HKSAR v. So Man Fai

DCCC 262/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 262 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty in this case to a total of five charges of blackmail, offences which were committed between 6 October and 17 November 2016.

2.The offences arise out of a relationship that had grown between the defendant and the victim, a male described as “X”.  X is a man in his 20s and a medical professional, and then he met the defendant at a bar in Mong Kong, where the defendant was working as a waiter, and the defendant had on occasions borrowed money from the victim.  They eventually entered into a friendship and became lovers in August of 2016.  As their relationship continued, the defendant made requests for money from the victim and this had a detrimental effect on their overall relationship.

3.And the case of the prosecution, as agreed by the defendant, is that since 6 October 2016 the victim had received numerous demands, mainly via WhatsApp voice and text messages, from the defendant to repay the defendant’s debts, and the defendant had incurred debts owed to illegal moneylenders as a result of his gambling, and the requests for money were coupled with threats to disclose the victim’s sexual orientation and their relationship to his employer.

4.Now, over the course of the period of October and November, there are five demands for money with menaces which are identified as blackmails, and they occurred, firstly, between 6 October and 7 October for $10,000; between 25 October and 29 October for $12,000; on 31 October for 6½ thousand dollars; on 6 November for $5,000; and, finally, between 14 November and 17 November for a further $8,000.

5.The defendant was eventually arrested as a result of a controlled meeting arranged between the defendant and the victim at Tai Wai MTR station.

6.Under caution, the defendant admitted he blackmailed the victim because he owed a lot of money for soccer gambling and he confirmed he was the person who had sent the WhatsApp messages which had been blackmailing the victim. 

7.The defendant made further admissions in a later record of interview and admits that at all the material times he made unwarranted demands of money from the victim.

8.As far as the defendant’s background concerned, he is a young man of clear record.  He is currently aged 22 years old and he is born in Hong Kong and received education up to Form 3.  He is the only son in the family.  His mother is believed aged about 44 and his father’s age is unknown.  His parents divorced when he was young and he has been living with his mother, who is a housewife.

9.The defendant had wished to eventually follow a career in singing and dancing, and had been to music school in Beijing, but he was unable to pursue that and returned to Hong Kong.  He had been working in a -- I think it is a form of karaoke restaurant or bar - as a waiter for about a year and he then eventually worked for the bar in Mong Kok, where he had met the victim.

10.His mitigation shows that his mother has been ill and the defendant has supported her through that illness, and he wishes to continue to be in a position to support her.

11.The background report obtained on the defendant is agreed.  The defendant’s offending is said to arise out of a lack of guidance and parental supervision.  He acquired a habit of gambling on taking up full-time employment since mid-2014 and the defendant was always in debt and relying on credit card loans and such like.

12.He committed the offences to obtain easy money without realising the serious legal consequence.  He says that he has gained insight into his problem and asks for a lenient sentence so he could continue to provide aid and assistance to his mother.

13.Turning to the offences, they were committed over a period and the defendant himself admits and acknowledges that the offence of blackmail is a serious offence, and in this case the defendant has committed repeated offences of blackmail over the course of some time.

14.There is no operational sentencing guideline for the offence of blackmail.  Various factors can be seen to aggravate the offence and there are some other factors which may mitigate the offence. 

15.One aggravating factor may well be the blackmail was conducted during the course of some organised criminal activity.  Now, that is not the case here.  This blackmail arises out of the defendant’s indebtedness and his unwise decision to exploit his relationship with another man.

16.Although this cannot be described as a one-off transaction, because there were a number of those, I do bear in mind when determining the appropriate starting point for sentence in this case is that the offence does arise out of a relationship between the two parties. 

17.Nevertheless, blackmail is a serious offence and the imposition of a prison sentence with immediate effect is the normal sentence of imprisonment for this offence.  In more serious offences, the starting point for sentence can range up to and beyond one of 3 years’ imprisonment.

18.Having regard to all the factors in this case, I consider that the appropriate starting point for sentence for this defendant will be one of 18 months’ imprisonment.

19.After deduction for the defendant’s plea of guilty, that would lead to a sentence on each of these charges of 12 months’ imprisonment, and that is what I will impose.  I will impose on each of these five charges a sentence of 12 months’ imprisonment.

20.The offences range over time and can be served consecutively in whole or in part, but, having regard to the nature of this offence, I consider the overall sentence should be one, at the end of the day, of 12 months’ imprisonment.

21.So I shall order that the sentences of imprisonment be served concurrently one to each other, giving an overall total of 12 months’ imprisonment.