DCCC 249/2013







Before: HH Judge Dufton

Date: 19 August 2013

Present: Mr Leslie Parry, counsel on fiat, for HKSAR
Mr Oliver Davies instructed by Wong & Co, for the defendant

Offence: Kidnapping (綁架)




1. The defendant pleads guilty to one charge of kidnapping, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Chapter 221. The maximum sentence is 7 years imprisonment.

2. The following is a summary of the events taken from the admitted facts and the witness statement of Madam Chan which was submittedduring mitigation. Madam Chan and the defendant were involved in a relationship for about one year, which ended in November lastyear. At around 21:00 hours on the 22 December last year Madam Chan was on her way home to meet her son when she was interceptedby the defendant, who asked her to board a van.

3. Madam Chan was allowed to take some food home she had bought for her son and then went with the defendant into the van. In thevan the defendant kept asking for a re-union with Madam Chan but Madam Chan refused and asked to leave. The defendant became emotionaland suddenly pulled Madam Chan down and covered her mouth with a cloth, which emitted an odd smell. As a result Madam Chan wasrendered unconscious.

4. Madam Chan woke up to find her wrists and ankles had been tied up with plastic cable ties. The defendant was driving the van andMadam Chan begged to leave but the defendant ignored her and continued to drive. At one stage the defendant stopped the van andcovered Madam Chan’s mouth with adhesive tape. The defendant then drove the van to a stone hut in Yuen Long, which belonged tohis father.

5. After cutting the cables and removing the tape the defendant pulled Madam Chan out of the van and into the hut. Madam Chan feltvery sick and vomited. When Madam Chan asked to leave the defendant ignored her and threatened to bury Madam Chan. Madam Chan beggedto leave and promised to reconcile with the defendant. Eventually the defendant drove Madam Chan home at 01:00 hours the next morning,some four hours after she had been intercepted. As a result Madam Chan sustained abrasions to the face and redness on her arms andlegs.

6. In passing sentence I take into account everything said on behalf of the defendant by Mr Davies together with the mitigation lettersand the content of the background report. I take into account the defendant has no previous convictions and that by pleading guiltyMadam Chan has not had to give evidence and thereby recall what must have been a very harrowing incident.

7. Mr Davies submits that the defendant did not plan to kidnap Madam Chan and explains that the van was supplied by his employer andthe plastic cable ties were used in the course of his work. The defendant says he did not know what was on the cloth. I have gravereservations in accepting that the defendant did not know why Madam Chan was rendered unconscious and that he only decided to tieMadam Chan up and take her to the hut at the very moment she became unconscious. However looking at Madam Chan’s witness statementshe says that the defendant suddenly became emotional on seeing her current boyfriend arrive. I therefore cannot exclude the possibilitythis is what made the defendant act in the way he did. I therefore proceed on the basis that when the defendant intercepted MadamChan he had not planned to tie her up and take her to the stone hut.

8. The offence nevertheless remains a very serious one. Madam Chan having become unconscious the defendant tied her up and took herto the stone hut. Fortunately Madam Chan was notseriously injured andsome four hours after being intercepted was taken home aftershe agreed to restore her relationship with the defendant. This however was after the defendant threatened to bury her leaving MadamChan no choice but to agree to reunite with the defendant.

9. Accepting that the defendant did not intend to kill Madam Chan by threatening to bury her must have added to what was already aterrifying and harrowing incident. As can be seen from the medical and psychiatric reports submitted by the prosecution Madam Chanwas in depressed mood and crying when admitted to hospital. After discharge from hospital Madam Chan was again admitted on the 7January for insomnia and referred to a psychiatrist who diagnosed Madam Chan as suffering from Adjustment Disorder with featuresof Post-traumatic Stress Disorder. In this regard I note that prior to the incident the defendant had also acted emotionally whichresulted in a report to the police for harassment.

10. There are no guidelines in Hong Kong in respect of kidnapping each case to be decided on its own facts and circumstances. Mr Parryhas helpfully referred the court to an extract from the sentencing manual published by the Crown Prosecution Service in the UnitedKingdom, which sets out a number of aggravating and mitigating factors in kidnapping and false imprisonment cases together with referenceto a number of reported cases.

11. Mr Davies has referred to three of the cases: R v Dzokamshure [2009] 1 Cr App R (S) 112; R v Saker [2012] 1 Cr App R (S) 16 and SB [2012] 2 Cr App R (S) 71. I have read the full judgment in these cases together with the case of R v Spence & Thomas (1983) 5 Cr App R (S) 413 referred to in the same extract and in Archbold. The end of the extract refers to recent cases arising out of emotional relationshipwhich are to be found in section B3-4.3D of Current Sentencing Practice, which I have also read.

12. Of the three cases specifically referred to by Mr Davies only Dzokamshure concerns kidnapping arising out of an emotional relationship. I find no assistance from the cases of SB and Saker both of which concern the kidnapping of children of the defendants.

13. In Spence & Thomas the court said that there was a wide variation in seriousness of offences of kidnapping. At the top end of the scale came carefullyplanned abductions and at the other end of the scale offences which very often arise as a sequel to family tiffs or lovers’ disputes. In these cases the court said they seldom require anything more than 18 months’ imprisonment, and sometimes a great deal less.

14. In Dzokamshure the defendant travelled to the victim’s home to make an unannounced visit. He smashed the window to gain entry to the propertyand punched the victim in the face twice. The defendant then dragged the victim out of the house and forced her into his car. Aftera while the defendant stopped the car on a slip road of a motorway and allowed the victim to leave telling her to leave her new partner. The victim sustained only minor injuries to her face and head.

15. The defendant, who was a person of good character and had no history of harassment of the victim, pleaded guilty and was sentencedto 18 months imprisonment. In dismissing the appeal the court said that the offence did not come within the expression “familytiffs or lovers’ disputes.” I am satisfied the present case equally does not fall within that expression or as Mr Davies putin mitigation last time that this was a ‘lovers argument’.

16. I have also considered the facts inHKSAR v Tsoi Sheung Ki DCCC 330/2011 submitted by Mr Davies. This is a case arising out of a dispute between two lovers who were cohabiting at the timeand by this reason alone can be distinguished from the present case where as in Dzokamshure the relationship had already ended. In my view the present case is more serious than both Dzokamshure and Tsoi Sheung Ki.

17. Taking into account all the circumstances of the offence including that the kidnapping arose out of an emotional relationship; MadamChan having become unconscious was tied up and taken to a stone hut; Madam Chan was detained against her will for about four hoursduring which the defendant threatened to bury her if she did not resume the relationship; Madam Chan has suffered Post-traumaticStress Disorder as a result of the incident however by pleading guilty Madam Chan has not had to give evidence; and that the defendanthas no previous convictions, I am satisfied the proper starting point after trial is 3 years imprisonment. Giving the defendantfull credit for his plea of guilty he is convicted and sentenced to 2 years imprisonment.

District Judge