R. v. TAM PING-MAN

IN THE COURT OF APPEAL

1992 No. 161
(Criminal)

HEADNOTE

Kidnapping - the maximum term of imprisonment in Hong Kong for the common law offence of kidnapping is, by virtue of section 90 of the Interpretation and General Clauses Ordinance, Cap. 1, seven years. It is inappropriate to charge kidnapping at common law where the offender has an intention to procure a ransom or benefit from the liberation of the person kidnapped. In such cases, a charge under section 42 of the offences against the Person Ordinance, Cap. 212, which carries a maximum penalty of a sentence of life imprisonment should be brought.

The fact that the child is returned unharmed because of a combination of fortuitous of circumstances weighs little in favour of the offender. The planned kidnapping of a child involving a ransom is an offence within the upper range of seriousness and calls for a sentence, where the offender is charged with the common law offence of kidnapping, of six years.

IN THE COURT OF APPEAL

1992 No. 161
(Criminal)

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J U D G M E N T

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Power, V.-P.:

1. This is the judgment of the Court.

2. The applicant, who was D1 at trial, was charged with four other persons with one count of kidnapping contrary to the Common Law. It was alleged that he, together with the four named persons, on 12th July 1991 in Hong Kong stole and unlawfully carried away HUI Kin-yip against his will. He pleaded not guilty to that charge as did three of the other defendants. The 3rd defendant at trial pleaded guilty. After trial, the applicant and the other 3 were found guilty. The applicant was sentenced to imprisonment for six years. He now appeals against that conviction and, by leave, out of time against his sentence. Both applications were refused. We stated we would give our reasons for sentence later and this we now do.

3. The sole ground upon which he relies in his appeal against conviction is that:

"The Learned Trial Judge erred in law when he failed to direct or remind himself that it was dangerous to act or convict upon the uncorroborated sworn evidence of Hui Kin-pong (P.W.4) and Wong Siu-chung (P.W.5) who were aged 13 years and 12 years respectively at the time they gave evidence."

The victim was nicknamed Sai Pong and we use that name when referring to him. He resided with his parents and his elder brother, Hui Kin-pong who was P.W.4, at 1022, On King House, Lai King Estate, Kwai Chung. In the afternoon of 12th July 1991, he had been playing in the corridor outside his home. At about 2 p.m. he was found to be missing. Shortly after 3 p.m. his father received a telephone call in his office from a man who said that he had taken his son, was seeking a ransom of $100,000 and was giving him two hours to collect the money. He informed the police and a search was then mounted for the missing child. At about 5 p.m. Sai Pong was handed to a Madam Chan Ho who was a cleaning lady at the MacDonald's outlet at Choi Wan Estate. The person who handed him over was the 3rd defendant. Madam Chan immediately gave the boy to the manager who informed the police who took him first to Wong Tai Sin Police Station and then to Queen Elizabeth Hospital where his father identified him.

4. The 3rd defendant having pleaded guilty gave evidence for the Crown as P.W.1. He said that he was a school mate of D4 and that he knew the applicant and D2 who were husband and wife and who also resided in the Lai King Estate. In early July his school mate D4 contacted him and told him to go to the 8th floor of On King House where he met the applicant, his wife and D4. The applicant asked him to help by carrying away a child to Choi Wan Estate and that he would give him money depending upon how much he got himself. The applicant also told him that he would telephone the child's father to get a ransom of $100,000. The following day he again met the applicant, his wife and D4 on the 8th floor of On King House. The applicant then took all of them and his own son, Chun Chai, to premises in Choi Wan Estate. The wife of the applicant opened the door of the premises with keys and that the applicant told him to remember the shops in the vicinity as he was not familiar with the place. At that time, he noted that there was a MacDonald's outlet on the ground floor of the restaurant where they had tea. After having tea, the applicant left and that he then went and played the video games. Later in that afternoon, D4 contacted him and invited him to go and play and they met the applicant who invited them to go to Tsim Sha Tsui for a 7:30 film show. After the show, they went to dinner and the applicant then told him that he, D3, was to kidnap the child and place him in the flat in Choi Wan where they had been earlier in that day and that he would be given the keys to that flat. On 12th July, he again met with the applicant, his wife and D4, on the 8th floor of On King House where the applicant told him and D4 to go to the house of the boy to wait for a chance to kidnap him. He went with the wife and with D4 who went into the house of the child while he waited outside. He saw the child Sai Pong playing outside his house so he then carried him away in a taxi to Choi Wan Estate. On the way to the estate, he realized he had not got the keys to the premises so he paged the applicant at the management office of the building on the ground floor of the Choi Wan flat and left him a message that he did not have the keys and that he would go to MacDonald's. Following this he took the kidnapped child to MacDonald's, bought him something to eat and then handed him to a woman, saying that he was going to make a telephone call. He then paged the applicant and received a message from him that he should leave, whereupon he left the MacDonald's leaving the kidnapped child behind.

5. There was also evidence from the brother in which he said that he had been entrusted with his younger brother, Sai Pong, and that he had been inside playing video games and Sai Pong was outside in the corridor playing. He said that the applicant's wife came with her son and that he was later told by the son of the applicant that Sai Pong had "flown" to the street whereupon he asked his friends to help in a search for him. He added that the applicant had been to his home on that afternoon playing video games and had asked him for the number of his father's portable telephone and had taken his father's portable telephone away for two to three hours.

6. The other boy mentioned in the ground of appeal, Wong Sui-chung, gave evidence as P.W.5. We do not intend to detail his evidence as it was nowhere in conflict with the evidence of the applicant. The only real clash was between the evidence of the applicant and P.W.4 as the applicant stated that he had not taken the telephone of the father away from the premises.

7. Mr. Grounds who appeared for the applicant referred firstly to R. v. Campbell [1956] 3 W.L.R. at p.219 to establish the proposition, which we accept, that, even if a child gives sworn evidence, it is dangerous to convict upon that evidence if it is uncorroborated. Mr. Grounds stated that he was unable to discover any authority laying down when a witness should be regarded as a child whose evidence required corroboration. In the unreported refusal by the Privy Council to give special leave from the Hong Kong Court of Appeal's decision in R. v. Fung Kam-keung [1991] H.K.L.R. 377, Lord Templeman made the following observation:

"Their Lordships consider that in this case an enquiry should have been made and we would not want to give countenance to children under the age of fourteen not being submitted to an enquiry and the judge not saying what the result of that enquiry was."

The age, then, at which an enquiry as to whether the child understands the nature of an oath should be made, as indicated by this observation, is when the child is under the age of fourteen. It is not suggested that there was a failure to make enquiry in the present case. The complaint is that the trial judge did not give himself the warning which he was required to do as to the need for corroboration. Mr. Grounds referred us to Chiu Nan-hong v. The Public Prosecution [1961] 1 W.L.R. 1279 and to the passage from the reasons, delivered by Lord Donavon, where, in relation to what a judge should do in circumstances such as this, the court said at p.1285:

"For in such a case a judge sitting alone should in Their Lordship's view make it clear that he has the risk in question in his mind but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond any reasonable doubt. No particular form of words is necessary for this purpose. What is necessary is that the judge's mind upon the matter should be clearly revealed."

8. Mr. Grounds argued that the judge did not give himself any warning in circumstances where he should have done and submits that this was a serious error in law. When, however, the evidence of P.W.4 is examined, it can be seen that it was as to only one matter at variance with the evidence of the applicant.

9. The trial judge, when coming to his conclusion as to guilt, said:

"Nevertheless the Court had no doubt whatsoever that D3 was trying his best to give an accurate and truthful account of the circumstances in which he carried Sai Pong away on 12.7.1991. The Court accepted his evidence that it was D1 who devised the scheme and each of D1, D2 and D3 and D4 had a part to play in the kidnap of Sai Pong. Sai Pong had been carried away by force without his consent and without lawful excuse as a result of the concerted effort on the part of D1, D2, D3 and D4.

The Court would have convicted D1, D2 and D4 on the evidence of D3 alone.

But the Crown case had been further strengthened by the statements of the defendants."

10. It is quite clear from what the judge said above that, when convicting, he relied upon the evidence of D3 and upon the confessional statement made by the applicant. One view that might be taken of this matter is that the trial judge cannot be said to have been in material error as he did not rely upon the evidence of P.W.4. It might be suggested, that being so, that, although the judge erred in not warning himself, it was not an error which affected the outcome of the trial. However, we think it proper to deal with the matter upon the basis that although there was an error in law it did not occasion any injustice to the applicant and clearly calls for the application of the proviso.

11. That being so, we treat the hearing of the application as the hearing of the appeal and dismiss the appeal.

12. At the conclusion of the hearing of the application for leave to appeal against sentence, we refused leave stating that we would hand down our reasons later. That we now do.

13. The applicant was charged with four other persons with one count of kidnapping and sentenced after trial to imprisonment of six years.

14. The grounds argued by Mr. Grounds who appeared for the applicant were:

"The sentence of 6 years imprisonment imposed upon the Appellant was manifestly excessive and thereby wrong in principle. In particular the following facts and matters indicate that a manifestly shorter term of imprisonment was called for:

(a) that the maximum term of imprisonment for kidnapping in Hong Kong is 7 years imprisonment (by virtue of Section 90 (1) of the Interpretation and General Clauses Ordinance, Cap.1);

(b)did not that the Learned Trial Judge appear to be aware that the said maximum sentence for kidnapping was 7 years;

(c) that the kidnapping itself could not properly be said to be the worst of its kind in that it appeared to have been carried out in a relatively amateurish fashion, Sai-pong appeared not to come to any harm (and perhaps did not even know what was happening) and he was returned to his family within a relatively short space of time."

15. It is correct that the maximum term of imprisonment in Hong Kong is seven years. This comes about because there is no statutory offence of kidnapping in Hong Kong and the sentence for the common law offence of kidnapping is dealt with by the blanket provision contained in s.90 of the Interpretation and General Clauses Ordinance Cap. 1 which provides that where a person is convicted of an offence which is an indictable offence and for which no penalty is otherwise provided by any ordinance he shall be liable for imprisonment for seven years and a fine.

16. In the United Kingdom, for both the common law offence of kidnapping and the allied offence of false imprisonment, the maximum penalty is at large, which allows a sentence of life imprisonment to be imposed. In Hong Kong the Offences against Persons Ordinance Cap.212 lists two offences under the chapter heading "Forcible Taking or Detention of Persons". The first, s.42, reads as follows:

"42. Forcible taking or detention of person, with intent to sell him.

Any person who, by force or fraud, takes away or detains against his or her will any man or boy, woman or female child, with intent to sell him or her, or to procure a ransom or benefit for his or her liberation, shall be guilty of an offence triable upon indictment, and shall be liable to imprisonment."

While this offence is not described as "kidnapping" it clearly includes offences which would be covered by that description where the offender has one of the intents specified in the section. The position is, then, an entirely anomalous one. The result is that if an offender who has sought a ransom is charged with kidnapping at common law, the maximum penalty which can be imposed is seven years whereas if he is, on exactly the same facts, charged with an offence under s.42 he is liable to imprisonment for life.

17. Lord Lane, C.J. made some general observations on sentencing for the offence of kidnapping in Spence [1983] 5 Cr.App.R.(S) 413 at 416 saying:

"It seems to this Court that, as with many crimes so with kidnapping there is a wide possible variation in seriousness between one instance of the crime and another. At the top end of the scale of course, come the carefully planned abductions where the victim is used as a hostage or where ransom money is demanded. Such offences will seldom be met with less than eight years' imprisonment or thereabouts. The violence or firearms are used, or there are other exacerbating features such as detention of the victim over a long period of time, then the proper sentence will be very much longer than that. At the other end of the scale are those offence which can perhaps scarcely be classed as kidnapping at all. They very often arise as a sequel to family tiffs or lovers disputes, and they seldom require anything more than 18 months' imprisonment, and sometimes a great deal less."

Being in agreement with these observations, we are satisfied that a planned kidnapping for ransom should, after trial, receive a sentence of not less than eight years' imprisonment and, indeed, in most cases a more severe sentence may well be called for.

18. It is a matter of concern that Crown should continue to charge the common law offence, when it is alleged that the offender had one of the intents specified in section 42. The common law offence is appropriately charged where the offence involves no more than a carrying away by force or fraud without consent and lawful excuse.

19. Having made these general observations, we turn to consider the submissions of Mr. Grounds. He submitted that, whatever the position might be with regard to the punishment for offences under s.42, the fact of the matter was that kidnapping at common law was charged and that the maximum punishment thereunder was seven years imprisonment. He submitted that this was not the worst offence of its kind and that the sentence should, bearing that in mind, be appropriately scaled down from 7 years. Mr. Grounds suggested an appropriate sentence would have been four years. He submitted also that the court, when considering the seriousness of this offence, should look at the consequences of it, pointing out that the child was returned, within a very short time, unharmed to his parents. We reject this consequential approach. The criminality lies in what was done and what was intended to be done. The early return of the child was entirely fortuitous arising, it seems, because of faint heartedness on the part of one of the offenders. It is a matter, we are satisfied, which can redound hardly at all to the credit of the applicant. This was a carefully planned kidnapping in which the applicant was the mastermind. He made preparations for the detention of the child in a flat remote from the point of abduction. He corrupted young people by using them to carry out the abduction itself involving them in a crime which, of their own volition, they would never have conceived or executed. He planned to extort a considerable sum of money, $100,000, from the parents. He made use of his friendship with the parents to carry out the abduction.

20. Mr. Grounds while conceding the above circumstances existed argued that this offence had none of the aggravating features which existed in Attorney General v. NG Shing-chun Criminal Appeal No.130 of 1988. In that case the woman after being kidnapped was subjected to a number of sexual assaults and indignities. It is true that there were no such aggravating features in the present case, however, in NG Shing-chun those were dealt with as separate offences and the offender was separately punished for them. Clearly if a kidnapping involves assaults, wounding or, as it does in some cases, murder, these should, and normally will, be charged and dealt with as separate offences. We are satisfied that the present offence was a kidnapping within the upper range of seriousness and that six years was a quite proper sentence to have imposed.

21. We turn finally to the submission of Mr. Grounds that the trial judge did not appear to have been aware that the maximum sentence for kidnapping was seven years. Whether or not that be so, six years was, as we have just indicated a proper sentence to impose. We are satisfied that the suggested ignorance by the trial judge, if it existed, cannot require that we interfere with a proper sentence. We are quite unpersuaded that the sentence of six years was in any way excessive. Indeed, had the applicant been charged under s.42 of the Offences Against the Person Ordinance, we would not have seen fit to interfere with a sentence in excess of that imposed.

22. The application is refused.