LEE WAI KIT and Another v. R.

IN THE COURT OF APPEAL

1993, No. 674
(Criminal)

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J U D G M E N T

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Mayo, J. (giving the judgment of the Court):

1. The 1st Applicant is seeking to appeal against his sentence for the offence of forcibly taking away and detaining a person with intent to procure a ransom for his liberation. He was sentenced to imprisonment for 23 years.

2. The 2nd Applicant seeks leave to appeal against the sentence of 6 years imprisonment imposed on him when he was convicted of the lesser offence of false imprisonment.

3. Both Applicants were thus convicted after a trial which lasted over 2 weeks before Stuart-Moore J.

4. The circumstances of these offences were particularly serious. On the 10th April 1990 a group of men which included the 1st Applicant waylaid a wealthy businessman, Mr Wang Ten Hui, who was returning to his home on the Peak after taking exercise at the Royal Hong Kong Jockey Club's premises in Happy Valley.

5. The men used 2 other motor cars to sandwich Mr Wang's car and then break their way into the car. They then forcibly removed him to the rear seat of his Mercedes Benz motor car and drove it away.

6. Mr Wang was then taken to Apliu Chau and put on board a vessel which was in the control of the 2nd Applicant. At this time he was tied hand an foot and rolled up in a fishing net.

7. Mr Wang was kept at sea for 2 or 3 days after which he was dumped into the sea in a weighted net and drowned. Neither of the Applicants was charged with Mr Wang's murder.

8. Shortly after the forcible abduction a series of demands was made for ransom to be paid to secure the release of Mr Wang. The demands were for the sum of US$60 million.

9. Mr Wang's wife paid HK$260 million into a bank account as instructed by the caller and the funds were transferred to bank accounts in Taiwan.

10. The question of sentence was carefully considered by the trial judge and he rightly took a serious view of the case. He pointed out that it was a carefully planned and ruthlessly executed operation undertaken for the applicant

for enormous financial reward. Moreover, considerable violence was used in carrying it out.

11. The judge imposed on the 1st Applicant a sentence two years less than that which had been passed on an accomplice, in the same crime, one Chung Yuk-kan, at an earlier trial. The two years' reduction was made in order to take into account some of the time which the applicant had spent in custody in England while extradition proceedings for his return to Hong Kong were taking place. The 1st Applicant's involvement in the planning and execution of the abduction was comparable to that of Chung. It had been accepted by the Crown, however, that Chung, in contrast to the applicant, had unsuccessfully attempted to withdraw from the criminal venture.

12. Mr Callaghan, who represented both Applicants in this court, placed heavy reliance upon the outcome of the appeals against the sentences passed on the applicants' accomplices in the earlier trial. In approximate terms the applicants in that appeal, including Chung, had their terms of imprisonment reduced by a third. We think in these circumstances that we should make some reduction to the sentence imposed in the case on the 1st Applicant. We consider that a reduction to 18 years is appropriate and that we should give the same 2 years credit to the 1st Applicant that the trial judge was disposed to give. That means that the sentence will be reduced to one of 16 years' imprisonment. We would however add that if a case of similar gravity occurs in the future the imposition of an even heavier sentence would not be inappropriate.

13. The 2nd Applicant in his notice of appeal mainly placed reliance upon the matter which was urged in mitigation when he was originally sentenced, namely his ill-health.

14. Mr Callaghan referred us to three previous cases where sentences had been imposed for the offence of false imprisonment. It must be said immediately that all three of these cases were far less serious than the present case.

15. It must be borne in mind that on his own evidence the 2nd Applicant was to receive HK$300,000 as a reward for allowing his vessel to be used in carrying the victim from Apliu Chau to the high seas while the demands for ransom were being made. This was undoubtedly a factor which had to be weighed in determining the seriousness of the 2nd Applicant's involvement.

16. Nothing which has been said before us persuades as that the sentence imposed on the 2nd Applicant was in any way excessive, and it would appear that the trial judge gave credit for the fact that he had no criminal record.

17. The outcome of this appeal is that leave is granted to the 1st Applicant to appeal. The appeal is successful to the extent indicated namely his term of imprisonment is reduced from 23 years to 16 years. The 2nd Applicant's application is dismissed.