HKSAR v. ZHENG XINGWANG

CACC 218/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 218 OF 2016

(ON APPEAL FROM HCCC 6 OF 2016)

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

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

_________________________

REASONS FOR JUDGMENT

_________________________

Hon McWalters JA (giving the reasons for judgment of the court):

1.  On 14 June 2016, the applicant appeared before High Court Judge Zervos (“the judge”) on an indictment containing one count of forcible taking or detention of a person with intent to procure a ransom, contrary to section 42 of the Offences against the Person Ordinance, Cap 212. He pleaded guilty to this count and, on 16 June 2016, he was sentenced by the judge to 12 years’ imprisonment.

2.  On 19 July 2016, the applicant filed a Notice of application for leave to appeal against sentence (Form XI) out of time.  In his affirmation attached to his Form XI, the applicant did not provide reasons to explain his delay in lodging his application for leave to appeal.  He simply stated that he was dissatisfied with the sentence and was, therefore, applying for leave to appeal against his sentence out of time.

3.  At the hearing of the application we allowed the applicant an extension of time but dismissed his application for leave to appeal his sentence and said we would hand down our reasons for doing so at a later date. This we now do.

The background to the offence

4.  The Summary of Facts admitted by the applicant and used for the purpose of his sentencing revealed that on 25 April 2015 at around 3 am, a gang of six Mainland Chinese men, all wearing hoods and cloves, broke into the home of the victim, Ms Queenie Law, in Sai Kung while she and her boyfriend were sleeping in the bedroom.  The intruders subdued both Ms Law and her boyfriend by tieing them up with ropes and covering their mouths with adhesive tape.  Two of the intruders were armed with knives which they pointed at the two victims.

5.  Ms Law was forced to reveal the combination of two safes in the changing room of the bedroom.  Within the safes were various currencies of a total value of about HK$7,000 and jewellery worth about HK$3 million and these were stolen by the intruders.  Ms Law was then asked about her family background and when the intruders became aware that she was the daughter of the owner of the house, they told her to get dressed.  They then blindfolded her and tied her to one of the intruders. 

6.  The intruders took Ms Law away with them but before leaving they told Ms Law’s boyfriend to tell her father that a ransom of HK$58 million had to be paid in order to obtain Ms Law’s release and that no report should be made to the police.  After the intruders left, Ms Law’s boyfriend untied himself and informed Ms Law’s parents, who were sleeping in their bedroom, of what had happened.  It was discovered that the window of a vacant room on the first floor at the back of the house had been prized open. 

7.  At 8:19 am on 25 April the victim’s father received a phone call from the kidnappers in which they demanded a ransom of HK$58 million for the release of his daughter. They threatened the father that if he did not pay this amount, his daughter would be killed.

8.  A report was made to the police at about 2:15 pm on 25 April.

9.  On leaving the house Ms Law was taken to a cave located on a hill which was reached after walking for 1½ hours.  She was told to stay inside a tent which had been was set up there whilst the men guarded her from outside.  Throughout her captivity, Ms Law remained in the cave and was fed with food from McDonalds restaurants, a rice box and some bread.  People stood guard outside the cave and Ms Law could smell cigarette smoke from time to time.  Although told by one of the gang that she would not be harmed, she was constantly in fear that she would be killed.

10.  In a conversation with one of the kidnappers on 25 April Ms Law was told that the original plan was to kidnap her mother, that their home had been under watch for quite a while and that they had information supplied to them for which they now had to make payment. 

11.  After four days of negotiation, the ransom was reduced to HK$28 million and the father was told this had to be ready by 28 April and that his daughter would be released 2 hours after it was paid.  During this time Ms Law’s father was allowed to speak to her in order to confirm her safety. 

12.  The serial numbers and images of HK$12.5 million out of the HK$28 million ransom prepared were scanned and the monies were packed in 28 packs and put into 14 brown envelopes, which were placed in two luggage bags.  On 28 April 2015 at around 6:13 pm, Ms Law’s father was told to deposit the ransom behind a public toilet at Fei Ngo Shan Road.  At 6:35 pm Ms Law’s father drove to this location and dropped the ransom in the two luggage bags as instructed and returned home.

13.  Meanwhile Ms Law was blindfolded, carried on one of the kidnapper’s back and taken away from the cave.  After about 1 hour’s walk she was released near a road where she encountered two police officers at 7:50 pm.

14.  On 3 May 2015, the applicant was arrested at Lo Wu Control Point when he attempted to cross the border to return to Mainland China.  Under caution, he remained silent.  He was in possession of a two-way permit, cash of HK$75.5 and RMB1,400.  In a subsequent video recorded interviews, the applicant told the police that he was asked by a person he called “Tung Gor” to come to Hong Kong to deliver food in return for HK$1,000 per delivery.  He was given an Octopus card, a Nokia mobile phone and about HK$5,000 to HK$6,000 for transportation and food purchases.  During the period from 21 to 26 April 2015, the applicant had bought pork rib rice, hamburger, bread, coke and water; and he had made several deliveries to a cemetery about 30m to 50m ahead of Pak Shek Wo, receiving HK$3,000 as a reward so far.  On 26 April 2015, “Tung Gor” asked the applicant to purchase four mobile phones.  He returned to Shenzhen to make the purchase and re-entered Hong Kong on the same day.  After the last delivery, the applicant had placed the Octopus cards, mobile phone and his rucksack at the cemetery.  He had no further contact with “Tung Gor” thereafter.  The applicant subsequently learnt from the newspaper that his photo was shown in relation to a kidnapping case.  Out of fear, he tried to flee.  He asserted that he had no knowledge of the victim, her home, the ransom money or the lost properties.

15.  However, it was subsequently confirmed that the applicant’s right and left thumb prints and right index fingerprint were on one of the torn pieces of brown envelope in which the ransom money had been placed.

16.  On 18 June 2015, a black plastic bag containing a blue bucket which contained HK$15 million (7,499 pieces of banknotes matched with the scanned ransom) was found hidden in the ground underneath a rock inside a bush at Mau Ping, Ma On Shan.  In the vicinity of the bucket was a hideout hut constructed with bamboo.  Some old cooking utensils, empty cans and bottles and two cigarette boxes were found at this location. 

17.  Meanwhile, HK$6.54 million of the ransom paid and most of the jewellery that was taken from the safes inside Ms Law’s bedroom were recovered by the Chinese Public Security Bureau Officers in Mainland China from persons who were believed to be accomplices of the applicant. 

18.  In March 2016, a further HK$6.35 million of the ransom were recovered from a different spot underneath a rock in the same area in Mau Ping.

19.  On 6 August 2015 the police discovered the cave where Ms Law had been detained.  Still in the cave were the tent and other items used by the kidnappers.

20.  The applicant accepted and admitted that he was a participant with “Tung Gor” and others in a joint enterprise to unlawfully and forcibly detain a person with intent that a ransom be paid.  He entered Hong Kong on 21 April 2015 and his role was to remain free to move around and to provide logistical support to his accomplices whilst the victim was being detained.  This enabled the kidnappers to remain undetected.  He knew the victim was being detained against her will in a remote area in Sai Kung, and that his accomplices were negotiating with the family of the victim on the amount of ransom to be paid for her release.  After agreement had been reached on the amount of ransom to be paid and these monies had been delivered, the applicant was involved in handling the monies prior to the release of the victim.

The mitigation

21.  Mr Omar, counsel for the applicant at the sentencing hearing, informed the court that the applicant was 30 years old at the time of his sentence.  He was from Mainland China where he received education up to Form 3 level.  At the time of the offence, he had a clear record in Hong Kong and was a phosphate supplier with an income of RMB1,000 per month.  He was married and had a daughter aged 2 years.

22.  Mr Omar submitted that there were no sentencing guidelines for this offence as the facts of each case will be quite different. It was necessary, therefore, for the court to consider each case individually. In determining the seriousness of each case and the culpability of the applicant, Mr Omar submitted the court should have regard to the following factors:

(i)    the age and gender of the victim;

(ii)  any mistreatment of the victim during detention;

(iii)   whether a weapon was used;

(iv)   whether injuries were caused to the victim;

(v)  the length of the detention;

(vi)   the effect of the detention on the victim and her family;

(vii)    the sophistication in the planning of the kidnapping; and

(viii)  the role of the applicant.

23.  Mr Omar acknowledged that the applicant was a party to a joint enterprise with the other kidnappers but asserted that the applicant had no knowledge of what took place in Ms Law’s bedroom, namely, the opening of the two safes and the theft of a quantity of currency and some jewellery. Mr Omar accepted that the applicant knew his accomplices were going to Ms Law’s house and would break into it to gain entry to it.  However, he reminded the judge that the applicant had not been charged with robbery and was denying any knowledge of it.   

24.  Regarding the list of factors as set out above, Mr Omar acknowledged that Ms Law was a young woman who was mistreated generally by being detained with fear at an isolated location.  She was detained for four days, which was a fairly lengthy period of time.  He acknowledged that weapons were used during the kidnap when two of the intruders showed their knives.  However, Mr Omar emphasized that there had been no use of pistol which would attract the highest starting point for sentence.  Mr Omar further submitted that Ms Law did not sustain any physical injuries but acknowledged that she was subjected to some psychological trauma which should also be taken into account.  It was also acknowledged that the boyfriend and family of Ms Law were all victimized, and that the kidnap involved sophistication and planning.  Mr Omar also urged the court to take into consideration that the applicant was not the mastermind although he did acknowledge that the applicant’s role in the joint enterprise was in fact significant.  He also asked the court to note that all but HK$110,000 of the ransom was recovered.

The judge’s Reasons for sentence

25.  After setting out quite comprehensively the facts of the case the judge turned to the impact of the offence on Ms Law.  It was clear from the victim assessment report that Ms Law and her parents were severely affected by the traumatic experience they were forced to endure.  Ms Law did not know if she would survive the experience and her parents were wondering if they would ever see their daughter alive again.  From the report, the judge was aware that Ms Law’s fear and suffering did not end with her release.  The ordeal had a life-changing impact on her.  For several months after the events, Ms law experienced significant sleeping difficulties. However, it is fortunate that Ms Law has a positive attitude and a determination to get on with her life.  This has resulted in the impact of the kidnapping, on her, gradually subsiding. 

26.  The judge said that given the grievousness of the offence, no weight can or should be given to the applicant’s personal circumstances as mitigating his crime.  Of the applicant’s culpability, the judge said:

“From the Agreed Facts, his involvement was far greater than disclosed in his written submission. He has admitted in the Summary of Facts to being a member of a gang that planned and executed the kidnapping of Queenie, where he was providing logistical support and assistance to the gang members that held Queenie captive in a cave in Sai Kung.

He clearly played an instrumental and pivotal role in the kidnapping, and any suggestion that it was minor is clearly refuted by the facts now agreed, and his fingerprints being found on pieces of ransom envelope.”

27.  Of Mr Omar’s submissions that the applicant had no knowledge about the raid at Ms Law’s bedroom, the judge said:

“It would seem, on the facts agreed, and given his involvement and admission that he was a member of the gang that as far as I can take it, is that he would have known that property had been stolen at the time of the abduction.”

28.  The judge noted the comments of HKSAR v Chan Kau Hung and Others[1], which was a case concerned with the sentencing in a kidnapping case.  The court said, at paragraph 20:

“There can be no doubt that those who participate in whatever capacity in an offence of this type are as equally culpable, and should be held as equally accountable, for the consequences of their crime.”

29.  In terms of the applicant’s role the judge said:

“He provided logistical support and supplies and was there at the end when collecting the ransom monies. He played an instrumental and important role as a member of the kidnapping gang from beginning to end.”

30.  The judge directed himself on what principles should guide him in his sentencing task and what factors he should take into account.  He said:

“ Serious cases of kidnapping for ransom warrants exemplary punishment that will act as both a specific and general deterrent and appropriately reflect the community’s opprobrium for crimes of this kind.

The task before me is to make an overall assessment of the circumstances of the kidnapping in the present case. …

A sentence for this type of offence should punish the defendant and deter others from coming here and violating the peace and stability of Hong Kong people by committing such offences. …

…

   A sentence for cases of this kind should be severe, and carry with it a large measure of deterrence. … The courts must respond to such crimes to protect the public and provide a sentence with strong deterrence.”

31.  The judge referred to eleven particular features of the case which prompted him to conclude that this was “a very serious case of kidnapping”.  Amongst these was that this was a cross-border crime and it was a meticulously planned and executed one.  It involved the purchase of inside information and keeping the family home under surveillance.  Knives were used in the course of the invasion of the Law home and there was at all times the threat of the use of force.  There was mistreatment of Ms Law and her boyfriend and the period of detention of Ms Law was lengthy and the amount of ransom sought was great.  Finally, he took into account the serious psychological trauma suffered by the whole Law family.

32.  The judge found that it was clear from the facts that every member of the gang was a party to a common design to abduct Ms Law, or a person from the Law family for a substantial ransom.  Every member played a particular role which was essential for the kidnapping to be carried out.  The judge said the overall circumstances and criminality of the case warranted a very high starting point, and adopted a starting point of 18 years’ imprisonment.  He said that the only meaningful mitigation was that the applicant pleaded guilty, for which the judge gave him a full one-third discount; hence, the final sentence imposed was reduced to 12 years’ imprisonment.

The application for an extension of time

33.  At the hearing of the application the applicant claimed that he had given his application for leave to appeal to the Welfare Officer in time and was unable to explain why it had not been immediately filed.  He said he was told by the Welfare Officer that the expiry of the time limit did not matter.

Conclusion

34.  Not surprisingly, the respondent had no information on the applicant’s claim and was not in a position to gainsay it.  As the applicant was only out of time by a few days we decided we would give him the benefit of the doubt in respect of his explanation and grant him the extension of time that he needed in order to apply for leave to appeal.

The applicant’s grounds of appeal

35.  In his initial Grounds of Appeal, attached to his Form XI filed on 19 July 2016, the applicant simply alleged that “the sentence is excessive.”  However, at the hearing of the application the applicant asked the court to take note that at no stage throughout the kidnapping had he, personally, been involved in the application of any force.

The respondent’s submissions

36.  In respect of the merits of the application for leave to appeal against sentence, the respondent submitted that the sentence imposed was not manifestly excessive, and all the relevant factors, including matters of mitigation, had been thoroughly considered by the judge.  In reaching the sentence for the applicant, the judge had considered the applicant’s role and involvement in the kidnapping and had properly concluded that this was a “very serious case of kidnapping”. 

37.  The respondent helpfully referred the court to a number of cases of a similar nature to enable the court to obtain an appreciation of the range of sentence that had been imposed for this offence.  The respondent submitted that, collectively, the features and factors present in this case elevated it to a level where it could be said to be a case of the very serious kind which warranted a deterrent sentence at the higher end of the sentencing range. The respondent submitted that the starting point of 18 years’ imprisonment as adopted by the judge was correct and proper in the circumstances.  

Discussion

38.  Taking the applicant’s complaint at its highest, he is submitting that throughout her ordeal no actual assault, sexual or otherwise, took place and no harm came to the victim and that furthermore he personally was not involved in such force as may have been applied to Ms Law and her boyfriend.

39.  This may all be true but had the victim not survived the kidnapping or anyone been seriously assaulted in the course of it then the applicant would no doubt be facing other, additional charges.  The absence of such other forms of criminal conduct only means that his crime could have been worse and is more akin to the absence of an aggravating factor rather than the presence of a mitigating factor.  The assessment of the seriousness of this crime falls to be adjudged by what did take place not by what did not.

40.  The fact that this applicant’s role did not bring him into contact with the victim, her family or her boyfriend also does not lessen his culpability.  His personal culpability has to be adjudged in the context of being involved in a joint enterprise crime in which the threat of force and the application of it would inevitably be necessary in order to make Ms Law and her boyfriend compliant.  Without the threat of force or the use of it, the kidnappers could hardly expect to get Ms Law and her boyfriend to submit to their will.

41.  The cases to which the respondent referred us indicate quite clearly that an 18 year starting point is not unusual for this offence.  It is also clear that it is at the upper range of sentences that are imposed and it is, therefore, likely to be reserved for the more serious cases.  However, it must also be remembered that the maximum penalty for this offence is life imprisonment. Consequently, the only issue is whether the judge was correct to characterize it as “a very serious case” which called to be sentenced at the upper end of the sentencing range.

42.  In order to determine the proper sentence for the applicant it was necessary for the judge to assess the seriousness of the crime.  This he did very conscientiously in a detailed Reasons for Sentence in which he directed himself on the relevant sentencing principles and carefully analysed the significant features of the case.   The judge’s direction to himself on the relevant sentencing principles is correct.  There is no legal error contained within those directions.

43.  Nor is there any error in his detailed analysis of the facts of the case.  He has correctly identified all the matters that are relevant to his assessment of both the level of seriousness of the offence and the culpability of the applicant.

44.  To say that this was a carefully planned and executed kidnapping is, if anything an understatement.  The gang had purchased inside information about the home and the Law family and kept the home under surveillance. Furthermore, the period of detention of 4 days was long for this offence and during this time Ms Law was alone with armed men and in fear of her life.  Finally, the psychological trauma to her and her family is incalculable. 

45.  All of these and many other matters were discussed at length by the judge and we are in no doubt whatsoever that he was correct both in respect of his assessment of the seriousness of the case and in determining that the proper starting point was 18 years’ imprisonment.

Conclusion

46.  For these reasons we dismissed the application for leave to appeal.

[1] [2002] HKLRD 354