HKSAR v. CHAU BAN WO (also known as CHAU CHUN TING)

DCCC 438/2022

[2023] HKDC 1069

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 438 OF 2022

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REASONS FOR SENTENCE

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1.  The D pleaded guilty to a charge of blackmail, contrary to Section 23 (1)  and (3)  of the Theft Ordinance, Cap 210. As to the second charge, it is now ordered to be left on court’s file and not to be proceeded with without the leave of the court.

Summary of facts

2.  On 21 December 2019, X met the D via the dating app “Omi”.

3.  On 24 December 2019 at around 11 pm, X and the D had a video call during which the D asked X to remove her clothes. X then removed her bra and shorts, showed her face and breast and masturbated during the video call. The video call lasted for 7 to 8 minutes.

4.  On 2 January 2020 at around 7 pm:

(1)  D sent a 4-minute video clip to X via WhatsApp (“the Video Clip”).

(2)  X found out that D had secretly recorded their video call on 24 December 2019 during which X was half naked.

(3)  D demanded HK$4,000 from X in exchange for D’s deletion of the Video Clip.

(4)  At 9:34 pm on the same day, X transferred HK$2,000 to a Payme account as per D’s demand.

5.  Afterwards, D kept harassing X by phone and Instagram. D kept demanding money from X and threatened to share the Video Clip to others if X refused to pay.

6.  As a result, between 2 January 2020 and 15 May 2020, as per D’s demands, X transferred a total of HK$30,500 to D on 23 occasions, the breakdown of which is set out below:-

(a)  X transferred HK$19,900 (on 15 occasions)  to his friend’s Payme Account;

(b)  X transferred HK$8,800 (on 7 occasions)  to the D’s BOC account;

(c)  X transferred HK$1,800 (on 1 occasion)  to his friend’s account.

7.  On 8 November 2020, D was arrested for “Blackmail”.

8.  In the video-recorded interviews, D stated that:-

(a)  D met X via a dating app and they had video call during which X removed her clothes and masturbated for D to watch;

(b)  D had recorded the video call using his mobile phone;

(c)  D had deleted the Video Clip;

(d)  D admitted sending the Video Clip to X and borrowed money from X via WhatsApp as he owed his friends and financial institution a total debts of $81,800;

(e)  He used the money to repay debts.

Criminal record

9.  The D was sentenced to 32 months in 2012 for an offence of trafficking in dangerous drugs.

Background

10.  The D is now 30 years old. His daughter was born 2 months ago and they got married last month.

11.  The D is currently worked as a reinforcement fixing worker  in the construction site, making $50,000 per month. The D contributes $12,000 to his parents as medical and living expenses as his father suffers from cancer.

Mitigation

12.  He is willing to make full restitution. He has sufficient bail sum to pay $30,500.

13.  He wrote a letter to X to tell X that he is deeply remorseful. He understands how badly he had behaved and asked for forgiveness.

14.  The letter from his wife also said that he is now a “new person” without indulging in gambling anymore.

15.  This matter has been hanging over his head for 3 years.

16.  Today, there is a letter from his employer to inform this Court that he will re-employ the D after his release from prison as he has good work ethic and attitude in performing his job.

17.  The D also cited 4 cases to say that the usual sentence is between 18 to 21 months:

(1)  HKSAR v Lai Man Kit DCCC 616/2016

(2)  香港特別行政區 訴 毛華振 [2018] HKCFI 772

(3)  HKSAR v Leung Wing Ning [2018] HKDC 687

(4)  HKSAR v Chan Hok Yan, Gloria DCCC 715/2010

Sentence

18.  The maximum sentence for this offence is one of 14 years.

19.  Different cases turn on different facts. There is no sentencing guideline for this nature of offence.

20.  From the admission by the D, he was in financial difficulties at the time of offence as he owed a debt of about $80,000 because he was a gambler then.

21.  As such it was a plan for him to find someone like X from a dating app and hopefully that person would agree to do what he asked her to do.

22.  The WhatsApp call on the Christmas eve at about 11 pm was all premediated. The D took the 4-minute video call without X’s knowledge and consent.

23.  When the D sent the video clip at 7 pm to X to demand  $4,000 from X in exchange for deletion of the video clip, X transferred $2,000 to the D at around 9:30 pm.

24.  Within 2½ hours, X acceded to his unwarranted demand.

25.  This was not difficult to imagine that X was put into a stage of extreme fear and anxiety. X certainly did not want the D to do anything about the video clip which showed her face, her breast and her act of masturbation.

26.  The D knew that it worked and he continued with this threat by harassing X through phone calls and Instagram. X simply became the D’s finance resources and his ATM machine.

27.  The period of time last for about 4½ months. X has been subjected to fear, worry and anxiety for a substantial period of time.

28.  X transferred money to the D on 23 occasions to 3 different accounts on the instructions of the D, a total of $30,500.

29.  The defence said that $30,500 was a small sum. However, one has to bear in mind that X only earned $16,000 to $17,000 per month.

30.  X would not know when this unwarranted demand would come to an end. She eventually reported this matter to the police on 17^th May,2020. Two days after her last transfer of money to the D.

31.  What the D did was totally outrageous as he put X in a very vulnerable position. Nonetheless, the defence said that there was no circulation or retention of the video clip in the present case.

32.  There is no doubt that this is a very serious case. I disagree with the defence that I should consider the sentence in a range of 18 months to 21 months.

33.  In my judgement, a sentence of 24 months is appropriate to reflect the gravity of the offence and the culpability of the D. I reduce the sentence to 16 months after 1/3 discount.

34.  I also order the D to pay $30,500 to X from his bail money. As such, I allow a further deduction of 2 months imprisonment.

35.  Lastly, as this matter has been hanging over his head for 3 years, he has made use of this period of time to reinvent himself, finds himself a steady job and earns a good income to support his family. Against this background, I further reduce 2 months’ imprisonment.

36.  To this end, I order the D to serve a sentence of 12 months.