Tsang Kam Cheong v R.

CourtCourt of Appeal (Hong Kong)
Judgment Date02 September 1994
Judgement NumberCACC623/1993
Subject MatterCriminal Appeal
CACC000623/1993 TSANG KAM CHEONG v. R.

CACC000623/1993

IN THE COURT OF APPEAL

1993, Nos.623 & 624
(Criminal)

H E A D N O T E

A plea of guilty to manslaughter on a count of murder should not be accepted where the agreed facts clearly indicate that the offence committed was murder, not manslaughter.

The circumstances of the crime were so grave that the maximum sentence of life imprisonment would have been justified after trial.

An overall sentence of 31 years' imprisonment was upheld for three separate incidents of (1) forcible detention of a person with intent to procure a ransom for her liberation, robbery, possession of an imitation firearm at the time of committing robbery, and two thefts, (2) aggravated burglary, manslaughter and wounding with intent, and (3) robbery.

IN THE COURT OF APPEAL

1993, Nos.623 & 624
(Criminal)

___________

BETWEEN
THE QUEEN
AND
TSANG KAM CHEONG

___________

Coram: Hon. Macdougall, V.-P., Bokhary, J.A. and Wong, J.

Date of hearing: 2 September 1994

Date of judgment: 2 September 1994

_______________

J U D G M E N T

_______________

Macdougall, V.-P. (giving the judgment of the Court):

1. On 13th October 1993, the applicant pleaded guilty before Ryan, J. to one count of robbery, one count of possession of an imitation firearm at the time of committing robbery, two counts of theft and one count of forcible detention of a person with intent to procure a ransom for her liberation. By means of a series of consecutive, concurrent, and partly consecutive and partly concurrent sentences, the applicant was sentenced to an overall term of 15 years' imprisonment.

2. A week later, on 20th October, the applicant also pleaded guilty before Ryan, J. to one count of aggravated burglary, one count of manslaughter, one count of wounding with intent and one count of robbery. The judge sentenced the applicant to concurrent terms of seven, sixteen and ten years respectively for the first three of those offences and ordered that eight years thereof be served consecutively to the overall sentence of fifteen years' imprisonment passed on 13th October. He further sentenced the applicant to eight years' imprisonment on the 4th count and ordered that he serve that sentence consecutively to the concurrent sentences on the first three counts on that indictment. The overall sentence passed in respect of the counts in both indictment was one of 31 years' imprisonment. The applicant now seeks leave to appeal against those sentences.

3. The admitted facts relating to the offences for which he was sentenced on 13th October were that at about 8 p.m. on 12th November 1992, Miss Suen, a student at the Chinese University, was walking to her home in Shatin, after having alighted from a bus, when the applicant suddenly appeared and attacked her. After pushing her into a ditch by the roadside, he pressed her head down. When Miss Suen called out for help, the applicant struck her over the forehead with what was subsequently accepted to be an imitation pistol. He seized her handbag, tied her hands behind her back and demanded that she tell him the personal identity number relating to her electronic teller card. After the terrified Miss Suen told him the number of the card and the applicant had written it down, he bound her feet together and carried her down the hillside to an area of flat land where he gagged her with a piece of cloth and a strip of adhesive tape, bound her feet with nylon rope and covered her body with a cloth bag. He told her that he was going to withdraw money from her bank account by using the electronic teller card which he had taken from her handbag. During the applicant's absence, Miss Suen struggled desperately to free herself from her bonds, but to no avail. About an hour later, at 11 p.m., the applicant returned and told her that he succeeded in withdrawing $6,000 from her bank account and that after midnight he would leave and make a second withdrawal of $6,000. About an hour later, after he made the second withdrawal, the applicant returned and told Miss Suen that he intended to hold her hostage and demand a ransom of $500,000 from her family for her release. He then took her to a hillside where he again bound her hands and feet and gagged her. He told her that he was going to use her identity card to buy a portaphone and that he would buy some food for her. It was not until about 5 p.m. that day that he returned with the portaphone and food. He then demanded to know Miss Suen's home telephone number. At about 7.20 p.m. the applicant telephoned Miss Suen's home and demanded a ransom of $500,000. In order to satisfy Miss Suen's brother that she was alive and under the applicant's control, the applicant allowed her to speak to her brother over the portaphone.

4. After spending the night on the hillside, with Miss Suen still his captive, the applicant...

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