HKSAR v. CHUNG HON FAI

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1998, No.92
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. In this matter the applicants faced a charge of forcible detention of a person with intent to procure a ransom contrary to s.42 of the Offences Against the Person Ordinance. They were charged that they, with other persons unknown, by force took away and detained Chan Miu-yuk against her will with intent to procure a ransom for her liberation. They pleaded guilty before Judge Beeson and each was sentenced to imprisonment for nine years. They now seek leave to appeal against that sentence.

2. The facts revealed that on the morning of 18th April 1997, the victim drove her private car to work in Tsuen Wan. After she had parked her car on the 4th floor of the car park, three men suddenly appeared, held her arms from both sides and at the same time pushed her to an area between two lorries. Her mouth was then covered with a piece of cloth which was impregnated with either thinner or chloroform. She struggled but soon lost consciousness.

3. When she regained consciousness, she found that her eyes and mouth had been covered and her hands and feet bound by adhesive tape. She was inside a dual-purpose van. It must be said that during her detention she was given bread and water to drink and was allowed to take tablets for her stomach condition.

4. Her sister first realized that the victim was missing at about noon when she called her mobile phone which was answered by one of the kidnappers who told the sister her to get $10,000,000 for the release of the victim. The sister then contacted a friend, a Mr. Sheung, who was a police officer, and he suggested that the matter should be reported. In the meantime the kidnapper, using the victim's mobile phone, made an attempt to contact the victim's elder brother but in fact spoke to Mr. Sheung, the police officer. They told him that the victim was being held and that he should gather $10,000,000. He immediately reported the matter and was instructed to go on pretending that he was the victim's brother. He had numerous conversations with the kidnappers during which the ransom was reduced to $3,000,000. The victim's sister agreed to raise that amount and the cash was then collected and taken to a room at the Regal Riverside Hotel where the police dusted and photographed the money. It was then put inside two Kraft paper bags which were put inside a red travelling bag.

5. At about 1:50 p.m. on 19th April, the kidnappers told Mr. Sheung to take the ransom to a petrol station at Yaohan. When he arrived there the kidnappers told him by phone to go to Sheung Shui. When he had passed through the Shing Mun Tunnel, he was told to stop his car near a Tai Wai signboard outside the tunnel and to drop the ransom down the slope where a man would be standing to collect it. He did as he was told and the ransom was collected. The victim who was released at about 5:30 p.m., sought the help of a passer-by and reported the matter to the police.

6. Investigating police later intercepted a private car GT 7706 at the car park of Fuk Loi Estate, Tsuen Wan. At that time, Applicant Chung ("Chung") was in the driver's seat and Applicant Liu ("Liu") was in the front passenger seat. After alighting Liu walked towards the direction of Wing Cheung House and was immediately stopped by the police. After cautioning he was searched and wads of banknotes were found in his pocket. The police asked him what they were. He said that they were the ransom and that the remaining money was at his home at Room 116 Wing Cheong House.

7. Chung was also arrested, cautioned and searched and three wads of banknotes totalling $300,000 were found in his pockets. Later a search was conducted Liu's house at 116 Wing Cheong House and a total of $770,000 was found in the premises. The banknotes found all bore the stain placed upon them by the police.

8. Subsequent to his arrest, Liu was interviewed twice by police officers. He admitted that he had incurred a lot of gambling debts and, together with three accomplices, had kidnapped a woman named Chan who was believed to be wealthy. He said that the accomplices used his van to kidnap Chan and that he was responsible for driving the van.

9. Chung decided on the location for the handing over of the ransom and he and Liu went to collect the ransom in the private car GT7706. Chung was the one who picked up the bag of money.

10. Chung got $570,000 of the ransom money, some of which, he said, he gave to a third person Lam Bik-chi. So much for the facts.

11. The trial judge, having set out the facts and having referred to a number of authorities, said:

"Although I have found those cases interesting, mainly for the principles that they enunciate, I have not found them particularly helpful in setting any type or guide or tariff.

In this case, I have taken all the matters into account that I have referred to. I have also taken into account the offer made by both of these defendants to assist the police. There has been some degree of co-operation shown by both these defendants to date, but there has been no indication of how much greater that co-operation could be, or how useful it might be to the prosecution. For that reason, I note it as a feature, but don't consider it sufficient to warrant a major discount in sentence.

I consider the important element is deterrent. I take a starting point in this case of 15 years. In respect of each of the defendants, I reduce that by five years, to take account of their pleas of guilty. In respect of each defendant, I take a further year for their minor records, or no records in the case of Mr. Chung. Each defendant will be sentenced to nine years' imprisonment.

If at some future state they give assistance to the prosecution that is of assistance in the detention or the conviction of the perpetrators of this offence who are still at large, that is a matter that the Executive can take into account when considering a discount."

12. Mr. Fenton, who appears before us today, submits that the judge erred in using a starting point of 15 years and that she failed properly to consider and to apply the relevant authorities. We do not intend to dwell too long upon the authorities. Mr. Fenton principally relied upon The Attorney General v. David Lee Po-Man, [1992] HKCLR 70 and R. v. Sung Chin-pang, [1995] 2 HKC 352. In the first, a 19 year-old acted alone when kidnapping a boy of 8. It is true that he made dreadful threats when demanding ransom but there was no degree of sophisticated planning. The Court of Appeal took a global starting point of 10 years for the kidnapping and the administration of chloroform and indicated that, after plea, a sentence of 7 years would have been appropriate. In Sung Chin-pang, again the defendant acted alone. The kidnapping in that case was aggravated by the use of an imitation firearm. He was sentenced both for the offence of kidnapping and for use of an imitation firearm. The Court of Appeal was satisfied that 12 years was a proper global starting point which was reduced, because of quite unusual mitigating circumstances, to 7 years. We do not find these authorities of any real assistance. Both involved one offender and neither was characterized by any degree of sophisticated planning.

13. R. v. Tse Kwok-keung, (unreported) Crim. App. No.529 of 1991, was a bad kidnapping carried out by a gang in which the victim was never seen again. In that case, the Court of Appeal, for the offender who pleaded guilty, fixed a starting point of 18 years which was reduced, because of plea, to 12 years.

14. The offence of kidnapping is a particularly dreadful one. There is inherent in every kidnapping the danger that the victim will be killed. We are quite unpersuaded that, in a planned kidnapping involving a number of participants using chloroform to subdue the victim and thereafter detaining her while ransom is demanded, a starting point of 15 years is in any way excessive. We are satisfied that the discount of one-third which reduced it to 10 years was a proper one and that the judge was not ungenerous when giving a further discount of one year for "good character" to reduce it to 9 years. Indeed, we think it timely to indicate that if the present financial downturn were to lead to an increase in offences of this kind, judges could properly impose even more severe sentences.

15. Nothing in either of the sentences was wrong in principle or manifestly excessive and the applications are therefore refused.