HKSAR v ROSE ISABEL ANONIA BARBRA EUDORA

DCCC 733/2024

[2026] HKDC 1331

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 733 OF 2024

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REASONS FOR SENTENCE

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1.The Defendant was convicted of the following offences after trial:

(1) Blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210 (Charge 1); and

(2) Doing an act or a series of acts tending and intended to pervert the course of public justice, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 211 (Charge 2).

Facts

2.The facts of this case are set out in the verdict. I do not propose to repeat them in detail here.

3.In short, the Defendant and X are both British nationals. X was a banker and was seconded to work in Hong Kong for 6 months from 2023. X and the Defendant first met on a boat after a full moon party on about 28 December when they were on holiday in Koh Samui, Thailand. They met up again, had dinner and kissed whilst on a walk on the beach. The Defendant continued to contact X on WhatsApp, giving every indication that she was romantically interested in X and manipulated him into paying for her trip to Hong Kong. She agreed to stay in X’s flat and share a bed with him. The Defendant arrived in Hong Kong on 31 January 2024. After going to the races, the Defendant and X went back to X’s flat, kissed and X performed oral sex on the Defendant. X stopped when the Defendant stated that she was not ready for sex. On the following day, X was at work. The Defendant texted him and apologized for not wanting to have sex the previous night. Although X told the Defendant he was very busy at work, the Defendant persistently texted him about her past sexual experiences and asked X about his past sexual experiences and fantasies. After hours of this texting, the Defendant suddenly alleged that she was no longer comfortable staying with X. Initially, she blamed her cough, then she suddenly alleged that X had “violated” her and subsequently, that X had raped her. The Defendant then asked X to pay her what he owed her. In fact, X never owed the Defendant any money. Since the Defendant wanted to stay in a hotel and purchase air tickets to leave early. X offered to pay her £2,000 to cover her expenses. The Defendant then demanded £5,000. X complied by making a bank transfer to a bank account provided by the Defendant. However, the Defendant then escalated her demand to £10,000 and then to £100,000. She threatened to “report a crime to the police” if her demand was not met. X did not pay. On 3 February 2024, the Defendant went to a hospital and stated that she had been raped and sodomized by X. The police was alerted and X was arrested. According to paragraph 13 of the facts admitted by the parties, the Defendant was arrested on 6 February 2024 for blackmail (and not 5 February 2024 stated by Counsel in paragraph 8 of her submissions).

4.In other words, the Defendant falsely accused X of rape to blackmail him (Charge 1). When X did not comply with her escalating demands, the Defendant made a report to the police that X had raped and sodomized her, intending to pervert the course of public justice (Charge 2).

The Defendant’s Background

5.The Defendant is a British national. She is now 26 years old. She lived with her mother prior to 2023.

6.The Defendant completed her secondary education in the United Kingdom in 2018. In her antecedent statement and her mitigation letter (Attachment 10), the Defendant told the police that she had attained “post-graduate” education. Counsel stated that the Defendant completed a “postgraduate diploma” in event management at the Event Academy in 2023 (Attachment 1). This appears to be inaccurate as the Defendant did not appear to have attended University and this was therefore not a “postgraduate” qualification. Counsel submitted that the Defendant qualified under TESOL (Teaching English to Speakers of Other Languages) with a view to teaching English to non-native speakers overseas. In 2024, the Defendant was awarded a certificate in relation to understanding domestic abuse (Attachment 2).

7.In her antecedent statement, the Defendant told the police that she was unemployed. However, according to Counsel, between 2016 and 2024, the Defendant was engaged in freelance work related to performing arts, including modeling, acting in an advertisement campaign and playing a character in a radio show (Attachments 3-6). From February 2022 to October 2023, the Defendant worked for a fitness company called Virgin Active as a receptionist (Attachment 7). From September 2022 to 31 January 2024, the Defendant also worked for a company called The Department (UK) Limited as a creative assistant / creative director (Attachment 8). The Defendant wanted to travel and she transitioned to working remotely for this company in November 2023. She travelled to Vietnam in late 2023 and taught English in exchange for room and board. Thereafter, she went to Thailand where she subsequently met X.

8.The Defendant has a clear record in both Hong Kong and the United Kingdom (Attachment 9).

Principles

Charge 1: Blackmail

9.Blackmail is one of the most serious offences in the calendar of offences, with deterrence as perhaps the most important part of the sentence, coming just after the question of punishment: R v Hadjou [1989] 11 Cr App R(S). The maximum sentence is 14 years’ imprisonment and sentences of very much longer than three years are often clearly appropriate: R v Lau See Kau CACC 573/1995, 16 February 1996, unreported.

10.In HKSAR v Fong King Choi [2020] 2 HKC 219, Zervos JA held:

“18. Blackmail is an insidious crime that can be committed in an infinite variety of circumstances. In general terms, it is committed when a person makes an unwarranted demand on another person with menaces. The demand is usually accompanied by a serious or significant threat that is aimed to frighten or coerce the person on whom the demand is made to comply with it. There are no sentencing guidelines for the offence of blackmail but there are cases that have identified aggravating factors that would assist a sentencing court in determining the gravity of the offence and the culpability of the offender …

26. In cases of an extortion demand of money, the factors bearing on the gravity of the offence, include: (1) the nature and amount of the demand; whether the demand was for a one-off payment or regular payments; (2) the nature and circumstances in and by which the demand was made; whether the offender acted alone or with others; whether the demand was made on a single occasion or on repeated occasions; whether there was actual or threatened violence to a person or damage to property; whether there was an expressed or implied triad connection; whether it was part of a sustained campaign of intimidation against other victims; and (3) the consequences of the demand and the effect on the victim; whether the victim yielded to the demand for extortion money and whether any loss was suffered.”

Charge 2: Perverting the Course of Public Justice

11.This is an offence that strikes at the root of the administration of justice. The maximum sentence is 7 years’ imprisonment. There is no tariff but immediate custodial sentences of some length are often imposed.

Discussion

Charge 1

12.Counsel cited the factors set out in paragraph 26 of Fong King Choi and submitted that the following factors are relevant in assessing the starting point (paragraphs 11-14):

(1) The demand involved a sum of £100,000, to be either paid in a lump sum or by instalments;

(2) The demand was made on 2 February 2024 (messages 1525-1535) and disappearing voice messages;

(3) The Defendant acted alone;

(4) The threat did not involve any actual or threatened violence to a person or damage to property;

(5) The threat did not involve any triad connection;

(6) The threat was not part of a sustained campaign of intimidation against X;

(7) X did not pay the full amount. He suffered a total loss of £5,000.

13.Counsel’s submissions are not entirely accurate:

(1) The nature of the demand was a false allegation of rape. The allegation was completely fabricated;

(2) There was more than one demand. Initially, the Defendant demanded repayment of an unspecified amount that she claimed to be owed by X. When X agreed to pay £2,000 for her hotel expenses and change of air-tickets, the Defendant demanded repayment £5,000. This was then increased to £10,000 and subsequently to £100,000, a very substantial amount. All the demands were made on 2 February 2024. However, it was evident that the Defendant’s demand for money was insatiable.

(3) The Defendant appeared to have acted alone.

(4) The threat did not involve any actual or threatened violence to any person or damage to property. However, by its very nature the allegation of rape is easy to make and extremely difficult to refute. The threat was to make this allegation to the police, which eventually led to X’s arrest. In the meantime, the Defendant escalated her false allegations to include sodomy, and deleted relevant messages. She also used disappearing messages to hide her tracks. But for the thorough investigation by the police and the fortunate event of X pressing “reply” to some of the deleted messages, the truth may never have come to light and X may have been sentenced to an immediate custodial sentence of considerable length.

(5) There is no evidence that the threat involved any triad connection. The Defendant’s threat was only sustained for a day.

(6) The loss suffered by X was £5,000, not because of any reduction of the demand by the Defendant but by the fortunate event of X’s bank verification of the second transfer of £5,000.

14.Counsel referred to HKSAR v Li Wing Sze and Others DCCC 402/2008, unreported, 20 February 2009. In that case, the 3 Defendants were convicted of 1 charge of blackmail. The first and second defendants were also convicted of one charge of doing an act tending and intended to pervert the course of public justice. In March 2007, the 1^st Defendant became acquainted with X. They became lovers in the first night and formed an intimate relationship thereafter. On the night of 31 March or morning of 1 April 2007, the 1^st Defendant and X had consensual sexual intercourse twice. Later on 1 April 2007, the 3^rd Defendant telephoned X, alleged that X had raped the 1st Defendant and demanded payment of $50,000 within 2 hours, further telephone calls were made to chase X for payment. X did not pay. That same evening, the 3^rd Defendant drove the two other Defendants to the police station where the 1^st Defendant, accompanied by the 2^nd Defendant, made a false report of rape against X. The following day, both the 1^st and 2^nd Defendants made false witness statements in support of the complaint of rape. As a result, X was arrested. For the blackmail charge, the trial judge sentenced the 3 Defendants to 2 years and 3 months. For the perverting charge, he sentenced the 1^st and 2^nd Defendants to 18 months’ imprisonment.

15.Counsel stated that the facts of Li Wing Sze were similar but admitted that the sentence in that case was not binding on this Court. This was a District Court case. The Court of Appeal has pointed out repeatedly that the sentences in other District Court cases have not been affirmed by the Court of Appeal and do not lay down any sentencing principles; they are neither binding nor of any reference value: 律政司司長訴溫達揚 [2022] HKCA 1328; 律政司司長對唐健帮及另二人 CAAR 13/2022 [2023] HKCA 896 and 香港特別行政區對劉晉旭及其他人 CACC 243/2021 [2023] HKCA 1098.

16.In any event, there are marked differences between the facts of Li Wing Sze and the present case:

(1) There were 3 Defendants involved in the blackmail in Li Wing Sze. In the present case, there is no evidence that the Defendant acted with others;

(2) There was actual vaginal sexual intercourse in Li Wing Sze. The alleged intercourse in the present case was wholly fabricated;

(3) There was only a demand of one sum in Li Wing Sze. There were demands of escalating amounts in the present case. The Defendant demanded £5,000. After this was paid, she demanded £10,000. After X tried to pay an extra £5,000, the demand was escalated to £100,000. This is an aggravating factor: 香港特別行政區訴許榮 CACC 15/2008;

(4) In Li Wing Sze, the amount demanded was only $50,000. In the present case, the demand was for £100,000, ie over 20 times the amount in Li Wing Sze;

(5) The victim in Li Wing Sze never paid and there was no loss. In the present case, X paid £10,000, ie 2 sums of £5,000. It was fortunate that the bank delayed the payment of the second £5,000. There was a loss of £5,000 pounds.

17.The Court of Appeal has stated clearly on numerous occasions that even if the charges were the same, where the facts are different, a simple comparison of the sentences in other cases was inappropriate.

18.X had been nothing but kind to the Defendant. It was clear from the evidence that the Defendant wanted to get money out of X from the outset. She asked him for a loan of 2,000 in Koh Samui. This loan did not materialize simply because X thought that the Defendant was talking about borrowing 2,000 baht. This was a cruel and evil offence. The Defendant took advantage of X’s kindness, naivety, friendship and romantic interest to manipulate him into paying for her trip to Hong Kong. Within 2 days, she abused her relationship with X in an attempt to blackmail X. Her demands for money escalated from £5,000 to £100,000 within the space of one day.

19.In the light of the abovementioned factors and in my judgment, the appropriate starting point for Charge 1 is 5 years’ imprisonment.

Charge 2: Perverting

20.The facts behind the commission of this offence vary greatly. There are no sentencing tariffs. The gravity of each case depends on its own facts: HKSAR v LCL and others [2025] 5 HKLRD 1100.

21.In LCL, the Court of Appeal held:

“(4) Perverting the course of justice was a serious offence, as it involves acts which pose as a direct challenge to the fundamentals of a societal institution under the rule of law and affects the administration by the courts. Relevant sentencing factors included the seriousness of the underlying substantive offence, the degree of persistence in the conduct, the effect of the attempt to pervert the course of justice on the course of justice itself, the consequences and legal responsibilities avoided or attempted to be avoided. If the perverting involved interfering of a witness for one’s own selfish motive, a deterrent and lengthy term of imprisonment was called for…”

22.Counsel submitted that the perverting in the present case involved a false allegation of rape and no high degree of persistence was involved. I disagree. Initially, the Defendant made false allegations of rape by X. By the time she reported the matter in hospital, she added a further false allegation of buggery to enhance the gravity of her allegations. The maximum sentence of each of those alleged offences is life imprisonment. As a result, X was arrested by the police. Fortunately, X was never charged with rape or buggery, no doubt due to the fact that the police saw the WhatsApp messages between the Defendant and X shortly after the arrest, which revealed this to be a case of blackmail and not rape and / or buggery.

23.Counsel referred to AG v Yeung Kwong Chi [1988] HKC 172. In that case, the respondent was a security guard in a commercial and residential complex in Shatin, which also contained an arcade of shops. The victim operated an electrical retail shop in that arcade. The instigator of the scheme was interested in opening an electrical retail shop in the arcade but was unable to do so because the management rules do not allow two similar shops to operate in the same arcade. The instigator therefore decided to get rid of the victim and take over the victim’s shop. One of the ways was to get the victim convicted of a criminal offence. The instigator, with the help of two middlemen, recruited a girl who would go into the victim’s shop and falsely accuse the victim of indecent assault. The respondent’s role was to pretend to have witnessed the indecent assault. The scheme was executed on 25 June. The girl went into the shop, engineered physical contact with the victim and ran out of the shop screaming that she had been indecently assaulted. The respondent duly presented himself and claimed to have witnessed the assault. As a result, the victim was arrested and charged. Fortunately, a report was made to the ICAC and the truth was discovered. The prosecution of the victim was then discontinued. The Court of Appeal ruled that the proper sentence would have been 18 months’ imprisonment.

24.Counsel submitted that the facts in Yeung Kwong Chi are similar to those in the present case. There was a false report of a criminal offence of a sexual nature which resulted in the arrest of the victim. Counsel also submitted that that case involved an attempt and the substantive charge was indecent assault, rather than the more serious charge of rape. The consequences to the victim in that case was more serious as he was actually charged. She submitted that Yeung Kwong Chi may provide some guidance in assessing the starting point.

25.In that case, the Court of Appeal stated:

“It is hardly necessary for this Court to comment or the wicked nature of what these persons had in mind. The disastrous consequences that would have ensued speak for themselves. With regard to a similar charge the English Court of Appeal made this comment (R v Bedi Randif Singh 12 February 1971, unreported) at p 10):

… there are perhaps few things that can be more damaging than a concerted attempt to pervert the course of justice by putting a false case before the courts …

and suggested that sentences of more than 3 years would be appropriate for those who did …

And later, in the same case:

It is accepted by both sides that it usually attracts a sentence of immediate imprisonment or other form of custody. Counsel for the Crown would also qualify the word ‘imprisonment’ by the word ‘substantial’ and with that we would generally agree.”

26.There are marked differences between the facts of the present case and Yeung Kwong Chi:

(1) The false allegation in Yeung Kwong Chi was one of indecent assault, which carries a maximum sentence of 10 years’ imprisonment. The initial false allegation to X in the present case was rape. The Defendant then added a further false allegation of buggery when she reported the matter. Both of those offences carry a maximum sentence of life imprisonment. Counsel’s submission completely ignores the factors to be considered in sentencing set out in LCL;

(2) The respondent in Yeung Kwong Chi was not the instigator of the scheme. The Defendant in the present case was the mastermind;

(3) The perverting in Yeung Kwong Chi was the only criminal conduct. The Defendant in the present case made the false allegations to the police because X failed to meet her demand in a blackmail;

(4) There was no evidence in Yeung Kwong Chi that the respondent had any personal interest in the perverting scheme. The Defendant in the present case made the false allegations to the police because X failed to meet her demands in a blackmail. This was vengeful and wicked behaviour.

27.In my judgment, the perverting in the present case is far more serious than that in Yeung Kwong Chi. Applying the factors in LCL, initially the Defendant falsely alleged to X that he had raped her. She made a further false allegation that X had sodomized her when she reported the matter, making her false allegations even more serious. The Defendant tried to frame an innocent man with two heinous crimes. She also deleted relevant messages and used disappearing messages. In all the circumstances, the proper sentence for Charge 2 is one of 3 years’ imprisonment.

Mitigation

28.The Defendant was convicted after trial. She is not entitled to any discount for a guilty plea.

Good Character

29.Counsel submitted that the Defendant has a clear record both in Hong Kong and the United Kingdom. She also submitted a bundle of mitigation letters from the Defendant, her mother, her friends and a social worker. As mitigation, Counsel urged the Court to consider the Defendant’s previous good character, as well as those mitigation letters.

30.Firstly, Credit for a clear record is by no means a given. Much will depend upon the nature of the offence and the position of the offender. In HKSAR v Wong King Wai [2008] 2 HKC 614, 622, Stuart-Moore ACJHC said:

“Personal circumstances including a clear record may, of course, have a bearing on mitigation for offences which are comparatively minor in nature.”

31.Secondly, a first offender who has been convicted of multiple offences cannot expect to be treated in the same way when sentenced as the first offender who has not: Taylor v R [2017] NZCA 574. In Shum Ming v R [1978] HKLR 41, 42 (approved by the Court of Appeal in Secretary for Justice v Au Man Kei, Alex and Others [2000] HKCU 625, CAAR 2/2000), Huggins J said:

“It is difficult to regard as first offenders persons who, it is true, appear before the court for the first time but appear charged with eight, three and seven offences respectively.”

32.Thirdly, if the Court decides that the offence is such as to require a deterrent sentence, the personal circumstances of the accused will count for little: Re Applications for Review of Sentences [1972] HKLR 370, 406. False reports to the police or the ICAC is a category of case which requires a deterrent sentence: HKSAR v Cheung Sing Hui (HCMA 1334/2001, 8 March 2002, unreported).

33.Further, the mere absence of previous criminal convictions must not be confused with positive good character: Secretary for Justice v Tso Tse Kin [2004] 2 HKC 139, 144. Positive good character usually means behaviour unconnected to the offence and is positive in nature, such as bravery, good works or service to the community: Yeung Kwong Chi (ibid). Something significant is required to establish positive good character such as service to the community ‘in a quite exceptional way’: Secretary for Justice v Lin Min Ying and Anor [2002] 3 HKC 415, 418.

34.In Yeung Kwong Chi, the Court of Appeal held that a clear record, good family behaviour, the probability that the offence was a single fall from grace and that the respondent would in future lead a blameless life were by no means abnormal circumstances when put in the context of a crime of this nature. The good conduct of the respondent two years ago in support of law and order did not even start to become special circumstances sufficient to relieve him from the proper consequences of recent conduct deliberately aimed at undermining that law and order.

35.In the present case, the Defendant’s “good character” is the mere absence of previous convictions. There is nothing exemplary to constitute positive character. The Defendant has not shown an iota of remorse for her wicked behaviour throughout these proceedings.

Family Circumstances

36.Family circumstances are often prayed in aid in mitigation by convicted persons. However, family hardship which is usually attendant upon the conviction is to be viewed as part of the price an accused must pay for the crime: HKSAR v Li Kwok Ching [2005] HKCU 1702. Those who commit offences should keep in mind ‘the principle that the adverse effect of imprisonment upon an offender’s family is not a factor normally to be taken into account’: HKSAR v Chan Kin Chung [2002] 4 HKC 314, 321. Family circumstances, in any event, ‘are matters which a wise man would take into consideration before he commits an offence and not after’: HKSAR v To Yiu Cho [2009] 5 HKLRD 309, 311.

Foreigner

37.It was submitted that the Defendant will feel more keenly the circumstances of her imprisonment because she is a foreigner. In HKSAR v Rohrer [2001] 3 HKC 371, 376, Keith JA concluded that prison for a foreigner constituted ‘a harsher regime for a prisoner to endure’, and that this was ‘a factor which can, in an appropriate case, justify some reduction in the length of any sentence of imprisonment imposed’. However, within a short time, the decision in Rohrer was held to be contrary to established principles and per incuriam: HKSAR v Giovanni [2002] 2 HKC 521; HKSAR v Hong Chang Chi [2002] 1 HKC 295.

38.In R v La Verne Ohmert, Gary (CACC 213/1985, 23 July 1985, unreported), it was said that ‘the foreigness’ of an accuser was not a circumstance which ‘the court will take into account in mitigation to any substantial degree’. That approach was endorsed in R v Shipra [1988] HKC 412, where it was held that the absence of visits to a prisoner from friends or relatives was not something upon which he could rely in mitigation of sentence. In Attorney-General v Rojas [1994] 1 HKC 342, Silke VP said:

“We do not consider that a specific discount should be given for this aspect of mitigation but we do endorse the course adopted in Shipra, which was commended to judges when faced with problems of this kind in the future, that while it is a factor to be taken into consideration, it is not one which would affect sentence to any substantial degree.”

39.In Secretary for Justice v Tse Ki Wu and Ors [2002] 1 HKC 160, 165, Leong CJHC said:

“The position is therefore quite clear and that is, the ‘foreignness’ of a defendant in the sense that he being foreign to the environment in a Hong Kong prison and likely to experience cultural and social difference and difficulty in communication, is only an aspect of the overall circumstances to be considered when a court determines the appropriate sentence to be imposed on him and it is a factor for which, depending on the circumstances of the case, little or no weight at all should be given.”

40.In Hong Chang Chi, the Court of Appeal pointed out that:

“The Applicant only came to Hong Kong for the purpose of furthering his criminal enterprise. Anyone who acts in this way, to undermine the laws of Hong Kong, deserves no sympathy. What is more, it should be made clear to non-residents of Hong Kong… that if they come here in order to break the law, they will be treated no differently, and certainly no more leniently, than other criminals who are normally resident here.”

41.In HKSAR v Owusu [2006] HKCU 881, the Court of Appeal stated:

“It is true the Applicant will be in prison far from his native country; would not be able to serve part of his sentence in Ghana unless an agreement is reached during his prison term and would be liable to deportation on completing his sentence. Those disadvantages all result from his choosing to commit a serious criminal offence after arriving in Hong Kong on 11 February 2005 on a Visitor’s Permit … The judge was correct to ignore the Applicant’s overseas status as a significant sentencing factor.”

See also the decision of the English Court of Appeal in R v Rainho [2002] EWCA Crim 1981.”

42.The Defendant committed the offences within days of arriving in Hong Kong. She is the author of her own wrong if she has to serve her sentence here. Further, Hong Kong is a multicultural city and there are prisoners from many different countries in prison, many of whom speak English. The Prison Rules Cap 234A make specific provision for inmates from other places, including the provision of special diets, communication by letter with friends, loved ones and others, the right to visitors, access to newspapers, journals and magazines in the relevant language. These are factors which counterbalance any hardship in prison: HKSAR v Chau Chun Yee [2001] 3 HKC 605, 614. The fact that the Defendant has to serve her sentence in Hong Kong in the present case is not a mitigating factor.

Ill-health

43.Counsel submitted that in about 2015, the Defendant was diagnosed as suffering from osteoarthritis. Thereafter, she was referred to various physiotherapists and treated with pain management medication. However, the Defendant found that her pain was getting worse and began to look for alternative treatment options. Prior to her journey to Hong Kong, the Defendant had made enquiries with treatment clinics in India. On 5 February 2024, the Defendant received a letter from the bone and body clinic in Goa, India, accepting her for treatment, which was suggested to take place over a minimum of 4 weeks (Attachment 16). Due to her arrest and bail conditions, the Defendant was unable to attend the treatment as planned.

44.The ill-health of an accused is not a licence to commit crime: Clarkson v R [2007] 171 A Crim R, 1, 49. Medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity: Yip Kai Foon v HKSAR [2000] 1 HKC 335, 339. The Correctional Services Department operates excellent medical facilities. In HKSAR v Tam Yuen Tong [2007] 1 HKLRD 894, 896, McMahon J made the point that ‘as a matter of reality, most prisoners receive medical attention in prison of an equal or better standard than they would otherwise receive’. In HKSAR v Chan Kau Tai [2008] 3 HKC 78, 89, it was noted that the accused who needed a liver transplant was being attended to in the custodial ward at Queen Mary Hospital and was in good hands’. Save in the rarest of cases, a prisoner’s medical condition is not a matter to which the court will have regard for mitigation of a proper sentence: R v Ho Mei Lin [1996] 4 HKC 491, 493.

45.In the letter (Attachment 15), Ms Adelaide Pang of Rainlily asked the Court to consider the Defendant’s psychological wellbeing in passing sentence. In Attorney-General v So Chee Kong, Eddie [1994] HKCU 75 CAAR 9/1992, 8 June 1994, unreported, the court, having been told that if the sentence of the accused was to be extended his mental health would suffer, responded that ‘it would not, we are satisfied, be proper for us to give weight to possible deterioration in his health. It is a matter for the Prison Authorities to see that he receives proper medical attention’. This was approved in HKSAR v Cheung Suet Ting [2010] 6 HKC 249, 261. Matters of that type do not fall for consideration as an act of mercy: HKSAR v Lau Mei Mei [2002] HKCU 240. In R v Lo Chi Keung [1996] 3 HKC 155, the Court of Appeal refused to interfere on compassionate grounds in the absence of any suggestion that the accused was at death’s door or that his HIV could not be treated in prison. See also R v Souza, Eric CACC 568/1996.

46.In short, there are absolutely no mitigating factors in the present case.

Totality

47.Counsel cited HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and submitted that in determining totality, a practical working rule is that concurrent sentences should be imposed “if the number of offences have been charged arising from one transaction or course of criminal conduct”. However, the Court’s emphasis should be on “a reflection in the sentence of true culpability disclosed by the offences of which the accused has been convicted” and the Court must “guard against punishing twice for the same act”. Further, “if the second offence which takes place in the course of the suggested single episode adds to the culpability of the first offence, it will normally follow that the sentence for the second offence will run wholly or partially consecutive to that for the first, to what extent, if at all, will depend upon an assessment of the totality appropriate for the conduct as a whole”.

48.Counsel submitted that the Defendant’s false report in the perverting charge is the consequence of X not meeting the Defendant’s demand in the blackmail charge, where she threatened that unless X pays her, she was going to the police to report a crime. Counsel submitted that the perverting charge is essentially part and parcel of the blackmail, arising from one course of criminal conduct and invited the Court to consider imposing concurrent sentences.

49.Counsel’s submission in respect of Ngai Yiu Ching is only partially correct. In fact, the Court of Appeal made it clear that the “one transaction” rule was only a practical rule of thumb and was never intended to be an inflexible rule of law. However, that “rule” has proved to be extremely problematic in its application (paras 19-20). It runs the risk of elevating a practical working rule to a rule of law. Further, it tends to obscure the real point which is not whether two or more offences are committed at about the same time, but whether the second or other further offences add to the culpability or criminality of the first. It also ignores the reality that whatever sentence is arrived at after application of the rule is still subject to the totality principle (para 21). The Court of Appeal made it clear that:

“23. The emphasis therefore should be on a reflection in the sentence of true culpability disclosed by the offences of which the accused has been convicted. This is an approach which this court has consistently adopted in recent times … It is likely to be a more effective approach in reflecting an offender’s overall culpability than one which becomes overly concerned with the one transaction rule, although in the case of more than one offence, the court must guard carefully against punishing twice for the same act. If the second offence which takes place in the course of the suggested single episode adds to the culpability of the first offence, it will normally follow that the sentence for the second offence will run wholly or partially consecutive to that for the first; to what extent, if at all, will depend upon an assessment of the totality appropriate for the conduct as a whole …”

50.It is also difficult to understand the logic behind Counsel’s submission. The Court has not taken Charge 2 into account when assessing the sentence for Charge 1. There can be no dispute that Charge 1 was committed to extort money from X with a threat. Charge 2 was not committed to further the extortion of money. Even according to Counsel, Charge 2 was committed as punishment of X for his audacity to defy the Defendant’s demands for payment. The Defendant destroyed part of the evidence before she reported to the police. It is evident that the two charges are different in nature and that Charge 2 adds to the culpability or criminality of Charge 1. Technically, the sentences for these 2 charges should be consecutive. However, I am required to consider totality. In my judgment, an overall sentence of 6 years’ imprisonment would reflect the criminality in this case. I therefore sentence the Defendant to 5 years’ imprisonment for Charge 1; 3 years’ imprisonment for Charge 2, 1 year of which to be served consecutively to Charge 1, ie a total sentence of 6 years’ imprisonment.