HKSAR v. CHENG YUK

HCCC 540/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 540 OF 2014

-----------------

---------------------------------
Transcript of the Audio Recording
of the Sentence in the above Case
---------------------------------

COURT: The defendant has pleaded guilty to one count of forcible detention of a person with intent to procure a ransom for liberation, contrary to section 42 of the Offences against the Person Ordinance, Chapter 212. He has been committed to this court for sentence.

The facts in this case are that, on 6 February last year, the first prosecution witness listed in the case, a Mr Yu, who was operating a small decoration business, had employed the defendant as a casual worker. The defendant, at that time, rented a room inside the premises of Mr Yu, as a result of which, having started to live there, the defendant became well acquainted with Mr Yu’s wife and also his 3-year-old daughter, the victim in this case. Occasionally, also, the defendant’s girlfriend would come along and there was a harmonious relationship developed with Mr Yu’s wife and daughter.

The relationship soured after about two months because the defendant wanted to borrow $16,000 from Mr Yu and his wife but it was unsuccessful and the defendant started not turning up for work.

On 5 May last year, Mr Yu had gone to China for work, leaving his wife and his daughter inside the premises. The defendant came to the premises at about 3 pm that afternoon and chatted with Mrs Yu and then said he would bring the victim out to buy something to eat. However, when the defendant did not return with the victim, Mrs Yu started to call the defendant’s mobile telephone.

At 4.08 pm, Mrs Yu received a message from the defendant’s WeChat account saying that the victim would be staying at his place for a few days and instructed Mrs Yu to deposit $50,000 into his Bank of China account before 7 May 2014. Mrs Yu then contacted her husband and also made a report to the police.

Subsequently, at about 8.31 pm, the defendant telephoned Mr Yu and said he would return the victim after he received $50,000. On instructions of the police, Mr Yu bargained down the figure to $20,000 and the defendant asked Mr Yu to deposit the money into his account before midnight. Mr Yu told the defendant the money would be deposited in 20 minutes.

At 10.44 pm, Mr Yu deposited cash in the sum of $16,000 into the account which was designated by the defendant, via an ATM machine. Subsequently, at about 10.53 pm, the defendant called Mr Yu to say that the money had been received and that he would bring the victim back to the premises in an hour.

During this time, a lot of police resources were used to try and track down the victim. Some of the police officers who were making observation had seen the defendant going into his building and subsequently left the building with the victim at about 11.08 pm. Police officers then went up and intercepted the defendant and arrested him and carried the victim away.

The defendant put up a fierce struggle and one of the police officers sustained some minor injuries on his hand before the defendant was subsequently put under control and handcuffed.

Under caution, the defendant said that Mr Yu owed him money and thus he took the victim away. Subsequently, under caution, the defendant was interviewed and he disclosed how he was not happy, he was angry with the way he had been treated by Mr Yu. He said that the victim was not harmed. He, in fact, after taking the victim away from the premises, had brought the victim home to play with his girlfriend and her daughter. He also described how, after collecting the money, he had given part of the money to his girlfriend but she did not know where he got the money.

The defendant, I am told, is aged 41 and he has a pretty poor record in the past. He has some 55 previous convictions, mostly for theft, but nothing similar. This, I can say, is the most serious offence he has committed so far. I am told that he was unemployed at the time of his arrest for this offence and although he is married, he has had no contact with his wife and family.

In mitigation, Mr Davies explained further the background to this case. According to Mr Davies, and I have no reason to disbelieve it, is that the good relationship between the defendant and the Yu family broke down because he had been asked by Mr Yu to collect some outstanding debt for him and been promised that, if successful, he would be given a certain percentage as a reward. The defendant successfully collected nearly $300,000 of bad debt for Mr Yu but was not rewarded as promised.

It was also urged upon this court that, at no time, was the defendant’s plan to harm the little girl, the victim in this case. From the facts which have been disclosed, I also accept Mr Davies’s mitigation that there was no planning really involved in this case; it was a spur-of-the-moment decision to do what he did. It was really, if you look at it objectively, the defendant cannot hope to get away with this. Mrs Yu knew who he was and that he had taken away the little girl so, really, it was a matter of time before he would have been located by the police.

However, this is a serious charge, as Mr Davies readily accepted. In fact, as was noted in the Hong Kong case of Hong Kong SAR v Kan Chan Hung & Another(?) [2003] volume 2, HKLRD, for this offence, the maximum sentence was increased to life imprisonment from 14 years’ imprisonment in 1982. So it reflects the legislature’s attitude and thus Hong Kong society’s attitude that this offence has to be regarded as a very serious one.

As the Court of Appeal in that case observed, the section 42 offence is a serious offence and warranted a severe deterrent sentence. It is, of course, also, for each case, the sentencing court has to look at the facts of the individual case. There are no sentencing guidelines for this type of offence. What I can say is that most of the time, for this type of offence, the minimum starting point would be in the region of 8 years’ imprisonment.

In most of the cases that I have seen for this type of offence, there were some scary moments for the victim involved; for example, they were taken away and some would be tied up, or at least constrained or confined in an unfamiliar environment.

In this case, there is no evidence that the victim was in any way in fear at any time. On the other hand, of course, some mental distress would have been caused to the parents of the victim, particularly Mrs Yu. It is clear, therefore, also that there was a breach of trust in this case because the defendant had taken advantage of the friendship and trust of Mrs Yu.

I do take into account the fact that this is the less serious of this type of offence that I have seen. I consider, therefore, that in these circumstances, a starting point of 7½ years’ imprisonment would be appropriate.

In view of the defendant’s plea at a very early stage, he is entitled to a one-third discount and therefore he is sentenced to 5 years’ imprisonment.