HKSAR v. Wong for Ming

DCCC 94/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 94 OF 2017

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REASONS FOR SENTENCE

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1.The defendant (“D”) has pleaded guilty to one charge of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210.

THE FACTS

2.X (“PW1”) set up a domestic helper agency (“the Company”) and she has been a shareholder of the Company.  In 2002, D joined the Company as a clerk and he was responsible for clerical work and booking flight tickets for foreign domestic helpers.  On 1 October 2013, D’s employment was terminated.

3.On 14 November 2016, PW1 received a phone call from D.  Over the phone, D said to PW1, “I have the forged receipts, flight tickets and documents in my possession.  I know that [the church leader] was promoted yesterday.  I have the records of the forged receipts you issued for him.  You have to pay me money.  Otherwise, I will report to ICAC.”.  PW1 then asked how much D wanted.  D replied, “Give me HKD 5.5 million in half an hour.” PW1 immediately rejected.  D kept asking for the money via WhatsApp.  Feeling scared, PW1 reported the case to the police.

4.Instructed by the police, PW1 requested to lower the amount to HKD 300,000 and demanded to hand over the money to D in person via WhatsApp.  D refused to see PW1 in person, but demanded PW1 to deposit the sum of HKD 300,000 into his bank.  D also demanded PW1 to give him a reply for the remaining sum (ie HKD 5.2 million) in the evening.

5.PW1 clarified that she had never forged any documents for the flight tickets of the church leader.  PW1 also confirmed that she had never forged any documents for the flight tickets of domestic helpers.  However, the Company did receive a charge of HKD 100 from domestic helpers who demanded to have their flight tickets cancelled and refunded.  PW1 believed that D referred to those arrangements as forged receipts and flight tickets.

6.Even though PW1 had never forged any documents, she was willing to pay a few thousand dollars to D in order to avoid any damage to the reputation to the Company.  PW1 was also worried about her safety as D indicated over the phone that he incurred a lot of debts and if he could not settle his problem, he would have someone collect the money from PW1.

Arrest and cautioned statements of D

7.On 15 November 2016, D was arrested for Blackmail.

8.In the subsequent cautioned video-recorded interviews, D, inter alia, stated :-

(a) He wanted to borrow HKD 5.5 million from PW1 on the morning of 14 November 2016. He used the mobile phone, which registered in name of his mother, to call PW1. However, he was the sole user of the mobile phone number;

(b) He told PW1 that he kept the forged documents and he urgently needed HKD 5.5 million;

(c) The forged documents referred to forged flight tickets;

(d) PW1 called back and said she only had cash of HKD 300,000. PW1 demanded him to get the money in her office, but he asked PW1 to deposit the sum into his bank account instead;

(e) He ran a business of domestic helper agency in mainland China. He owed his partner a debt of HKD 1.6 million. Therefore, he borrowed HKD 5.5 million from PW1 in order to repay the debt to his partner and use the remaining to run his business;

(f) He told PW1 that he would post the forged documents on the internet to see how she reacted. He planned to disclose the arrangement of the forged flight tickets in internet forums or to the media;

(g) He confirmed that he sent the extracted WhatsApp messages to PW1 on the material day;

(h) However, he did not have any proof of the alleged forged documents or any witnesses for proving the alleged arrangements;

(i) He falsely told PW1 that he had the records of the alleged forged documents in order to scare her;

(j) He did not clearly indicate that he was to “borrow” the sum of HKD 5.5 million in the WhatsApp messages because PW1 had not indicated if she was willing to lend the money;

(k) He told PW1 that he owed people a lot of money. If she did not lend the money to him, he would ask the debt collectors to collect money from PW1 when he was scared; and

(l) He also said to PW1 via WhatsApp that if PW1 did not lend him the money, she should “watch out”.

MITIGATION

9.D has a clear record.

10.He is 38 years old.  He lived with his divorced wife and mother before the remand. PW1 is a distance relative of his family.  In 2002, he started to work for the Company as a clerk.  He left the Company in 2013.  Then he started a business in Mainland China with his business partner, one Ms Lam.  Ms Lam had borrowed HKD1.6M from loan shark for that business.  The business failed and all the money was lost.  

11.Subsequently, D was approached by the loan shark.  The loan shark not only caused nuisance to his wife’s office, but also wrote complaint letter to the Correctional Services Department (“CSD”) in D’s brother’s name that D was being ill-treated in the prison.  The purpose of so doing was to give the impression to the CSD that D was a trouble maker. In fact, D is the single child of the family and he does not have any brother.

12.Under the financial pressure and the blackmail of the loan shark, D was panicked.  Therefore, he acted out of stupidity by committing the present offence.

13.There is no triad element in this case.  The blackmail offence was committed without resort to other criminal acts like false imprisonment or threat of physical harm.  

14.Mitigation letter written by D was tendered in which D expressed his remorse and outlined his background and how he claimed the circumstances leading to his arrest. He asked for leniency.

15.It is accepted by the prosecution PW1 knew that the false documents never exist. Therefore, PW1 would not have alarmed by D’s act.

16.Most importantly, PW1 has expressed her forgiveness by way of a mitigation letter. In the letter, PW1 begged the court for leniency by giving D a chance, so that D can go back to the society and to take care of his aged mother.  Mr Kwan for the defence relied on R v Wong Siu Kwan CACC166/2001 which stated that :-

“25. While it is true that a sentence cannot be tailored according to the views of the victim because of the intervention of the state and it is a matter for the court which will have to consider a wider sphere of public interest as well as reasoning and precedent, the court should have regard to what the victim has to say, relating to how the offence was committed, how seriously he was hurt, mentally and physically, how he has been affected by the offence, and whether the imposition of a particular sentence would add to his distress or concern, especially when the victim's views are rational and intelligent.”

17.The defence submitted that the defendant is entitled to a further reduction as a result of the said forgiveness.

SENTENCING CONSIDERATIONS

18.The maximum sentence for blackmail is that of 14 years’ imprisonment.

19.Owing to the divergence of the circumstances for each individual case, there is no sentencing guideline for the offence of blackmail.

20.The prosecution had referred HKSAR v Cheung Kwun Yin (張冠賢) CACC 164/2007 and The Queen v Lau See Kau CACC 573/1995 to the court for consideration.

21.In Cheung Kwun Yin, referred to above, the applicant was convicted for an offence of blackmail.  His job was to entertain the customers in the bar.  He knew the victim. They developed a sexual relationship. He threatened the victim to give him one million dollar or he would disclose their relationship to victim’s husband. The Court of Appeal held that the appropriate sentence is 2 ½ years’ imprisonment.

22.In Lau See Kau, above, the applicant lured a Hong Kong doctor to China and then tricked him into joining a fraudulent card game. As a result, the doctor had lost $160,000. The applicant demanded he pay the money and threatened that if he refused to do so he would not live to return to Hong Kong. He was sentenced to 2 ½ years. The Court of Appeal said it was a very lenient sentence.

23.However, these cases turn on their own facts and have little significance in the sentence of the present case.

24.The defendant is 38 years old and of previous good character. He was prepared to plead guilty to the offence from the earliest stage and co-operated with the police throughout. The motivation for the blackmail was the need for money to pay for the loan shark and to run a business.

25.In the circumstances of this case, I do accept that this case is an unusual one and certainly not the worst of the kind.  In my view, the offence is simple and unsophisticated.  It was committed on impulse and with a lack of general planning. It arose as a result of the pressure caused by D by the failure of his business in China and debts incurred.

26.From the facts of the case, there was no evidence to show that the blackmail was triad related and the demand in fact was a one-off transaction. D acted alone.  It was in no way to give PW1 the impression that he was a powerful gang.

27.In the present case, I bear in mind that the threat was of little effect on PW1.  It is admitted that PW1 knew the false documents never exist.  According to PW1, she had never forged any documents for the flight tickets of the church leader and the domestic helpers.  I believe that was the reason why PW1 took action swiftly by reporting the case to the police.  I would take that the anxiety and fear to PW1 being minimal.  She reported the incident on the very same date that the event happened.  The police arrested the D on the following day.

28.In considering all the circumstances of this case, I accept that D is now genuinely remorseful which is evidenced by his pleading guilty.  This is his strongest mitigating factor.  No money changed hands.  However, custodial imprisonment is definitely warranted to reflect the gravity of the huge demanded sum of $5.5 million.

29.It is trite that the offence of blackmail is one of the most serious offences in the calendar of offences, with deterrence as the most important part of the sentence.  In the end, I will take 30 months as the starting point, and with his plea, the sentence is reduced to 20 months.  I further reduce 2 months for the generous attitude urged by PW1. The defendant is so sentenced to 18 months’ imprisonment.

30.Undoubtedly D’s family will suffer, but this consequence is something which D should have considered before he embarked on committing the offence.