R. v. SUNG CHIN PANG

IN THE COURT OF APPEAL

1994 No. 548
(Criminal)

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J U D G M E N T

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Seagroatt, J.:

1. This is an application for leave to appeal against a sentence imposed by Leong J. on 17th October 1994 when the Appellant pleaded guilty to two offences of kidnapping, arising out of the same circumstances, and an offence of possessing an imitation firearm with intent to commit an arrestable offence. Concurrent sentences of 10 years were imposed for the two kidnapping offences, the maximum sentence is life imprisonment, and a consecutive sentence of 4 years was imposed for the imitation firearms offence, totalling 14 years. The appeal is essentially against the overall term and the approach whereby the second period was made consecutive.

2. The facts which encompassed all three offences are straightforward, but disclosed what must have been a terrifying experience, at least initially, for the adult victim, Madam Cheung Yin Yee and most probably for a longer period, for her 4-year-old daughter.

3. At about 1200 hours on the 24th November 1993, she had just collected her daughter from a kindergarten at Kowloon Tong, both were sitting in the front of a car; the Appellant got into the rear of the car, brandished the toy pistol for a short time and demanded $500,000.00. Negotiations went on for about half an hour involving the victim's husband by means of a portable telephone. He ordered her to drive away and she stopped the car at a place designated by her. Further negotiations took place by telephone with her husband, threats to cut off a finger were made. The ransom demanded was reduced, and eventually, she drove to a bank to withdraw money. It was by now about 2.15 p.m.; she went into the bank, leaving her daughter in the car with the Appellant. She alerted bank staff who contacted the police. The police who were armed, mounted an operation on locating her car and eventually her daughter was freed and the Appellant was arrested.

4. The Appellant was 35 years old and of previous good character. He was prepared to plead guilty to these offences from the earliest stage and co-operated with the police throughout. The motivation for the kidnapping and ransom demand was the need for money to run a business, he having been unemployed throughout the previous two years.

5. It was argued by Mr. Grounds that the offences were committed on impulse, and with a lack of general planning. It may certainly be fair to say that it was not sophisticated and not ruthlessly proceeded with, but he had selected a vulnerable target in an area which facilitated its carrying out, a mother collecting her child from the kindergarten, and had selected an imitation firearm which had an actual firing mechanism though not working properly at the time. There was some degree of planning. Furthermore, although it lasted some 2½ hours, a short period in some circumstances and cases, that may well have seemed an interminable time to the victims. In short, this was a serious offence which happily resulted in release and safety for the victims as the offender's resolve diminished. The victims would not have known that the pistol was not a real one, nor would those police officers alerted to the rescue, have known that either.

6. The learned judge was referred to the decision of this court in the case ofDavid Lee Po Man [1992] HKCLR Vol. II p. 70. He was also presented with a letter from the husband of the adult victim. We have not seen that letter, but Mr. Grounds assures us that we can safely assume that the two documents which are before this court accurately reiterate that generous attitude contained in that letter. I will return to those documents in due course.

7. The learned judge rightly referred to the element of deterrence to be reflected in the sentence. He considered the aggravating features in the case of this Appellant to be more numerous than in the case cited. We think that it is difficult to make a proper comparison. He proceeded to sentence in respect of the imitation firearms offence from a base of 6 years, reducing it by one-third to 4 years to allow for mitigation, including the plea of guilty. For the kidnapping offences, he reduced the sentence of 15 years to one of 10 years on the same basis, concurrent with each other. He then made the 4-year term, consecutive to the 10-year term.

8. Mr. Grounds on behalf of the Appellant argues that the totality of the sentence is wrong; that the starting point for the kidnapping offences was too high and the sentence for the firearms offence should not have been consecutive, since the starting point for the kidnapping offences must have included the use of an imitation firearm as an aggravating feature and that inadequate regard was paid to the mitigating features, in particular the plea of leniency made by the adult victim's husband.

9. The decision of this court in David Lee Po Man was consequent upon the Attorney General's request for leave to review a sentence of a training centre order. In the event, a sentence of 5 years' imprisonment was substituted. That, in fact, allowed an extra reduction since it was a review. It is not necessary to reiterate the detailed facts in that case. A 19-year-old defendant of good character held an 8-year-old boy to ransom over a period of appropriately 30 hours. He used chloroform, a dangerous substance in itself, to overcome the boy and threats made in a series of telephone calls were horrifying. It was a well-planned kidnapping. In the course of considering that case, this Court was referred to a number of its own decisions underlying the need for deterrence. The court decided that the appropriate starting point in Lee Po Man was 10 years sentence after trial, discounted to 7 years after mitigation. The court also underlined that a global view of the sentence was appropriate to take into account both offences. He had also pleaded guilty to administering chloroform with intent to commit an offence.

10. That case is good support for a global approach on the sentence, as indeed is the decision of this court in The Queen v. Wong Ming heard on 14th March 1995, since the use of a weapon, real or artificial, or some noxious substance in order to achieve or facilitate the main offence, is an aggravating feature of that offence, and we consider it artificial to sentence for the main offence without taking into account that aggravating aspect, and then sentence on a consecutive basis for the allied offence involving the aggravating aspect. We were also urged to take into account the concern of the victim for her attacker which she so eloquently expressed in a letter to us. We know nothing of the effect of this traumatic experience upon the young child, though we are entitled to assume that with such a robust and balanced mother, the effect upon the child was probably transient.

11. We have to take account of the "impact of such offences on the public at large, whatever view the actual victims of the offences might have expressed", as Mr. Cross has reminded us, that expression being used in the case of The Queen v. Kwok Yee, William in 1993. The circumstances in Lee Kam-lun which we also considered are wholly unusual, as Bokhary J.A. set out in the final paragraph of the court's judgment, and the circumstances of another case Tsui Mei-ying involving violence between the husband and wife with the background of marital discord, again are peculiar to that case.

12. In the normal course of events, the victim's views are not to influence the court's decision on sentence. However, the exceptional plea made on behalf of this Appellant by his victim is considered, unemotional and sustained. It has in it all the elements which lawyers and judges look for as a test of its balanced approach. It is rational and intelligent. We are often asked to reflect the views of the public, or of a section of public, in imposing severe sentences on offenders. Although such views are ones which we should, in the right circumstances, take account of, the public in viewing courts' sentences do not have the material, the reports, the detailed circumstances, nor the sentencing policy, of which the judges have to take account. When members of the public, particularly victims, seek to persuade the court to exercise mercy or leniency in a wholly unsolicited, but principled manner, it would be wholly wrong for the court not to pay some regard to it. Such a case would, however, be exceedingly rare.

13. We think the proper global starting sentence for this kidnapping is 12 years. On the basis of the plea, the co-operation and the mitigation urged by the lady, the sentence should be discounted to one of 7 years. The offence of possession of the imitation firearm should be a concurrent sentence of 3 years that having been discounted from a term of 5 years. We treat the hearing of the application for leave as the appeal itself and allow it, so as to reduce the sentence from one of 14 years to one of 7 years' imprisonment.