HKSAR v. MUHAMMAD RIZWAN AND OTHERS

CACC 232/2015

[2019] HKCA 643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 232 OF 2015

(ON APPEAL FROM HCCC 278 OF 2014 AND 150 OF 2015)

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JUDGMENT
AND
REASONS FOR JUDGMENT

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The Court:

A.     Introduction

1.  The applicants and two others (D1 and D2 on the indictment) were jointly charged with the offence of forcible detention 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.

2.  A second charge was laid against D1, D2 and D4 of the offence of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210.

3.  D1 and D2 absconded before trial and were tried, in absentia, together with the applicants who all pleaded not guilty to the offences with which they were charged. The trial took place before Toh J (“the judge”) and a jury in June 2015. On 23 June, by the verdict of the jury, the applicants and D1 and D2 were convicted of the forcible detention offence, and those who were charged with the robbery offence were acquitted of this charge.

4.  In order to make this judgment easier to read and less confusing, the applicants shall be referred to by the defendant number that was used at trial, that is D3 for the 1^st applicant, D4 for the 2^nd applicant and D5 for the 3^rd applicant.  

5.  On 24 June 2015, D3 was sentenced to 12 years’ imprisonment, D4 to 19 years’ imprisonment and D5 to 15 years’ imprisonment in respect of their convictions for the forcible detention offence.

B.     The applications before the Court

6.  D3 and D5 subsequently filed Notices of Application for Leave to Appeal but only against their convictions whilst D4 filed a Notice of Application for Leave to Appeal against both his conviction and sentence.  None were legally represented at the hearing of these applications.

7.  In documents filed with the court, D4 sought leave to amend his grounds of appeal in respect of both his appeal against conviction and sentence. At the hearing of his appeal we granted him leave to amend.

8.  Prior to the hearing D4 applied to the court for an Appeal Aid Certificate so that he could have legal representation for his appeals.  At the hearing D5 made a similar application.  We refused both applications.  We then enquired of each applicant whether they would be pursuing their appeals.  D3 and D4 then abandoned their applications for leave to appeal their convictions and we dismissed their appeals. 

9.  D5 chose to pursue his appeal.  Relevant to one of D5’s grounds of appeal was additional evidence which the respondent sought to adduce pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221. This new evidence went to the accuracy of D5’s criminal records.  One of the convictions in this document was disputed by D5.

10.  After hearing from D5 we refused him leave to appeal and dismissed his appeal. We invited D5 to address us on why we should not make an order against him for loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.  After hearing from him we directed that 2 months of the time during which he was in custody pending the determination of his appeal shall not be reckoned as part of the term of the sentence to which he is for the time being subject.

11.  These are our reasons for the orders we made refusing Appeal Aid Certificates to D4 and D5, for dismissing D5’s appeal against his conviction and for giving a loss of time direction in respect of D5.

12.  After hearing from D4 on his application for leave to appeal against his sentence we reserved our judgment. This is our judgment in respect of that application.

C.     The applications by D4 and D5 for an Appeal Aid Certificate

13.  These applications were made pursuant to Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D. Both D4 and D5 had previously made such applications but these had been refused.[1]

14.  The application of D4 was, however, quite different from his earlier application. In his present application he emphasized that it was not based at all on the merits of his grounds of appeal. Rather, its basis was a constitutional one. D4 argued that in order for him, as an impecunious applicant for leave to appeal, to meaningfully exercise his right to have a review of his conviction and sentence, he must be granted legal representation.

15.  D5, on the other hand, based his application on the merits of what he claimed was a new ground of appeal which asserted that he did not receive effective legal representation at his trial as he did not have sufficient time and opportunity to confer with his legal representative.

C.1    The application by D5

16.  We shall deal with D5’s application first.  Despite his claim that he based his application on a new ground of appeal, there was nothing new about it.  It was a reiteration of what he had asserted at the leave hearing.  In the leave judgment the single Justice of Appeal dealt with all the 10 grounds of appeal on which D5 was relying, one of which was that he had insufficient opportunity to instruct his counsel before trial.  The leave judge noted that D5 had been represented at trial by a very experienced counsel who clearly had a good grasp of D5’s case.  D5 gave evidence and the transcript of his examination by his counsel provides no basis for suggesting that the counsel was in any way unprepared or that his performance was somehow lacking.  We are not concerned with the number of conferences that D5 had with his counsel and whether D5 thought they were sufficient.  Lawyers are not at the beck and call of their clients.  They are there to protect the client’s interests and to provide him with a competent, professional service. Nothing that D5 has said in the materials on which he relied or in his oral submissions to us gave us any reason to call into question the competence of his legal representation. We did not see that this unsubstantiated allegation could form the basis of a reasonably arguable ground of appeal and so refused D5 an Appeal Aid Certificate.

C.2    The application by D4

17.  The constitutional argument of D4 was based upon Article 11(4), as read with Article 10 under section 8 of the Hong KongBill of Rights Ordinance, Cap 383 (“Bill of Rights Ordinance”).  The Article 11(4) right is as follows:

“Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”

18.  D4 argued that for this right to be meaningful there must be implied into the right of review the word “fair” so that the concept of fairness is imported into the process of the review.  For then, so the argument went, a review can only be a fair review if it is one in which the defendant is legally represented.  Only if he is legally represented will there be equality of arms within the adversarial process of the review.  It is not enough that he has a right to be heard, for he cannot fairly exercise this right within the process of review if he is not legally represented.

19.  D4 argued that the importance given to the merits of the proposed appeal as a factor in the decision by the Director of Legal Aid of whether to grant legal aid to an appellant, is wrong as it neither adequately nor properly gives effect to the Article 11(4) right.  His position was that:

“… the constitutional guarantee of a right of fair review requires, quite simply, the provision of legal aid in any and all cases where the applicant (or appellant) is out of funds with which to engage counsel him/herself.”

20.  D4 recognized that a test for the grant of legal aid which relies heavily on the merits of the proposed appeal has previously been sanctioned by the Court of Appeal but argued that those decisions are contrary to the constitutional right. 

21.  In the alternative, D4 submitted that in view of his personal circumstances, fairness requires that he be provided with legal representation.  The particular personal circumstance to which he referred is his linguistic disadvantage in not being able to understand and speak the language in which the appeal is being conducted.   

22.  There is nothing in the second complaint of D4 that his personal circumstances are such that he cannot have a fair review of his conviction without legal representation. This complaint, based upon his linguistic disadvantage, is remedied by the provision of an interpretation service. The judiciary’s interpretation service exists to neutralize the disadvantage from which some defendants suffer and places them in the same position as a defendant who is able to understand and speak the language of the court.  Our judicial officers regularly have unrepresented defendants before them who cannot speak the language of the court and our judicial officers are accustomed to engaging with them through the assistance of an interpreter.

23.  There is nothing unusual in any multi-cultural society to have persons involved with the courts who cannot speak the language of the courts. The problems they face from not being able to speak the language of the courts is not remedied by providing them with a lawyer but, rather, by providing them with an interpreter.

24.  In respect of the primary complaint of D4 there is, as he acknowledges, a body of case law in Hong Kong that addresses his argument. Although the case law is not recent, it all post-dates the Bill of Rights Ordinance and is concerned with the rights granted by it.

25.  The starting point is Article 11(2) of the Bill of Rights Ordinance which provides:

“(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality─

(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.” (Emphasis added.)

26.  This has to be read with Article 10 of the Bill of Rights Ordinance which provides:

“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. …” (Emphasis added.)

27.  In R v Fu Yan[2],Silke VP, in giving the judgment of the Court of Appeal, referred to Article 11(2)(d) and the reference in it to the “interests” of justice and said:

“Our concern in Article 11(2)(d) is with ‘the interests of justice.’”[3]

Then, at page 68, lines 19-39 he said:

“We find, bearing in mind that which has been said in other jurisdictions and on full consideration of Article 11 of the Bill, that there is no absolute right to legal aid in criminal trials or, a fortiori, in appellate proceedings. Nor is there an absolute right to be provided with a full transcript at public expense. Neither public funds nor judicial resources are limitless - (cf R v Munroe (1990) 59 CCC (3ed) 44). What must be viewed is the interests of justice overall, with a bias towards the interests of the individual appellant. As Mr Macrae has put it in his submissions, the case must be looked at as a whole and the most significant factor in any assessment of the interests of justice must be whether or not there are merits in the appeal.

…

… In our judgment what the Bill does is to broaden the construction to be placed on ‘the interests of justice’ which this court considers when determining whether it should or should not grant legal aid on the merits after a refusal by the Director. The Director himself is enjoined to consider the interests of justice. Rule 10 say that the Director shall not grant legal aid unless he is satisfied that it is desirable in the interests of justice. Bearing in mind the preamble to the covenant, we would make use of a more purposive construction and say that legal aid shall be granted where the interests of justice so require.”

He concluded by saying:

“In essence we find that, while Article 11 does apply to appellate proceedings, it confers no absolute right on an appellant for the grant of legal aid by this court, subsequent to a refusal by the Director [of Legal Aid]. While both the Director [of Legal Aid] and this court must consider the interests of justice this court will take a more liberal view of when those interests require the grant of legal assistance. In so doing it will consider the merits and whether there appears to be ‘reasonable grounds’. Every application has to be decided on its own merits.”[4]

28.  Fu Yan was followed in a subsequent decision of the Court of Appeal in R v Mirchandani[5] where Fuad VP, in giving a judgment with which the other members of the court agreed, said:

“An examination of the issues before us must, of course, begin by emphasising that, by its very terms, Article 11(2)(d) of the Bill of Rights recognises that there is no absolute right to legal aid ‘without payment’. Two conditions must be satisfied – ‘the interests of justice’ must require that legal aid be provided but only if the person concerned ‘does not have sufficient means to pay for it.’”[6]

29.  In Mirchandani, it was submitted that, in the circumstances of the applicantwho, unrepresented, had faced a lengthy trial that was factually and legally complex and which had resulted in a lengthy sentence of imprisonment, “an appellate court would be greatly assisted by legal argument and presentation by each side”. The court responded by saying:

“However, we know that that is not the only consideration. Since the cost of providing legal aid and assistance to those who cannot afford it is necessarily a charge on the public purse, there must surely be inbuilt mechanisms to regulate and limit the cost. Moreover, the availability of free legal aid must be measurable with due regard to the overall funds available for others before the courts and for the myriad needs of a sophisticated, well-ordered and caring society. Subject to what I will say presently, what proportion of available funds should be allocated for this purpose is a political decision and not a matter for the courts. Nor is it for the courts to presume to prescribe what degree of indigence should trigger eligibility for free legal aid, or what authority should determine the financial standing of an applicant for legal aid.”[7]

30.  The judgments of the Court of Appeal Fu Yan and Mirchandani have not been overruled by later decisions of the court and have not been considered by the Court of Final Appeal. As far as Hong Kong is concerned, the position remains that although the rights governed by Article 11 do apply to appellate proceedings, the Article does not confer an absolute right on an appellant for the grant of legal aid by the Court of Appeal, subsequent to a refusal by the Director. Furthermore, the determination of whether legal aid should be granted is on the ground that the “interests of justice” require it and this may involve a consideration of the merits of the intended appeal and whether there are reasonably arguable grounds of appeal.[8]

31.  Essentially, D4 was arguing that there is an absolute constitutional right at the appeal stage to free legal representation and that any test for legal aid which restricts that right, such as an “interests of justice” test, is unconstitutional.  Because the interests of justice test, as it has been construed in Hong Kong, involves having regard to the merits of the appeal it necessarily restricts access to the constitutional right. 

32.  D4 acknowledged that there is no case law in Hong Kong which supports his position.  Indeed, quite the contrary.  The Hong Kong case law is against him and so for us to depart from previous Court of Appeal authority which is otherwise binding upon us, we would have to be persuaded that it is plainly wrong.

33.  The researches of the respondent and our own researches have not been able to locate any case law from a relevant jurisdiction or human rights body that supports his propositions.

34.  In these circumstances we were not persuaded that any of his propositions were reasonably arguable and for these reasons we refused him an Appeal Aid Certificate.  

D.     The trial

D.1    The prosecution case

35.  The prosecution case was that on 25 October 2013 three Indian Sikhs were lured to Hong Kong to finalize a deal in respect of a piece of land located in the Punjab region of India.  On arrival they were kidnapped and a ransom of 100 million rupees was demanded for their release.  This demand is the subject matter of Charge 1.  The prosecution alleged that the applicants and D1 and D2, who were all in Hong Kong at the material time, each played a role in this kidnapping which was, because the victims were lured to Hong Kong, in its nature a cross-border crime.

36.  The prosecution also alleged that D1, D2 and D4 took away the luggage of the victims with force and this luggage was never recovered.  This appropriation of the victims’ luggage is the subject matter of Charge 2.

37.  Only one victim was willing to return to Hong Kong to testify in the trial and he was PW2.  He gave detailed evidence of what happened and the role that each member of the joint enterprise had played during the four days of the detention.  

38.  In a number of identification parades held by the police, PW2 positively identified D2, D3, D4 and D5 and in a separate photo identification, he positively identified D1.

D.1.1   PW2’s testimony

Friday 25 October 2013: Day 1

39.  PW2 explained how he owned land in Punjab, India that he wanted to sell[9]. He met a man called Gagi in India who claimed that he had a big company in Hong Kong and could introduce PW2 to his rich boss there who was interested in buying this land.  PW2, who had never before left India, agreed to come to Hong Kong to finalize this transaction.

40.  In the early morning of Friday 25 October 2013, PW2, together with two friends (“the victims”), arrived in Hong Kong after flying from Delhi.  At the airport, the victims were received by Gagi.

41.  Subsequently, D2 and D4 joined Gagi at the airport. Gagi described them as “close persons” of the boss whom they had come to meet. Gagi then left the victims with D2 and D4, who took them to a white 7‑seater van that was parked nearby.

42.  They were driven by D4 in this van to a village house at Wing Ling Lei, Pat Heung (“Location 1”).  There, the victims were taken inside and told that a meeting was being arranged with their boss and this meeting would take place in a farmhouse.  They waited for some two to three hours until D2 and an unknown male returned in a different van. They were then taken in this van, with their luggage to a recycling yard at Tai Tong Wu (“Location 2”) which was rented by D1.  They were kept at this location until the following day. 

43.  On their arrival at Location 2, the victims were immediately surrounded by seven men and taken inside. D2, D4 and D1, were holding choppers. D1 told them not to speak and to sit on the ground. He told them they had been kidnapped. D4 took a gun from another man and pointed it at PW2’s head, saying to him: “If you try to run away, I will shoot you.”[10]

44.  PW2 said this was the first time he saw D1, whom he described as acting as “playing the part of a leader; you can say leader at second place after Ali (ie D2)”.[11] He was giving instructions to others as well as carrying out assaults himself.  PW2 said he saw D5 many times at Location 2 and identified him as the man who had held an iron rod and assisted in tying them up with ropes.

45.  PW2 said the men then demanded a ransom be paid, or they would be murdered or handed over to a Chinese gang. They were also told to make arrangements for the payment of the ransom quickly, otherwise, they said, “we will cut you and throw you in the sea.”[12]  On one occasion D5 told PW2 that if he tried to run away, he would be killed.

Saturday 26 October 2013: Day 2

46.  On the following day, the kidnappers kept threatening and assaulting the victims.  D4 slapped PW2 on the face causing his turban to fall off. Although no weapon was used on him, he was punched and suffered considerable pain.  PW2 was told to call someone so that the ransom money could be quickly paid and, for this purpose, was allowed by D2 to call his brothers.  One brother was in Canada and the other was in India.

47.  Later, Gagi arrived. He instructed D1, D2, D4 and other unidentified men that they should be harsher with the victims until the ransom was paid.  He then left[13].

48.  Afterwards, D1, D2, D4 and D5 assaulted PW2’s companions by kicking them, punching them and hitting them with an iron pipe.  They suffered bruising injuries from the beatings.  PW2 claimed that D4 threw hot tea at him which burnt his mouth. In the evening, they were all tied up again and further assaulted.

Sunday 27 October 2012: Day 3

49.  In the morning, while the victims were still being kept at Location 2, PW2 told D1, D2 and D4 that his family had arranged some money to be paid.  Then, around 2 pm, the victims were taken, in a red van with D2, D4 and a few other unidentified men, to a small room inside a single-storey house at Fuk Hang Tsuen, Lam Tei (“Location 3”)[14].

50.  PW2 said he saw D2, D3, D4 and D5 present at Location 3. It was the first time he had met D3 who simply sat near them, guarding them and keeping an eye on them without saying anything. He said they were detained at Location 3 overnight but were not further assaulted or threatened.

Monday 28 October 2013: Day 4

51.  PW2 said D2 and D4 told him that there had been negotiations with his brother from morning until mid-day.  He was told that once they returned to India, they would still need to pay what had been promised.

52.  Subsequently, D2 told them they would be released. Their passports were returned to them by D2, D4 and D5 and they were given food and water by D3.

53.  At about 3 pm that day, a van arrived at Location 3. The driver was a Chinese male. The victims, together with D3, boarded the van and left for the airport. On arriving at the airport the victims and D3 alighted from the van. PW2 said D3 did not go into the airport with them and he did not talk to D3 either during the journey to the airport or after their arrival at the airport.

D.1.2   PW1’s testimony

54.  PW1 is the younger brother of PW2. He testified that in September 2013 he and PW2 had met Gagi, who was introduced to them by one of their acquaintances called “Pali” who was a relative of Gagi.  He explained how they discussed the land transaction that led to an agreement being formed and PW2 travelling to Hong Kong to finalise it.

55.  On 26 October, PW1 received a telephone call from PW2, telling him that he and those with him had been kidnapped and that a ransom had to be paid for their release. Later, one of the kidnappers spoke to PW1 and told him that if the ransom was not paid, the victims would be killed. PW1 immediately contacted his brother who was living in Canada for help. But they were still unable to come up with the amount of the ransom.

56.  On 27 October, PW1 met with Gagi and Pali, and paid them 500,000 rupees. However, the kidnappers were not satisfied and asked for more money. PW1, therefore, made a report to the Indian police, leading to the arrest of Pali and Gagi in India.

57.  On 28 October, PW1 received a call from Hong Kong informing him that the victims would soon be released, but that full payment would still have to be made.  Afterwards, he received a call from PW2 from Hong Kong airport telling him that he and his two companions had been released.

D.1.3   The vehicles used in the kidnapping

Day 1: Arrival at the airport

58.  In support of their case, the prosecution called the person who had provided the van which picked up the victims from the airport.  This person, PW4, was a garage owner at Cheung Sha Wan and he identified D4 as the person who had borrowed a van which had been left with him for repair, to collect some people and their luggage from the airport on 25 October[15].

59.  When PW4 subsequently became aware that the car may have been connected to criminal conduct, he telephoned D4 and inquired what he had done with the car. In reply D4 told PW4 not to say anything about lending the van to him, and he should lie to the police by saying that he left the car outside overnight and it was still there the next morning. 

Day 4: Transfer from location 3 to the airport

60.  The prosecution called PW7 who picked up the victims and D3 from Location 3 and transported them to the airport on Day 4.  PW7 said he had been hired by a Cantonese-speaking lady, later known to be the wife of D3. She said she wanted a vehicle to go to the airport and told him to wait at the public toilets of Fuk Hang Tsuen.

61.  At this location PW7 picked up four South Asian men, amongst whom was a turbaned male. One man told him that it was his wife who had requested a van to take them to the airport. This man was later identified by PW7 as being D3. After they arrived at the airport all passengers got off the van and went into the airport.

D.1.4   The forensic evidence

62.  The following forensic evidence was adduced by way of admitted facts:

(1)     the fingerprint of D3 was found on a wooden door at Location 2 and on a mirror at Location 3;

(2)     the DNA of D3 was found on three cigarette ends on the floor at Location 2, on two cigarette ends on the dressing table and four empty yogurt bottles at Location 3, and on two empty drink bottles outside Location 3 respectively;

(3)     the thumbprint of D5 was found on a metal table at Location 2;

(4)     the DNA of D5 was found on three drinking straws at Location 2; and

(5)     No fingerprints or DNA belonging to D4 were found at any of the Locations.

D.2    The defence case

63.  As D5 is the only defendant appealing his conviction we shall refer only to the case that he advanced at trial. 

64.  D5 gave evidence. He said he was a Form 8 recognizance holder, an asylum seeker, who arrived in Hong Kong in 2007. In October 2013, he was so poor that he had no money to support himself. He lived at times in gardens or in the staircases of old buildings in Choi Hung. He said he had lost his Form 8 and, in order to improve his financial position, went to see one “Ah Singh”, a cousin of D4. On 22 October, he approached Ah Singh for help and asked him to introduce D4 to him because he had heard that D4 helped poor people like him. D5 gave his telephone number to Ah Singh and left.

65.  Later Ah Singh called him and told him that he had mentioned his situation to D4 and arranged him to meet D4 who reassured him not to worry and to come with him. In the morning of 24 October, he accompanied D4 to Fanling in a taxi. Their destination turned out to be the recycling yard that was Location 2. Inside, he saw “Asif” (D1). They spent an uneventful day there.

66.  In the morning of 25 October, D5 unsuccessfully tried to call D4. Not knowing what to do, he called Ah Singh who was displeased that D5 had contacted and was rude to him.  He told D5 not to call him again. For the whole day he tried to call D4 but D4 did not answer his calls. At around 11:30 pm that night, D5 went to Location 2 as he had nowhere to go, arriving there at about 2:30 to 3 am on 26 October.

67.  He knocked on the door and, when no one answered, he shouted out asking the people inside to open the door for him. D4 opened the door and behind him stood D3 with a hammer in his hand together with another person who was holding a rod. D4 asked him why he came. He said it was because D4 did not pick up his calls. D4 then became angry and slapped him. D3 struck him from behind with the hammer and the other person struck him three times with the rod. Then, when he fell to the ground, they kicked him. During this assault on him, he was asked if he had come to spy on them, but he denied this. D2 said he believed him and told the others to stop assaulting him.

68.  Later, he was taken to a room where he saw three Sikhs sitting on a bed with their hands tied. This was the first time that he had seen the victims. D4 told D3 to give D5 a rod. He took it and on D4’s command, he used the rod to strike one of them, although very lightly. He returned the rod to D3. D4 was not happy that D5 had used so little force and so in order to “teach” him how to strike properly, D3 struck the rod very hard on D5’s back. D5 then took the rod and repeatedly hit the victim. 

69.  That day D4 took D5 to Tai Po to collect used boxes and iron and although he returned to Location 2, he did not see the victims again on that day.

70.  The following day, that is, 27 October, D5 was again taken to Tai Po to do work, but this time by D1. After completing his work, he was taken back to Location 2. At Location 2, D4 told him to go into the room and keep watching the victims. He did what he was told and sat with them for half an hour. He asked them not to move but to sit quietly, or else they would be beaten by them again. Apart from this he did not engage them in conversation.

71.  He recalled at one stage two of the victims, who were younger in age, were taken out of the room and tied up and the one left in the room was beaten very badly by D4. After that, D4 left the scene with only D3 and D5 remaining as guards. On his return, D4 told D3 to loosen the knots of the three victims, adding that they would be released in due course. PW2 was even allowed to take a shower and pray. Then the victims were taken away, but D5 was left behind. He said this was the last time he saw the victims.

72.  It was D5’s case that he was “compelled” to do what he did as he feared his life would be in danger if he refused their commands. He denied being a willing member of the criminal enterprise.

73.  D5 was cross-examined on his criminal record. He admitted to having been convicted, after pleading guilty, of using someone else’s Hong Kong Identity Card in order to gain employment and was sentenced to 12 months’ imprisonment. This was in 2009. In 2014, he was charged with theft of a hotdog and bun, to which he also pleaded guilty, and which he said he committed because he was hungry.  Also in 2014, he was convicted of possessing an identity card relating to another person. It was put to him that the 2009 conviction was actually two convictions for the same offence with the sentence for the second conviction being ordered to be served partially consecutively to the sentence for the first offence, making a total sentence of 12 months’ imprisonment. He denied there were two offences in 2009. He claimed that there was only one offence in 2009 and one offence in 2014 and that the criminal record of the police was wrong.

E.     The judge’s Reasons for Sentence

74.  The defendants were sentenced on 24 June 2015 for the forcible detention offence as follows:

(a)     D1 and D2 – 19 years’ imprisonment;

(b)     D3 – 12 years’ imprisonment;

(c)     D4 – 19 years’ imprisonment; and

(d)     D5 – 15 years’ imprisonment.

75.  The judge described the offence as a very well-planned and professional criminal enterprise. The victims were detained for three days and made to fear that at all times their lives were at risk. PW2 had a heart condition and the experience could easily have cost him his life. For such a serious offence a deterrent sentence was needed. 

76.  In sentencing D1 and D2, the judge described them as the leaders of this criminal enterprise as they were the ones giving orders to threaten and assault the victims and had themselves participated in the assaults. D1 was also the tenant of the recycling yard, that is, Location 2.

77.  The judge also took into account, as aggravating features, the international element, the detailed planning that went into this offence, the use of weapons, the threats of death that were made, and the fact that the victims were restrained in squalid conditions. She adopted a starting point of 18 years which she then enhanced by 1 year to allow for the aggravating feature of the crime being international in nature, totaling 19 years’ imprisonment for both D1 and D2.

78.  In sentencing D3, the judge assessed his level of culpability for this offence as being “relatively minor” as he only appeared at Location 3 performing a guarding role and providing the victims with food and water. He was also responsible for taking them to the airport and leading them up to the ticket counter. The judge found that he played no part in threatening or assaulting them, and in fact, he must have shown some sympathy towards them otherwise PW2 would not have thanked him at the airport. The judge adopted 14 years as her starting point but reduced it to 12 years’ imprisonment because of the sympathy D3 had shown.

79.  In sentencing D4, the judge assessed his level of culpability for this offence as being totally on a par with that of D1 and D2. D4 took part from the very beginning by borrowing a vehicle, picking up the victims from the airport with Gagi and D2, and driving them to Location 1. He was also present at Location 2 and threatened them with a chopper and a pistol. D4 also demanded that the ransom be paid, and upon Gagi’s order, he tortured the victims. He, together with D2, transferred the victims to Location 3. As with D1 and D2, she adopted a starting point of 19 years’ imprisonment for D4.

80.  In sentencing D5, the judge found that he was present at Location 2 and threatened the victims with an iron rod. He assaulted them with this iron rod and threatened to behead PW2 if he tried to escape. He also took part in tying up the victims. D5 was also present at Location 3 and returned one of the passports to the victims. The judge therefore assessed his role in this offence as more serious than D3 but less serious than D1, D2 and D4. She, therefore, sentenced him to 15 years’ imprisonment.    

F.     D5’s application for leave to appeal against conviction

81.  D5’s grounds of appeal against conviction are set out in his Form XI dated 15 July 2015 and letters dated 24 April 2017, 12 June 2018, 14 June 2018, 5 September 2018 and an undated 17-page submission that he wrote to the court. They can be summarized as follows:

(i)     there was misuse of his criminal record, both in cross-examination and final submissions by the counsel for D4, as a result of his criminal record being factually wrong in respect of his 2009 conviction;

(ii)    there was insufficient opportunity for him to instruct his counsel before trial;

(iii)    the summing-up by the judge was unbalanced in that she influenced the jury to disbelieve the applicant’s evidence;

(iv)    there was misuse of certain “Yes” answers that the applicant gave to questions as to his character when he was not indicating agreement with the propositions contained in the questions. The judge did not address this with the consequence that the jury would have been uncertain of the applicant’s evidence;

(v)     there was unfair cross-examination of the applicant by D4’s counsel on the use of another person’s wallet which the applicant picked up in Wanchai which confused the judge and led her into erroneously indicating agreement with D4’s counsel;

(6)     in her summing-up the judge erred in stating the dates on which, according to the applicant’s evidence, certain events happened and this would have affected the jury’s view of the applicant’s evidence;

(7)     there was an erroneous direction to the jury on the use they could make of the applicant’s criminal record;

(8)     there was an unfair direction to the jury in respect of the publicity surrounding the kidnapping resulting in an unbalanced direction;

(9)     the use by the judge of the prosecutor’s robbery example when explaining “joint enterprise” gave the jury the impression that the judge favoured the prosecution; and

(10)   there was incorrect interpretation of parts of the applicant’s evidence.

82.  At the hearing of his application D5 did not add anything to his written submissions.

G.     Discussion

83.  All the complaints of D5 were thoroughly examined and analysed in the leave judgment of the single Justice of Appeal and, for the reasons set out in that judgment, are all devoid of merit.

84.  In respect of D5’s criminal record, the results of further investigations by the respondent, which we have received by way of additional evidence pursuant to section 83V of the Criminal Procedure Ordinance, Cap, 221, shows beyond any doubt that the criminal record is accurate. Either D5 has an inaccurate recollection of events or he is deliberately seeking to mislead the court by manufacturing a false ground of appeal.

85.  D5’s complaint about his counsel is, unfortunately, all too commonly made by the defendants unhappy with the outcome of their trial. D5 has not been able to substantiate his complaint and so we saw no need to further investigate it. This type of complaint has all the hallmarks of a desperate last ditch attempt to blame his counsel for the verdict of the jury and making this kind of ground of appeal has been deprecated by this court and the Court of Final Appeal in the strongest of language.

86.  We have carefully considered the judge’s summing-up and can find no fault with it. The judge fairly placed the prosecution and defence cases before the jury and the fact that the jury chose to believe the prosecution witnesses was not due to any improper influence she brought to bear on them.

87.  This was a simple case of whether PW2’s evidence that D5 was one of his kidnappers was reliable and credible evidence. That was clearly a matter for the jury and their decision to accept and act on the evidence of PW2 was clearly one that was open to them to make. We can find nothing in the summing-up which would have improperly or unfairly influenced them in coming to this decision.  

H.     D4’s application for leave to appeal against sentence

88.  The 3 amended grounds of appeal against sentence are:

(1)     D4’s sentence was manifestly excessive in that he received the same sentence of imprisonment as D1 and D2 (ie the ringleaders) who were more culpable than him and hence would have deserved a longer sentence.

(2)    D4’s sentence was manifestly excessive compared to other kidnapping cases in Hong Kong.

(3)     The judge erred in imposing a one-year enhancement due to the “international element” in the present case.

89.  D4 filed no further written submission in respect of his appeal against sentence. At the hearing of his application he expressed his remorse for his actions and requested the court to extend to him mercy and leniency.

I.     Discussion

90.  In a nutshell D4 argues that:

(i)     the starting point of 18 years’ imprisonment was too high;

(ii)     the enhancement of that starting point by 1 year to allow for the international element was erroneous; and

(iii)    the assessment of the judge that D4’s culpability should be equated with the culpability of D1 and D2 was also erroneous.

91.  We find no merit in the first and second complaints. There is no doubt that the judge adopted a starting point at the high end of the usual range for the forcible detention offence when she was assessing what was appropriate for D1 and D2 whom she regarded as the leaders of this joint criminal enterprise. In doing so, she emphasised a number of matters. The first was the nature of the crime which she described, and in our view correctly so, as “a very well-planned and very professional criminal enterprise that crossed international borders.”[16] The second was the gravity of the offence as it involved moving the victims from one location to another over the course of three days, threatening them with torture and death and reinforcing the fear engendered by such threats by the actual application of violence to them. Thirdly she emphasized the need for deterrent sentences; a need that would, inevitably, neutralize the mitigating benefit of any personal circumstances.

92.  The judge was absolutely correct in all of her comments, in her assessment of the gravity of the offence and in the direction she gave herself that personal circumstances must yield to the need for a deterrent sentence. The period over which the unlawful detention lasted, the number of victims involved, the size of the ransom sought for their release, the threats made to them and the violence inflicted on them all contribute to this being an offence of the utmost gravity. It cannot possibly be said that for the leaders of this joint criminal enterprise a starting point of 18 years’ imprisonment is manifestly excessive.

93.  Nor was there any error of principle in the judge’s decision to enhance her starting point to allow for the aggravating factor that this was a cross-border crime committed in Hong Kong. The aggravating factor arises because the only reason for the victims being lured to Hong Kong and for some of the offenders to come to Hong Kong was so that a crime could be committed here. That has long been regarded as an aggravating factor for sentencing purposes.

94.  The judge enhanced her starting point by 12 months to allow for this aggravating factor. This was an exercise by her of her sentencing discretion. We cannot say that in the circumstances of this offence it was unreasonably excessive and we can detect no basis for otherwise saying her discretion miscarried. Indeed, it seems to us to be a wholly appropriate enhancement for an offence of this level of seriousness committed within our territory.   

95.  The final issue is the judge’s assessment of D4’s culpability as a participant in this joint criminal enterprise. The judge assessed the level of culpability of the defendants, in descending order as follows:

(1)     D1, D2 and D4;

(2)     D5;

(3)     D3.

96.  The judge was clearly aware that she was entitled to distinguish between the culpability of participants in a joint criminal enterprise where there was a factual basis for so doing. No complaint is made by D4 about the distinctions she made other than in respect of himself. Thus, he does not argue that D1 and D2 can properly be characterized as the ringleaders or that D5 and D3 were subordinate to them or that D3 can be distinguished from D5. What he does complain about is that his level of culpability is assessed to be on a par with D1 and D2.

97.  The reason why the judge equated the participation of D4 with that of D1 and D2 was explained by her in her Reasons for Sentence. She said:

“In the case of the 4th accused, he played just as an important part as the 1st and the 2nd defendants. He was in this enterprise from the very beginning. He picked the victims up from the airport with Gagi and the 2nd defendant, and took the victims to the first location. After leaving them there, the next time Mr Mangat saw the 4th accused was in the second location where he was one of the persons who surrounded the victims.

He was holding a chopper and threatened the victims and at one stage even held a pistol to the head of the victim Mr Mangat and told him that he was kidnapped and that he was to shut up and sit down. All the victims were tied up and they were told that if they wanted to be released, they would have to pay a ransom of 100 million rupees or their lives will be in danger.

On 26 October, the 2nd and 4th defendants told the victims that they have to pay the ransom and allowed Mr Mangat to call his brothers in India and Canada. After that, Gagi gave the order that the victims should be tortured. The 4th accused then took part together with the 2nd accused in assaulting the victims by punching and beating them with iron rods and tying them up. On 27 October, the 2nd and 4th accused took the victims to the third location.

Clearly, the 4th accused’s role is comparable to that of the 2nd accused. He also was the person who borrowed the van which picked up the victims from the airport and took them to the first location. The van owner gave evidence and said that after matters came to be reported to the police, the 4th accused told him to lie to the police if the police should ever ask him about the van.

So without hesitation, I am fully convinced that the 4th accused’s role in this case is totally on a par with the 1st and 2^nd defendants and so I sentence him to 19 years’ imprisonment.”[17]

98.  From these comments it is clear that her conclusion that D4’s role “is comparable to that of the 2^nd accused” is one based on findings of fact as to what D4 actually did in assisting D1 and D2 to carry out this criminal enterprise. The findings of fact are not open to criticism and it cannot be said that her conclusion, on these findings of fact, is in any way unreasonable.

99.  This was a joint enterprise crime. The sentencing principle for joint enterprise crimes is that participants knowingly lending their assistance to advancing the criminal enterprise do not receive a lesser sentence simply because their role was different from that of other participants. There must be something about the others, such as being the ringleaders, or themselves and their conduct, that lessens their culpability. 

100.  There was nothing in the defence case which assisted D4. He did not give evidence but his video record of interview was produced by way of admitted facts. The interview was conducted upon his request after PW2 had identified him in the police identification parade. Not surprisingly, the content of his video record of interview was entirely exculpatory and portrayed his involvement with the victims as being very limited and entirely innocent. By their verdict the jury clearly rejected the explanations he gave in his video interview and so there was no reason for the judge to have any regard to them when assessing his culpability.

101.  The judge, in assessing D4’s culpability as being comparable to that of D1 and D2, was saying that there was nothing about his participation in this criminal enterprise which clearly distinguished his culpability from that of them. We cannot find any error in her reasoning process in reaching this conclusion.

J.     Loss of time direction in respect of D5

102.  Prior to the hearing of his application D5 had applied twice to the Director of Legal Aid for legal aid to be granted to him. The Director refused him legal aid on 16 October 2015. This decision was made “after having considered all the circumstances of the case including the merits of the appeal” and finding himself “not satisfied that it is desirable in the interests of justice to grant you legal aid.” He then applied for legal representation to the Hong Kong Bar Association’s Bar Free Legal Service Scheme. On 30 May 2016 he was informed “that the decision that has been made is that there is no merits in your appeal against his conviction.  Accordingly, your application has been rejected.” In the same letter he was reminded of the Court of Appeal’s power to order loss of time under section 83W of the Criminal Procedure Ordinance “should it consider your appeal against conviction completely without merits.” The letter ended with this salutary advice to D5:

“We would therefore urge upon you to seriously consider whether you wish to take the risk of having an order for loss of time made against you by pursuing the application for leave to appeal against conviction.”

103.  He then applied to the Court of Appeal for an Appeal Aid Certificate. This was heard by a single Justice of Appeal on 20 April, 21 May and 22 June 2018. The Justice of Appeal reserved his decision and handed down a written reasoned decision on 9 July 2018. In that decision the judge addressed the 10 complaints on which D5 relied to challenge his conviction and explained why he had reached the conclusion that there was no merit in any of them and was, therefore, refusing the application.

104.  Subsequently, D5 again applied to the Director of Legal Aid for legal aid and again he was refused. This refusal, which included a consideration of the merits of the appeal, is dated 5 September 2018.

105.  Notwithstanding that he had been twice rejected by the Director of Legal Aid and been separately told by a different lawyer from the Bar Free Legal Service Scheme and by a single Justice of Appeal that there was no merit in his grounds of appeal, he nevertheless repeated his application for an Appeal Aid Certificate.  This application was based on the merits of his grounds of appeal, and more specifically on the particular ground of appeal which he asserted was new.  He then received the considered decision of this court, composed of three judges, refusing his application because this court could not see any merit in his grounds of appeal.  Unswayed by this rejection of his application, and the view that this court had indicated of the merits of his appeal, he nevertheless decided to pursue his appeal.

106.  We have already indicated in our discussion of his application for an Appeal Aid Certificate and his application for leave to appeal his conviction that there is no merit in any of his complaints.  In the circumstances we were satisfied that this is an appropriate case for the exercise of our power under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 and accordingly we directed that 2 months of the time during which D5 was in custody pending the determination of his appeal shall not be reckoned as part of the term of the sentence to which he is for the time being subject.  

K.     Disposition

107.  For these reasons we refused D4’s and D5’s applications for an Appeal Aid Certificate and D5’s application for leave to appeal his conviction, dismissed his appeal and made the loss of time direction that is contained in the preceding paragraph.  In respect of D4’s application for leave to appeal his sentence, we refuse the application and dismiss his appeal.