ATTORNEY GENERAL v. LEE PO MAN DAVID

Headnote

Sentence: "kidnapping": use of cholroform: immediate custodial sentence on 19 year old proper

IN THE COURT OF APPEAL

1991, No. 17
(Application for Review)

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. David Lee Po Man appeared for trial before Gall, J. upon an indictment containing two counts; the first, forcible detention contrary to section 42 of the Offences against the Person Ordinance Cap. 212 - "the Ordinance"; the second, administering chloroform with intent to commit an indictable offence, contrary to section 21 of the Ordinance.

3. He pleaded guilty to both offences. Having obtained Probation and Training Centre Reports, the trial judge made a Training Centre Order.

4. The Attorney General now seeks, pursuant to leave granted on 19th December 1991, to ask this court to review that sentence under the provisions of section 81A of the Criminal Procedure Ordinance.

5. At the conclusion of the hearing, we allowed the Attorney General's application, set aside the Training Centre Order and substituted for it a sentence of 5 years imprisonment. We stated we would give our reasons later and this we now do.

6. The respondent, who was aged 19, found himself in financial difficulties. He had used up a fund to which he had the right of access and which had been left in Hong Kong by his mother to assist him in his studies and for general maintenance. He comes from a family in Brunei, his father being a baker in Seria and his mother works there. The money was his mother's life saving. He had become engaged in gambling and had lost money in Macau, having first been successful, and then found himself in the clutches of a loan shark.

7. He conceived the idea of kidnapping a child, but had no particular victim in mind, and holding the child to ransom. On 3rd June 1991 an 8 year old boy with his friend were on their way to the afternoon session of their school. They were approached by the respondent who told them a tale of having dropped a key into a hole. He could not get his hand to fit into the hole. He asked the boys to help him. The respondent had a toy car which he showed to them and told them he would give it as a reward if they did help him. The 8 year old boy was attracted by this offer. His friend refused to take part and continued on to school. The respondent took the boy to the car park entrance of a building in Hollywood Road and showed him a hole beneath a staircase telling him to put his hand in there to search for the key. The boy did so but was unable to locate any key. The respondent then covered the boy's mouth with white tissue paper which was soaked in chloroform. The boy became unconscious. He came to when he was in the back of a taxi with the respondent and became physically ill. The respondent and the boy got out of the taxi and got into a second taxi which took them to a pier at which they boarded a sampan. The respondent then took the boy to a hut in Kau Chau Chuen Village on Kau Sai Chau Island.

8. When there he asked the boy details of his family such as his parents names, whether he had brothers or sisters, what kind of a home he had and his telephone number. The boy gave those details and then went to sleep.

9. The friend, on reaching school, reported the incident to his teachers. There was a search to locate the boy and, when that was unsuccessful, the boy's mother was notified. At 3:00 p.m. she received a telephone call from the respondent who told her that her son was in his hands and that she should not report the case otherwise she would not see her son again. The mother asked to hear the voice of her son and was told by the respondent that he would telephone again that night. In fact the boy, who woke up very shortly after the telephone call, was taken to a village store and there spoke to his mother on the telephone. There was no other conversation at that point. A little later again the respondent telephoned the mother and asked how much her son was worth. When the mother replied she did not know, the respondent said "Lets see" and hung up. It was now about 3:40 p.m. At 3:55 p.m. the respondent telephoned the mother again and demanded the sum of $200,000. The mother said that she did not have that money and in fact she had no money at all. The telephone conversation ceased.

10. At 4:50 p.m. the respondent telephoned yet again and told the mother to expect a call at 11:00 a.m. on the following day. Five minutes later, he made a further call repeating what he had said. In the course of this call the mother said she did not have enough time to collect $200,000 and the respondent replied he would call at mid-day rather than 11:00 a.m.

11. The respondent fed the boy some bread and water and the boy went to sleep in the hut. The respondent slept there also.

12. At 11:50 a.m. on the following day, the 4th June, the respondent telephoned and asked if the money were ready. By this time a full scale investigation had been set up by the police into the kidnapping and the phone call was monitored. In activating the monitor the mother inadvertently cut off the telephone conversation. At about mid-day the respondent telephoned again and the mother said she really did not have the money. The respondent then informed her that he had five bombs tied to-her son. He told the boy to state on the phone that he had been tied up and that five pieces of things were tied to his body. Then the mother was permitted to speak to her son who told her he was scared and asked her to come quickly to save him. He repeated that which he had been told to say by the respondent. The respondent reduced his demand to $80,000 saying:

"Your son's eye and kidney worth more than that, and you purchased a new flat."

13. Further calls were made by the respondent to the boy's father in which instructions were given for the delivery of the sum which had by now become $50,000. The father on going as he was told to the Excelsior Hotel coffee shop, was there contacted by the respondent and told to go to the Victoria Hotel coffee shop. This the father did and the respondent contacted him there asking if the money were ready. The father replied it was. He was told to wait for a further call. That further call came and the father was told to go to the lift lobby and, when there was nobody in the lift, to press the buttons for the 3rd, 2nd, 1st and ground floors and to throw the money inside. The father, under the surveillance of the police, did as he was told. About 10 minutes later he was contacted by the respondent and was told the money had been received and that the bombs would be removed from the boy and the boy returned to the Excelsior Hotel. The money was marked money.

14. The telephone calls were traced to a premises in Cheung Chau and observation on that premises was set up. At 6:25 p.m. the respondent was seen going into it carrying gloves and holding a brown envelope in his hand. At 8:34 p.m. he came out of the premises with the boy. The police moved in, released the boy and immediately arrested the respondent who made a full confession to the police.

15. The judge was informed by counsel then appearing the respondent, that at one point in the journey to Kau Chau Island, the respondent had become alarmed because boy was unconscious. He had taken the boy to the Tan Kin Hospital but, upon reaching it, he found the boy had become conscious again. He then continued his journey to the island. The two were found at Cheung Chau as the boy had, in the course of his detention, been taken back from Kau Sai Chau Island to Central and from there, by way of another ferry, to Cheung Chau.

16. The reports which the trial judge received showed that the respondent had been a very good student and certificates from the academic institutions which he had attended testified to that. He was the bright hope of his family and had a possibility, were he to successfully complete a repetition of his final academic year, of being accepted in Hong Kong University. He has a clear criminal record. His family were and are very concerned about his future.

17. While the victim may have been chosen at random this was nevertheless a well planned kidnapping aggravated to a large degree by the respondent's use of chloroform to effect his purpose. The viciousness of the threats made - and no parent can discount threats of this nature for fear they may be carried into reality - can only have caused the greatest anxiety to the mother and father of this boy.

18. In his persuasive mitigation counsel at trial had drawn the attention of the trial judge to all the many factors which concerned the respondent including his age, his supportive girlfriend, his clear record, his plea of guilty at the first opportunity and his family circumstances.

19. The judge, having all this in mind - as he did the contents of the Reports he called for - not surprisingly, confessed to having considerable difficulty in deciding what ought to be the appropriate sentence. He accepted that the offences were serious and ones which would, in normal circumstances, attract "very considerable sentences of imprisonment". He accepted the respondent had worked alone and not with others. He thought it to be a tragedy that the respondent should have done so well at school only to fall victim to his gambling propensity.

20. The maximum period of imprisonment provided by the legislature for each of these offences is life imprisonment. The offences are excepted offences under section 109B of the Criminal Procedure Ordinance. The trial judge realised that by making a Training Centre Order he was taking, as he put it, "a somewhat exceptional step". He said that he thought an endeavour to "rehabilitate rather than to wreak vengeance upon you is probably to be desired."

21. It was unfortunate that the trial judge did not receive the assistance to which he was entitled from counsel then appearing for the Crown. Authorities on the line of sentencing for offence of this nature which have been brought to our attention were not brought to his. If what was said in R. v. Shiu Kwok Kwan and Others, Criminal Appeal 360/1987 had been drawn to the trial judge's attention, it is probable that he would have adopted a different approach to sentence. There this court said at page 10, in considering, amongst other things, an appeal against sentence imposed for conspiracy to forcibly detain a person:

". . we do not think that the course he suggests [Training Centre] would be the proper one to take here. Conspiracy to kidnap is an offence of considerable gravity and we think that the circumstances of this case dictated that a custodial sentence was inevitable."

The court did not consider that the 5 years imprisonment which had been imposed on an youth of 18 to be in any way excessive.

22. In R. v. Kau Ka Shing, Criminal Appeal 148/1985Huggins, V.P. said:

"In our view, and we repeat what was said in A.G. v. Chan Ka Shu AR 4/1984, anyone who was convicted of kidnapping must expect to receive a heavy sentence."

23. In The Queen v. Chan Yuk Lun Criminal Appeal 394/1984, in delivering the judgment of the court, Kempster, J. (as he then was) said at p.5:

"In the final analysis the sentences of the Courts reflect the relative degrees of wickedness involved in offences and the      revulsion of society to, for example, violence and unbridled avarice. In 1982 the maximum sentence for an offence under  section 42 of the Offences against the Person Ordinance, that is kidnapping, was increased from 14 years to life imprisonment. A substantial element of deterrence is also called for in such circumstances as gave rise to the present proceedings."

24. Kidnapping can cause great harm to the victim himself and, in addition, enormous distress to the family of the victim - here an 8 year old boy. The youth of an offender, while a factor to be borne in mind, is not a pre-dominate one. Deterrence is. The degree of planning and aggravating circumstances have weight in the sentencing process. We here have in mind the new matters placed before us, the progress report from the Training Centre and the respondent's letter in which he expressed remorse.

25. The sentencing court was entitled to take a global view of sentence and to impose sentences which would take into account both the offences. A starting point here of 10 years would not have been inappropriate. Due allowance should then have been made for the plea of guilty and the circumstances of the offender. This should have resulted in a sentence, at trial, of 7 years imprisonment - a sentence which in our view was appropriate both to the offence and the offender.

26. We find that the Training Centre Order made was a sentence which was manifestly inadequate and an immediate custodial sentence should have been imposed.

27. As we were altering the nature of the sentence imposed on this young man and in effect, increasing the period of deprivation of liberty substantially, we viewed this as a case in which a discount on Review was proper. We therefore imposed a sentence of 5 years imprisonment.