HKSAR v. WONG NGAN YING

 DCCC392/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 392 OF 2010

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one count of blackmail, in that on the 22nd day of August and the 25th day of August 2009 she had made an unwarranted demand of $300,000 from ‘X’ with menaces.

2.  The facts are that the male ‘X’ has a family and is married. The defendant herself is married. Around about 2008, they both met at an English course and they became lovers. The defendant became pregnant and the victim had given her money for an abortion. Unfortunately, six months or thereabouts later the defendant became pregnant again and this time the victim did not give her money and broke up with the defendant.

3.  It was with this background that the present offence began. The offence was that the defendant sent three to four SMS messages to the victim, purporting to be messages from the defendant’s husband saying that he knew about the affair, that the defendant was pregnant again and that a sum of $300,000 as compensation was needed. Otherwise, the threat was, the victim would be beaten up and his wife and daughter raped.

4.  Also in the SMS, a bank account in the name of the defendant’s husband was provided for the deposit of money, so on 25 August the victim deposited a cheque in the sum of $50,000 into the bank account. He subsequently received SMS messages requesting for the balance of $250,000. ‘X’ then reported to the police.

5.  The defendant was arrested and she admitted that she was the one who sent the SMS messages and that it had nothing to do with her husband who had no idea about the incident. Under caution in an interview, the defendant said she was angry when ‘X’ asked to break up with her upon finding that she was pregnant again. She knew that ‘X’ had a wife and children and therefore, in her anger, she sent the SMSs. She falsely claimed that the SMS was from her husband. She says that after ‘X’ had deposited $50,000 into the bank account, she withdrew the amount and then gave them to her parents in China.

6.  This is a very tragic case. The defendant herself is aged 42. She is married and she has 2 young sons and she has a clear record. The tragedy is, as Mr Lo pointed out, very much weighed against the defendant and her family. ‘X’ was irresponsible, I agree. He did not choose to use any contraceptives, knowing that he could not be responsible for any child that may come into existence because of his irresponsibility. Having found out that the defendant was pregnant a second time, he then decided to break off with the defendant, leaving her helpless and in a desperate situation because he knew full well that the defendant herself was not financially capable of financing an abortion.

7.  The defendant I accept has all along been not only a law abiding citizen; she has been a very responsible wife and mother. As is clear from the probation officer’s report, the defendant came to Hong Kong with her 2 sons in 1996 to reunite with her husband. Originally, they lived under the same roof with her mother-in-law and another brother-in-law and his family. It was a very hard time and two years later the defendant her family managed to move away to a rental abode in Tsing Yi.

8.  The defendant had suffered from hyperthyroidism and had to be on medication. Her husband had an unstable income and the family started to receive CSSA. While receiving CSSA, the accused felt that her husband was relying on the CSSA and not going out to find work and spending his time mah-jong playing and drinking with his friends, so in order to give her husband a motivation to look for work she then ceased to receive CSSA in early 2006. Her husband then became a delivery worker and a worker on a construction site.

9.  The defendant herself did not sit at home. She was introduced by her neighbour to receive training in direct selling of ginseng powder in 2005 and began working in Bing Han (HK) Enterprises Limited in 2006. Through her hard work, she climbed the career ladder and got promoted and she became a supervisor. She had a steady income and also a commission. But in 2008, unfortunately, she suffered from a mood problem and she did not continue with her career.

10.  One of the causes was also because her mother in China was not well. Her younger son was at that time going through his usual teenage angst years and was turning rebellious and there was not much support from her husband. The defendant, however, did not give up. She decided to attend an English learning course in Jordan, Kowloon, in order to better herself and it was at this course that she met ‘X’. Their relationship turned initially into one of support for the defendant, who lacked the kind of loving relationship with her husband. Her first abortion happened in March 2009 and at that time ‘X’ gave her $15,000 to return to China for the abortion.

11.  After this abortion, according to the defendant, she had received a lot of blood transfusion as a result of this, so she decided to end the relationship with ‘X’. But ‘X’ begged her to remain in it and so their sexual relationship continued. ‘X’ then gave her $6,000 a month in June 2009 for two months, but when the defendant told ‘X’ that she was pregnant again in August 2009, ‘X’ told the defendant to have another abortion and said he wanted to separate from her. This time, he did not give her any money. That is the background to why the defendant acted as she did.

12.  It is clear from the probation officer’s report, from the letters of support she has received from her neighbour and her friends and her family that the defendant is and always has been a person whom they have respected. She was enthusiastic about life. She was a very helpful person - and I am sure she is still - a very good friend and also a very good mother.

13.  What is particularly moving are the letters from the defendant’s husband which set out the background of the marriage and how her husband now realised that he also contributed to his wife’s depression and thus resulting in this affair. Her sons also do not point an accusing finger at her and they understood why she acted as she did. So it is a testimonial to the defendant as a mother that she is so well-loved by her sons and her husband despite this transgression.

14.  Mr Lo, on her behalf, has said everything he could possibly say on behalf of this defendant. A picture that emerges from all the letters, from the probation officer’s report and from Mr Lo’s mitigation is that the defendant is a woman with exceptional qualities. Even though she was faced with many hardships, she managed to fight and better herself and her family in many ways. She did not rely on CSSA; she independently looked for work and independently found ways to better herself in order to go up the ranks and was recognised by the company to have the qualities of a supervisor.

15.  On her plea day, I had ordered a Community Service assessment report because at that time I had not really fully recognised the background of the defendant and it was one of the options that I was considering. She is certainly suitable to receive a community service order. She is unlikely to re-offend if she is a first offender and she is willing to perform the hours of service required.

16.  However, I do not feel that in this case a community service is, in fact, necessary. As Mr Lo pointed out, the defendant’s case has mitigation which brings the case into an exceptional one. In particular, Mr Lo pointed out, she is a victim because she was abandoned by the man she thought she was fond of when she was at her most desperate hour of need when she found out she was pregnant again.

17.  However, this cruel and irresponsible man has been protected by the law. His name has not been disclosed and he can go on living his life with his family without any embarrassment. However, as Mr Lo correctly pointed out, the defendant has to face the embarrassment of going about her ordinary life trying to rebuild her life and knowing that people know about this case.

18.  So Mr Lo is correct in saying that the defendant herself is also a victim. Mr Lo has, very movingly, made a long mitigation and he also has convincingly persuaded this court that the defendant ought to be given a chance, so I will take an exceptional course in this case. Blackmail is a very serious offence and is normally punished with an immediate custodial sentence. The aggravating factor in this case is that the threat was of harm to the victim’s family and that cannot be tolerated.

19.  Looking at the facts of this present case, a starting point for sentence is between 2-3 years’ imprisonment. The defendant has a clear record - it is her first offence, she is aged 42 - so I will take the lower starting point of 2 years’ imprisonment. Because the defendant has pleaded guilty, she is entitled to one-third discount. That brings her sentence down to 16 months.

20.  Because of the exceptional nature of this case, as I have enunciated, I am prepared to suspend the sentence for two years, which means that the defendant will not need to serve this imprisonment of 16 months, if she does not commit another criminal offence in two years’ time, but if she commits another criminal offence within the two years, she may be liable to serve those 16 months. I am sure Mr Lo, after I rise, will explain fully what it means to be given a suspended sentence.

21.  The defendant is sentenced to 16 months suspended for two years.