HKSAR v. Leung Wing Ning

DCCC 1057/2017

[2018] HKDC 687

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1057 OF 2017

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REASONS FOR SENTENCE

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1.The defendant was charged with two counts of “Blackmail”, contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210. He pleaded not guilty to the first charge but guilty to the second charge. Upon the prosecution’s application, the first charge is left on court file and not to be proceeded with without the court’s leave.

Facts

2.In April 2017, Ms X, aged 51, got to know the defendant via WeChat. 

3.On 29 June 2017, the defendant asked to have dinner with Ms X that evening.  They then met for dinner.

4.After dinner, the defendant asked Ms X to go to a guesthouse with him.  Ms X did so.  They then had consensual sex.  The defendant took photos of Ms X without her consent and knowledge. 

5.On 30 June 2017, the defendant told Ms X that he had bought a ring for her via WeChat.  He asked Ms X for her address in order to send her the ring.  Ms X told the defendant to give the ring to her when they met the next time.

6.On 1 July 2017, Ms X received a WeChat message with three photos of hers from the defendant. The first photo shows Ms X wearing her bra and underpants only, the second photo shows Ms X wearing her underpants and her top being covered and the third photo shows Ms X wearing her underpants only (“the Three Photos”). 

7.In the WeChat text message, the defendant demanded money else everyone in Hong Kong would see the Three Photos; that he would publish the Three Photos on the internet and post them on the entrance of Ms X’s office and her residential building; he would delete the Three Photos upon obtaining money from her; if Ms X did not do so she would regret; he would contact Ms X again and she should prepare the money in 2 days’ time.  He also told Ms X not to delete the WeChat contact, that someone had tried to do so a month before and the defendant had caused that person to almost jump off the window.

8.Ms X became very scared; she worried about her own and her family’s safety and was afraid that her nude photos would be publicized.  The defendant kept sending messages to Ms X via WeChat demanding money from her.  Ms X replied via WeChat that she did not have the money and asked him to let her go.  The defendant repeated the threat.

9.Ms X thus reported the matter to the police on 2 July 2017 at around 4pm.  Upon further pleading from Ms X about her lack of money, at around 6pm on the same day, the defendant agreed to reduce his demand to $20,000 to be paid to him on the next day.  He said if Ms X did not pay, he would guarantee Ms X’s life would be worse than being dead.

10.Ms X further pleaded that she could only gather $18,000 from her friends.  The defendant agreed and urged Ms X to pay him the next day. 

11.At 1:26am on 3 July 2017, the defendant asked Ms X to meet him outside Exit B2 of MTR Prince Edward station at 7pm on the same day. Ms X thus reported to the police.

12.At 6:30pm on 3 July 2017, Ms X arrived at Exit B2 whilst some police officers laid ambush in the vicinity.  Ms X carried an envelope prepared by the police, which contained some white paper. 

13.The defendant sent a message to Ms X instructing her to go to a rear lane near Exit B2.  When meeting the defendant, Ms X asked him to delete her photos from his mobile phone before she paid him.  In the presence of Ms X, the defendant deleted the Three Photos.  Ms X then handed the envelope to the defendant.  When the defendant received the envelope, police officer arrested him.  Under caution, he said Ms X owed him money and he was asking her to pay him back. 

14.In subsequent video-recorded interview, the defendant denied the offence and alleged Ms X owed him money.

Mitigation

15.The defendant is aged 36 and married.  He lives with his wife, 8-year-old son and his mother.  His father passed away in March 2018. The defendant has 5 previous conviction records, none of them relates to blackmail.  His last conviction is in 2001.

16.It was submitted that at the material time, the defendant was unemployed.  His father was critically ill and he was having financial difficulty.  He therefore committed the present offence.  Since his arrest, he started working part-time earning $600 per day.  He understood the serious nature of the offence and he was remorseful.  It was also submitted that the defendant was sorry for what he had done and was willing to compensate Ms X in the sum of $10,000 for her suffering.

17.In mitigation, the court was referred to several authorities[1] and was urged to impose a lenient sentence on the defendant.

Sentence

18.There is no sentencing guideline for this offence. Each case has to be sentenced on its own facts and the personal background of the defendant.  Nevertheless, blackmail is a serious offence and usually calls for substantial period of imprisonment.  

19.Judging from the facts that the defendant took photos of Ms X without her knowledge and consent and he sent message to Ms X two days after the sexual intercourse with the Three Photos and making demand for payment, I have no doubt the defendant’s criminal act was somehow pre-meditated.  In fact it was agreed that the demand and the threat was not made in the heat of argument or at the breaking up of relationship.  His act put Ms X in fear of exposure to others and she was certainly put under continuing distress and fear at the material time.     

20.In sentencing, as the defendant has no previous conviction record of a similar offence, I will not consider his previous conviction records when considering the appropriate starting point.  In the light of the circumstances of the case and the authorities submitted by the defence, I consider the appropriate starting point to be 21 months’ imprisonment. 

21.It is confirmed that the defendant has paid the sum of $10,000 into Court today and Ms X is willing to accept that compensation for her suffering.  It is well settled that restitution can amount to mitigation when coupled with a plea of guilty (see HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Cheung Suet Ting [2010] 6 HKC 249).  In the circumstances, I am prepared to grant him a discount of 3 months.  Given his guilty plea, the sentence is further reduced by 1/3 to 12 months’ imprisonment.  I hereby sentence the defendant to 12 months’ imprisonment.  I also make a compensation order of $10,000 to be paid to Ms. X, the victim of the charge.