HKSAR v. Chai Mei Kwan

DCCC412/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 412 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of blackmail, preferred against her under section 23(1) and (3) of the Theft Ordinance, Cap. 210.

2.The facts to which the defendant agrees are as follows.  The victim, married with three offspring, was 64 years old.  The defendant was 31.  In 2010, the victim and his wife were customers of a restaurant at which the defendant worked as a waitress.  There, the victim became acquainted with the defendant, and later that year, they exchanged telephone numbers and started seeing each other.  One day towards the end of the year, the defendant invited the victim to her home, where they had intimacies.  Afterwards, the victim gave the defendant $15,000 “for food and travelling.”

3.On 20 February 2011, the victim visited the defendant at her home again and had sexual intercourse with her.  On 22 February, the defendant asked the victim to lend her $200,000 to start a business.  The victim stalled her. 

4.On the evening of 27 February, the victim received an SMS message from the defendant.  She blamed the victim for not lending her the money and disclosed that she had a video clip capturing their intimacies.  Providing the victim with her bank account number, the defendant demanded payment of $500,000 “to settle the matter.”  When the victim ignored her, the defendant sent a second SMS to him, saying her cousin had the video clip in the computer, which could be distributed any minute to “everyone”.  

5.The next morning, the defendant sent a third SMS to the victim, giving him an ultimatum, namely, if he would not transfer $500,000 into her bank account by 5 o'clock that day, she would insist on payment of $1 million instead and would make the problem worse for him.  The victim then made a report to the police. 

6.The police soon arrested the defendant.  She admitted having sent the SMS messages to the victim, and that the bank account number she sent to the victim was hers, but she denied any intention to blackmail him.  She said she had wanted to scare the victim so that he would stop evading her and would clarify his relationship with her.  However, she admitted that on 16 February, she had, unbeknown to the victim, used a hidden camera to capture her intimacies with him. 

7.The video clip did capture the victim and the defendant being together, but was of such a poor quality that no images of the intimacies could be discerned. 

8.By entering a plea of guilty to the charge, the defendant admits having the full intention to blackmail the victim for her own gain. 

9.The court finds the defendant guilty as charged. 

10.The defendant has had a clear record prior to her current conviction.  In mitigation the defence puts forward the following matters for the court’s consideration.  The defendant was born on the mainland.  She was married to a Hong Kong resident and she came to Hong Kong with her daughter in 2005.  The marriage broke down, however, in 2008.  The defendant alleged she was bashed by her husband, yet, custody of their daughter was granted to the husband.  The daughter is now 11 years old. The defendant has lost all faith in matters of love and affection.

11.The defendant has received secondary education on the mainland, and has been working as a waitress for years before the commission of the offence.  She has an introvert character, has little friends and practically no relatives in Hong Kong.  In March 2011, her father passed away following a long period of hospitalisation.

12.The defendant turned a Christian in 2007 and has attended two short courses on Christianity. 

13.As to the commission of the offence, the defence submits that the defendant did not have the intention of blackmailing the victim when she took the video clip.  She had wanted some security over her relationship with the victim.  She admits in these proceedings, via her counsel, that subsequently she formed the intention of using the video clip to blackmail the victim for money. 

14.The defence refers to the case of Chan Hok Yan, Gloria, DCCC715/2010, a decision of the District Court, and suggests that the defendant in this case has suffered psychological traumas in life, and in view of her personal and family circumstances, it is urged upon the court to consider a lower sentence or a non-custodial sentence. 

(Discussion re defendant’s record)

Discussion

15.Blackmail is a heinous crime.  Victims of this crime have often to make the difficult decision either to succumb to the unlawful demand or to make a report to the police, thereby suffering varying degrees of damage to their personal interests.  For this reason, blackmail is difficult to detect and it tends to be under-reported. 

16.In the instant case, the court is told that the victim has declined to testify should the matter proceed to trial.  Whether the victim might be allowed to decline to testify is ultimately a matter for the trial court. Where necessary, he can be compelled to do so.  This shows rather clearly how heinous blackmail as an offence really is, and this, in the court’s view, cannot be treated as a mitigating circumstance.  In any event there is strong circumstantial evidence against the defendant in this case.

17.There is no sentencing guideline for the offence of blackmail, so each case depends on its own facts.  In the court’s view, the facts of this case as agreed show that the defendant did not have even a scintilla of true affection for the victim. She would have known the victim was a married man.  Yet, she invited him to her home, had intimacies with him, had sexual intercourse with him, and made a video clip capturing their intimacies with which to blackmail him for $500,000, which was not an insignificant sum.  For money, she took advantage of the old man’s flaw in character.  Greed has numbed her senses of human dignity. 

18.There are two aggravating factors in this case. Firstly, the defendant did not just utter empty words; she had equipped herself with the video clip showing her and the victim in compromising circumstances.  Secondly, the threatened means of dissemination via the computer must have filled the victim with alarm; it is common knowledge that the Internet knows no borders and once uploaded, information is difficult to erase. 

19.In all the circumstances, the court considers an appropriate starting point is one of 30 months’ imprisonment. 

20.The defendant has had a clear record before her current conviction.  Having considered all matters in mitigation advanced by counsel for the defence, the court is unable to conclude, apart from defendant’s plea and her clear record, that her personal and family circumstances would warrant any further reduction.

Conclusion

21.In the result the court adopts a starting point of 30 months' imprisonment, which is reduced by one-third, on account of the defendant’s guilty plea and clear record, to one of 20 months' imprisonment. 

22.The defendant is sentenced to a term of imprisonment of 20 months.