HKSAR v. YEUNG CHAK YAN

DCCC112/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 112 OF 2008

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

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

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

Reasons for Sentence

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

1.  The defendant has pleaded guilty to two offences, namely, Charge 1, Blackmail, Charge 2, Failing to surrender to custody without reasonable cause. The facts admitted by the defendant can be summarised as follows.

Charge 1

2.  The victim Mr X, PW1, was an ear, nose and throat specialist.  He came to know the defendant in September, 2006.  In early November 2006, PW1 invited the defendant for dinner.  During the dinner the defendant asked PW1 to invest $200,000 in a business project in Shenzhen.  PW1 replied that he needed time for consideration.  Later in the same evening they had consensual sexual intercourse at PW1’s residence.

3.  At about 10 am on 29 November 2006, the defendant rang PW1 up and requested to meet him at the Captain’s Bar situated at the Mandarin Hotel.  Later in the same morning they met at the bar.  The defendant asked PW1 to lend her his mobile phone.  PW1 agreed.  PW1 then handed over his mobile phone to the defendant.  The defendant then asked PW1 if he would invest in the project that she had previously discussed with him.  PW1 replied in the negative.  The defendant immediately lost her temper and shouted at PW1 saying that the victim had fooled her and he must compensate her by giving her $100,000.  If not, she would take his sperm and her torn clothes to the police for report of rape against him.

4.  PW1 then left the bar and went to a nearby ATM machine to withdraw cash of $100,000.  When PW1 returned to the bar he told the defendant that he needed time to consider her demand and he asked the defendant to return his mobile phone.  The defendant refused and claimed that she would make a report of rape against him to the police.  She then left the bar alone.

5.  Later PW1 made a report to the police.  As directed by the police PW1 invited the defendant out for a drink at the bar. Later the defendant arrived at the bar alone.  PW1 then gave a white envelope that contained the sum of $100,000 to the defendant.  In return the defendant handed over a black handbag to PW1.  When PW1 opened the handbag he found his own mobile phone, a plastic bottle containing white cream and several pieces of ladies clothes.  When PW1 asked the defendant if the bottle contained his sperm, the defendant ignored and fled.  She was arrested outside the bar.  The money given to her was recovered from her upon arrest.  Under caution the defendant denied the offence.

Charge 2

6.  The defendant was subsequently charged with blackmail and appeared in District Court on 19 February 2008.  She pleaded not guilty.  Bail was granted to the defendant subject to the conditions including not to leave Hong Kong and to surrender to the court on 23 May 2008 for trial.

7.  The defendant jumped bail and left Hong Kong for the Mainland on 21 February 2008.  She was arrested when she surrendered to Hong Kong authorities at Lok Ma Chau Immigration check point on 2 January 2012.

Background and Mitigation

8.  The defendant is now aged 43.  She is married to an architect.  She has a clear record.  Before sentence I have called for a background report which is now available.  The background report reveals a very detailed background of the defendant. 

9.  The report supports the information that Mr Ma, counsel for the defendant, has put forward in mitigation for the defendant. Suffice it for me to say that the defendant comes from a decent and well-off family background.  She studied in Tsinghua University.  She had her third marriage with her present husband, who is an architect earning about $4 million a year.  He provided a monthly maintenance of about $50,000 a month to the defendant for family expenses.  Based on these information gathered it appears to me that the defendant should not have any financial stress at the time of the offences.

10.  The background report also confirms that the defendant was upset by the failure of her plastic surgery and once attempted suicide by wrist cutting in 2004.  Mr Ma has submitted a medical report prepared by Dr Stephen Ng, a psychiatrist, who treated the defendant from September 2004 to January 2007 for her depression and post traumatic stress disorder as a result of the facial disfigurement after the failure of the plastic surgery.

11.  Dr Ng saw the defendant on 20 June 2006 because of the relapse of her mental condition with recurrence of her flashbacks, poor sleep and fear for no reason.  The defendant was last seen in January 2007 and then she defaulted afterwards apparently because the defendant absconded and left Hong Kong.

12.  In mitigation Mr Ma submits that it was not a case with pre-meditation.  The defendant only lost control of herself when her request for investment was not met and she felt being fooled by the victim. The defendant did not commit the blackmail offence out of greed. 

13.  Mr Ma tells me that the defendant absconded because she could not stand the pressure of the case.  Since then she lived in the Mainland under the care of friends and distant relatives.  During that period of time she had suicidal thoughts.  At last she was influenced by Buddhist belief and decided to accept the consequences for what she had done. She therefore returned to Hong Kong with her husband and surrendered herself to the authorities at the immigration control point.

14.  Mr Ma also informs me that, putting no blame on the prosecution, the defendant was only first brought up to the District Court in February 2008.  The defendant felt she was tortured at the waiting time. 

15.  Mr Ma refers me to the case of HKSAR v Chan Hok Yuen, DCCC715/2010, in which the District Court judge only took 18 months as a starting point for a blackmail for $3 million.  I do not think that case is helpful in the consideration of the sentence in this case.  Each case has to be sentenced on its own facts and circumstances and the personal background of the defendant. 

16.  Blackmail with the threat of making a false report of rape is a serious offence.  An immediate custodial sentence, no doubt, is called for.  However, I do accept that this case is an unusual one and certainly not the worst of the kind.

17.  The defendant has a decent family background.  With the monthly maintenance from her husband, there is no evidence that she committed the blackmail offence out of financial difficulties or greed.  It is not difficult to understand her feeling when a man, having indicated his interest in investing in her business, having had sex with her, turned round to say that he was no longer interested in it. 

18.  There is also medical evidence that the defendant was having a mood disorder problem and was under medication of a psychiatrist at the time of the offence.  I accept the mitigation that the defendant felt being fooled by the victim and lost the control of herself.  I accept that the offence was not committed out of greed and was not a pre-meditated one.  The fact that the defendant returned the victim’s mobile phone and a plastic bottle with cream would suggest that the defendant was not pursuing her unwarranted demand further.

19.  I accept that the defendant is now genuinely remorseful which is evidenced by her surrendering to the Hong Kong authorities. 

20.  In all the circumstances I am of the view that 18 months’ imprisonment would be an appropriate starting point. 

21.  The defendant absconded and surrendered subsequently.  Her guilty plea to the offence of blackmail cannot be said to be a timely one to deserve the full credit of one-third reduction. But I am still prepared to give her five months reduction for her plea of guilty. 

22.  No doubt the prosecution should not be blamed for the delay of one year and two months but I do accept the anxiety she had to suffer unnecessarily and would therefore give the defendant one month reduction to show the court’s sympathy.

23.  The defendant is therefore sentenced to 12 months’ imprisonment for Charge 1. 

24.  I adopt six months as the starting point for Charge 2 and give the defendant one-third reduction for her plea of guilty.  She is therefore sentenced to 4 months’ imprisonment on Charge 2.  The sentence should be consecutive to Charge 1, in principal, being a totally different offence.  However I am satisfied that 14 months’ imprisonment can sufficient reflect the total culpability of the two offences.  I therefore only order two months of the sentence in Charge 2 to run consecutively to Charge 1.

25.  The total term of imprisonment is, therefore, 14 months.