Criminal Intimidation

V. Criminal Intimidation

Under section 24 of the Crimes Ordinance (Cap. 200): 

Any person who threatens any other person — 

(a) with any injury to the person, reputation or property of such other person; or 

(b) with any injury to the person, reputation or property of any third person, or to the reputation or estate of any deceased person; or 

(c) with any illegal act, 

with intent in any of the above cases — 

(i) to alarm the person so threatened or any other person; or 

(ii) to cause the person so threatened or any other person to do any act which he is not legally bound to do; or 

(iii) to cause the person so threatened or any other person to omit to do an act which he is legally entitled to do, 

shall be guilty of an offence. 

The Threat 

Whether a threat constitutes criminal intimidation does not depend on the courage or timidity of the person threatened. Whether the victim actually felt threatened is not the decisive factor. 

If the threat is such as to overbear the ordinary free will of a firm and resolute person, or, whatever the nature of the threat, is made with any of the intents set out in the section, the offence is committed. The law requires that the person making the threat must intend to alarm the person threatened, or that the threat itself is of such a nature as to affect a person of ordinarily firm and resolute mind. In determining these matters, the context in which the threat was made is of the utmost importance. This test involves both objective and subjective considerations. 

In a Hong Kong case, the defendant threatened the victim that, if she continued to ignore him, he would publish nude photographs of her, even though he had not in fact taken any such photographs. The court held that the distress and impact caused to a victim by criminal intimidation of this kind do not depend on whether the offender would, or could, actually carry out the threat, nor on whether the offender had succeeded in taking or possessing the photographs. 

The court has observed that words uttered in a moment of madness or bravado, blurted out in extreme anger, do not necessarily constitute a threat. The court must determine whether the defendant genuinely intended to cause another to be alarmed, or whether, in the circumstances, his words were quite likely to produce that effect. 

If the words used are vague, the prosecution may find it difficult to prove beyond reasonable doubt that they constituted a threat. For example, in a Hong Kong case, the word "mess" was said to be capable of bearing various meanings depending on the context. 

A threat may be implied, and the court will adopt a practical approach to assessing the threat according to the circumstances. 

Mens Rea 

Under section 24(a)(i) of the Crimes Ordinance, the prosecution must prove that, in making the threat, the defendant had the intent to alarm the person threatened. Whether the victim was in fact alarmed is immaterial. The mens rea of criminal intimidation involves both subjective and objective considerations: the first is a subjective element, namely that the person making the threat intended to alarm the person threatened; the second is an objective test, namely whether the nature of the threat was such as to affect a person of ordinarily firm and resolute mind, even if the person receiving the threat was not in fact alarmed. 

Even if the defendant mistakenly believed that he was legally entitled to make the demand of the victim, this is no defence to the charge. Likewise, even if the defendant believed that he was morally justified in making the threat described in section 24 in order to make his demand of the victim, this is no defence. In other words, so long as the conduct itself amounts to criminal intimidation, neither "I thought I was entitled to make the demand" nor "I felt it was right to make the demand" can be relied upon to escape criminal liability. 

Sentencing Principles 

There is no fixed sentencing tariff for the offence of criminal intimidation; each case turns on its own particular facts. Where the matter is dealt with on indictment, the maximum penalty is 5 years' imprisonment. On summary conviction, the penalty is a fine at level 1 (that is, a fine of $2,000) and 2 years' imprisonment. 

The court has held that uttering threats to a public officer in the execution of his public duties is a matter of considerable seriousness, and that an immediate short custodial sentence is appropriate. In addition, for criminal intimidation involving the forcible monopolising of business or interference with another's livelihood, the sentencing starting point after trial may reach 9 months' imprisonment where no triad element is involved, and 14 months' imprisonment where a triad element is involved. 

In very serious cases, the court will impose a substantial sentence.