2. Kidnapping

2. Kidnapping

Kidnapping has always been a criminal offence at common law, being an aggravated form of false imprisonment. Compared with the lesser offence of false imprisonment, kidnapping is distinguished by the element of "carrying away" or movement. 

The offence of kidnapping generally comprises the following four elements: 

(a) the taking or carrying away of one person by another; 

(b) by force or by fraud; 

(c) without the consent of the person so taken or carried away; and 

(d) without lawful excuse. 

The scope of the offence of kidnapping is not confined to any particular relationship or age group—any person may be the perpetrator or the victim of the offence. The English courts have held that: (a) the offence may be committed by any person against a child under the age of 14; and (b) the offence may be committed by a parent against his own unmarried minor child. In other words, even the existence of parental status or a parent-child relationship cannot automatically provide a lawful justification for detaining another person. 

Taking or Carrying Away 

The element of "the taking or carrying away of one person by another" implies that there must be some deprivation of the liberty of the person so taken or carried away. 

Kidnapping may occur where the defendant forces the victim to drive, thereby taking both the defendant and the victim away from the place where the victim wishes to be. Moreover, the prosecution need not prove that the kidnapper took the victim to his intended destination. It need only prove a deprivation of liberty, and the taking of the victim away from the place where he wishes to be. 

By Force or Fraud 

The offence may be committed by the use of force or by fraud. "Force" includes physical compulsion or coercion. 

As for "fraud", this means dishonest and deliberate deception; a mere mistake is not sufficient to constitute fraud. For the purposes of kidnapping, according to English authority, the deception must be one that vitiates the victim's consent to being "taken or carried away"; where a person is merely induced by a trick to go voluntarily, without any deprivation of his freedom of movement, this will generally not be sufficient to constitute the offence. 

As regards the relationship between force or fraud and consent, it should be noted that, in a kidnapping involving a child, the key question is whether the child himself consented (see "Without the consent of the person taken or carried away" below). For a young child incapable of consenting, the prosecution need not separately prove force or fraud; as for an older child, whether he had sufficient understanding to consent is a question of fact to be determined by the jury. 

Without the Consent of the Person Taken or Carried Away 

In a kidnapping involving a child, the most important question is whether the child truly consented. Whatever the child's age, this is the crucial point. For a very young child, who lacks the understanding or intelligence to give consent, it necessarily follows that he cannot give consent. As for an older child, whether he is able to understand and make a decision is for the jury to determine on the facts. However, a jury will not generally regard a child under the age of 14 as having sufficient capacity to consent. 

The lack of consent of the child's guardian or carer does not bear on the question whether the child himself consented to being taken away. However, if the guardian or carer did consent, this may be relevant to whether there was a lawful excuse. Depending on the circumstances, such consent may provide the basis for a lawful excuse. 

The offence of kidnapping may be committed by a husband against his wife, provided that he carries her away by hostile force from a place where she wishes to remain. Whether or not they are cohabiting does not affect whether the offence is made out. So long as the victim is seized and carried away against her will, the offence of kidnapping is established. 

Sentencing Principles 

Kidnapping is a common law offence. Under section 101I(2) of the Criminal Procedure Ordinance (Cap. 221), the maximum term of imprisonment is 7 years. 

In England, the courts have observed that the most serious kidnappings usually involve advance planning, the holding of the victim as a hostage or a demand for ransom, and that sentences in such cases are generally 8 years or more. Where violence or a weapon is used during the kidnapping, or the victim is detained for a long period, the sentence will be heavier. In other words, a kidnapping for ransom is an extremely serious offence. In Hong Kong, the courts have emphasised the same point: where a kidnapping is committed for ransom, the prosecution should not proceed under the common law offence of kidnapping, because the maximum penalty for common law kidnapping is only 7 years' imprisonment, which is plainly insufficient to deal with cases of this seriousness. Instead, section 42 of the Offences against the Person Ordinance (Cap. 212) (forcibly taking away or detaining a person with intent to sell him) should be used, because that offence carries a maximum penalty of life imprisonment, and only by charging that offence can the court impose a sentence commensurate with the gravity of the case. 

On the other hand, cases involving domestic disputes or quarrels between lovers do not usually attract a sentence exceeding 18 months, and are for the most part prosecuted under the common law offence of kidnapping. In one case, however, the appellant broke into the home of his former partner, forcibly dragged her out and took her away in a vehicle, claiming that he wanted to teach her a lesson simply because she had a new relationship. The court ultimately rejected the suggestion that the case should be treated as a mere domestic dispute or lovers' quarrel.