HKSAR v. HUNG WAI PING

CACC576/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO.576 OF 1999

(ON APPEAL FROM HCCC NO.99 OF 1999)

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J U D G M E N T

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Pang J (giving the judgment of the Court) :

1. The applicant, Hung Wai Ping, pleaded guilty at the committal stage to one count of fraudulent taking away 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. He was committed to the High Court for sentence. On 9 November 1999, he went before Deputy Judge McMahon and was sentenced to nine years' imprisonment. His application for leave to appeal against sentence was set down for hearing before this court in March this year. The hearing on 17 March 2000 was however adjourned on the applicant indicating to this court that he would be appearing as a prosecution witness in the re-trial of an accused person charged with the same offence.

2. The victim in this case is a 10-year old school boy. He was abducted by the applicant posing as the boy's relative in the afternoon of 16 November 1998 when the boy had finished his classes at school. In the early evening on the same day, the parents of the boy received a telephone call from the applicant who informed them that their son has been taken away. They were told to wait for further instructions and were threatened that in the interest of the boy's safety they should not report the matter to the police. The parents, however, immediately contacted the police who went swiftly into action and arranged to trace all incoming telephone calls. On the following day, the parents received no less than 18 telephone calls from the applicant. They were told to deliver the ransom money to the Jumbo Restaurant Pier in Aberdeen. In the meantime, the police managed to trace the calls to a mobile phone, the subscriber of which was the applicant. Further investigation revealed the working address of the applicant was in an office block in Chai Wan. He was also the registered owner of a light goods vehicle, Registration No.HF7018, which was the same vehicle used to pick up the boy on the previous day. The police mounted a large scale surveillance operation and shortly before 9 o'clock in the evening on 17 November 1998, the police raided the applicant's office premises at Chai Wan and found the victim blindfolded, bound and gagged inside a filing cabinet. At about the same time, the applicant was intercepted and arrested by the police at the Eastern Cross Harbour Tunnel. The applicant admitted the offence under caution and he was positively identified by the victim and two other witnesses in an identification parade.

3. The applicant was 30 years of age at the time of the offence and was in the business of selling audio-visual equipment. He had three previous convictions, all of which involved offences of dishonesty.

4. After considering the cases of Attorney General v. David Lee Po-man [1992] 2 HKCLR 70 and R v. Tam Ping Man [1993] 2 HKCLR 163, the learned deputy judge adopted a starting point of 12 years' imprisonment. With respect to him, Tam's case has no direct bearing on the sentence in this case as the applicants in that case were charged under common law. In the present case the learned judge took into consideration the fact that the victim was a 10 year old boy and the fact that he was bound, gagged, blindfolded and locked up inside a filing cabinet for some two days. These, he found to be the aggravating features of this case for which he added two years to the starting point. From a total of 14 years, he then gave a discount for the applicant's early plea and a further discount for the relatively lengthy period he spent in custody between his plea and eventual sentence.

5. Counsel for the applicant submits before this court today that the starting point of 14 years and the resulting sentence was manifestly excessive.

6. This case involved a fairly meticulous degree of planning and execution. Although it cannot be said that it is the worst case of its type in terms of the injuries suffered by the victim, the boy nevertheless did receive injuries and there was a scald mark over his right buttock region. The learned deputy judge gave a total discount of five years from the starting point of 14. Assuming there was a one-third discount for his guilty plea, the judge must have given a further discount of four months for the seven and a half months which the applicant had spent in custody between his plea and sentence.

7. While it was appropriate to give the usual one-third discount for his plea, we are of the view that the deputy judge was over generous in giving any additional discount. The applicant must have realised, at the time of his plea, that he would have to serve a lengthy prison term for what he did. The time he spent in custody awaiting sentence would invariably count towards the term to be served. In this respect, we are unable to accept as correct the learned deputy judge's suggestion in his Reasons for Sentence that the period for which the applicant was kept in custody awaiting sentence could be looked upon as a mitigating factor. This is a nasty crime committed purely for personal gain and in total disregard of the well-being of the victim. The manner in which the boy was detained could well have caused him his life. It cannot be said that the starting point of 14 years adopted by the deputy judge and the nine year prison term imposed after discount was either wrong in principle or in any way excessive.

8. Having said that, we are informed by Miss Sin of the Department of Justice that the evidence given by the applicant in the re-trial of his accomplice had greatly strengthened the prosecution case resulting in the conviction of the person charged. The accused in that case is now serving a nine year prison term for the same offence. We are, therefore, of the view that the applicant's sentence should be suitably reduced to reflect the assistance which he has given to the authorities in bringing his accomplice to justice. In this context we feel that an overall discount of 50% of the 14 year term is not inappropriate.

9. The application for leave to appeal against sentence is granted. This hearing is treated as the appeal itself and we would allow the appeal to the extent that the nine year prison term is reduced to a term of seven years.