HKSAR v. CHENG HO WING

DCCC 443/2018

[2019] HKDC 1664

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 443 OF 2018

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REASONS FOR SENTENCE

1.  The defendant stands convicted after trial of two charges of blackmailing X, contrary to section 23(1) and (3) of the Theft Ordinance[1] and one charge of doing a series of acts tending and intended to pervert the course of public justice, contrary to Common Law[2].

2.  Full particulars of the offences are set out in my verdict handed down on 25 November 2019. 

3.  In summary on 30 May 2016 the defendant visited X at her home.  At the time both X and the defendant were 18 and had just finished their school examinations and did not have to attend school while awaiting the results. 

4.  With the consent of X the defendant hugged and touched X and then carried X into the bedroom where he took off her upper clothing including her bra, blindfolded her and intimately touched her.

5.  Unknown to X, the defendant used his mobile phone to film his intimate touching of X. Later the defendant made four screen captures from the video and used them to blackmail X.

Charge 1

6.  On 21 September 2016 X received a request to follow her account on Instagram by user ‘youaretooj’. X viewed her account and saw a photograph of herself blindfolded together with the message demanding $800 for four photographs otherwise they would be uploaded to Secrets so she could gain glory for the school.

7.  Believing the photographs had been secretly taken in her bedroom on 30 May 2016 X contacted the defendant on WhatsApp.  The defendant replied he did not know what X was talking about. 

8.  The next day the defendant went to look for X at her mother’s shop when X told the defendant about the message showing a photograph of what happened on 30 May. 

9.  The defendant did not admit the Instagram account ‘youaretooj’ belonged to him but did admit taking the photographs.  The defendant told X that all the photographs had been deleted and that he had moved the photographs to a USB which he had lost when going to school.

10.  For the reasons set out in my verdict I was satisfied that the defendant was the user ‘youaretooj’; that he made two screen captures on 20 September 2016 for the purpose of demanding money from X and that the next day, using one of the screen captures as the photograph of the account user, demanded $800 for four photographs otherwise the photographs would be posted on Secrets.

11.  I was satisfied the demand was an unwarranted demand with menaces, the menaces being the threat to post the photographs on Secrets, a page on Facebook which any member of the public could view.

12.  I was satisfied that when the defendant demanded $800 from X he intended to collect the money or cause loss to X.

Charge 2

13.  On 3 October 2016 X received a request to follow her account on Instagram from the defendant using the user name ‘sorryfor_poxoh’ together with a message saying sorry and asking X not to report the case to the police.   This was followed by seven messages asking X not to report the case to the police.  The messages were accompanied by the four screen captures the defendant had made from the video he had secretly taken on 30 May 2016.

14.  Between 3 October and 8 October 2016 X received more messages from the defendant asking her to cancel the police case and that if she did not he would put the photographs on the internet. 

15.  On 8 October 2016 the defendant demanded $500 from X for a USB containing the photographs. 

16.  In the following messages sent between 8 October 2016 and 4 November 2016 the defendant, inter alia, repeatedly threatened and abused X including threatening to send the photographs to X’s younger sister; repeating the demand for $500; calling X a sluttish female senior schoolmate and a prostitute; requesting X to provide nude photographs of her younger sister if she wanted a face to face meeting; threatening to put the photographs on the internet and share with others; threatening to let the whole school know; threatening to let all of Hong Kong know and threatening to send the photographs to X’s mother.

17.  For the reasons set out in my verdict I was satisfied the demand for $500 made on 8 October 2016 and repeated on 11 October 2016 was an unwarranted demand with menaces, the menaces being the threat to send the photographs to X’s younger sister and put the photographs on the internet. 

18.  I was satisfied that when the defendant demanded $500 from X he intended to collect the money or cause loss to X.

Charge 3

19.  The defendant was arrested on 6 November 2016. 

20.  On 16 March 2017, 17 March 2017 and one day in May 2017 X received telephone calls from a person claiming to be an officer from the prosecution.  X was told, inter alia, that the success rate for conviction in blackmail cases was not high; the press would take photographs of her; the defendant might ask classmates to write mitigation letters and that the defendant had attempted to commit suicide.  X was asked to inform the police if she did not want to pursue the matter.

21.  For the reasons set out in my verdict I was satisfied that the three phone calls were not made by a police officer but were made at the behest of the defendant and that the defendant told the caller what to say.

22.  I was satisfied that by pretending to be a policeman and informing X in the first phone call about the likelihood of conviction; that the press might take photographs of her and come to know about the matter and that the defendant might ask classmates to write mitigation letters and that both phone calls mentioned about the defendant committing suicide, the caller was trying to persuade X to drop the case.

23.  I was satisfied that the phone calls had the tendency to pervert the course of public justice.

24.  I was satisfied that pretending to be a police officer in order to persuade a witness to drop the case had a manifest tendency to pervert the course of public justice and that by asking someone on his behalf to make the phone calls pretending to be a police officer the defendant intended to pervert the course of public justice.

Mitigation

25.  I have carefully considered everything said on behalf of the defendant by Mr Raffell together with the mitigation letter written by the defendant in which he asks for leniency.

Section 109A of the Criminal Procedure Ordinance

26.  At the time of the blackmail offences the defendant was aged 18 and by the time of the telephone calls in March and May 2017 the defendant had turned 19.   

27.  Section 109A of the Criminal Procedure Ordinance provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate[3].

28.  The defendant has just turned 22. 

29.  Although the provisions of Section 109A do not strictly apply the court must when sentencing a young offender remain mindful of the provisions of Section 109A, particularly where the offender is a first offender and was under 21 at the time of the commission of the offences and exercise great care before committing a young offender to prison[4].

30.  Age of an offender is always a relevant mitigating factor in sentence[5].

31.  Considering that the blackmail offences were committed over three years ago since which time the defendant has been studying an Associate Degree at the Polytechnic University, Mr Raffell asked the court to consider a non-custodial sentence. 

32.  Mr Raffell further asked that the defendant be allowed bail pending the preparation of reports so as to enable the defendant to take his examinations during the period 2-11 December 2019.  Mr Raffell explained that all the examinations were online examinations which did not require the defendant’s attendance at the Polytechnic University but did require access to a computer.

33.  Although there are no guidelines for offences of blackmail and perverting the course of public justice, these are serious offences which attract sentences of immediate imprisonment, often of substantial length.   

34.  In view of the defendant’s young age before passing sentence I called for a report as to the defendant’s suitability for detention in a Detention Centre so as to provide the court with further information about the defendant. 

35.  I endorsed the remand warrant to ask that the Correctional Services Department provide the defendant with a computer to enable the defendant to take his online examinations.  

36.  In a memo dated 4 December 2019 from the Commissioner of Correctional Services the court was informed that the online examinations were replaced by the submission of additional paper assignments.  With the assistance of the staff of the Correctional Services arrangements were made for the defendant to complete the assignments and for the assignments to be submitted to the Hong Kong Community College before the submission deadline.  This arrangement was said to meet with the approval of the defendant.

Detention Centre Suitability report

37.  The report details the background of the defendant in particular his education history[6].

38.  The defendant completed primary school without much difficulty.  On promotion to Form One his academic performance slightly deteriorated and by Form Four his studies went downhill due to the harder curriculum. 

39.  Throughout the defendant managed to behave himself and was usually graded good in school discipline. 

40.  After completing secondary education in July 2016 the defendant in September 2016 enrolled in an Associate Degree of Business Administration at the University of Hong Kong School of Professional and Continuing Education.  The defendant however quit in December 2016 after his arrest for the blackmail offences. 

41.  In September 2017 the defendant enrolled in an Associate Degree in Business at the Hong Kong Community College of the Hong Kong Polytechnic University.  The defendant completed the degree in July 2019. 

42.  The results were fair but not of a grade to enable the defendant to promote to a bachelor’s degree.  The defendant therefore enrolled in an Associate Degree in Business (Hospitality Management) in September 2019.  The defendant has regularly attended school and according to Ms Wong, the senior programme officer, a school placement would be reserved for the defendant[7].

43.  The defendant has also worked part-time as an accounting clerk, a sales person, an event promoter and a waiter[8].

44.  Mr Lo, the Rehabilitation Unit Assessment Officer, found the defendant polite but reserved in revealing his past misdeeds and refusing to disclose details of the current case save to apologise for causing any harm to X[9].  

45.  The defendant is medically unfit for detention in a Detention Centre because of poor exercise tolerance and is therefore considered unsuitable for detention in a Detention Centre.

46.  Notwithstanding the offences were committed in 2016 and 2017 when the defendant was only 18/19 years of age; the defendant was arrested almost three years ago and is now 22 pursuing his academic studies and that the imposition of a sentence of imprisonment will be a devastating shock which will reverberate, no doubt in his future life[10], I am nevertheless satisfied that a sentence of imprisonment is appropriate.  

47.  I am satisfied the imposition of either a probation order or a community service order would not reflect the seriousness of the offences committed by the defendant.

48.  In determining a custodial sentence is appropriate I have carefully considered the need for individual justice, as articulated in the cases of HKSAR v Leung Pui Shan[11] and HKSAR v Yeung Kwun Kuen[12], cases concerning obtaining money by deception and theft.  I am satisfied that the circumstances leading to the commission of the offences in both those cases are very different. 

49.  This was not a single isolated offence.  Between September and November 2016 the defendant blackmailed X over a period in excess of one month in which he continually abused and threatened X.  X herself viewed the demand of $800 from ‘youaretooj’ for four photographs as cruel and that classmates do not do such cruel things[13].  Notwithstanding X telling the defendant not to threaten her again the defendant shortly after continued with his threats which became increasingly abusive.

50.  After his arrest in November 2016 the defendant delivered letters to the police station seeking forgiveness from X and her family and asking them to let him off the hook.  In March 2017 after writing six letters to which there was no response from X the defendant asked someone to ring X pretending to be a policeman with the view of persuading X to drop the case. 

Sentence

51.  I am satisfied the appropriate sentence after trial for the first blackmail offence is 1 year and 3 months’ imprisonment and for the second blackmail 1 year and 6 months’ imprisonment and for doing a series of acts tending and intended to pervert the course of public justice a sentence of 12 months’ imprisonment. 

52.  In asking for a suspended sentence Mr Raffell submits that the clang of the prison gates has provided the defendant with a short, sharp shock.  Whilst not academically brilliant Mr Raffell submits that in the intervening three years the defendant has grown up a bit and shows potential development whereby he can contribute to society. 

53.  Mr Raffell asks the court to take a chance on the defendant by encouraging the signs of maturity and rehabilitation the defendant has demonstrated and allow the defendant to finish his education and obtain some qualifications.  Any lengthy period of imprisonment Mr Raffell submits would squash the potential development of the defendant.

54.  Similarly, in his mitigation letter the defendant asks for leniency and to be given an opportunity to continue and finish his studies, re-pay his parents and to contribute to society. 

55.  In the letter the defendant still regards what he did as a prank, which explanation was rejected by the court.  Only at the end of the letter, in brackets, does the defendant say he wishes to take this opportunity to apologize sincerely to X. 

56.  I do not accept that the defendant is genuinely remorseful.  Although a defendant is not to be sentenced more severely by reason of the way he conducted his defence, the fact remains that by pleading not guilty X had to give evidence over seven days in which she had to relive all the events of 2016 and 2017 and read again all the abusive and threatening messages sent by the defendant. 

57.  In evidence X testified that she did not accept the defendant’s apology in the first letter he delivered to the police (exhibit P6).  X testified that the defendant did not make the apology wholeheartedly and she therefore did not read the other letters. 

58.  In cross-examination when asked why she did not regard the first letter as sincere X explained that she felt the defendant was not apologising for what he had done and wrote the letter only because he had been arrested and wanted her not to pursue the case[14].

59.  The defendant’s mitigation letter is written because he is now on remand pending sentence.  The apology appears little more than an afterthought appended to the end of the letter in brackets. 

60.  Having regard to all the circumstances of the commission of the offences and the personal circumstances of the defendant, I am satisfied the offences are too serious for the imposition of a suspended sentence[15]. 

Delay

61.  Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[16].

62.  The offences date back to 2016 and 2017.  Mr Cheung has submitted to court a chronology from 6 November 2016 when the defendant was first arrested to 20 April 2018 when the defendant first appeared in court.

63.  After his arrest the defendant was placed on police bail.  In April 2017 after the police retrieved the video from the defendant’s mobile phone the file was sent for legal advice at which time the defendant was temporarily released from bail.

64.  Legal advice directed further investigation to take place.  In June 2017 a further statement was taken from X at which time X informed the police about the telephones calls in March and May 2017.  The defendant was further interviewed in July 2017.

65.  After further police enquiries the defendant was rearrested in January 2018.  In March 2018 the file was submitted for further legal advice which was to prosecute the defendant. 

66.  The defendant was charged on 6 April 2018 and as noted already his first appearance in court was on 20 April 2018.  On 17 May 2018 the case was transferred to the District Court.  On 23 August 2018 the case was set down for trial to commence on 21 January 2019.  The trial commenced on 21 January 2019 and was adjourned part heard to May and again to July.  Final submissions were made on 26 September and verdict delivered on 25 November 2019. 

67.  As the chronology shows time was clearly required to investigate the case, including forensic examination of the mobile phones of X and the defendant and fingerprint examination together with the investigation of the phone calls. 

68.  Seventeen months from arrest to charge does however seem to be a long time for what is not a very complex case.  Arguably therefore the case could reasonably have been brought to court earlier than it was. 

69.  Notwithstanding the trial has taken almost a year to conclude I am satisfied there has been no delay since the case was transferred to the District Court.  The trial commenced as scheduled on 21 January 2019 and was adjourned part-heard because of a failure of counsel to accurately estimate the likely length of trial.  X’s evidence alone took longer than the five days reserved for trial. 

70.  Dates were fixed to resume the trial in May and again in July, dates to accommodate the defendant’s studies, the diaries of counsel and the availability of the court.

71.  The matter has now been hanging over the defendant for over three years.  In the circumstances I am satisfied credit should be given in sentence for the time taken to bring the case to court and the overall time from arrest to sentence. In the circumstances I reduce the sentence on each charge by 2 months’ imprisonment. 

Totality

72.  The two blackmail offences are part of a course of conduct for which I am satisfied concurrent sentences are appropriate.

73.  Doing a series of acts tending and intended to pervert the course of public justice whilst connected to the blackmail offences is a separate and distinct offence committed over four months after the blackmail offences. 

74.  Subject to totality of sentence I am satisfied a consecutive sentence is appropriate.

75.  I am satisfied a total sentence of 1 year and 6 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the three charges and takes into account his personal circumstances and the seriousness of the offences[17].

Sentence

76.  The defendant is sentenced as follows:

Charge 1 – 1 year and 1 month imprisonment;

Charge 2 – 1 year and 4 months’ imprisonment; and

Charge 3 – 10 months’ imprisonment

I order the sentence on charge 1 to be served concurrent with the sentence on charge 2 and 2 months of the sentence on charge 3 to be served consecutive and 8 months concurrent to charges 1 & 2. The total sentence to be served by the defendant is 1 year and 6 months’ imprisonment.