THE ATTORNEY GENERAL v. CHAN KA-SHU

A.P. Duckett, Q.C. & A. Bruce for Crown.

M. Bharwaney(D.L.A.) assigned for Respondent.

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JUDGMENT

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McMullin, V-P.:

1. The Respondent was convicted of conspiracy to kidnap.  The Judge made an order for detention in a Detention Centre.  The Attorney applies on the basis that the sentence was wrong in principle and manifestly inadequate. The facts are briefly as follows :

2. A certain Mr. Fang Kong owned a garment factory in Kowloon and on some three occasions a stolen motorcar was seen in the vicinity of the factory. On first occasion two men and a female were in it.  On the second occasion several persons were in the car among them the respondent who was known to a person employed by Mr. Fang who happened to see him on this occasion. That was on the 8th of October, 1983.

3. The third occasion was the 10th of October.  In the meantime security guards had been employed by Mr. Fang.  It appears that this was done largely at the instance of a neighbour of Mr. Fang who had himself been kidnapped in a previous occasion.  A servant of this man had seen the car hanging around in the vicinity and had alerted his employer who, no doubt alerted Mr. Fang.

4. On the 10th of October when the car was observed with several persons in it, it was pursued to Taipo but there it stopped and the persons within it got out and ran away.  They were not arrested. The owner of the car was later traced and he identified it as his stolen vehicle.

5. The Respondent was arrested at the border post at Lo Wu on the 10th of December when he was attempting to cross into China in the company of a young woman.  He was taken for investigation in connection with the stolen vehicle.  On the way to the police station he told the police that he wished to give an account of what he had been doing. When he got to the station he made a confessional statement in which he admitted having taken part with two older men in a plan to kidnap Mr. Fang.

6. When the car was recovered there was found inside a knife and two rolls of adhesive tape. It would appear that the Respondent had engaged with the other two in a discussion as to how the thing was to be carried out, although in his statement he wished to give the impression that his only part in the matter was to identify Mr. Fang.  The plan, it appears, was to take Mr. Fang to a telephone booth where his relatives would be phoned and the demand for money would be made.

7. At the time of the offence the Respondent was some 18 years of age.

8. The trial Judge, immediately after the jury's verdict, gave notice of the fact that he did not regard this particular instance of the offence as being very grave. When passing sentence he referred to the endeavour as a rather stupid attempt which never really had any chance of success.  With respect, it is difficult to see how that was justified. Mr. Bharwaney for the Respondent suggested that, although there was nothing in the summing up to indicate that the endeavour was not a serious one from the outset, it might be that the Judge was relying on something which came out in the course of the evidence.  We must, however take the record as we find it.

9. The Judge also referred to the fact that the defendant had been induced to join this scheme by two considerably older men, men in their late twenties. He indicated that he had considered the possibility of probation and the usual reports were called for. It appears that he did not make the probation order principally because the probation report did not favour that course being taken.

10. A suitability report was received from the Commissioner, indicating that either a Detention or Training Centre order would be appropriate. In both reports, the background of the Respondent was referred to in some detail.  It is common ground that he was to some extent disadvantaged in his family circumstances.  He was an illegitimate child. This fact was never made known to him.  His parents were said to be in Taiwan and his mother was, in his early years, said to be his aunt.  She left him when he was about six years of age and went to the United States where she later married.  During the adolescent years he was under the sole tutelage of his grandmother then a woman of advanced age, and it appears that she had some difficulty in exercising sufficient familial control over him. She ascribed his present predicament to the fact that he had fallen in with bad companions after he had left school years he had been an unsatisfactory scholar.

11. The Judge obviously took the view that in view of this background he was justified in giving primary consideration to the personal circumstances of the defendant and the possibility of rehabilitation.

12. We note, however, that the reports before the Judge, and before this Court, both stress the fact that the Respondent did not appear to have shown any degree of remorse for what he had done.

13. Mr. Duckett for the Applicant drew our attention to a number of decisions of this Court. It is unnecessary to go into those in any detail. Each of the three cases to which he referred were instances of actual kidnapping, the charges being laid under Section 42 of the Offences Against Person Ordinance, for which the maximum sentence is 14 years.   Under the law as it was at the time when the Judge dealt with the present case conspiracy attracted a maximum sentence of 7 years only. The decisions to which Mr. Duckett has referred to us are useful only to the extent that in each case the Court of Appeal stressed the gravity of the nature of this offences.  In only one of those cases was a sentence actually reduced.  That was on the basis that the trial Judge, in imposing sentence, had been under the misconception that the maximum was life imprisonment. The term of 12 years imposed was therefore considered by the appellate court to be too close to the real maximum of 14 to be sustained under circumstances disclosed in that case.

14. We need add nothing to the many expressions in those earlier decisions emphasizing the gravity of such offences.

15. Although this present case concerns a conspiracy and the attempt to kidnap was not carried out, the conspiracy was a serious one Where the plan is seriously mounted - as it was here - showing an attempt to carry out the actual offence, not too much distinction can be drawn between the attempt and the completed offence.

16. The Judge was at the time of the trial entitled and indeed obliged, by virtue of S. 109A of the Criminal Procedure Ordinance to regard rehabilitation as the paramount consideration. Since then, the law has been altered and the maximum which now applies in respect of conspiracy is life imprisonment. Although, technically speaking, the offence will still remain a non-excepted offence under Section 109A that is now so technical a distinction that one would incline to the view that, in dealing with such offences in the future, the courts will not be entitled to consider rehabilitation in the way in which it was considered in the present case.

17. Even though the Judge was entitled to give priority to rehabilitation in the present case nevertheless we regard the Detention Centre Order as being altogether too lenient in the circumstances. For this reason we grant the application. We set aside the Detention Centre Order and we substitute therefor an order under the Training Centre Ordinance.