Blackmail

Blackmail

Blackmail is an offence contrary to section 23 of the Theft Ordinance (Cap. 210). The maximum penalty for the offence is 14 years’ imprisonment. 

In gist, blackmail is committed where a person makes an unwarranted demand with menaces (in simple terms, threats) with a view to benefit himself or another, or to cause loss to another 

The Demand

In simple words, demand means request. Such request may be made in writing, by speech or by conduct (such as causing trouble at a shop when asking for protection fee). 

Menaces

“Menaces” means serious threats or pressure used to force someone to give in to a demand against their will. It does not only include the threat of violence (e.g. I’ll hit you), but also threats of any action detrimental or unpleasant to the person addressed (e.g. threatening to damage one’s reputation, causing one to lose his job, report one to the authorities, or otherwise cause them serious trouble or loss), or a warning that in certain events such actions is intended. The threat doesn’t have to be about the offender doing something harmful to the victim. The offence can still be made out if the threat is that the offender themselves will suffer violence (e.g., “Give me money or I’ll let myself be beaten up”). 

To decide whether something counts as “menaces”, the law often uses an “ordinary person” test. The question is: would these words or actions be serious enough that they caused the ordinary person of normal stability and courage to comply with the demand. If the demand is trivial or empty threat such that it would not have intimidated anybody into complying with the demand, then the element is not proved. 

There are two situations where further explanation of the word “menaces” may be required. The first is where the threats would be sufficient to influence the mind of an ordinary person of normal stability, even though they did not in fact affect the person addressed; in such circumstances, menaces are established. The second is where the threats did affect the victim’s mind, although they would not have influenced an ordinary person of normal stability; in that case, menaces are proved provided the accused was aware of the likely effect of his conduct on the victim.

It can still be a menace even if the threatened act is something the person is legally allowed to do — like reporting a crime or revealing the truth about someone’s behaviour. That does not automatically stop it being a menace. The law focuses on the combination of the demand and the threat. Using a threat (even of something you are allowed to do) as a weapon to force someone to hand over money or some other benefit without good reason is what makes it blackmail-like and brings it within “menaces”.

Unwarranted

Any demand made with menaces is unwarranted unless he does so in the belief that (a) he has reasonable grounds for making the demand; and (b) the use of the menaces is a proper means of reinforcing the demand. 

In other words, what is demanded by the defendant must be something he reasonably believes that he is entitled to (e.g., making a demand for a debt lawfully owed to him). In addition, even if he believes that he was making a genuine claim, he would still be committing blackmail if he believes that the use of menaces is improper. 

With a view to gain for himself or another or with intent to cause loss to another

The demand must be accompanied by either a view to gain or an intention to cause loss. The gain or loss should be in relation to money or other property. 

The demand does not need to be communicated directly to the person against whom it is made. If a letter containing an unwarranted demand with threats is written in Hong Kong but sent to and received by someone in another country, Hong Kong courts still have jurisdiction to try the accused for blackmail. Conversely, Hong Kong also has jurisdiction if the demand is made abroad but received in Hong Kong.

Further, it is provided under section 23(4) of the Theft Ordinance (Cap. 210), any person who has the possession or under his control any letter or writing that makes an unwarranted demand with menaces would be guilty of the offence of “possession of blackmail letters” and subject to a maximum penalty of 10 years’ imprisonment. However, a person does not commit an offence under subsection (4) if they can show that they had the letter or writing in their possession or control without any intention of using it to threaten or blackmail.