HKSAR v. Ki Chun Yim

CAC C 398/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 398 OF 2011

(ON APPEAL FROM DCCC NO. 408 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.On 8 September 2011 the applicant was convicted after trial in the District Court by Judge Browne upon nine charges of blackmail and one of doing acts tending and intended to pervert the course of public justice.  She was sentenced to a total of 7 years’ imprisonment and now seeks leave to appeal that sentence.

The facts

2.Given the basis of the application for leave, it is necessary to relate the facts found by the judge in some detail for it is only by doing so that one may secure a true picture of the persistence of the applicant’s criminal conduct, the planning that went into it and the gravity of the threats which accompanied the numerous unlawful demands which she made.

3.The facts arise from an intimate relationship which developed between the applicant and a businessman Mr X after they met in September 2006 in a bar where the applicant was working.  At the material time the applicant was aged 33 years.  She had a young daughter from a previous marriage which had ended with the unfortunate death of her husband.  X was then in his late 40s and married, of which marriage there is a child.  He was a well-to-do businessman.  At the end of 2006, he rented a flat for her to live in and it was there that he frequently stayed with her overnight.

4.In August 2007, he told her that he wished to end the relationship.  There had, according to his evidence, which the judge accepted, been constant arguments over money; she becoming ever more financially demanding.  Between August and December that year, she started to demand one-off lump sums between $0.8million and $1 million.  He did not have that kind of money.  The applicant then started to make threats against him, his wife and his daughter.  She even telephoned his wife telling her to urge X to be reasonable.  She bombarded X with telephone calls and messages and told him that she had employed private detectives to follow him and she provided X with details of his movements, showing that she had indeed had him followed.  There was a stage when she identified the district at which his daughter attended school; an identification which carried with it an implicit threat against the daughter.  She said that she was in contact with persons on the Mainland who would carry out her threats.

5.In December 2007, she demanded $2 million in connection with which demand she made threats again in relation to X’s family and also against Y, who was X’s business partner.  She told X that Y should have fun with his (Y’s) son whilst he still could because she intended to kill his entire family.

6.Her threats were initially discounted by X as idle ones but matters took on a different hue when he discovered her ability to provide details of his whereabouts and those of his wife.  He became very frightened by her threats.  There was an occasion when she became violent and a report was made to the police and in respect of the incident she was bound over for a year to keep the peace.  Following her arrest, X secured admission to hospital in an effort to avoid her.  Then he went to see her in an attempt to reason with her but she chased him from the flat at knife point.  He went back to hospital but she went there and demanded $2 million in respect of which demand he paid $1 million, purportedly as an interim payment.  This demand was the subject of Charge 1.

7.In early 2008, the applicant asserted – falsely as much later became apparent – that she was pregnant with X’s child and she said she needed money to go to Canada to have the child.  In the course of the immediately subsequent months her demands for money and her threats continued and the amount demanded increased to $8 million.  He said he would not pay her but she threatened that she would secure the assistance of triads and that he should go and buy coffins for his family.  She threw down a plate which broke and when one of them thereby suffered a cut, she said that there would be more blood in his family.  She told him also that she had secured the services of a “mastermind”.  The demand for $8 million was the subject of Charge 2.  As a result of these events, X’s health was affected.

8.In May 2008 she continued with her demand for $8 million, accompanied by renewed threats (Charge 3) and in June he paid her $3 million.

9.In February 2009, she called him again saying that she had returned from Canada: she was back to get that to which she was entitled.  X was shocked and scared.  He arranged to meet her.  When he did so, she repeated threats against his family, saying that blood would be shed and would flow in the rivers and that the members of his family would wish they were dead and that he should save money to buy coffins for them: if money was not paid, she would make sure that some incident involving blood would happen to his family.  She would, she said, accept $1 million in the meantime and would return to Canada where, she said, the new-born child was.  He paid her $800,000.  This was the background to Charge 4.

10.In mid-March 2009 she turned up at his office with a man called Wah Chai, whom the staff thought was a triad, and a disturbance was caused.  X went to the office where her demands for money and threats were heated.  She caused a scene and shouted to the male to start doing things, to set things in action.  All this happened in an open area where some 50 to 60 persons were.  The applicant and her male companion only left when a threat was made to call the police.  The demand made on this occasion was the subject of Charge 5.

11.The demands for money at or about this time increased to $120 million.

12.In late March 2009, she informed X that she was on her way to the home where his wife and daughter resided.  By this stage X had been obliged to leave his home because of threats made against his wife who was aware of what was going on.  His wife had become hysterical about the threats.  X contacted his business partner Y who went to the home where the wife lived and found the applicant persistently pressing the intercom button.  Demands for money were made and accompanied by threats (Charge 6); the police were called and the applicant was arrested, apparently for striking X who had arrived at the scene, and she was subsequently released on bail.

13.The arrest made no difference for the threats continued.  In relation to the matter in respect of which she had been arrested, she demanded that he not make a statement otherwise harm would be caused to his family as well as to the family of Y (Charge 7 – doing an act tending to pervert the course of justice).  She was, so she told him, aware of his movements; against the background of intimations of this kind, X changed his vehicle and arranged anti-surveillance operations.  X’s life was wholly disrupted and his ability to work severely affected.

14.In April and May 2009, she continued with her demands for $120 million (Charge 8).

15.In June 2009 she went to his office.  She repeated her demand for $120 million and repeated her threats the focus of which had by this stage moved from X and his family to Y and another work associate, referred to in the proceedings as Z.  She brandished a knife and he called the police whereupon she cut her wrist.  The police arrived, her wound was bandaged and the police succeeded in persuading her to leave.  These events formed the subject of Charge 9, another blackmail charge.

16.On the afternoon of 2 October 2009, the applicant returned to the building in which X’s office was housed.  She repeated her threats against Y and Z.  They would have a taste, she said, of what it was like not being able to see their children again.  Later that month he paid her $5 million. (Charge 10).

17.In November 2010, Y was in Shenzhen.  As he approached his motor vehicle, two men in the company of the applicant forced him into his car and, whilst in the car, the applicant showed him surveillance photographs not only of the applicant and of Z but also of Z’s family members.  She told Y that if he did not persuade X to come to Shenzhen, Y’s family would be killed.  Y telephoned Z and when the applicant realised that it was Z who had been contacted she told Y that he was now to be taken to a different place.  Y deliberately drove his vehicle into a fire engine, ran to the firemen for assistance and the applicant and the two men were detained.  Whilst the applicant was in custody on the Mainland, threatening telephone calls were made to Y, Y’s wife and to work assistants of X and Y.  Y’s wife was told that her son would lose his hands.

18.As a consequence of this last event, X reported the matter to the police.

Sentencing

19.Surprisingly, given the nature of the application and especially the complaint that the judge failed to call for psychiatric or psychological reports before sentencing, no one saw fit, before the first hearing of this application in April 2013, to seek inclusion in the appeal bundle of a transcript of the mitigation advanced in the court below.  Since the applicant was represented by experienced senior counsel, other than counsel now appearing for her, and since there was no suggestion of incompetence on his part, we thought it right to adjourn the hearing of the application in order to secure a transcript of the mitigation advanced in the court below.

20.We now have that transcript.  The mitigation makes no mention of any psychological problems, despite the fact that in the record of interview after her arrest mentions the fact that in late 2007 and early 2008 she visited a psychiatrist and despite the fact that a report was prepared by that psychiatrist before the sentencing hearing.  It may well be that counsel took the view that given the full history of the case and of the applicant’s conduct, the psychiatric report constituted little effective mitigation.

21.In his sentencing remarks the judge commented that “over a period of three years [the applicant] wreaked havoc upon [X] physically, emotionally and mentally.  Death threats were made against him, his associates and their families.  She caused problems at his office and in the residential address of [his] wife.  She employed persons to carry out surveillance on them.  She let Mr X and Mr Y know that she was aware of the movements of them and their children.  She told [X] that she was acting in conjunction with persons on the mainland, persons who would carry out threats if she failed.”  He concluded that the applicant was an “evil, ruthless, manipulative, calculating and dangerous person.”

22.In relation to the first three offences he imposed concurrent sentences of five years’ imprisonment and in relation to the remaining offences of blackmail, concurrent sentences of seven years’ imprisonment.  He did not explain in terms why he imposed higher sentences for the later offences but it seems clear enough that he did so because the amounts demanded in the second phase commencing in February 2009 were significantly greater than in the first phase and precisely because X had been led to believe in 2008 that the nightmare was at an end.

23.In relation to the offence of conduct calculated to pervert the course of justice, he imposed a sentence of four years’ imprisonment.

24.He ordered all sentences to run concurrently making a total of 7 years’ imprisonment.  He concluded with a remark that he was constrained by the jurisdictional limit of the District Court from imposing a heavier sentence which he considered was warranted.

The grounds of appeal

25.There are two complaints advanced in relation to sentence.

(1) The suggested cultural expectation

26.The first arises from the comment made by the judge in his Reasons for Verdict when, in referring to the lengthy interview of the applicant shortly after her arrest, he said that: “In some of her long winded and rambling responses to police questions the defendant attempts to put forward the preposterous argument that she was in some way entitled to be financially compensated by X.  There was of course no basis whatsoever for such a proposition and I have no doubt the defendant was aware of that.”  He went on to say that in his view the applicant was a glib and accomplished liar; an evil and ruthless woman.

27.The complaint is that the judge’s total rejection of such suggestion as emerged from the interview, that the applicant was entitled to compensation is an unrealistic rejection; a rejection which fails to recognise that in the context of a relationship between a wealthy man and his mistress, an expectation by her that she will be maintained by him and made secure upon cessation of that relationship is not an unusual expectation.  We were invited to look at certain psychiatric and psychological reports (to which in another context we shall shortly allude) for support for that proposition.

28.We do not need expert evidence in that regard: it seems to us obvious enough that in certain circumstances an expectation of support might arise.  But we fail to see where, in the light of the whole history of the case, that takes the applicant.  This was a relatively short relationship from which, during its currency and even perhaps for a while afterwards, some financial support might have been expected by the applicant but it does not begin to constitute a factor which mitigates the prolonged, planned and vicious campaign for sums of money way beyond anything that the applicant could conceivably have considered legitimately due to her; a campaign which involved as it did surveillance of the movement of X, of his daughter, of his partner and of their families, and the employment of thugs to add to the terror visited upon them.

29.In addition to the assertion that what she did was to secure support to which she thought she was entitled is the contention that her cultural background made her peculiarly sensitive to the betrayal constituted by his breaking off the affair.  It is said in a report by a psychologist engaged on her behalf since the conviction that “[c]ulturally speaking and having grown up from a rural environment in a remote part of China, she also appeared to have inherited the traditional Chinese values of devotion fidelity and allegiance to relationship” and that “these values and beliefs are held among not only women in rural and urban China, but also at least some women in the Western world which still espouse the doctrine ‘til death us do part’ enshrined in the western marriage liturgy.”

30.Again, with respect, we did not need a psychologist to tell us that but, be that as it may, the contention that the applicant was motivated by such ingrained values does not sit comfortably with the fact that she jettisoned a relationship with another man in order to set up with X or, more particularly, with the fact that in the course of her campaign she made threats in relation to the children of others, conduct directly contrary to family values which rest at the core of the culture she prays in aid.

(2) The psychiatric issue

31.The second complaint is that the judge did not call for psychiatric reports.  In the course of her lengthy video interview, the applicant made reference to the fact of her acute stress at the time of the breakup of the relationship as well as to the fact that in or about late 2007 she had on several occasions been to see a psychiatrist, on some of those occasions in the company of X.  That, it is contended, ought have motivated the judge to investigate that aspect further and, in this regard, we were invited to receive fresh evidence on the basis that it was expedient in the interests of justice to do so.

32.That fresh evidence comes primarily in the form of a report by a Dr Chen dated 11 March 2011 – months before the applicant was sentenced by the court below.  It refers to the fact that towards the end of 2007 she attended his clinic on three occasions and once again in May 2008, presenting herself with depression and exhibiting symptoms triggered by her love affair problems.  She had had a depressive episode in 2003 for which she had seen a psychiatrist.  Dr Chen prescribed an anti-depressant.

33.There is no justification in the complaint that the judge failed himself to call for psychiatric reports.  The applicant was represented by leading counsel, experienced in criminal cases and the judge was entitled safely to assume that counsel and those instructing him had had ample conferences and time with the client so as to assess whether there was any mileage in pursuing by way of mitigation the history of depression or acute distress, such as it had been.  There is no suggestion that leading counsel in the court below was incompetent in the failure to present Dr Chen’s 2011 report.  We would not have criticised the judge had he asked questions about the matter but we will certainly not criticise him for not having done so, still less for not having called for psychiatric reports.

34.We were hesitant about acceding to the application to adduce new evidence; yet given the fact that the applicant mentioned her few visits to a psychiatrist in her interview and that her visits coincided in time with the early stages of her offending, we decided that the interests of justice were better served by looking at the material which was advanced.

35.We have the original report of Dr Ronald Chen dated March 2011 who saw the applicant three times in November 2007 and once in May 2008 and he concluded that on those occasions she was depressed and distressed because of her relationship with X.  He prescribed medication but she failed to attend subsequent appointments.

36.Then there are reports by a Dr Chen Char-Nie who has seen her after her conviction and sentence and concludes that at the present time she suffers from an adjustment disorder with depressed mood and that she was likely to be suffering from that condition when in 2007 she consulted Dr Ronald Chen.  It is a disorder which he describes as a milder form of stress induced mood disorder.

37.There is also a report from a clinical psychologist who concludes that at the material time she was suffering from an adjustment disorder with depressive mood anxiety.

38.Then we have a report from a visiting psychiatrist at the Siu Lam Psychiatric Centre who noted that in her interview with him she played down the threats she had made, insisting that she did not mean them.  His opinion is that at the time of the separation in 2007 she experienced anxiety.  She is not suffering from a mental illness.

39.We had the advantage of hearing testimony from Dr C N Chen as well as from Dr Lui of Siu Lam.

40.What it comes down to is that the applicant found it more difficult than does the normal person faced with the breakup of a relationship, to cope; hence the diagnosis of a personality disorder.  One might readily assume in many cases where one party puts an end to a close relationship, that the other will, to one degree or another, react emotionally and sometimes irrationally.  In the applicant’s case, she found it particularly difficult to come to terms with what had happened; and her difficulty in coming to terms with a stressful situation is evidenced by difficulties she has had in coming to terms with the fact of her imprisonment, most particularly with the consequential separation from her daughter.

41.With this stress and upset, following the breakup of the relationship, one is bound to have sympathy.  Generally speaking, the conduct of the jilted lover who, in the aftermath of a relationship’s end, acts irrationally in the heat of the moment or in an obsessive phase which follows the breakup is likely to be viewed with an understanding or degree of sensitivity – the more so in the case of a person with an allied personality disorder – which is likely to be absent in the case of a cold-blooded, calculating blackmailer.

42.Even so, the degree of understanding and sensitivity must yield to the specific facts.  It is a category of case in which tariffs or guidelines are of little use, since facts vary so much from instance to instance; and in which the adage that sentencing is an art is particularly apt.

43.In this particular case, whilst we have sympathy with the applicant’s emotional plight at the breakup of the relationship, and whilst we accept that there were signs of irrationality such as the huge amount eventually demanded and the move at one stage to cut herself, there are several facts which are not to be denied which show this to be a case of persistence, calculation and greed which takes it well beyond the parameters of grief-driven irrationality.

44.The conduct in question continued for over two years; and it was only at the early stages, as one might expect in such situations, that the applicant saw the need to see her doctor.  By May 2008, the applicant had already benefited to the substantial tune of $4 million in respect of a relationship which had only lasted for some 15 months and following May 2008 there was a lengthy break during which time no drama exhibited itself.  It is difficult in those circumstances to view the resumption of her demands in 2009 as driven by any genuine assumption on her part that the relationship entitled her to yet more.  There were now added dimensions to her conduct, many of which by their nature sat ill with any suggestion of sudden emotional outbursts.  Many involved planning, most particularly the engaging of outsiders to underpin her threats, as evidenced by her turning up at X’s office with a man and the episode in Shenzhen.  There were threats not only against X but against his family members and against his business associate and his family; and a very substantial increase in the amount demanded.  The threats were persistent, and they were particularly serious; and caused trauma not only to X but to his wife.  The applicant continued to receive substantial payments; yet she continued to demand more and more.  The events in late 2010 when Y was effectively kidnapped and threatening calls were made on her behalf even while she was in custody showed a planning and calculation that renders such initial mitigation as a court might have been minded to afford in respect of her early conduct difficult to maintain.  In addition, there was the threat which constituted the perversion of the course of justice.

45.It is further relevant to note that in interviews with the psychiatrist she made no admission of blackmail and threats and told Dr C N Chen that, in relation to the sum of $8 million, X voluntarily gave her that sum, and she sought to place in relation to the Shenzhen incident an entirely innocent gloss.  This lack of acknowledgement does not go in aggravation of her sentence and it may be part of a pattern of general denial; but it does mean that she cannot pray in aid any remorse. 

46.Blackmail has been described as “one of the most vicious crimes in the calendar of criminal offences and it is perhaps due to the fact that the courts always impose severe sentences that one so seldom, if ever, finds a person convicted for the second time of blackmail.  … Deterrence is perhaps the most important part of the sentence in a case such as this only just after the question of punishment.”: Lord Lane CJ in George Hadou (1989) 11 Cr App S 29 at 31.  Those are comments are valid generally for blackmail offences and, in this particular case, the justification for condign punishment and deterrence is especially present given not merely threats to life but threats against family members including children, threats made the more cogent by the steps taken by the applicant to ascertain the whereabouts of family members and to make sure that the victim was made aware that those steps had been taken.  In HKSAR v Chan Kim Chung Nelson [2012] 2 HKLRD 263 at para 28 this Court said that: “Threats involving family members are not to be tolerated and must be met with strongly deterrent sentences.”  In this case, threats against family members including children, were threats of death accompanied by frightening allusions such as the need to purchase coffins.  And as we say, these were not one-off or heat-of-the-moment threats – sufficiently grave though one-off threats will nevertheless be – but repeated and backed up by steps to render them vivid and real.

47.For months on end over a period of about two years, the life of X was made a nightmare, as no doubt was that of his wife, and in all the circumstances of the case a long overall term of imprisonment was fully warranted.  The judge took the view that the sentence which he imposed overall, namely, one of seven years’ imprisonment was inadequate.  We are not inclined to agree with that but it is impossible in our judgment to say that the overall sentence imposed was manifestly excessive.

Result

48.Accordingly, the application for leave to appeal is dismissed.

Mr Edmond Lee, SADPP of Department of Justice, for the Respondent

Ms Charlotte Draycott, SC, Mr Raymond Yu and Ms Kamina Lai, instructed by Lau, Chan & Ko, for the Applicant