THE QUEEN v. CHEUNG MAN CHI (D1) AND OTHERS

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JUDGMENT

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Liu JA:

1. Cheung Man-chi was convicted of kidnapping, murder and preventing unlawful burial of a corpse. He was sentenced to life for murder, 5 years for kidnapping and 2 years for the remaining offence. The 5 years and 2 years sentences were ordered to run consecutively but concurrently with the life imprisonment. Wong Chi-moon was convicted of kidnapping and murder. He was sentenced to 5 years for kidnapping and life for murder. He also faced a drugs indictment before the judge, which was dealt with accordingly. The other sentences are to run consecutively, but they are concurrent with the life imprisonment. Chun Yiu-wah, the youngest of the three applicants, was convicted of kidnapping, murder and preventing the lawful burial of a corpse. He was sentenced to 5 years' imprisonment, life and two years respectively. The 5 years and 2 years sentences were ordered to run consecutively; they are to be served concurrently with the life sentence. We shall call them Cheung, Wong and Chun.

2. Cheung was the former employee of Ng Tang-chak who was the victim in the kidnapping and murder charges. Cheung had been dismissed at the instigation of the father of Ng Tang-chak. But he and the victim stayed friends after the dismissal.

3. On the 15 November 1993, in a car driven by another accomplice, Cheung assisted by Wong and Chun had the victim kidnapped. Cheung identified the victim to Wong and Chun who forcibly took the victim into the car. The victim was taken to a bungalow rented by yet another member of the group. He was detained there against his will, bound and gagged and subjected to along period of discomfort and abuse. It was attempted to extract money from the victim who declined to divulge his true ATM machine PIN number. The victim was a successful young businessman of 21. The kidnap was planned out of sheer greed. Later, they succeeded in obtaining a cheque from the victim but the amount on the cheque was over the authorised payment-out limit. Cheung, Wong and Chun had the victim suffocated by using a pillow and string. The victim's belongings were pawned. A bag was acquired into which his body and some stones were put. The bag was thrown into the sea near the Wong Shek Pier in Sai Kung and it was retrieved by fishermen on 19 November. Except for the murder charges, the applicants pleaded guilty to the kidnapping and the other charges at various times of the proceedings.

4. Cheung identified the victim for the kidnap by Wong and Chun. They treated the victim miserably in the bungalow. All three were in it together when the victim was suffocated. Again all three together with another accomplice who turned Crown witness disposed of the bag holding the body of the deceased. We have examined the papers in this case with care. We can find nothing in the papers before us, which would provide any meritorious ground for granting leave to appeal to any of the applicants. Our conclusion is fortified by the information supplied this morning by counsel for Chun. The case of Cheung and that of Wong, we are also told, has been looked into by respective counsel under the auspices of the Legal Aid Department. Also no valid ground in support of the applications has been unearthed. The evidence together with that from a member of the group who turned Crown witness was overwhelming. There were also statements from each of the applicants. Cheung claimed at the trial that he was subjected to physical violence. Wong explained that his statement was supplied under pressure and threats by the police. According to Wong, the police threatened to implicate his father on drugs charges. Chun also objected to the admissibility of his statement which was allegedly induced by a police promise to accept him for a prosecution witness. After voir dire, their respective statements were admitted. The jury had the benefit of these statements, the evidence of an accomplice and the other circumstantial evidence against them in this case. They had pleaded guilty to kidnapping and the other charge. The jury also returned a verdict of guilty of murder. There is no substance in the grounds of appeal of each of the applicants. We have also taken into consideration what has been said to us this morning. We can find nothing in support of the applications for leave to appeal against conviction. In the circumstances, their applications for leave to appeal against conviction must, in each case, be dismissed.

5. Cheung was sentenced to 5 years' imprisonment for kidnapping, life for murder, 2 years for preventing a lawful burial of a corpse. The sentences for 5 years and 2 years were ordered to run consecutively. Both sentences are to run concurrently with the life imprisonment. I have recounted the background in entertaining his application for leave to appeal against conviction. It was a dreadful crime both in kidnapping and murder, particularly when Cheung had that done to his friend and former employer. The penalty for murder is statutory. We cannot interfere with the life imprisonment. The 2 years' imprisonment for preventing a lawful burial of a corpse is, we find, appropriate. As for kidnapping, the maximum allowed by law is 7 years. Cheung was given a discount for his plea of guilty and 5 years' imprisonment was imposed upon him. The trial judge commented that the statutory maximum of 7 years for kidnapping is "very low" and that it is time those responsible, including our legislature, should take a second look at the statutory maximum. We wish to express our complete concurrence with the remark of the judge. There is nothing in Cheung's application for leave to appeal against sentence. We can find no justification for interfering with the sentences passed upon him. His application for leave to appeal against sentence is therefore dismissed.

6. Wong was convicted of kidnapping and murder. He was given life for murder and 5 years for kidnapping. That was because he pleaded guilty to kidnapping and a discount was given by the judge. He was given 5 years just because of the low statutory maximum for kidnapping. Wong heard what this Court say about the low maximum penalty for the crime of kidnapping. The discount given to him for his plea of guilty was reasonable and appropriate. The penalty for murder is statutory. There is nothing in his case to enable this Court to fault the sentences imposed. His application for leave to appeal against sentence is likewise denied.

7. Chun is the youngest of the three. The judge was aware of that fact. But that does not detract from need to impose a condign punishment for the serious crime which he has so senselessly committed. Chun was convicted of murder for which he was given life. For kidnapping, a crime of which he was also convicted, he received a term of 5 years. He was given 2 years' imprisonment for his conviction of preventing the lawful burial of a corpse. The sentences of 5 years and 2 years are to run consecutively. Both the sentences are to run concurrently with the life imprisonment. Chun also heard what this court say about the low statutory maximum for kidnapping. The penalty for murder is statutory. There is no merit in his application for leave to appeal against sentence. The sentences are neither manifestly excessive nor wrong in principle. Therefore his application for leave to appeal against sentence is also refused.