KWOK Kam-tai, LEUNG Yun-fuk, LO Yau-chuen and LO Siu-chung, by force took or carried away one WANG Teh-huei.

3. The Applicant was arrested in Miami, United States of America, on 25 July 1987 and was extradited on 2 June 1991, having been in custody throughout that period. The reason for her long detention in the States was a series of appeals by her to prevent her extradition to Hong Kong. In passing sentence, the learned judge adopted a starting point of 10 years. She was sentenced on 5 November 1992. Taking into account her period of detention in the United States of America, her plea of guilty, her personal circumstances which were canvassed in full in the Court below, and also the fact that she was 67 years of age at the time of sentence, a sentence of 7 years was in fact imposed. In giving his reasons for the sentence, the judge referred to the dictum of the Lord Chief Justice of England in the case of R v. Peffer (1991) Crim. L R 728, in these terms: -

"It should not be thought by those who fly the country in the hope of evading justice that if they are caught and remain in custody in a foreign country for a period of time, that that time will by any means be necessarily considered as if it had been spent in this country serving the sentence imposed by the English Court."

4. The learned judge went on to say that although the Applicant had fought extradition as she was entitled to, and that her detention in the United States of America was a relevant factor, it should not be thought that people who did not voluntarily return to Hong Kong to face trial but utilised every conceivable method of fighting extradition, would be given a full discount for the period of time spent in custody overseas. With respect, we agree with what the judge had said.

5. The Court was also informed of the fate of the Applicant's co-conspirators. CHAN Kam-yuen had pleaded guilty before Mr Justice Barnes, but in view of the fact that he was due to give evidence on behalf of the Crown, was not sentenced until 4 January 1993 when a sentence of 4 years' imprisonment was imposed, he having already been in custody for a period of time. YIP Wing-tim was convicted and sentenced in Taiwan and his death sentence was reduced on appeal to 15 years. KWOK Kam-tai was and is still at large. The others, all of whom pleaded guilty, were LEUNG Yun-fuk who received 10 years, LO Yau-chuen, who was the driver, received 8 years, and LO Siu-chung, 10 years.

6. In referring to the Applicant's role in this offence, Counsel for the Crown in the Court below said that all the co-conspirators were involved in the kidnapping together, and they were all part of the gang. The Applicant's role was said to be one of assembling the gang, arranging for the kidnapping, going to Taiwan to receive the money after it had been transferred there, notifying rest of the gang know when it had been received and then remitting it to different members of the gang. Mr Egan for the Applicant emphasised that the applicant had not been involved in the physical aspect of the kidnapping but that her role involved matters that involved "a little more intelligence" and that she was principally concerned with the laundering of the money.

7. The Applicant now seeks leave to appeal against her sentence. The Perfected Grounds of Appeal read: -

1. The sentence passed by the learned trial Judge was wrong in principle in that the effect of the sentence was to impose a significantly disparate and longer sentence upon the Appellant than those effective sentences imposed upon the majority of her cohorts when there was no proper basis for distinguishing the criminality of the Appellant from the criminality of her cohorts.

2. The sentence passed was in all the circumstances of the case manifestly excessive.

8. Briefly, the facts of the case were these. The victim, Mr. WANG Teh-huei, was the Managing Director of the China Chem Group of Companies Limited. He and his wife were the major shareholders of the company. At about 8:30 a.m. on 12 April 1983, Mr and Mrs Wang left their home to go to their office. Mr Wang drove the car whilst his wife sat next to him. Whilst travelling along Bluff Path, they were blocked by a goods vehicle. Two Chinese men jumped down from the rear of the goods vehicle and placed two signs on the road in front of the Wangs' car. When Mr Wang opened the window and signalled the men to drive their vehicle out of the way, two other men, one armed with a knife and the other with a pistol-like object, opened both front doors of the car and threatened the couple with their weapons.

9. Mrs Wang was pushed into the rear seat of the Wangs' car whilst Mr Wang was taken to the rear of the goods vehicle, there he was gagged and blindfolded with bandages and his hands and feet were bound with wire. He was then put into a refrigerator and driven to an address, later found to be Flat B, 11/F, No. 9, Valley Road, Hunghom. He was at this stage still within the refrigerator. The refrigerator with Mr Wang inside was put on a cart and pushed into the flat and then into a small bedroom. He was then untied briefly before being tied up again, this time with chains, to a bed inside the bedroom.

10. Meanwhile, Mrs Wang was driven off in her car. She was unable to see as she was forced to put on a pair of dark glasses. Along with Mrs Wang, there were three men in the car. They told her that they needed money and if she did not cooperate her husband would die. She was told to open an account with the Overseas Trust Bank and advertise the details in a newspaper. Eventually she was dropped off at a location in Kwai Chung. Later, she received instructions on a tape for her to deposit US$11 million into her newly opened account with the Overseas Trust Bank before 16 April 1983, and to place an advertisement in the Sing Tao newspaper giving full details of the bank account number. Later that day, Mrs Wang reported the kidnapping and ransom demands to the police.

11. Numerous telephone conversations then followed between Mrs Wang and a member of the kidnapping gang. On Friday, 15 April 1983, Mrs Wang deposited sums of 16 and 51 million HK dollars into her account at the Overseas Trust Bank. On 16 April 1983, Mrs Wang was instructed to go to the Overseas Trust Bank at once and remit the money to a bank account in Taipei by telex transfer. The typewritten instructions contained details of a bank account in Taipei to which the money was to be transferred. Mrs Wang complied with the instructions and the sum of US$11 million was duly transferred to an account with the First Commercial Bank in Taipei. The account was in the name of Madam CHAN Shih-chen.

12. On Tuesday, 19 April 1983, at about 6:30 p.m., Mrs Wang received a telephone call from a member of the kidnapping gang who stated that it would take three more days for the money to be cleared and transferred from the Taipei account. The man went on to say that her husband would be released before the following Friday. On Wednesday, 20 April 1983, at about 4 p.m., Mrs Wang received a telephone call from her husband in her office, saying he had been released and was at her brother's clinic in Mongkok.

13. Whilst under unlawful detention, Mr Wang was confined to a small room; his bed was the bottom portion of a bunk bed. A blanket had been hung from the top part of the bunk bed preventing him from seeing outside. During his confinement he heard people addressing each other by their numbers. He was in unlawful custody for a total of 9 days, during which time he had not been ill-treated. On the ninth day of his captivity, he was again placed in a refrigerator and taken by van to a spot in Shatin where, having been released, he caught a taxi and went to his brother's clinic from where he telephoned his wife.

14. One of the co-conspirators, CHAN Kam-yuen, and the Applicant were former business associates. Chan introduced YIP Wing-tim to the Applicant. Yip was to assist the Applicant in arranging a bank account in Taiwan through Madam CHAN Shih-chen, and Yip was also to recruit KWOK Kam-tai, LEUNG Yun-fuk, LO Yau-chuen and LO Siu-chung to carry out the kidnapping.

15. Following the kidnapping, whilst Mrs Wang was attempting to raise the ransom money, Yip went to Taiwan to join the Applicant to make arrangements to receive the ransom. On 18 April 1983, the Applicant told Chan on the telephone that the money had been received. Of the US$11 million which had been paid as ransom, approximately 80% has been recovered.

16. In addition to the Grounds of Appeal, Mr Egan, acting for the Applicant before us this morning, also argued that as an act of mercy, this Court should give full credit to the total period of 3 years and 10 months during which the Applicant was incarcerated in the United States, resisting extradition, and to reduce her sentence to that extent. He also urged us to consider giving the Applicant a greater discount in view of her peculiar personal circumstances which were, as I have said earlier, canvassed in full in the Court below and considered by the learned trial judge. Furthermore, Mr Egan referred to what he described as an unfortunate disclosure by Crown Counsel to the trial judge that, while there was no suggestion that the applicant had again been involved, the victim had been kidnapped a second time after the kidnapping under consideration. The judge, however, made it quite clear in his reasons for sentence that this was a matter of no relevance as far as sentencing for this offence was concerned. In sentencing the Applicant, he described the offence as an evil crime, as indeed it was. It was a well-planned and audacious offence committed in exacerbating circumstances, in that the victim was detained for 9 days and had been transported to two locations bound and gagged and shut up in a refrigerator. Having regard to all the circumstances of the case and having considered all that had been argued on behalf of the Applicant this morning, we do not think that we should interfere with the sentence in any way. It was an entirely proper sentence. The application for leave to appeal against sentence is therefore refused.