HKSAR v. Ng Chun Lam

DCCC 702/2020

[2021] HKDC 467

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 702 OF 2020

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REASONS FOR SENTENCE

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1.Mr Ng pleaded guilty before me to Charge 1 of Blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210; and Charge 2 of Possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.Particulars of Charge 1 are that he, on or about 18 March 2020, in Hong Kong, with a view to gain for himself or another or with intent to cause loss to another, made an unwarranted demand of $20,000 Hong Kong currency from X with menaces.

3.Particulars of Charge 2 are that, he, on 21 March 2020, at Room 1316, Novotel Nathan Road Kowloon Hong Kong, No 348 Nathan Road, Yau Ma Tei, Kowloon, in Hong Kong, had in his possession dangerous drugs, namely 0.36 gramme of a solid containing 0.35 gramme of cocaine, 0.95 gramme of a crystalline solid containing 0.87 gramme of methamphetamine hydrochloride and traces of a powder containing methamphetamine.

Facts admitted by Mr Ng

4.Mr Ng and X met in May 2019 then developed boyfriend-girlfriend relationship.  Between October 2019 and February 2020, Mr Ng had borrowed about $230,000 from X.  No repayment had been made.  Their relationship deteriorated.

5.On or about 18 March 2020, Mr Ng demanded $20,000 from X via mobile phone.  X refused.  Mr Ng then threatened to publish her naked video and photographs.  During the conversation, Mr Ng sent X samples of her naked videos and photographs and threatened to publish the material in public web groups.

6.X reported to the police but nonetheless transferred $20,000 to Mr Ng’s bank account.

7.A controlled meeting was set up on 21 March 2020 in a hotel room leading to Mr Ng’s arrest there.  Upon search of the hotel room, the dangerous drugs listed in Charge 2 were found in the room safe after the relevant password was provided by Mr Ng.  Under caution, Mr Ng admitted the drugs were for his self-consumption.

Criminal record

8.Mr Ng has 4 previous convictions two of which were for possession of dangerous drug for both of which he was sent to Drug Addiction Treatment Centre (in 2011 and 2015).

Antecedents

9.Mr Ng is aged 32 (31 at the time of the offences), completed F3 level education, employed in transportation industry before arrest, and once addicted to methamphetamine.  He is divorced with no children and before arrest, lived with his father in Sheung Shui.

Mitigation

10.Ms Linda Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Ng.

11.The following is a summary of the mitigation submissions.

12.Mr Ng supported his father and his younger sister who is studying in the US from his income from the transportation industry.  He was the sole bread winner of the family.

13.Mr Ng admits that the threatening behavior was stupid but he did it only because he was angry with X for having an affair with another man and supporting that man with money Mr Ng had previously given her.  However, Mr Ng pointed out that for some of the videos, X knew that she was being filmed when they were having sex.  Ms Wong submitted this case did not involve any breach of trust.

14.Ms Wong submitted that there is no sentencing guideline for the offence of blackmail.

15.For possession of dangerous drugs, after referring to HKSAR v Mok Cho Tik [2001] 1 HKC 261, Ms Wong submitted that the normal starting point for possession of ICE should be between 12 and 18 months’ imprisonment.  Ms Wong submitted there is not much latent risk here because of the small combined quantity.

16.Ms Wong urged the court to consider totality and to pass a lenient sentence.

17.On the topic of assisting the authorities in relation to a separate case, after consideration, Ms Wong said that she would not challenge the police’s view that the information supplied was not useful and that, after taking instructions from Mr Ng, she would not insist on this mitigating factor.

Sentence

18.I have considered the mitigation submissions put forward by Ms Wong.

19.Although I have not listed them, I have considered the other cases of individual sentencing referred to by Ms Wong.  They do not assist much.

20.I found it bewildering that on the one hand Ms Wong submitted that X consented to being filmed while having sex with Mr Ng but on the other submitted that there was no breach of trust involved when Mr Ng threatened to disseminate the videos and photos involved.

21.This might not have been a breach of trust in the traditional sense of an employee stealing from an employer or a school teacher sexually abusing a student under his care.  Nonetheless, the reason why Mr Ng was in possession of the naked videos and photos of X was precisely because they were in an intimate relationship.  By misusing these videos and photos obtained in confidence, Mr Ng was in no less of a breach of trust reposed in him by X when she either allowed the videos and photos to be taken or engaged in consensual sex with Mr Ng when videos were surreptitiously taken of the acts.  I regard this as an aggravating factor.

22.In respect of the possession of dangerous drugs offence, being in possession of more than one type of drug is also an aggravating factor. However, because of the relatively small combined quantity (just over 1 gramme), I will not consider the latent risk factor.

23.For Charge 1, I shall adopt a starting point of 21 months’ imprisonment.  The aggravating factor of breach of trust has already been taken into account.

24.For Charge 2, I bear in mind the small amounts of drugs involved. Because of the aggravating factor of more than one type of drug, I adopt a starting point of 15 months’ imprisonment.

25.Mr Ng pleaded guilty to the offences in time for which he shall enjoy the privilege of the full 1/3 discount in sentence.  There is no other mitigation factor I can see that will earn him any further discount.

(Mr Ng, please stand)

26.So for Charge 1, Mr Ng is to serve 14 months’ imprisonment.  For Charge 2, he is to serve 10 months’ imprisonment.

27.The two offences are different in character and took place on different dates and at different places.  In principle, the sentences should run consecutively to each other subject only to totality.

28.I order that 5 months of the sentence for Charge 2 is to run consecutively to that for Charge 1.  The aggregate sentence is therefore 19 months’ imprisonment.