HKSAR v. CHAN KAU HUNG AND OTHERS

CACC 533/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 533 OF 2000

(ON APPEAL FROM HCCC 149/2000)

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J U D G M E N T

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Hon Lugar-Mawson J (giving the judgment of the court):

1. On 15 December 2000, the 1st, 2nd and 3rd Applicants who were the 1st, 2nd, and 3rd Defendants at trial, pleaded guilty before Deputy Judge Esther Toh in the Court of First Instance, to one count of forcible detention of a person with intent to procure a ransom for his liberation, contrary to s. 42 of the Offences against the Person Ordinance, Cap. 212. The offence commonly called 'kidnapping'. They faced this, which is the sole count on the indictment, jointly with two other persons, including MOK Chong-I, the 4th Applicant, who was the 4th Defendant at trial. She is a teenage girl who was 16 years and 8 months old at the time of the offence.

2. On 21 December 2000 the judge, having taken a starting point of 15 years' imprisonment, sentenced the 1st, 2nd and 3rd Applicants to 10 years' imprisonment, after giving the accepted one-third discount to reflect their guilty pleas.

3. The two remaining Defendants on the indictment, the 4th Applicant and an adult man, who was the 5th Defendant, elected to stand trial. The man was unanimously acquitted, but the jury unanimously convicted the 4th Applicant on 18 December 2000. Obviously, from their verdict, they rejected the exculpatory version of events she gave in evidence before them.

4. Before sentencing the 4th Applicant, on 11 January 2001, although she was not bound to do, kidnapping being an excepted offence under s. 109A of the Criminal Procedure Ordinance, the judge had earlier obtained and considered social welfare and probation reports in respect of her. Having adopted a starting point of 7 years' imprisonment in the 4th Applicant's case, she discounted that by 1 year to reflect her age and her emotional and financial dependence on the 2nd Applicant, whose girl-friend she was, and sentenced her to 6 years' imprisonment.

5. At the time of sentencing, the 1st Applicant was 19, the 2nd Applicant was 21 and the 3rd Applicant was 25. The 3rd Applicant had 10 previous convictions, including offences of theft, robbery and criminal intimidation. The 1st Applicant had one minor, unrelated, conviction. The 2nd Applicant had a clear record. As I have said, the 4th Applicant was 16 years and 8 months at the time of the offence and she had a clear record.

6. The Applicants now seek leave to appeal against their sentences.

The 4th Applicant's abandonment

7. The 4th Applicant abandoned both her applications for leave to appeal against conviction and sentence by notice dated 21 May 2001. By a further notice dated 30 May 2001, she reinstated her application for leave to appeal against sentence. In order to succeed in her application this morning, she has to demonstrate exceptional circumstances justifying our treating her abandonment as a nullity.

8. In her affirmation in support of the application, dated 29 October 2001, she claims that she erroneously believed that legal aid had been refused for both her appeals against conviction and sentence, whereas legal aid had only been refused for her to prosecute her appeal against conviction. She says in the affidavit that because she was told '... most inmates would abandon their appeals upon refusal of legal aid', she had signed the notice of abandonment of both appeals.

9. We have been shown this morning a fax message sent by the Director of Legal Aid to the Superintendent of the Tai Tam Correctional Institution, at which the Applicant is detained, requesting the Superintendent not to file the Notice of Abandonment of appeal against sentence. It would appear that the fax arrived too late to avoid that being done.

10. We accept that the 4th Applicant's misunderstanding and the unhappy course of events that followed, amounts to an exceptional circumstance. We accede to her application and allow her to proceed with her application for leave to appeal against sentence.

Grounds of Appeal

11. In essence, all 4 Applicants allege the following common matters:

* The judge adopted a starting point for sentence which, in all the circumstances, was too high;

* The judge failed to distinguish sufficiently between the roles played by the respective Applicants; and

* The judge failed to give sufficient weight to aspects of mitigation advanced on their behalf, including their expressions of remorse and, in respect of the 2 who could claim it, their previous clear criminal records.

12. In addition this morning and in his grounds of appeal, Mr Robert Andrews for the 1st Applicant, argues that too high a starting point was taken in respect of the 1st Applicant in that the judge failed to acknowledge the fact that he led the Police to where the victim was detained after he had been arrested. He also argues that the judge failed to take account of his age, 19, and character.

13. In addition, the 4th Applicant alleges that in her case, the judge failed to give sufficient consideration to her young age at the time of the offence; and failed to give any, or any proper, consideration to the possibility of sentencing her to undergo training in a Training Centre.

Facts

14. The victim was a 37-year-old businessman. He was abducted in the street in the presence of his wife. The ostensible reason for his abduction was a business dispute with a man who appears not to have been a defendant at trial. All 4 Applicants were involved in the initial confrontation with the victim and his subsequent abduction. He was threatened with violence if he did not co-operate with them. His wife and he were initially taken to a Karaoke Club and detained in a room there. The 4th Applicant was present at the club and was responsible for attempting to calm his wife's fears for his safety.

15. Later he was separated from his wife and taken to a village stone hut, which had been rented the previous day by the 1st Applicant, and chained up. The 1st Applicant and the 2nd Applicant were the ones who chained him up, his discomfort and distress must have been serious and obvious to them. When initially abducted he was told that weapons would be used on him unless he co-operated. He was kept chained up in the hut from 3 to 10 December 1999, a period of 8 days. On one of those days, the 3rd Applicant threatened him, saying that he would be killed by the injection of a dangerous drug if the money to effect his release was not raised and be buried in a place where his body would never be found. Weapons, including a stun gun and a beef knife, were on occasions waved in front of his face during the period of his detention. On the 8th day of his captivity, the 3rd Applicant told the victim that if no money was deposited into a certain bank account on that day, he would be taken to the Mainland and left in a cave.

16. The 1st, 2nd and 3rd Applicants all took part in measures to ensure that the victim's continuing detention in the stone hut went undetected and the police were only able to free him as a result of intensive investigation. There was no suggestion of withdrawal from the enterprise by any of the Applicants prior to the victim's release. It was, however, the 1st Applicant who on his arrest led the police to the stone hut where the victim was confined.

17. We have this morning seen Polaroid photographs of the victim, taken immediately he was discovered in the stone hut. These show that he was chained by both ankles and his right hand to a large piece of furniture and was kept in very squalid conditions.

18. In sentencing the 4th Applicant, whose role in the crime appears to have ended at the Karaoke Club, the judge observed that the courts have a duty to the public to pass deterrent sentences on those who kidnap others and to send a clear message to the community that those who participate in kidnapping cannot expect leniency from the courts. And that, although she accepted that the 4th Applicant played a lesser role in the commission of the offence than her co-accused, this did not mean that her role was unimportant, or a minor one. She accepted, however, that the 4th Applicant may not have been aware of every aspect of the plan and that the harsh treatment of the victim really began when he was taken to the stone hut.

19. It should, at this stage, be noted that in mitigation the judge was invited by the 4th Applicant's Counsel to adopt a starting point after trial of 12 years' imprisonment in her case, but selected a lower starting point of 7 years' imprisonment as being appropriate for her.

Observations

20. There is no doubt that this was an offence of considerable gravity. It was a well and carefully planned kidnapping. The 4th Applicant was cynically employed at the initial stage to assuage the victim's wife's fears. It was also one in which the victim was kept bound and confined for a considerable number of days and subjected to death threats. The judge was entitled to arrive at her conclusion that the 1st, 2nd and 3rd Applicants '... fulfilled important roles in this crime' and that there was no reason to treat each one differently from the others so far as sentence was concerned. There can be no doubt that those who participate, in whatever capacity, in an offence of this type are as equally culpable and should be held as equally accountable for the consequences of their crime.

21. Kidnapping is an excepted offence under s. 109A of the Criminal Procedure Ordinance, Cap. 221 and in the circumstances of a case such as this, factors such as youth, a clear record and remorse can be given little, or no, weight. It must be remembered that the offence carries a maximum penalty of life imprisonment.

22. The judge reviewed a number of authorities that were tendered to her prior to her sentencing the Applicants. These included HKSAR v. CHUNG Hon Fai and Another [1998] 4 HKC 449, on which she placed some reliance.

23. In that case, Power V-P, delivering the judgment of the Court of Appeal, made it plain at p. 452, lines G-I, that:

"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 un-persuaded 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 nine 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.'

Earlier in the judgment, Power V-P had observed at p. 452, lines C-D:

"Counsel 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. Counsel principally relied upon AG v. Davie Lee Po Man [1992] 2 HKCLR 70 and R v. Sung Chin Pang [1995] 2 HKC 352.... We do not find these authorities to be of any real assistance. Both involved one offender and neither was characterised by any degree of sophisticated planning."

24. More recently, Stuart-Moore VP delivering the judgment of the Court of Appeal in HKSAR v. LEUNG Man Kwong and Another CACC 57 of 2001 (unreported) observed at p. 7, lines R-T, of the judgment:

"It is clear that the Court of Appeal has at no stage attempted to lay down guideline tarrifs for this kind of offence. The circumstances of each case must be looked at individually."

25. The drawing of comparisons with sentences upheld in previous cases is clearly of very limited assistance when it comes to sentencing kidnappers. In the circumstances of this case, despite the fact that chloroform was not used on the victim, but taking into account the fact that he was chained up for a period of 8 days, the starting point of 15 years' imprisonment adopted in the cases of 1st, 2nd and 3rd Applicants is not open to criticism.

26. In the 4th Applicant's case, the judge called for social welfare and probation reports in respect of her prior to sentencing her. This was a sensible thing for her to do, particularly given that the 4th Applicant was the mother of a young daughter born in August 2000. The child's father is the 2nd Applicant with whom she was living at the time of the offence. The judge, at least, needed to be assured that adequate arrangements were in place for the child's care during her mother's imprisonment. The judge, however, declined Counsel's request that a Training Centre Report be prepared in respect of the 4th Applicant. She was right to so decline. The only realistic sentencing option that fell to be considered for her was a substantial term of immediate imprisonment. She is not a person who could pray in aid extreme youth. For the judge to have called for a Training Centre Report in respect of her would only have raised false hopes in her mind.

Decision

27. The 1st, 2nd and 3rd Applicants were persons in respect of whom leniency did not fall for consideration; save in one respect, which is particular to the 1st Applicant only, in that it was he who led the police to secure the victim's release immediately upon arrest. To our minds this merits some recognition and in his case, we grant leave to appeal and, treating this as the hearing, allow his appeal to the extent that we reduce his sentence of 10 years' imprisonment to one of 9 years' imprisonment.

28. Given her lesser role, the 4th Applicant's sentence of 6 years' imprisonment, arrived at after trial, was, in our minds, appropriate and sufficiently addressed her culpability.

29. We are satisfied that the sentences of the 2nd and 3rd Applicants were properly arrived at and are in no way wrong in principle or manifestly excessive. Therefore the 2nd, 3rd and 4th Applicants' applications for leave to appeal are dismissed.