HKSAR v. W.Y.L.M.AND ANOTHER

DCCC 241/2020

[2021] HKDC 1526

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 241 OF 2020

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Reasons for Sentence

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1.  The 1^st and 2^nd defendants have been convicted of what is effectively a joint offence of blackmail. The 1^st defendant has also been convicted of a single, a related offence of fraud.

2.  The full details of those offences can be found in the reasons for verdict, but I will briefly say that the blackmail involved an unwarranted demand with menaces to sell sexually compromising material involving a person known as X who is a well-known entertainer in Hong Kong.  An initial demand in the region of HK$3 million was made, later negotiated down to HK$2 million, for the return of what were described as “the materials” which were the sexually compromising materials of both photo and video in relation to X.

3.  The menaces were contained in various emails issued by the 2^nd defendant.  The 1^st and 2^nd defendant were convicted on the basis that their crime was a joint enterprise.  The materials themselves arose out of a relationship conducted between the 1^st defendant and X, and consisted of video and photographic materials of an intimate nature.  The menaces that the court found, or part of the joint enterprise by the 1^st and 2^nd defendant, were to potentially leak the material out causing a, what was described as an Edison Chen 2008 scandal.  It was presented to X that D1’s continued possession of the material would constitute a risk element for X, that a scandal could occur and that X should be concerned about anything happening in any way when the 1^st defendant loses the material.

4.  The 1^st defendant was also charged and convicted with fraud in relation to material for inducing X to part with the $2 million on the basis that the materials would be transferred to her, that being a false representation.  Yet, as it turned out, the evidence showed that he retained a part of the materials.

5.  So the 1^st and 2^nd defendants, for monetary gain for themselves, caused X to suffer severe anxiety and concern in this case.  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.  This of course is an aggravating factor.  The criminal behaviour in this case is in itself cruel, abusive and exploitative.

6.  The 1^st defendant’s mitigation shows that he is of clear record, a Singaporean, now 36 years old, educated in Singapore.  In terms of his mitigation, it is put forward that he is of clear record.  His conduct of the case has been to agree virtually the whole of the prosecution case contained in admitted facts.  He is a non-Hong Kong resident and of course any sentence of imprisonment inflicted upon the 1^st defendant would mean he would have great difficulty in seeing relatives.  There is a letter from his mother expressing her feelings on this matter.  It is also said that the risk of the 1^st defendant reoffending is low and that he is unlikely to commit any further offence in the future.

7.  As far as the 2^nd defendant’s mitigation is concerned, he has been convicted on a single offence of blackmail, he has a clear record, he is Korean.  He says that the material did not belong to him. There is no evidence that he gained financially from the transaction, by the completion of the transaction.  No violence was used in the course of the offence and the offence arose out of X and D1’s relationship.  He said that his involvement was tangential to his relationship with the 1^st defendant.  There is no triad element, no permanent loss to the victim.  The materials, such as they were, were filmed consensually and related back to a time in 2010.

8.  It is pointed out to me, as far as the 2^nd defendant is concerned, there is no tariff for this offence.  The 2^nd defendant also refers to a delay in the case not attributable to any party in the case but certainly to the process of bringing the case to court.  The defendant’s been arrested as early as January 2020 and the case not dealt with until November of 2021.  I refer to the case of HKSAR v Yeung Chak Yan, the District Court Case 112/2008.  In respect of sentencing in this matter, I refer to the case of HKSAR v Cheung Ka Wo which is described as case number 12 of 2010 involving a conspiracy to blackmail where in that case it was said it was in fact impossible to set down sentencing guidelines for blackmail because of the nature of the blackmail offences.  The modus operandi in such offences vary considerably.  The circumstances in which offences were committed and the motives of the defendants also differ considerably.  Because of that, it is not possible for the court to set down sentencing guidelines for blackmail offences.  It is said to be a serious offence.  The gravity increases if the offender used improper sexual relations with the victim to sustain blackmail. Of course the sexual relationships in this case cannot be described as improper. But it is also said that for blackmail offences generally, using video recordings of sexual acts as a subject to blackmail to extort huge sums from sexual partners, the starting point should be one of not less than 5 years’ imprisonment given the backgrounds of X and Y in the case of Cheung Ka Wo. This was a case among its kind towards the higher end of the spectrum of seriousness, but the matter to be taken away from that case is the reference to a starting point of not less then 5 years’ imprisonment where video recordings of a sexual act of the subject of a blackmail offence, especially where large sums of money are to be blackmailed.

9.  In this case, I note that the subject original material was consensually obtained.  However, the demand of money was large. The potential harm of course to X by disclosure would be devastating to her. In respect of the 1^st defendant, in respect of the second offence, the retention of the material would mean that the risk would remain of X continuing to be subject to D1’s potential blackmail.  I note in respect of the offence of fraud for which the 1^st defendant has been convicted, there is again no guideline.  Cases of fraud differ considerably.  However, cases involving figures of up to HK$2 million could expect a starting point of sentence in the area of at least 3 to 4 years’ imprisonment.

10.  Having taken all these factors into account, the mitigation put forward by the defendant, I determine the appropriate level of sentencing in this case is as follows for the defendants.

11.  On the general offence of blackmail for which both have been convicted, I do bear in mind that these involved the use of video recordings of sexual acts, the sums were large.  On that basis, I do not consider that a starting point of less than 5 years can be considered for this offence.  The defendants have being convicted after trial.  I will take a starting point of 5 years and 9 months’ imprisonment for this offence.  I had regard to the question of the time it has taken to bring the case to court.  I will consider that in the overall sentence.  I reduce that sentence by 2 months to one of 5 years and 7 months’ imprisonment for each defendant on the 1^st charge.

12.  On the 2^nd charge, the defendant will be sentenced to figure initially of 3 years, 6 months’ imprisonment reduced to 3 years and 4 months’ imprisonment for the question of delay.  I must bear in mind that in respect of the 1^st defendant, the question of whether the sentences should be served consecutively or concurrently.  The offences were effectively committed at the same time, they relate to the same material. However, the continued retention of the material is an aggravating factor in this case.  It of course would mean that the victim could be open to blackmail at any further stage despite the payment of a large sum of money.

13.  I do consider that essentially the facts of the fraud offence are largely subsumed into the blackmail offence, but I say there is an added element.  For that reason, I will order that 6 months of the sentence on Charge 2 be served consecutively to that on Charge 1, the balance concurrently.  The leads to an overall sentence in respect of the 1^st defendant of 6 years and 1 month’s imprisonment, in respect of the 2^nd defendant of 5 years and 7 months’ imprisonment, and that will be the order I shall make on sentence.