Criminal blackmail is defined under Section 23 of the Theft Ordinance (Cap 210) as making an unwarranted demand with menaces，with the intent to gain for oneself or another, or to cause loss to another. The demand is considered unwarranted unless the person making it believes they have reasonable grounds for the demand and that the use of menaces is a proper means of reinforcing it. The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.
In the context of cyber extortion, blackmail can involve making unwarranted ransom demands, such as threatening to encrypt or delete computer files, or disable computers or networks through DDoS attacks, unless a ransom is paid.
Under the Theft Ordinance (Cap 210), a person convicted of criminal blackmail is liable to severe penalties. Specifically, if found guilty of making an unwarranted demand with menaces, the individual can face imprisonment for up to 14 years upon conviction on indictment. Additionally, possession of a letter or writing making an unwarranted demand with menaces can result in imprisonment for up to 10 years.
In the decided case of HKSAR V. HARPAL SINGH AND ANOTHER- [2017] HKDC 1015, the two defendants, D1 and D2, were jointly charged with blackmail under section 23(1) and (3) of the Theft Ordinance, Cap 210. The victim, PW1, is a Pakistani national and proprietor of a restaurant and mobile phone shop in Chungking Mansions, Tsim Sha Tsui, Kowloon. PW1 was involved in two blackmail incidents that occurred on 15 and 16 June 2016. On 15 June, PW1 received a phone call from D2, who requested him to meet at Tandoori Nights restaurant. During this meeting, D2 and D1 demanded HK$800,000 from PW1, threatening his safety if he did not comply. PW1 felt scared but did not report the incident to the police at that time. On 16 June, PW1 and his friend PW2 went to Hung Kee restaurant, where D1 again confronted PW1 about the money. The prosecution presented evidence from PW1 and PW2, who corroborated each other's accounts of the incidents. However, PW1 had previously failed to mention the blackmail in his first witness statement to the police, which he attributed to being in a coma after a knife attack on 18 June 2016. The prosecution also relied on CCTV footage to establish the timeline of events. The defense argued that PW1 fabricated the incidents to frame D1 and D2, but the judge found both PW1 and PW2 to be credible witnesses. The judge concluded that the prosecution proved beyond a reasonable doubt that D1 and D2 made unwarranted demands from PW1 with menaces, resulting in a guilty verdict for both defendants on the charges of blackmail. Accordingly, courts held that D1 and D2 were guilty of blackmail.
