HKSAR v. SRI ATMI

DCCC 621/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.621 OF 2011

---------------------------

---------------------------

Reasons for Sentence

---------------------------

1. The defendant originally faced one charge of blackmail. The prosecution amended the charge sheet on the first day of trial and added charge 2 for Criminal Intimidation. Plea was taken and the defendant pleaded guilty to the criminal intimidation charge. The blackmail charge was ordered to be kept on file, not to be proceeded with against the defendant without the leave of court.

Summary of facts

2. The defendant met Mr. X, a senior civil servant, in a bar in Wanchai in October 2009. The acquaintance developed into an intimate relationship. In July 2010, X was posted overseas. While X was abroad, he told the defendant that he wanted to keep their relationship casual. The defendant then wrote the emails as set out in the summary of facts, where she criminally intimidated X by telling him that if he did not stay with her and to pay her $10,000 and to block “jojo and sasa” from X’s Facebook page, she will post the videos of their lovemaking on to YouTube, a video sharing website on the internet.

Previous convictions

3.  The defendant has no previous convictions.

Mitigation

4.  The defendant a 33 year old Indonesian. She is separated with her husband and is the supporter of 3 children aged 13, 7 and 5. She works as a domestic helper in Hong Kong, earning the basic wage of around $3,600.

5.  During mitigation, Mr. Cahill for the defendant presented the court with a more complete picture of the relationship between the defendant and X.

6.  The story, as mentioned above, started in October 20009 when the defendant and X met in Wanchai. X gave her his card and during conversation mentioned he was lonely and separated from his wife and that he had an Indonesian girlfriend before. In November 2009 they began sexual relations. To her, X seemed a kind and loving person. They would see each other on her days off, X would take the defendant out to dinner, to clubs and he showed her where his office was at the time. In the words of Mr. Cahill, the relationship was full on until he left for his overseas posting in July 2010.

7.  The defendant, perhaps foolishly, thought it was true love. She also naively believed that he would take care of her. They kept in contact by way of texting in the early days of 2009. It was also about this time that the victim started to indicate his sexual preferences to the defendant. Part of their ritual was blindfolding and it was in those circumstances that the defendant first videoed taped themselves for fun as well as for remembrance. There was no intention to use them in any other way. Mr. Cahill referred to the record of interview of the defendant where she said the same.

8.  During that period from the time they met to when X left for his posting, he had paid money voluntarily to the defendant to assist her. Photos were handed up to show X giving the defendant some jewelry in June 2010, just before he left.

9.  In fact, prior to X left for his posting, he was in the UK on business. X was still sending money to the defendant while he was there. A receipt from Western Union was handed up to show the sending of money. These all led the defendant to feel and think that she was someone of importance to X.

10.  Apart from the jewelry, X also went out and bought the defendant a computer when he learnt that he was being posted overseas so that he could keep in touch with the defendant via email and Skype (a video phone used over an internet connection).

11.  While X was in his posting, he continued to send the defendant money to support her. Extracts of the defendant’s bankbook was handed up to show the transfers.

12.  In Christmas of 2010, X returned to Hong Kong and met up with the defendant. Their intimate relationship continued.

13.  It was not until around April 2011 when the defendant found out through the social networking website Facebook that the defendant had numerous female ‘friends’ that their relationship took a downturn. The defendant became jealous and in an attempt to find out more about the other female friends by engaging them in communication, the defendant was made the subject of insulting and belittling comments.

14.  X ‘blocked[1]’ the defendant from his Facebook account shortly afterwards. The defendant was scorned and her jealousy for X and anger towards X caused her to write those emails to X.

15.  Mr. Cahill then pointed to the emails and submitted that clearly the $10,000 was not the defendant’s primary goal, which was to block out ‘sasa and jojo’ from the Facebook account. The emails are the product of a highly emotional woman who saw herself losing the man she loved and who had supported her. As can be seen in the last part of the email in paragraph 3-3 of the summary of facts, where the defendant said she still needed X to love her and to support her.

16.  Mr. Cahill also informed the court that upon her arrest, the defendant told the Police that she sent those emails to make X scared because she did not want him to leave. The defendant also said similar things under caution, that she was angry and that was why she sent the emails, that even if X did not give her the money she would not have done anything and that she would not have carried out the threats against him.

17.  A letter written by a Mr. Roberts, the friend who had the memory card with the videos and photos in question, was submitted. Mr. Roberts was supposed to have been a witness for the prosecution.

18.  Mr. Roberts wrote eloquently in mitigation for the defendant and it is his evidence that the defendant had never asked him to do anything with those videos or photos.

19.  Mr. Cahill concluded his mitigation by pointing out that there is no triad flavour in this case, no violence of any sort and that it was a singular act of foolishness triggered by the defendant’s emotion.

Sentencing cases

20.  The maximum sentence for an offence under s.24(a)(i) is that of 5 years’ imprisonment.

21.  Mr. Cahill referred the court to the case of R v Tsang Yuk Kwong, HCMA 480/1995. There the appellant was convicted of three charges, being for criminal intimidation, possession of offensive weapon and common assault.

22.  In the words of Mr. Justice Sears, “These offences occurred inside a laundry shop which the complainant and the appellant ran as partners. They had been lovers, had a relationship but it had turned sour before the event. There was an argument that went on and the appellant threatened to burn down the shop and kill her. He brandished a Samurai Sword threatened her and touched her with it.”

23.  In relation to the appellant’s appeal against sentence, it was held that:

  “4. Generally speaking in criminal intimidation type of cases, an immediate custodial sentence is given. This, however, was quite a different type of criminal intimidation as one normally finds in Hong Kong. This was an emotional outburst by a man when his relationship had turned sour. It was, in my judgment, completely out of character for a man of good character. It was a classic case where suspended sentence should have been passed. A man of 38, not likely to offend again. I do not know why the Magistrate did not pass a suspended sentence. She said that she found no exceptional circumstances, but that is not the basis for passing suspended sentences. For this type of person, a man of good character, not likely to offend, acting out of character, albeit the matter was serious justifies such a sentence. The Magistrate also said that she thought there was an element of false imprisonment. He was not charged with that.”

24. Since the appellant had already been in custody for some 2 months, instead of a suspended sentence, the court imposed a prison term which allowed for the appellant’s immediate release.

Sentencing cases from the prosecution

25.  At the request of the court, Mr. Gavin Shui for the prosecution submitted 2 cases on criminal intimidation sentencing for my reference. Both are Magistracy Appeal cases and Mr. Shui informed the court that he had difficulty finding cases with a similar factual background.

26.  In the case of Raymond Yan Kai Yip v HKSAR, HCMA 95/2005, the appellant was convicted of criminal intimidation. The background of the case was that, the appellant was dissatisfied with the work that the building management office was doing in the building that he was living in. On the day in question, the appellant brought along a Pakistani man and confronted the victim in the charge, X, who was a member of the building management staff, indicating that X will be beaten up by the man.

27.  The appellant had previously been a person of good character who had received Police commendations. The magistrate imposed a 21-day prison sentence.

28.  On appeal, it was pointed out that in most cases of criminal intimidation, there would be triad flavour to the case, and a custodial sentence would very much be in the contemplation of the court. There was no triad flavour in that case.

“8. In my judgment, having regard the facts of this case, an immediate custodial sentence was never going to be on for a person of the Appellant’s standing in terms of his character and background. This was not a case calling for such a sentence. This being my view, a prison sentence was wrong in principle. The Magistrate should have first addressed himself to the full range of other sentencing options before arriving at the conclusion that immediate custody was what was called for.

9. In my judgment this matter called for either a substantial fine to show the court’s disapproval; a fine that reflected the anxiety caused by the Appellant’s conduct and having regard to his means which were ample or, alternatively, perhaps a Community Service Order. ”

29.  In the other case referred to by Mr. Shui, HKSAR v Cheng Pui Man, Dicky, HCMA 765/2009, the facts are more serious than our present case. The appellant on a day in 2008 had taken 2 photos of the victim in the nude and had threatened her with publication of those photos with intent to alarm her. There the victim had borrowed money in Macau. She had to sign an ‘IOU’ when she was brought back to Hong Kong. Later on, the appellant with others visited the premises where the victim, who was a prostitute, operated and took the photos of the victim in question.

30.  There was a strong inference of triad flavoured link in that case. An initial sentence of 18 months’ imprisonment was however substituted by a sentence of 12 months’ imprisonment on appeal. It was found that the appellant was little more than a messenger boy but with a fairly long record of previous convictions, with one for a similar offence not that long ago. The court remarked that it was a particularly mean and cynical offence. Mr. Justice Wright considered that the offence called for a period of imprisonment and that the appropriate period is that of 12 months.

Sentence

31.  If it was wrong in principle to send the appellant in the case of Raymond Yan Kai Yip v HKSAR to jail, it must also be wrong in principle to sentence the defendant in our present case to jail given the good standing of the defendant previously and the lack of any triad linked flavour in the case.

32.  If the facts in the case of HKSAR v Cheng Pui Man Dicky warranted a sentence of 12 months, it must be the case that if a custodial sentence is warranted in our present case, a sentence less than that would be appropriate.

33.  There is no triad connection whatsoever in this case. The defendant was of previously good character. She was a good employee working hard to support her 3 children back in Indonesia. It is unlikely that she will re-offend. She’s likely to lose her job as a result of this conviction and will have to leave Hong Kong. Mr. Roberts’ letter shows that the defendant never did anything to suggest that she was going to actually post anything onto the internet. The defendant pleaded guilty despite the fact that arguably, she might be able to make out a defence and say that those were ‘wild and whirling words uttered out of desperation’ in her emails. The fact that she had chosen not to go along that path shows that she is truly remorseful and in so doing spared the victim the ordeal of giving evidence.

34.  Bearing in mind the above mentioned cases and the facts in this case, I will adopt a starting point of 9 months’ imprisonment, granting the defendant the full one third discount upon her guilty plea and sentence her to 6 months’ imprisonment.

35.  I am however going to order that this sentence be suspended for 1 year, meaning that if the defendant does not commit another criminal offence within that year she will not have to serve the sentence. Yet if she chooses to commit another criminal offence and be convicted, not only will she be dealt with on the new offence, the court may also activate this suspended sentence in part or in whole.

[1] Resulting in the defendant was no longer being able to access the web page of X who blocked her.