HKSAR v. K.D.D.H.

CACC 253/2021

[2022] HKCA 1485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 253 OF 2021

(ON APPEAL FROM DCCC NO 241 OF 2020)

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J U D G M E N T

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1.The applicant (D2 at trial)  together with another (D1 at trial)  stood trial before District Court Judge Casewell for the offence of blackmail. He was convicted of the offence after trial and sentenced to 5 years and 7 months’ imprisonment. He now seeks leave to appeal against his conviction and sentence.

2.The applicant has filed home-made grounds of appeal against his conviction and sentence.  He appears in person, having had legal aid refused.

3.The applicant’s grounds of appeal against conviction can be summarised as follows.  Ground 1: In respect of D2’s conviction, the judge should only have considered facts known to the victim, X, but not the private correspondence between D1 and D2.  Ground 2: The application of the “ordinary person” test should have been considered in respect of X’s unique position in this case.  Ground 3: The element of malice in the offence of blackmail was not satisfied.  Ground 4: The judge adopted a prejudicial interpretation of D2’s statements without considering them in their proper context.

4.The applicant’s grounds of appeal against sentence can be distilled into following two grounds.  Ground 1: The sentence was manifestly excessive.  Ground 2: The judge failed to take into consideration key extenuating circumstances that lessen the gravity of the offence.

5.The names of the persons involved in this blackmail case have been suppressed in order to maintain anonymity of the victim, who was referred to as “X” at trial.  Between December 2008 and July 2010, D1 and X were in a relationship, during which time intimate video recordings and photographs were taken of them (referred to as “the materials” at trial).  D1 kept these materials.  After they had ended their relationship, X went on to become very successful in her chosen career and had a significant public profile in Hong Kong.

6.A close colleague of D1 was the applicant, who appears to have a legal qualification although he did not practice as a lawyer.  Both D1 and the applicant are foreign nationals and lived abroad during the material times.  In August 2019, the applicant sent an email to X, claiming that he represented D1 and offered to transfer the copyright ownership of the materials to X but subject to urgent discussion with D1 about the matter.  There followed a series of demands that escalated in tone and content.  X became afraid and threatened and she sought legal assistance in the matter.  An initial demand in the region of $3 million was made, which was later negotiated down to $2 million for the transfer of the materials to X.  However, veiled threats were made as to the possibility of the materials being publicly exposed and this led the legal representatives of X to take out an injunction against D1 and the applicant from disseminating the materials.  The applicant in his communications with X’s legal representatives indicated that it was possible the materials could be lost or stolen and pressed for settlement of the matter.  Eventually, it was agreed that D1 would sell the materials to X for the sum of $2 million.  At a settlement in Hong Kong on 2 January 2020, $2 million in cash was handed to D1 and the applicant.  Part of the terms of the settlement included that all materials would be deleted or transferred and none would be retained by D1.  The applicant purported to show that the folder containing the materials had been transferred from D1’s computer and then deleted.  The money was given to D1.  It was at this stage arrest action was taken by the police and a search of D1 recovered a USB which still contained some of the materials. 

7.D1 and the applicant were jointly charged with blackmail in respect of an unwarranted demand with menaces from X for $2 million.  D1 was further charged with fraud for inducing X to part with $2 million on the pretext that he would transfer all the materials to her. 

8.The issue at trial was whether the applicant’s statements offering sale of the materials to X for $2 million was an unwarranted demand, and whether such demand was made with menaces.  X and her legal representatives gave evidence on behalf of the prosecution.  The relevant communications between the parties were agreed and admitted into evidence.  The applicant did not give evidence or call evidence on his behalf.  He primarily relied on his caution statements in which he denied he made any threats and stated that he only sought to negotiate the transfer of copyright of the materials from D1 to X. 

9.The judge in his reasons for verdict explained that the menaces were contained in various emails issued by the applicant.  He found that D1 and the applicant acted in concert in blackmailing X.  He explained that the menaces were to potentially leak the materials, causing what was described as an Edison Chen 2008 scandal.  It had been presented to X that D1’s continued possession of the material would constitute a risk for her, that a scandal could occur, and that she should be concerned about anything happening in any way if D1 lost the materials.

10.As for Ground 1, there is no legal basis as to why the judge was not entitled to consider the private correspondence between D1 and the applicant.  They were clearly relevant to prove the elements of the offence and the existence of a joint enterprise between the applicant and D1.

11.As for Ground 2, the applicant argues that because X had legal representation she should not be treated as an “ordinary person”.  The evidence of X and her legal representative were properly before the court and relevant to the issues at trial.  X testified as to her involvement in the matter and dealings with both D1 and the applicant and also with her lawyers, which were all relevant to the case.  The reference to the “ordinary person” concerns the question as to whether the threats and conduct in a given case were of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand: R v Clear [1968] 1 QB 670, 678.  The judge set out the evidence of X and her legal representative in his reasons for verdict, which he accepted.  There was nothing to suggest that X was in any different situation than an ordinary person to the extent that the threats and conduct did not affect her : R v Garwood (1987)  85 Cr App R 85.  X felt threatened and in fear that the materials would be publicly disseminated if she did not comply with the demand made of her by the applicant and D1.

12.As for Ground 3, the applicant contends that the element of malice is an ingredient of the offence of blackmail.  That is not correct.  The issue was whether the applicant and D1 made a unwarranted demand with menaces.  See section 23 of the Theft Ordinance, Cap 210; and R v Clear, 679-680.  The judge found that the words used by the applicant amounted to threats, including the mention of the possibility of the leakage of the materials and the “Edison Chen scandal”.  This was a reference to the public exposure of intimate material contained in a computer of a celebrity and the publicity that followed.

13.As for Ground 4, the applicant avers that the judge fell into error by interpreting the “Edison Chen incident” adversely when another interpretation, which was meant by him, was that the materials could be leaked without fault on anyone’s part.  A similar explanation had been given in the caution statement of the applicant.  The judge had rejected his innocent explanation given in his caution statement and found that his disclaimer that he was complying with the injunction was “lip service”.[1]  Furthermore, X testified that she understood the reference to the “Edison Chen scandal” was a threat to disseminate the materials.[2]

14.I do not find any of these grounds to be reasonably arguable and leave to appeal against conviction is refused.

15.The judge in sentencing the applicant adopted a starting point of 5 years and 9 months’ imprisonment which he reduced by 2 months to 5 years and 7 months’ imprisonment for the delay in bringing the case on for trial.  The judge described the criminal behaviour in the case as “cruel, abusive and exploitative”.[3] He noted that the monetary gain the applicant and D1 caused X to suffer severe anxiety and concern because of this case.  He noted as an aggravating factor that: “The use of the threat of disclosure of a previous sexual relationship contained in the materials obviously had a severe impact on X, causing her considerable anxiety and distress at the prospect of the destruction of her career.”[4] 

16.At the hearing of this application, the applicant abandoned his application for leave to appeal against sentence. Accordingly I granted the application and dismissed his appeal against sentence.  I should add that in any event I did not consider his complaints about the sentence to be reasonably arguable.  This was a very serious case of blackmail, where the use of private and intimate materials were used to extort money out of X behind the veneer of a legal transaction to transfer copyright in the materials.

17.The applicant is reminded of his right to renew his application for leave to appeal his conviction to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Ms Stello Lo, SPP (Ag)  of the Department of Justice, for the respondent

The applicant appears in person