HKSAR v. MOHAMMAD NADIM

   CACC172/2009

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF APPEAL

   CRIMINAL APPEAL NO. CACC 172 OF 2009

   (ON APPEAL FROM HCCC NO. 17 OF 2009)

-------------------------------

BETWEEN

----------------------

-----------------------------------------------------

REASONS  FOR  JUDGMENT

-----------------------------------------------------

Hon Lunn J (giving the Reasons for Judgment of the Court) :

INTRODUCTION

1.  At the hearing of the application for leave to appeal against sentence we granted the application, treated the application as the hearing of the appeal, quashed the sentence of 11 years and 4 months’ imprisonment and imposed in its place a sentence of 9 years and 4 months’ imprisonment. We indicated that we would give our reasons for so doing in due course. This we do now.

2.  The appellant was sentenced to 11 years and 4 months’ imprisonment by Deputy Judge Mackintosh (as he was then) in the Court of First Instance, following his plea of guilty to a single count (Count 1) on the amended indictment of forcible detention of Saghir Saad on 19 June 2008 with intent to procure a ransom for his liberation, contrary to section 42 of the Offences against the Person Ordinance, Cap. 212. The appellant was charged jointly with Ms Kaur Baljit with that offence. In addition, Ms Kaur faced the second count alone, namely false imprisonment of Saghir Saad on the same day, contrary to common law and punishable under section 101I of the Criminal Procedure Ordinance. On the appellant’s plea of guilty to Count 1 and Ms Kaur’s plea of guilty to Count 2, the Court ordered Count 1 against Ms Kaur to lie on the Court file.

THE SUMMARY OF FACTS

3.  The appellant accepted the Summary of Facts as the basis on which the court was invited to accept his plea of guilty, convict him of the offence and impose sentence.

4.  At about 7 a.m. on the 19 June 2008 the appellant and his co-accused, his pregnant girlfriend Ms Kaur Kaur, approached Saghir Saad, a seven-year-old schoolboy, as he made his way from his home in Sai Kung to where he was to board his school bus. The two of them tricked the boy into boarding the car in which they were travelling by the ruse of informing him that the school bus broken down and offering to take him to school. Instead, they drove him to the appellant’s flat in 441 Cheung Sha Wan, Castle Peak Road. Inside the premises, the appellant blindfolded the boy, tied up his hands with a towel and covered his mouth with adhesive tape.

5.  At 11:30 a.m. and 11:45 a.m. the boy was permitted to make two telephone calls, first to his mother and then to his father. In each of the calls, he requested that they pick him up. In the second call he broke down and cried. A few minutes after the second call, the appellant called the boy’s father and demanded payment of $200,000, informing him not to report the matter to the police and warning him that if the ransom was not paid the boy would be killed. Notwithstanding the threat, the boy’s father reported the matter to the police. At 8:30 p.m. the appellant telephoned the boy’s father and asked him to send his wife to Tsuen Wan MTR station with the ransom.

6.  At 10:33 p.m. the appellant, together with two other Pakistani males, carried the boy who was contained in a large nylon bag and placed him in the boot of the car in which he had been abducted initially. Police officers intercepted the car shortly afterwards, at the junction of Tonkin Street West and Lin Cheung Road, and released the boy, who was conscious.

7.  An examination of the boy at the Accident and Emergency Department of the Caritas Medical Centre revealed superficial abrasions on his right wrist, upper abdominal wall and right shin. Otherwise, he was calm and in good condition. On 27 June 2008, the boy identified the appellant at an identification parade.

8.  In video recorded interviews conducted of him by police officers, the appellant admitted that he knew the parents of the boy from whom he had demanded the ransom money. Ms Kaur was a friend of the boy’s mother. He had borrowed the car used to abduct the boy, in which car he had been found by the police. He admitted that he had put the boy in the nylon bag and placed it in the boot of the car. He claimed that he intended to return the boy after he was given the ransom money.

REASONS FOR SENTENCE

9.  In his reasons for sentence, the judge stated that he determined that the circumstances of the kidnapping placed the commission of the offence in the “category of the most grave of such offences”. He found there to have been a “significant degree of planning”. He noted that the appellant had been assisted by other men in placing the boy, contained in the bag, in the boot of the car shortly before the police intervened. He determined that the appellant had recruited his pregnant girlfriend to be a party to the kidnap in order to lull the boy into being prepared to board the car. He observed that the boy had been detained in the flat throughout the day blindfolded, trussed up and gagged with adhesive tape.

10.  The judge noted that the appellant was then 22 years of age and possessed of a clear record. In rejecting the submission that had been made in mitigation, that the appellant had been driven to the misconduct by his concerns about his financial well-being in light of the imminent prospect of the birth of his child carried by his co-accused, the judge determined that the appellant was motivated by greed. Similarly, although the judge accepted that the appellant had become aware of the involvement of the police, the judge concluding that that was as a result of communication from his co-accused who was present at the boy’s family home consoling the latter’s mother, he rejected the submission that at the time of his arrest the appellant had panicked and was in the process of returning the boy to his parents, no longer concerned about collecting a ransom.

STARTING POINT

11.  In determining the appropriate starting point to be taken for sentence for the appellant, the judge said that he had regard in particular to the judgment of this court in HKSAR v Leung Man Kwong (unreported, CACC57/2001, 5 October 2001). Of the circumstances of the commission of that offence, indicted as a single count contrary to the same provision, the judge noted that it involved a nine-year-old boy who had been abducted by three men from a car in which he was being driven to school. The driver of his car was threatened with a hammer and what appeared to be two pistols. The boy was detained for five or six days, during which time a large ransom was demanded for his release. The police succeeded in releasing him as he was being moved, whilst blindfolded and contained in a suitcase, from one hotel to another. The judge noted that the trial judge had taken a starting point of 18 years’ imprisonment for one of the accused, whom the trial judge determined to be the ‘organiser’ of the enterprise and 15 years’ imprisonment for his two co-accused. Furthermore, the judge observed that, although the ‘organiser’ had abandoned his application for leave to appeal against sentence, this court had gone on to consider the starting point taken for sentence in respect of his two co-accused and the sentences of 10 years’ imprisonment imposed in consequence of their pleas of guilty, with which sentences this court did not interfere.

12.  The judge stated that he accepted that in that case the organisation and planning to be greater than in the case before him. Further, that the length of time during which the victim was detained was longer and that weapons were displayed in order to effect the abduction, rather than success being achieved by a trick. On the other hand he noted that in Leung Man Kwong the victim was not tied and gagged whilst he was carried in the suitcase, there no element of “betrayal of friendship” nor was there the wider “risk to life and limb” arising out of identification by recognition from the fact of family friendship.

13.  In the result, the judge determined that the appropriate starting point for sentence of the appellant was 17 years’ imprisonment.

DISCOUNT AND SENTENCE

14.  The judge stated that, having regard to the appellant’s plea of guilty, which he acknowledged saved the boy from having to relive his ordeal through the process of giving evidence and which he accepted was indicative of an element of remorse, and his clear record, he discounted by one third the term of 17 years’ imprisonment taken as the starting point for sentence. Accordingly, the judge imposed a sentence of 11 years and 4 months’ imprisonment on the appellant.

GROUNDS OF APPEAL

15.  In support of the application for leave to appeal against sentence, Ms Panesar, advanced two grounds of appeal, namely that :

(1)  the judge, “having held that he was not bound by the terms of the Summary of Facts” had erred in taking “into consideration extraneous factors which were not admitted by the appellant or the respondent, in determining the starting point and the sentence imposed”; and

(2)  the starting point of 17 years’ imprisonment was excessive in all the circumstances.

(a)  Ground 1

16.  In support of Ground 1, Ms Panesar, advanced a schedule of what was said to be, on the one hand, facts stipulated in the Summary of Facts, and, on the other hand, statements made by the judge in sentencing. She submitted that, whilst it was permissible for the judge to have familiarised himself with the case by perusing the committal papers, “once the parties reach the agreement on the basis of the plea, the court cannot, unless evidence is called, pass sentence on the basis that it considers the defence’s responsibility to be greater than the plea implies”.

17.  In support of that submission, Ms Panesar referred the court to the judgment of the Court of Appeal of England and Wales in R v Yorkshire Water Services Ltd [1995] 16 Cr App. R. (S) 280. In that case, the appellant company pleaded guilty in the Crown Court to two counts of causing sewage effluent to enter controlled waters, contrary to section 107(1)(c) of the Water Act 1989. The pleas were tendered by the company and accepted by the prosecutor on the basis that the appellant was strictly liable but not in any way at fault. However, in imposing substantial fines upon the appellant the judge stated that he did not accept that the appellant had done all that it could and should have been done to prevent the discharge. Of that approach to sentencing by the judge, Smith J, in the judgment of the court, said (p. 284-5) :

“If the judge was not prepared to accept the plea on the basis on which it was tendered, and we would sympathise with his unwillingness, it would be necessary for a Newton hearing to take place at which the blame to be attached to the appellant would be investigated. In the absence of any such hearing, we do not think the judge was entitled to form his own view of blameworthiness.  Accordingly, we consider the judge erred in his approach to the sentencing exercise.”

(b)  Differences : Summary of Facts and Reasons for Sentence

18.  Of the differences between the assertions of fact that the judge made in his reasons for sentence and what was set out in the Summary of Facts, Ms Panesar pointed to the fact that the judge determined that, in laying ambush to the boy at the place that they chose to do so, the defendants made use of knowledge that they had obtained as friends of his family. There was no such specific reference to that matter in the Summary of Facts. Further, the judge had asserted that the boy had been “blindfolded with a cloth and his arms and legs were tied with ‘very great force’. He sat on the floor of the room through the day, being given water only.” In contrast, in the Summary of Facts there was no reference whatsoever to the degree of force applied when the boy was trussed-up, nor was there a reference to his legs being tied. Further, there was no reference to the boy being provided with any refreshments.

19.  Also, Ms Panesar pointed to the fact that in rejecting the mitigation advanced, namely that the appellant was on his way to return the boy to his parents, no longer interested in obtaining a ransom, the judge made reference to a transcript of the telephone conversation held between the appellant and the boy’s father at 8:55 p.m. in determining that the appellant “pressed your demand for payment” about “90 minutes before you carried the boy out.” By contrast, the Summary of Facts stated only that at 20:30 hours the appellant called the boy’s father and asked him to send the boy’s mother to “Tsuen Wan MTR station with the ransom.”

20.  Further, Ms Panesar invited the Court to note that whilst Paragraph 8 of the Summary of Facts merely stated that at 22:23 hours the appellant and “two Pakistani males, placed the nylon bag, with PW1 inside, into the boot of the private car” from which place the police released the boy shortly thereafter, the judge had said of the circumstances observed by the police in his reasons for sentence :

“Paragraph 8 of the summary of facts gives a scant account of what they saw and found.  Whilst it is accurate far as it goes, I am not bound by its limited terms.  The police saw the other man named in Count 1-apparently your cousin-go into the block where you lived at 10:07 p.m., and they saw you meet with the other man on the landing a few minutes later.  He handed to you a bag containing the boy.  It is suggested in mitigation that it was he who put the boy into the bag.  I note that the boy says unequivocally that it was you.  But it is not necessary to decide.  You were a party to placing a fully conscious seven-year-old whom you had held all day, who was trussed up, blindfolded, and by then gagged with adhesive tape and wrapped in cloth into a large nylon bag.”  [Emphasis added]

21.  Next, Ms Panesar drew attention to the judge’s statements in his reasons for sentence that “it is… highly likely that others were involved with your abduction of this boy” and his subsequent observation, “although it is highly probable that you were not acting alone and were part of the gang, the prosecution has not chosen to present its case on that basis.” Finally, she pointed to the statements made by the judge that “the life of the boy was, at the time, at very considerable risk”. The judge went on to observe not only that, given that he was gagged, he was at risk of not being able to breathe but also :

“…there must be considerable concerns as to what was to happen to this boy.  So far as you were aware, it was highly likely that he would have recognized you given that he had seen you many times before.”

(c)  Ground 2

22.  At the outset, Ms Panesar, acknowledged that the offence of which the appellant had been convicted was a serious crime, which merited a deterrent sentence of a term of lengthy imprisonment. However, she submitted that the judge had placed undue emphasis on the starting point and sentence, of 18 years’ and 12 years’ imprisonment respectively, imposed on the ‘organiser’ in Leung. She submitted that it could be distinguished factually in respect of :

(i)  the level of planning;

(ii)  the manner of abduction and detention; and

(iii)  the length of detention of the victim.

23.  Of the issue of the level of planning, she noted that the judge accepted that there was greater planning involved in Leung. Secondly, she reminded the court that in Leung a hammer and what appeared to be two pistols were brandished by the accused at the time of the abduction of the victim. Thirdly, that in Leung the victim had been variously handcuffed, blindfolded and tied up and placed in a suitcase during periods of his detention for almost seven days.

24.  Ms Panesar submitted that the facts of the commission of the offence the subject of appeal in HKSAR v Hung Wai Ping (unreported CACC576/1996, 14 December 2000) are closer to the instant case. In that case, a 10-year-old boy had been abducted by a trick as he made his way home after he had finished school. The appellant made multiple demands of the boy’s parents for ransom. When the police rescued the boy 1½ days after his abduction he was found blindfolded, gagged and bound inside a filing cabinet of the appellant’s office. The appellant, who had three previous convictions for dishonesty, pleaded guilty in the Magistracy at committal. This court did not disapprove of the starting point of 14 years’ imprisonment taken by the judge although, in light of his assistance to the authorities subsequent to sentencing, this court reduced the sentence of nine years’ imprisonment to a term of seven years’ imprisonment.

THE SUBMISSIONS OF THE RESPONDENT

(a)  As to Ground 1

25.  In written submissions Mr William Tam submitted on behalf of the respondent that in sentencing following a plea of guilty a judge is not bound by the version of facts advanced by the prosecution and defence. He is entitled to direct a Newton hearing to take place (R v Beswick [1996] 1 Cr. App. R. (S) 343). Furthermore, if there was a substantial conflict between what was advanced on behalf of the defendant and the prosecution case, although not asked to hold a Newton hearing by either the prosecution or defence :

“… it is quite clear that the initiative in such a matter must be with the judge and that he cannot proceed to try and resolve that conflict without the benefit of evidence.”

(See R v Costley [1989] 11 Cr. App. R (S) 357 at p. 360.)  Finally :

“Where after a guilty plea, a version is put forward which is clearly implausible, then the judge is not bound to hear evidence; nor is he bound to do so where a choice between the two versions will make no practical difference to sentence.  Otherwise, the sentencing tribunal should hear evidence to enable it to determine the proper factual basis for sentence.”

(See the judgment of Stock JA in the judgment of this Court in HKSAR v Yee Yiu Sam [2002] 3 HKC 21, p. 29E-F, para. 37.)

26.  Mr Tam contended that most of the references by the judge in sentencing to matters that lay outside the specific terms of the Summary of Facts were :

“either (1) not really matters in dispute at the stage of sentencing, or

(2) not matters that would make any practical difference to sentence in light of the facts already admitted in the Summary of Facts.”

27.  Of the judge’s statement, that the two defendants’ knowledge of the boy’s practice of walking alone from his home to the place where he boarded the school bus must have been obtained “from your friendship with the family”, the court was reminded that the Summary of Facts stated in terms that in telephoning Ms Kaur on learning of the kidnap of her son the boy’s mother did so because she regarded her as “one of her best friends”. Also, in records of interview conducted of him by the police the appellant admitted that he knew the boy’s parents. Accordingly, it was submitted that the judge was entitled to draw the inference that he did and to categorise the conduct of the appellant and Ms Kaur as a “betrayal of the friendship shown by his parents”.

28.  Of the judge’s statement, that the boy’s “arms and legs were tied with ‘very great force’. He sat on the floor of the room through the day, being given water only”, Mr Tam pointed out that the Summary of Facts described “superficial abrasions” to the boy’s right wrist and right shin, as having being observed when he was medically examined after his release by the police. In any event, he suggested that it was a matter unlikely to make any real difference to sentence.

29.  Of the judge’s rejection of the mitigation that the appellant was in the process of returning the boy home, no longer interested in claiming a ransom, when he was intercepted by the police, Mr Tam submitted that in light of matters set out in the Summary of Facts itself the judge was entitled to reject that mitigation. First, at 8:30 p.m. the appellant had telephoned the boy’s father and asked him to send the mother to Tsuen Wan MTR station with the ransom. Second, the boy was found by the police in a bag in the boot of the car driven by the appellant and occupied by other men. This court was invited to note that the judge had had adverted to both matters in his reasons for rejecting this submission made in mitigation. The rhetorical question was posed : if the boy was being returned to his parents why was it necessary to treat him in that way? It was submitted that the mitigation was “manifestly false” or “wholly implausible”, so that the judge would have rejected it, whether or not he made reference to the detail contained in the transcript of a telephone conversation between the appellant and the boy’s father.

30.  Of the statement by the judge, that “it is highly probable that you were not acting alone and were part of the gang” Mr Tam invited the Court to note that the judge had gone on to say that was not how the prosecution had chosen to present its case. There was, he submitted, nothing to suggest that the judge had proceeded on the basis other than that presented by the prosecution.

31.  Of the judge’s reference to the “scant account’, contained in the Summary of Facts, of what police officers had witnessed of the circumstances of the boy being taken from the appellant’s apartment in a bag which was placed in the boot of the car, Mr Tam submitted that although the matter was not described in the Summary of Facts it had been raised in the course of mitigation and there was no real issue as to those circumstances. He pointed out that it was Ms Panesar who said in mitigation to the judge that :

“…it was Sulman’s idea to put the child in the bag and that hence the child was in the bag when found in the boot of the car.”

32.  Furthermore, Ms Panesar had also informed the court that the appellant had made a “clean breast of what he had done” in his records of interview, asserting subsequently that he had admitted each of the elements of the offence although he was consistent in his denial that he intended to harm the boy. Also, she had adverted to records of interviews conducted of the other men who had been found in the car with the appellant and informed the court that they contended that they had not known of the presence of the boy in the bag in the boot of the car until alerted to his presence when the boy “starts kicking and banging and making noises”. Mr Tam submitted that it was in that context that in his reasons for sentence the judge had said (p. 9C-E) :

“You admitted in your second interview, at counter 378, that the boy was struggling and screaming in the bag in the boot as the vehicle was driven away, and that the sound of that was audible inside the car.  How these details can have been left out of the summary of facts is beyond me.”

33.  Of the judge’s references in his reasons for sentence to the ‘risk’ to the boy arising from the awareness of the appellant and his co-accused of the likelihood that they would be recognized by the boy as friends of the family, and Mr Tam pointed out that, whilst the judge had raised the issue with the appellant’s counsel during submissions of mitigation and had adverted to it in his reasons to sentence, he had stated specifically that (p. 9K-M) :

“There is no direct evidence that you intended to do any further harm to him, and I am not going to sentence you on the basis that you had such an intention.  But there was a risk of such harm inherent in your conduct, and is proper to have regard to the when assessing the gravity of this crime, because one of the menaces of kidnapping is that it does create such risks to the life of the victim.”

Furthermore, the judge repeated that determination (p. 9P) :

“I emphasise that you are not to be sentenced for the potential harm to this boy, but it is a measure of the gravity of your crime that such risks were created.”  [Emphasis added]

(b)  As to Ground 2

34.  Mr Tam submitted that whilst the starting point of 17 years’ imprisonment taken by the judge was “on the high side”, the sentence imposed upon the appellant was not manifestly excessive. He referred this court to its judgments in HKSAR v Lam Hung Hon (unreported, CACC251/1999, 25 January 2000) and HKSAR v Chan Kay Hung & Others (unreported, CACC533/2000, 30 November 2001). In Lam Hung Hon the appellant was convicted after trial of a count of forcible taking, and a count of forcible detention, for ransom for the liberation of a 12-year-old boy and his nine-year-old sister. Also, the appellant was convicted of administering a noxious substance, chloroform, with intent on the boy. He was sentenced to terms of 14 years’, 12 years’ and 1½ years’ imprisonments respectively, which sentences were to be served concurrently. The appellant’s co-accused, his girlfriend, had been employed earlier by the parents of the children and took the children to and from school. The accused lured them to their home by a trick. There, they were detained for six days. The boy was blindfolded and his feet tied. When he struggled he was hit five or six times and injured on his mouth. Then, his hands were tied. The father of the children paid a ransom of $700,000 to a stipulated bank account but the children were not released. Police officers rescued the children after they had followed the appellant to his home from an ATM bank machine, from which he withdrew money from the bank account. The likelihood was that the scarring to the boy was likely to be life long. This court concluded that the overall sentence of 14 years’ imprisonment imposed on the appellant was “not a day too long”.

35.  In Chan Kay Hung this court approved of a starting point for sentence of 15 years taken by the trial judge for three of the defendants a trial in circumstances where after he had been abducted the victim, a man of 37 years of age, was chained up and detained in a stone hut for eight days during which time he was threatened with his life and weapons brandished in front of him. The appellants were aged 19, 21 and 25 years, two of whom were treated as of good character.

A CONSIDERATION OF THE SUBMISSIONS

(a)  Ground 1

36.  There is no doubt that the Summary of Facts was an anodyne, skeletal description of the circumstances of the commission of the offences. It was bereft of much relevant, material information. For example, although there was no dispute about the issue, the Summary of Facts did not condescend to any description of the circumstances of the boy at the time that he was discovered by the police in the bag in the boot of a car. It was accepted that at that time the boy was gagged, blindfolded and tied up. As the Court of Appeal of England and Wales noted in Beswick (p. 346) :

“It is axiomatic that whenever a court is to sentence an offender it should do so on a basis which so far as is relevant to the determination of the correct sentence is true.  It follows from this that the prosecution should not lend itself to any agreement whereby a case is presented to the sentencing judge to be dealt with so far as that basis is concerned on an unreal and untrue set of facts concerning the events to which appeared guilty is to be tendered.”

37.  As Mr Tam pointed out, it is clear that on a number of occasions the judge was critical in terms of the absence of relevant detail in the Summary of Facts. However, equally as Mr Tam invited the court to note the judge stated that he accepted the ambit of the prosecution case as articulated in the Summary of Facts. For example, given the reference in the Summary of Facts to two other men together with the appellant placing the bag in which the boy was found into the boot of the car, the judge expressed astonishment that the case had not been presented by the prosecution as involving a ‘gang’. Nevertheless, we are satisfied that that he accepted that was the factual basis upon which sentence was to be imposed.

38.  Of course, if from a reading of the committal papers a judge forms the view that the Summary of Facts presented by the parties does not reflect the true facts of the case it is open to the judge to order a Newton hearing. Otherwise, he is bound to sentence on the basis set out in the Summary of Facts. Nevertheless, equally he is entitled to reject implausible or fanciful mitigation and to do so without recourse to a Newton hearing.

39.  We are satisfied that the judge was perfectly entitled to infer from the circumstances of the interception of the boy on his way to board his school bus and the friendship of Ms Kaur with the mother of the boy that it was by virtue of that friendship that the appellant and Ms Kaur were able to obtain the information from which was hatched the plan of interception and abduction of the boy. Equally, the judge was entitled to categorise that conduct as a “betrayal of friendship”.

40.  There was no reference in the Summary of Facts as to the degree of force used to tie up the boy. In stating that the boy had been tied up “with a great force”, it is clear that the judge was quoting directly from a description that the boy had given in an interview by a woman police officer. Although that description was outwith the contents of the Summary of Facts, given that the boy had superficial abrasions to both his right wrist and right shin it was clearly to be inferred that he was bound tightly, or at least sufficiently tightly when he struggled to free himself for those injuries to have occurred. Similarly, there was no mention in the Summary of Facts of any refreshment being given to the boy whilst he was detained. The judge’s assertion that he was provided with at least water was hardly a matter against the interests of the appellant.

41.  The judge was entitled to reject the submission made in mitigation that the appellant had abandoned his plan to collect a ransom for the return of the boy and the related assertion that he was merely returning the boy to his parents. The reasons that the judge gave for so determining, namely that in a telephone call made earlier, whether it be at 8:30 p.m. or 8:55 p.m., the appellant had demanded payment of a ransom to be made at Tsuen Wan MTR station by the boy’s mother together with the fact that the boy was trussed up and confined in a bag in the boot of the car in which the appellant was travelling were compelling reasons for the judge so determining.

42.  In our view, whilst the judge was entitled to have regard in determining the gravity of the offence to the “real risk” that arose from the fact that the appellant and his co-accused were known to the boy’s family and that he might be able to identify them by recognition from their earlier contact with the boy’s family, he was correct in making it perfectly clear that the appellant was “not to be sentenced for the potential harm to this boy”.

43.  Given that in mitigation Ms Panesar had referred specifically to the accounts given by the appellant in his records of interview as demonstrating that the appellant had made a “clean breast” of his conduct in the commission of the offence, the judge was perfectly entitled to refer to and rely on the passage at counter 378 in the record of interview in which the appellant stated that he was aware that the boy was struggling and screaming whilst confined in the bag in the boot of the vehicle as it was being driven away from the appellant’s apartment.

44.  In the result, we are not persuaded that in determining the appropriate sentence to impose upon the appellant the judge was influenced by reliance on material to which he ought not to have had regard. There is no merit in this proposed Ground of Appeal.

(b)  Ground 2

45.  As Stuart-Moore VP pointed out in the judgment of this Court in Leung Man Kwong (p. 7, para. 21) :

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

Although the judge stated correctly that, given that “every case is different” and that sentencing authorities are “only of limited assistance” nevertheless, it is clear that the judge paid close attention to the factual similarities and dissimilarities between the instant case and Leung Man Kwong.  The judge stated that he had considered the decisions of this Court referred to in Leung Man Kwong, namely HKSAR v Lam Hung Hon (supra) and HKSAR v Hung Wai Ping (supra), together with two other decisions of this Court, namely HKSAR v Hui Sze Ping (unreported, CACC426/2002) and HKSAR v Pun Luen Pan (CACC555/2003, 29 June 2005).

46.  In Hui Sze Ping the appellant was sentenced to 12 years’ imprisonment, following her plea of guilty to a single count of forcibly taking a person with intent to procure a ransom for his liberation. The victim was abducted by four men in the streets of Wanchai and forced him into a car. He was detained in premises where he was blindfolded and gagged and made to lie in an empty bathtub. What he took to be a pistol was placed against his head. He was forced to negotiate his own ransom with his family and agreement was made to pay $30 million. On payment of the money, police officers mounting a surveillance operation were able to trace the whereabouts of the victim. In the premises in which he was detained, the police found a pistol and three rounds of live ammunition. In the judgment of this Court delivered by Gall J the appellant was described as the mastermind (p. 6, para. 14) :

“She proposed the scheme; she located the victim; she purchased a pistol; she recruited four men from the mainland; she paid  them to come to Hong Kong; she recruited Sheung; she formed the actual plan to kidnap and directed every step of the way until just before the offence was committed.”

The court held the sentence to be a proper one.

47.  In Pun Luen Pan this Court allowed the appellant’s appeal against a sentence of 21 years’ imprisonment imposed after trial in respect of a single count of forcibly taking a person with intent to procure a ransom for his liberation and in its place imposed a sentence of 18 years’ imprisonment. It is to be noted that subsequently the Court of Final Appeal allowed the appellant’s appeal against conviction and ordered a re-trial [See (2008) 11 HKCFAR 50]. The victim was abducted as he approached his car in a car park. A number of men disembarked from a van and claimed to be police officers, one of them displaying a pistol. When the victim shouted out as they pushed him towards the van he was struck across the forehead with the butt of the gun, punched and kicked. Once inside the van he was blindfolded and handcuffed. At their destination he was detained for some 30 hours, his feet having been tied up. Eventually a ransom of $5 million was paid, after which he was released. Only about $1.2 million was recovered. It was accepted that the appellant was the ringleader. In the judgment of this Court, Stuart-Moore VP noted (p. 12, para. 34) :

“It was accepted by all counsel that there does not appear to have been any sentence which has gone beyond an 18 year starting point after trial for an offence where the facts are comparable to those in the present case.  We do not propose to set an upper limit future cases of this kind… ”

48.  Whilst the judge was undoubtedly correct in categorising the appellant’s conduct, in particular placing the trussed up, conscious but blindfolded boy inside the bag, which was then placed in the boot of the car, as “an act of extreme callousness, and vile abuse of this terrified child” in our view he erred in taking a starting point of 17 years’ imprisonment. To do so, was to take a starting point for sentence very close to the upper level of the starting point identified in the various cases that we have reviewed. The range and gravity of the aggravating factors present in those cases is greater than in the instant case. As Ms Panesar suggested in her written submissions, with which suggestion Mr Tam agreed, the facts of the instant case are more similar to those obtaining in Hung Wai Ping than in Leung Man Kwong. As noted earlier, in the former case, the victim was a 10-year-old boy who was bound, gagged, blindfolded and locked up inside a filing cabinet from the time his school finished on one day until about 9 p.m. on the following day. This Court did not disapprove of starting point taken for sentence of 14 years’ imprisonment.

49.  In all the circumstances of this case, in particular given that no weapons were brandished, violence used or threatened in the abduction and in view of the relatively short length of the detention, namely about 15 hours, in our view an appropriate starting point for sentence is 14 years’ imprisonment. There is no dispute that in light of the appellant’s plea of guilty, albeit on the day of his trial, he was entitled to a discount of one‑third from the starting point. The sentence of 11 years and 4 months imprisonment imposed on the appellant was manifestly excessive.

CONCLUSION

50.  Accordingly, as stated at the outset of these reasons for judgment, we granted the application for leave to appeal, treated the hearing of the application as the hearing of the appeal and quashed the sentence of 11 years and 4 months’ imprisonment imposed upon the appellant and, in its place, imposed a sentence of 9 years and 4 months’ imprisonment.