HKSAR v. LI WING SZE AND OTHERS

DCCC 402/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 402 OF 2008

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REASONS FOR SENTENCE

1.  The defendants stand convicted after trial of one charge of blackmail.  D1 and D2 are also convicted of one charge of doing acts tending and intended to pervert the course of justice.

2.  Full particulars of the offences are set out in my verdict delivered on the 18th February 2009.  In summary in March 2007 D1 became acquainted with a male, Mr X.  They became lovers on the first night they met and formed an intimate relationship thereafter.  On the night of the 31st March/morning of the 1st April 2007 D1 and Mr X had consensual sexual intercourse twice. 

3.  Later on the 1st April D3 telephoned Mr X saying he had raped D1 and demanded $50,000to be paid within two hours.  Further phone calls were made during the course of the day by D2 and D3, in which Mr X was told not to play games and asked when he was going to pay.  By the evening Mr X had not paid and therefore D3 drove D1 and D2 to the Sham Shui Po Police Station where D1, accompanied by D2, made a false report of rape against Mr X.   The following day both D1 and D2 made false witness statements in support of the complaint of rape. 

4.  I take into account that D1 and D2 have clear records.  Notwithstanding D3 has a criminal record I am satisfied no distinction should be drawn between the defendants by reason of the criminal record of D3, which is for offences dissimilar to blackmail.  I am also satisfied no distinction should be drawn as between the roles played by the defendants in the blackmail, each were party to the blackmail, each playing a role essential to the commission of the crime.

5.  In passing sentence I have carefully considered everything said by Mr Khattak, Mr Chow and Mr Chandler together with all the letters submitted on behalf of D1 and D3.  I note the family members of all defendants and the employer of D2 have been in court supportive of the defendants.  D1 has since the offence clearly worked and studied hard at the Pui Ching Education Centre as shown by the academic report and letters from the centre.  D2 and D3 have also apparently kept employment throughout this period. I am told the employment is still available to the defendants.

6.  Mr Khattak and Mr Chow ask that I impose community service.  Whilst community service is an alternative to a custodial sentence I am satisfied that on the facts of this case community service is not appropriate.  Further I am satisfied there are no exceptional circumstances warranting the imposition of a community service order for such serious offences (see Secretary for Justice v LI Cheuk-ming [1999] 1 HKLRD 63). 

7.  This was a cruel and mean offence, in which D1 took advantage of the friendship she had developed with Mr X to blackmail him.  As D1 said to the police after she got to know Mr X she intended to cheat him of his money.  Mr X was arrested for rape, for which I note the maximum sentence is life imprisonment.  Fortunately Mr X was never charged with rape, no doubt due to the fact that shortly after the arrest of Mr X police investigation revealed this to be a case of blackmail and not rape.

8.  I am satisfied the proper sentence after trial for the blackmail is 2 years and 3 months imprisonment.  For perverting the course of justice I am satisfied the proper sentence is 18 months imprisonment.  I accept the submission of Mr Khattak that the false report is really part and parcel of the blackmail.  I am satisfied this offence does not increase the culpability of D1 and D2.  Accordingly concurrent sentences are appropriate.

Delay

9.  The offences date back to 31st March/1st April 2007.  The defendants were arrested on the 2nd April 2007.  The defendants were not brought to court until May 2008, over one year after the commission of the offences.  The major reason for this was the six months delay in submitting the report to the Department of Justice.  Clearly therefore the  case could reasonably have been brought to court earlier than it was.  Although the defendants have pleaded not guilty the delay in them being charged cannot be said to be attributable to them.  Taking into account that since arrest the defendants have all worked and in the case of D1 worked and studied I am satisfied that some credit should be given on account of delay (see HKSAR v WONG Ka-wah CACC 260/2006).  I do this by reducing the sentence on the blackmail charge by three months.

10.  The defendants are sentenced as follows.  On charge 1 the defendants are sentenced to 2 years imprisonment.  On charge 2 D1 and D2 are sentenced to 18 months imprisonment concurrent to charge 1.