HKSAR v. Harpal Singh and Another

DCCC 1018 & 1027/2016 (Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1018 & 1027 OF 2016

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REASONS FOR VERDICT

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1.D1 and D2 are jointly charged with one count of Blackmail (Charge 1), contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210. D1 is further charged with another count of Blackmail (Charge 2). Both D1 and D2 pleaded not guilty to the charges.

Prosecution case

2.At the trial, the prosecution called two witnesses.  PW1 is the alleged victim of the two blackmail incidents took place on 15 and 16 June 2016.  PW2 is a friend of PW1 who happened to be present at the second blackmail incident.  The evidence of PW1 and PW2 can be summarized as follow.

3.PW1 and PW2 are both Pakistanis settled in Hong Kong.  PW1 came to Hong Kong in 1998 and is now the proprietor of a restaurant and a mobile phone shop in Chungking Mansions, Tsim Sha Tsui, Kowloon.  PW2 is a Form 8 holder who came to Hong Kong in about 2006.  They did not know each other back in Pakistan.  When PW2 arrived in Hong Kong he came to know PW1 and they became good friends.

4.On 15 June 2016 at about 11 am, PW1 received a phone call from D2 whom he knew for several years.  D2 sometimes walked pass PW1’s mobile phone shop and they would chat casually.  PW1 knew D2’s name is “Janga”.  In the phone call, D2 requested PW1 to meet him at a restaurant called “Tandoori Nights” located at 2/F, Eastern Flower Centre, No 22-24 Cameron Road, Tsim Sha Tsui.  D2 did not tell PW1 the reason for having the meeting.  At that time, PW1 thought it was about a dispute between one of his customers and D2.

5.Later at about 11:30 am, PW1 arrived at Tandoori Nights with a friend named Yasir Hussain.  When they arrived, PW1 saw D2 was already sitting at a table with some men.  He recognized one of the men was D1.  He knew D1’s name is “Happy”. PW1 asked D2 why he asked him to come.  D2 told PW1 to sit down and have lunch.  After eating the food, D2’s friends left leaving behind only D1 and D2.  PW1 asked D2 again what was the purpose of the meeting.  D2 said to PW1 that if he pays them HK$800,000, he would be safe.  Otherwise he would be in trouble and his life would be in danger.  D1 repeated the same demand and said if PW1 pays, they would protect him and his shops.  PW1 replied that he did not have the money to pay them. 

6.Upon hearing PW1’s reply, D2 picked up a wine bottle and smashed it against the table.  He pointed the broken bottle at PW1 and said, “Unless you arrange to pay us money, we won’t allow you to leave.”  D1 also said, “If money is not arranged, if something happens to you, don’t blame us.”  PW1 felt very scared but did not say anything.

7.At that juncture, the manager of the restaurant came and asked D1 and D2 not to smoke in the restaurant.  D1 slapped the face of the manager.  PW1 stood up and intended to leave but was told by D2 to sit down.  PW1 felt scared and said he would arrange to pay them the money.  He asked them to give him time.  D1 then said to PW1 that he was free to go.

8.It is the prosecution’s stance that the second blackmail took place on 16 June 2016 (not 17 June 2016 as testified by both PW1 and PW2).  The prosecution relies on a CCTV footage (Exhibit P5) to prove the date of Charge 2. 

9.In any event, it is the evidence of PW1 and PW2 that on the material day they went to a restaurant named Hung Kee in Chungking Mansions at about 4 pm.  While PW1 and PW2 were talking, D1 appeared.  PW2 did not know D1 and had not seen him before.  D1 sat down at their table and asked PW1 whether he had made arrangement about the money.  PW1 asked D1 what money.  D1 said the money they talked about at Tandoori Nights.  PW1 replied he did not have the money. 

10.Upon hearing PW1’s reply, D1 became very angry and said to PW1, “Anything happens to you, you’ll be responsible.  Don’t blame us.”  After D1 left, PW1 felt very scared.  He considered whether he should report to the police but in the end decided against it.  PW2 asked PW1 what was that all about but PW1 just told PW2 to stay away from the matter.

11.Later on 12 August 2016, PW1 was invited by the police to attend an identification parade.  During the parade, he identified D1 and D2 as the persons who demanded him to pay HK$800,000 with threats to his safety.  PW2 also attended the identification parade on the same day and he positively identified D1 as the person who demanded PW1 to pay him money at Hung Kee.

12.During cross-examination, PW1 agreed that he had given altogether 5 witness statements to the police.  He agreed that in his first statement (Exhibit D3), taken on 25 June 2016 in the Queen Elizabeth Hospital, when he talked about meeting at Tandoori Nights with D1 and D2, he did not mention about D1 and D2 blackmailing him.  There was also no mention about the amount of HK$800,000.  PW1 explained that on 18 June 2016 he was seriously wounded in a knife attack in his shop. He was in a coma for three days.  He lost both of his thumbs and sustained multiple cut wounds on his body.  Two major operations were conducted on him on 18 and 24 June 2016.  When the police came to take the first witness statement from him, he had just woken up after the second surgery.  In fact, he never reported the two blackmail incidents to the police.  He only mentioned them when the police came to investigate about the attack.

13.PW1 was also cross-examined about his mobile phone call records (Exhibit D1).  PW1 agreed that at the material times he was using the mobile number of 66235211. When it was put to him that between 13 and 17 June 2016, there were a total of 8 phone calls between him and D2 (it was agreed D2 used the phone number 53085509 at the material times), PW1 said he had no recollection about any phone conversation with D2 except the call that D2 asked him to go to Tandoori Nights. 

14.Further, during cross-examination, it was put to PW1 that he fabricated the two blackmail incidents to frame up D1 and D2.  It was put to PW1 that he was trying to help one of his ex-employees, Waheed, who was being charged in a criminal case in which D1 was a prosecution witness.  PW1 disagreed.  He said Waheed worked for him as a salesman for about 3 months and had already left the job before the two blackmail incidents.  He agreed that he tried to help Waheed by contacting a person named Sunny Bali who worked at a solicitors’ firm.

15.The video-recorded interview of D2 (Exhibit P5) and its transcript with certified translation (Exhibit P5A) were admitted into evidence by agreement.  In the interview, D2 agreed that he went to Tandoori Nights restaurant for lunch on 15 June 2016 with some friends and met PW1 there.  He said he only talked to PW1 casually and never blackmailed him.

16.The prosecution also produced a CCTV footage (Exhibit P2) recorded inside Chungking Mansions on 16 June 2016 which purportedly captured PW1 and PW2 going to Hung Kee and then left together.  PW1 identified himself in the footage and said he was going to Hung Kee where he met D1 and was blackmailed by him again.  

Defence case

17.After I found that there was a case to answer on both charges, both D1 and D2 elected not to give evidence and did not call any witness.

Analysis of evidence

18.I bear in mind the burden of proof is on the prosecution and the standard is beyond all reasonable doubts.  The defendants do not have to prove anything.  Both defendants elected not to give evidence.  It is their right and no adverse inference will be drawn.  PW1 was cross-examined about him being attacked several days after the two alleged blackmail incidents.  I remind myself the attack has nothing to do with both D1 and D2 and it was the subject matter of another criminal case where D1 and D2 were not involved.

19.I have carefully considered the evidence of PW1.  I note that he has one previous conviction in 2010 involving selling goods of forged trademark where he was sentenced to 6 months’ imprisonment suspended for 2 years and fined HK$5,000. After careful consideration, I find the evidence of PW1 clear and straightforward.  He was cross-examined by the defence very thoroughly and he was unshaken on all important issues.  Bearing in mind the criticism made by the defence, I still find his evidence reasonable and convincing. 

20.Defence submitted that PW1 fabricated evidence to frame up D1 and D2 to help his ex-employee.  With respect I disagree.  First of all, I see no reason why PW1 would take the trouble and risk to help an ex-employee who only worked for him for 3 months.  Secondly, I do not see how by framing up D1 and D2 PW1 could help Waheed.  Thirdly, if the ulterior motive is to help Waheed, what was the reason to involve D2 as well?  After careful consideration I do not believe PW1 fabricated the two incidents to frame up D1 and D2.

21.I have considered the fact that PW1 had not mentioned clearly about the two blackmail incidents in his first witness statement.  After careful consideration, I find his explanation logical and reasonable.  I have also considered the fact that at the material times he had some telephone contacts with D2.  I do not think the existence of these call records affects the credibility of PW1 and the fact that PW1 had no recollection of these calls does not create any doubt in his evidence.  Given the background of the case as testified by PW1, it is not unreasonable that PW1 and D2 would maintain some ongoing contacts. 

22.I have also carefully considered the evidence of PW2.  His evidence is succinct, clear and straightforward.  He was unshaken under cross-examination and there is nothing inherent improbable in his evidence.  His account of the second incident is consistent with the account of PW1, though I note that there is an inconsistency as to whether PW2 left the restaurant alone or together with PW1.  As the CCTV footage captured they left together, I am sure it was an innocent mistake made by PW2 and it does not affect his overall credibility.

23.Lastly, I have carefully considered the fact that both PW1 and PW2 testified that the second blackmail incident took place on 17 June 2016 instead of 16 June 2016. After very careful consideration, I believe it is a coincidence that they both made such a mistake.  It is not uncommon that people make mistake on matters like date and time.  Especially in a case like this where PW1 did not report the incidents to police immediately afterward and it was after some lapse of time that both PW1 and PW2 had the opportunity to tell the police what happened.  Considered all the circumstances, I am totally convinced it was a coincidence that they both made the same mistake and it does not give rise to any doubt in their credibility.

24.Base on the above analysis, I find both PW1 and PW2 to be honest and reliable witnesses.  I am sure they have told the truth and I accept their evidence in full.

25.Concerning the exculpatory part of D2’s video recorded interview, it is no more than bare assertion without being tested by cross-examination.  I attach no weight on this part.  Concerning the inculpatory part, I will give it full weight.

Conclusion

26.Base on the evidence I accepted, I find the prosecution has proved beyond reasonable doubt that on the two occasions as particularized in Charges 1 and 2, D1 and D2 did make unwarranted demands of HK$800,000 from PW1 with menaces.  The meaning of what D1 and D2 said to PW1 at the material times is clear.  It could only mean that if PW1 did not yield to their demand, they would do something that could threaten the safety of PW1.  Therefore, I find the prosecution has proved beyond reasonable doubts of all the elements of the charges.  I find D1 guilty of both Charges 1 and 2 and D2 guilty of Charge 1.