|
HCCC17/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO. 17 OF 2009
----------------------
| |
HKSAR |
|
| |
v |
|
| |
NADIM MOHAMMAD (A1) |
|
| |
BALJIT KAUR (A2) |
|
----------------------
Before: DHCJ Mackintosh
Date: 8 May 2009 at 2.35 pm
|
Present:
|
Mr Francis Lo, SADPP, and Mr Matthew Lam, PP of the Department of Justice, for HKSAR
Ms M Panesar, instructed by Jal. N. Karbhari & Co., for the 1st Accused
Mr John Hemmings, instructed by Francis Kong & Co., for the 2nd Accused
|
|
Offence:
|
Forcible detention of person with intent to procure a ransom for liberation, etc.
(強行拘留人士意圖謀取釋放贖金等罪項)
|
Transcript of the Audio Recording
of the Sentence in the above case
COURT: Mohammad Nadim and Kaur Baljit, stand up.
Mohammad Nadim, you have admitted Count 1 of this indictment, forcibly taking and detaining a boy called Saghir Saad against his will with intent to procure a ransom for his release, contrary to section 42 of the Offences Against the Person Ordinance.
Baljit Kaur, you have admitted Count 2, falsely imprisoning the same boy, contrary to Common Law. By consent, I order Count 1, to which you have pleaded not guilty, to lie on the file not to be pursued without leave of the court.
The two of you now fall to be sentenced for crimes which are in all the circumstances irredeemably wicked. Kidnapping, to use the common and colloquial term, is a monstrous crime and one which must always be met with severe punishment. It is a crime which strikes at the security of decent members of the community.
The victim here was an innocent 7-year-old boy whose parents were your friends. He was abducted by a trick whilst on his way to school, detained, blindfolded, bound and at one stage gagged for a day and an evening in a flat that you shared in Cheung Sha Wan, whilst demands for $200,000 were made to his parents against a threat to kill him. At the end of the day he was loaded into one of those red, white and blue striped nylon bags with which we are all familiar, dumped into the boot of a car and driven off before police moved in to rescue him. The mother of this boy was one of your closest friends, Baljit Kaur, a woman who after the kidnap of her son called on you for help and support. You responded by prolonging her agony.
You two defendants took advantage of what you knew of this boy and his routines, of his family circumstances, of the money which you knew might be available to pay a ransom. It was shameful, despicable, pitiless conduct, and the betrayal of the friendship shown by his parents. The circumstances of this kidnapping put it into the category of the most grave of such offences, and I need to describe in some detail what happened.
This 7-year-old, as you well knew, went to school by school bus from his village near Sai Kung, leaving at 7 am to meet the bus at 7.10, a short distance away. He would often walk there alone. You must have obtained that knowledge from your friendship with the family. And you, D1, were thus able to identify his vulnerability. A decision was made to kidnap him and hold him for ransom. There was a significant degree of planning. D2, you were aware of that decision and participated in his execution. However, I am bound by the prosecution decision not to prosecute you on Count 1, not to pursue you on Count 1, given your plea to Count 2. It is a rational decision given the fact that on the evidence you played a lesser role. I do need to emphasise that you are not to be sentenced for the offence in Count 1. Your participation in this whole affair manifested itself in the false imprisonment of this boy throughout that day, and that is the foundation of your sentence.
As to you, D1, it is, in my view, highly likely that others were involved with your abduction of this boy. Late in the day you were assisted by a man whose name appears in Count 1, but who, for reasons of which I am not aware, has not been charged despite being arrested and despite there being very strong evidence against him. And also late in the day of this abduction this boy was placed into the boot of a car in which there were three other men, one of whom assisted in placing him into the boot. It is utterly inconceivable that those men were not aware of what was being placed into the car, and they must therefore have been aware of the boy’s status as a kidnap victim, and they were voluntarily associating themselves with that. That can only be because they were a party to the forcible detention of that boy.
However, 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. The reference to Sulman Ahsan in Count 1 is not backed by any factual statement of his role in the summary of facts. I shall return to what he did in a moment.
You, D1, recruited your pregnant girlfriend D2 to assist you. The only inference, aside from her remarks in the interview, is that you considered that her presence was likely to make the boy more cooperative with your plan to trick him into your car. After you met the boy on the morning of the kidnap you told him a lie about the school bus having broken down. You offered him a lift to school. He agreed. There is an element of uncertainty on the evidence as to whether he actually recognised you and/or D2 when he got into the car. He appears to say that he did not, but he had seen you both before on a number of occasions and may have been to your home more than once. It is not clear to me that he fully understood the questions being asked of him in this regard in interview. He did point you both out in identification procedures adopted after your arrest. According to D2, you both wore surgical masks, but there is limited evidence on that point. In any event - and this is the key to this issue - you must have assumed that he might have recognised you. You drove him away.
D2, on your account, which is relevant only to your case, is that it was a 45-minute journey during which time the boy questioned why you were not following his normal route to school. His concerns were deflected. At your home in Cheung Sha Wan the boy was carried in with a jacket over his head. He was immediately blindfolded with a cloth and his arms and legs were tied “with very great force” according to the boy, hence the abrasions to his wrist. He sat on the floor of the room through the day, being given only water to sustain him. He says, in his video interview, that he was scared. It is hardly surprising, all the more so when he heard your call, D1, to the parents, demanding $200,000, threatening to kill him if they did not co-operate, and insisting that the police should not be called. The boy said that he was afraid after that call to his father. He was permitted at one point to speak briefly to his mother on the phone, no doubt to reinforce the fact that he was being held.
The police were in fact quickly involved. I shall, in due course, commend them for their highly effective handling of this case. Meanwhile, you, D2, were called by the boy’s mother and agreed to go to her home, no doubt as some support for her. I will come back to your case. But you communicated with D1 during the day and must have kept him informed as to what was going on. You, D1, must have known that the police had been involved, and it is inevitable that you knew that some arrangements were under way to put together the ransom which had been demanded.
That ransom, according to your further demands, was to be taken to Tsuen Wan MTR Station by the boy’s mother, though no specific arrangement for the return of the boy seems to have been discussed. The amount of the ransom demanded - $200,000 - was not, as Mrs Panesar has said, great by the standards of some kidnapping cases here in Hong Kong, but it was a large sum for this particular family, and is to be seen in that light and not by comparison with kidnappings involving very rich families.
It is suggested on your behalf, D1, that you had become aware of the police investigation and that you had panicked, that you had decided to return the boy to his parents, which was the intention at the time of his removal from your home in the nylon bag. I cannot accept that. Exhibit 19 in the papers includes a transcript of a telephone call you made at 8.55 pm, just about 90 minutes before you carried the boy out. In that call you pressed your demand for payment and told the boy’s father that his mother should not be late, that you would be waiting at 10 pm. I am in no doubt that there is no substance in your claim that you were on route to returning the boy to his family, all the more so since he was tied up and in the bag in the boot of the car.
Shortly after 10 pm police surveillance officers, who had by then located your whereabouts, observed the removal of the boy from the flat in Castle Peak Road in Cheung Sha Wan. Paragraph 8 of the summary of facts gives a scant account of what they saw and found. Whilst it is accurate so 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 pm, and they saw you meet with that 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 party to placing a fully conscious 7-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. That was an act of extreme callousness, a vile abuse of this terrified child carried out by you to further your own ends. All right thinking members of the community will be horrified to learn that you could behave in such a way towards a child, let alone the child of friends.
You carried the bag on your shoulder towards a prearranged meeting point with a car. The other man kept watch at first, and then he helped carry the bag. At the car one of its three occupants alighted and assisted you to put the bag into the boot. You boarded the vehicle with the others, and it was driven off by one of them. 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.
I have remarked already in the course of counsel’s submissions that the life of this boy was, at the time, at very considerable risk. Firstly, he was bound and gagged so that he could only breathe through his nose. Had he, for some reason, such as a nosebleed caused by a blow from the movement of the car, been unable to breathe through his nose, he would have suffocated. But more than that, 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 recognised you given that he had seen you many times before. You and those engaged with you would therefore have anticipated that the moment he was returned to his parents he would indicate that it was you who had kidnapped him.
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 real risk of such harm inherent in your conduct, and it is proper to have regard to that 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. The kidnapper’s dilemma is that if he releases his victim the victim may recognise him and report him.
Neither the victim nor anyone on his behalf is able to control such risks to life and limb. It is a risk which is knowingly adopted by the kidnapper. 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. The vigilance of the police meant that his ordeal was quickly over after the car was driven off because it was intercepted and you were arrested. You did not make a clean breast of things at first, though you gradually made some admissions in interview.
On any view this was a grave crime, one driven by personal greed and committed with a callous disregard for the welfare of the victim and the trauma caused to him and to his family. You even spoke in sympathetic terms to his mother during the day, knowing all the while that you were responsible for her suffering. I note the memorandum from the police dated 7 May 2009, which suggests in the opinion of a social worker that the boy has suffered no lasting emotional damage, if that is so it is no credit to you. However, it has no bearing on the trauma that was inflicted on the boy and his family at the time.
Let me turn to your part in this, D2. You have been presented as a reluctant participant acting out of love for D1, the father of your unborn child, someone who had to be persuaded to take part against your better judgment. That position is based largely on your own interview with the police, which, to that extent, was self-serving. There is no doubt that you played a lesser role in this course of events than D1. That is reflected in the prosecution decision to accept your plea to a less serious offence. But you were involved from an early stage before the kidnap, and you went through with your part in it throughout until the boy was fortuitously rescued by the police.
At any time during the day you could have brought it all to an end. There was a time before you went to your friend’s home when you guarded the boy alone in the flat. You could have taken him to safety. You chose not to. At the victim’s home, where his mother was understandably distraught, as described by you at about counter 1770 of your own interview, by the threats to kill her little boy - which you must have known about - you could have told her the truth and put an end to her misery and that of the boy. You chose not to. Those must have been conscious choices, and they indicate that you were willing to participate in the false imprisonment of this 7-year-old even if you felt guilty about the betrayal of your friend, his mother.
It is suggested that your offence is worthy of a non-custodial sentence such as community service, or that any sentence of imprisonment should be suspended. That, I am bound to say, is far removed from the gravity of this case in which you have participated in the false imprisonment of a young child whom you knew to have been kidnapped.
I have gone into this considerable detail in respect of these two offences because I am concerned that their truly heinous nature does not adequately emerge from the limited summary of facts. It is a summary that is true and admitted so far as it goes, but it does not expose the whole picture.
D1, you are now 22 years of age. You are of clear record. You have not exhibited any previous conduct of a like nature. I have been told that you were acting out of concern for your financial well-being given the imminence of the birth of your child. At the same time I am told that you were earning $4,000 as a part-time social worker and $7,000 as a nightshift worker in a club, and that D2 was earning $7,000 as a waitress. I put this offence down to greed.
Kidnapping is always met with heavy punishment. There is, as previous courts have consistently said, a need to impose sentences which will deter people from this sort of conduct so the potential victims may be protected and people may feel secure. Every case is different. So previous sentencing decisions, some of which I will list later, are only of limited assistance.
There is, however, one decision in particular which I must mention, a case called HKSAR v Leung Man Kwong & Anor, CACC57/2001, in which the Court of Appeal considered the sentence imposed on two men convicted of a similar charge to Count 1, involving a 9-year-old boy who was snatched by three men who drove a car in front of the car in which the boy was being driven to school, threatened his driver and abducted the child, who was held for five or six days, during which time a large ransom was demanded from his no doubt wealthy family. Eventually the boy was discovered being carried blindfolded in a suitcase from one location to another. He had not otherwise been physically abused. The organiser, who was sentenced to a term of imprisonment based on an 18-year starting point, abandoned his appeal.
That term was not, therefore, considered by the court, which upheld the sentence on his assistants, which was based on a 15 year starting point. In that case the degree of organisation and planning by the main offender appeared to be greater than in this case. The time for which the victim was held was longer. There were weapons, including what appeared to be a pistol, displayed, and a forcible abduction rather than one by trick. In some way the circumstances were more serious than in this case. On the other hand, the boy was not tied and gagged whilst being carried in the suitcase, and there was no element of betrayal of a friendship. Neither is it apparent that there were wider risks to life and limb which I have identified. Other sentencing cases involving the kidnapping of children are referred to in that case, and I have considered them.
I judge that in all the circumstances of the present case a term of 17 years’ imprisonment before discount for mitigation is appropriate for Count 1. The mitigation available to you, D1, is your plea of guilty, which firstly means that the boy has not had to relive his ordeal, and neither have his parents. It indicates an element of remorse though the evidence was strong. Also you are, as I earlier remarked, of clear record. The combination of these factors leads to a discount of one-third on the sentence, which amounts to a deduction of 5 years 8 months.
Thus the term I impose upon you in respect of Charge 1 is 11 years and 4 months’ imprisonment.
D2, you are a little older, at 27 years, and also of clear record. You are divorced, with two children by your former marriage, who live in India with their father. You gave birth to a child with D1 whilst in custody late last year, but have been on bail since December 2008. This is, as I have already said, by no means a case for a non-custodial sentence. It is far beyond the threshold for immediate imprisonment for the reasons I have earlier indicated. The maximum term in your case is one of 7 years’ imprisonment. I judge that the minimum sentence before discount for your mitigation is one of 5 years’ imprisonment. I discount that term to 40 months or 3 years and 4 months to reflect your mitigation, which mirrors that of D1. You may be seated. You may be seated; both of them.
I must, before I conclude, commend the police from various teams of the Regional Crime Unit of Kowloon East and the Criminal Intelligence Bureau for the conduct of their investigation into this case, which was skilful and exemplary. Having been involved on the morning of 19 June, the police immediately devoted significant resources to the investigation, and within hours had located the place where they believed the child to be held. They kept that place under surveillance. They acted swiftly and decisively when the child was removed, and they were able, by their prompt action, not only to end his ordeal but also to save him from further harm, and at the same time arrest those who were responsible. The interviews of the 1st accused, far from being susceptible to the criticism that they have been that they amounted to unfair cross-examination and put too much pressure on him, were models of their kind: firm, yet fair. This was a successful police operation, consequent upon diligent and first class investigation. All the officers involved are to be commended, and I shall take steps to ensure that this commendation is forwarded to the Commissioner of Police.
In addition to the case I have already mentioned, I have had regard to two others, although the circumstances in those were very different from this one and little assistance is to be derived from them. They are Hui Sze Ping CACC426/2001 and Pun Luen Pan CACC555/2003.
Appeal allowed: see CACC172/2009 dated 7 January 2010
|