HKSAR v. Singh Gurmail

DCCC362/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 362 OF 2012

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Reasons for Verdict

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1.The defendant faces one charge of blackmail, which is Charge 3 on the Charge Sheet. The prosecution allege that on 18 February this year at an internet café, namely I‑ONE, on the 1st floor of a building in Parkes Street, Yau Ma Tei, he and the 1st defendant, Kwok Tin‑lun, with a view to gaining for themselves or another, or with intent to cause loss to another, made an unwarranted demand of $1,000 from Mr Tung Kok‑chuen, referred to X in the Charge Sheet, with menaces.

2.The prosecution case, in essence, is that on the evening of that day, the 1st defendant had gone to the internet café and was demanding protection fees from Mr Tung, the owner.  Since Mr Tung was refusing to pay the sum of $1,500 demanded by the 1st defendant, the 1st defendant had reinforced his demand by summoning the defendant, who is the 2nd defendant on the Charge Sheet, who arrived at the café with several other men and suggested that Mr Tung pay a reduced sum of $1,000 per month.  The defendant had then been party to subsequent discussions when the method of payment was discussed

3.The only oral evidence called by the prosecution was from Mr Tung Kok‑chuen.  The remaining evidence for the prosecution was adduced by way of Admitted Facts, Exhibit P13.  That evidence included CCTV images of the defendant and other men arriving at the building and going up the staircase to the lobby outside the internet café, and images taken from the cashier’s area of the café depicting the defendant and the other men arriving on the 1st floor where the internet café was situated.  The images included images of the defendant, the 1st defendant and Mr Tung.

4.Mr Tung (PW1) gave evidence of earlier incidents involving the 1st defendant one of which had occurred in May 2011 during which the 1st defendant had approached Mr Tung and claimed that he was a follower of a well‑known local triad and demanded ‘tor tei’.  The police had been called by him but when they arrived out of concern for his personal safety and the safety of his business, he told the police that there had been a misunderstanding between him and the 1st defendant.  Thereafter, he had allowed the 1st defendant to use the internet and or play internet games free of charge three or four times a week.

5.As far as the incident on 18 February 2012 to which the charge against the defendant relates, Mr Tung gave evidence that at about 9 pm he had received a phone call from a member of his staff while he was at home.  The staff member had told him that the 1st defendant had returned to the internet café bringing with him a number of friends who were occupying seats in the café preventing the internet café from operating. Mr Tung spoke to the 1st defendant on the telephone telling him that he could not do that and saying he would come to the café to meet him.  When the 1st defendant passed the phone back to Mr Tung’s staff member to speak to Mr Tung, Mr Tung said that the voice of the staff member appeared to be shivering.

6.When Mr Tung arrived and met the 1st defendant at the café, the 1st defendant had demanded ‘tor tei’ of $1,500 per month and threatened otherwise that he would cause disturbance to Mr Tung’s business.  Mr Tung had not agreed to the 1st defendant’s demand and insisted that the most he could pay was $500. 

7.After Mr Tung had refused to accede to the 1st defendant’s request, the 1st defendant had almost immediately made a call on his mobile phone and said to the person at the other end in Cantonese, “Ricky, I-ONE.  Do things”.  About 10 minutes later, the defendant and a number of Indian or Pakistani men arrived and went into the storeroom where the 1st defendant and Mr Tung then were.  They surrounded Mr Tung.  The 1st defendant told the men in Cantonese who had arrived with the defendant to wait outside at the staircase.  As soon as the other men left, Mr Tung himself walked out of the storeroom because he felt so unsafe.  The other men had walked downstairs.

8.There was then a conversation between the 1st defendant and Mr Tung in the presence of the defendant which took place between the storeroom and the entrance to the café.  The relative positions of the three men could be seen in the CCTV footage.  The defendant was standing between the 1st defendant and Mr Tung.  Mr Tung said that the 1st defendant had again asked for ‘tor tei’ of $1,500 per month.  Mr Tung said that he could only afford a maximum $500 per month.  The 1st defendant had said that $500 as ‘tor tei’ was too little.  The defendant had then suggested that both parties make some concession and suggested $1,000 per month.

9.Although the defendant himself had not used the term, ‘tor tei’, the 1st defendant had specifically used the term, ‘tor tei’, in the presence of the defendant; indeed, had repeatedly referred to ‘tor tei’. Mr Tung was left with the impression that all understood that they were talking about ‘tor tei’.  Mr Tung felt that he had no alternative but to agree the figure of $1,000.

10.The 1st defendant, the defendant and Mr Tung had then gone into the storeroom where there was a further discussion about how the money would be paid.  At some stage, and it is not clear when this occurred, whether it occurred before or after the conversation had moved to the storeroom, the 1st defendant had introduced the defendant to Mr Tung as “Ricky” and  had said that the defendant was “one of his people”.

11.While Mr Tung was in the storeroom with the defendant and the 1st defendant, the 1st defendant had said that he would come the following month to collect payment or would give Mr Tung particulars of a bank account into which the money could be deposited.  When the 1st defendant said this Mr Tung was not sure whether the 1st defendant meant that he himself would collect payment or that one of his group would do so.  The defendant had given Mr Tung his telephone number and asked him to call that number each month in order that Mr Tung could give him the money.

12.The defendant had then left and then, after some discussion as to whether Mr Tung could pay the first $1,000 later, Mr Tung had been obliged to hand over $1,000 to the 1st defendant immediately.  Mr Tung said that the incident had caused him to be scared and fearful for his own personal safety as well as for the safety of his staff some of whom resided upstairs.

13.The defendant elected to remain silent and called no evidence.  He had, however, been interviewed between 6 minutes past 6 and 4 minutes past 7 in the evening on the day of his arrest on 20 March 2012.  The interview was video recorded and conducted with the assistance of an Indian Punjabi interpreter.  Essentially, his explanation was that he had heard the 1st defendant demand $1,500 from Mr Tung and Mr Tung insisting that he should only pay $500.  He admitted suggesting a compromise of $1,000 without knowing what it was that the two men were discussing.

14.The defendant claimed that he had come to Hong Kong in 1993 and spoke a little Chinese.  He said that he had met the first defendant in a game centre in early February, the month in which the incident occurred. The only knew him by his nickname, ‘Sai Lun’.  On the day in question he had received a phone call from the 1st defendant suggesting they go to the video game centre to play games.  He had gone to the building alone but had met two men downstairs.  This meeting was a coincidence.  He did not know their names but had spoken to them because they were also Punjabis.  They had asked him where he was going and he told them that he was going upstairs to meet a friend.  He and they had gone upstairs but after having a look they had gone downstairs again. 

15.He himself had gone to the I‑ONE café and had seen the 1st defendant and an unknown Chinese man having what he described as a muddled talk in Chinese.  He did not know what the problem was between them.  One was saying $500; the other was saying $1,500.  He said that he told them not to quarrel and said, “I do not know what the matter is.  Why are you people having a big argument?  One of you is talking about $500; one of you is talking about $1,500.  Why can one of you not deduct a bit and the other add a bit?” and he had suggested $1,000.  Because the two men were arguing, he had left and he had then gone to To Kwa Wan on his own.

16.In assessing the case against the defendant and his explanation of why he went to the internet café that day, I have borne in mind that he is a man of previous good character in Hong Kong.  This is a case that ultimately turns on the credibility of Mr Tung (PW1), the alleged victim.  He is an educated young man, being a graduate of an Australian university and currently studying part-time for a Masters degree in Hong Kong while at the same time being involved in his family’s business and operating the internet café under a franchise agreement. 

17.I had no doubt that he was a completely honest witness telling the court the truth to the best of his recollection.  I accepted his explanation as to why it was that he decided not to pursue a complaint against the 1st defendant in May 2011 when the 1st defendant had first demanded ‘tor tei’ and had told the police that there had been a misunderstanding between him and the 1st defendant when that in fact was not the case. 

18.I accepted his explanation as to why certain matters about which he gave evidence were not in his witness statements.  Quite apart from a natural tendency when he was giving his first two statements for the officer taking the statements to focus primarily on the activities of the 1st defendant, I accepted Mr Tung’s explanation that at that stage he had not had the opportunity of seeing the CCTV footage of what had occurred and that had jogged his memory as to certain matters, including that the defendant had given him his telephone number and said he would collect money from him.

19.Having been shown translations, albeit uncertified, of his latter two much shorter statements, which were made after he had seen the CCTV images, I did not consider there was any significance in the fact that he had not mentioned these matters in those statements.  I bore in mind that in evidence-in-chief, having said that the defendant had given him his telephone number, he, at a later stage in his evidence-in-chief, suggested that it was the 1st defendant who had given him the defendant’s number to him. I accepted his later explanation that he had not intended to say that the 1st defendant had given the telephone number to him but that it was a misunderstanding due to a matter of translation. 

20.I have no doubt that his evidence as to his dealings with the 1st defendant is correct, nor do I have any doubt as to the truth of his description of the words and actions of the defendant.  In particular, I accept his evidence that in the presence of the defendant the 1st defendant had used the term, ‘tor tei’, when referring to the sum of $1,500 demanded by him and had in fact repeatedly used the term ‘tor tei’ during these discussions.

21.In reaching that conclusion, I have taken into account the submission by Mr David Ma, who appeared for the defendant in the trial, that Mr Tung appeared to have contradicted that in cross-examination. Mr Ma had put to him that all the defendant had done was act as a middle man and had just asked them why they were quarrelling and suggested that one should go up to $1,000 and the other down to $1,000 and Mr Tung had agreed to that suggestion.  Mr Ma had then put to him that that was all the defendant had said and Mr Tung’s reply was, “While he was physically between us that is what he said up to that moment”.

22.While on its face this would appear to be a contradiction, I am not satisfied that Mr Tung understood the question to be a suggestion that the defendant had not used the term, ‘tor tei’.  I believe that if that had been specifically put to him he would have repeated his earlier evidence that the 1st defendant had used that term.  It was clear to me that Mr David Ma was avoiding specifically putting to Mr Tung that the 1st defendant had not used the term, ‘tor tei’ and was instead seeking to obtain an answer from Mr Tung which was apparently inconsistent with his earlier evidence, by the circuitous route of suggesting to Mr Tung, firstly, that the dispute was simply about the amount of money, and then that the defendant’s role was simply that of middle man thereby focusing Mr Tung’s mind on those issues rather than the use of the term, ‘tor tei’, before putting his final questions to Mr Tung which produced the answers in question.

23.I have no doubt, therefore, that the defendant would have heard the 1st defendant demanding $1,500 from Mr Tung as ‘tor tei’.

24.The defendant had arrived in Hong Kong in 1993, 18 years previously, and had worked as a casual worker.  I am satisfied that he was able to understand and speak Cantonese sufficiently well to understand that term.  In the video interview he had no difficulty in recounting in Cantonese at counter 393 what he alleged the 1st defendant had said to Mr Tung.  There was no suggestion in his video interview that it was language difficulties that caused him to misunderstand what the 1st defendant and Mr Tung were talking about.

25.I am satisfied that he would have been well aware that the 1st defendant’s demand for ‘tor tei’ was a demand for protection money and that it carried with it a menace of  unpleasant consequences if not complied with.  It is fanciful to suggest, in the context that it was used, that the defendant might have considered the term was used innocently as a reference to local people.  Even if I had not been satisfied that the 1st defendant had used the term, ‘tor tei’, in the presence of the defendant, I would have been satisfied that the defendant was well aware that he was party to a demand by the 1st defendant for protection money.

26.On the evidence, which I accept, before the arrival of the defendant the 1st defendant had demanded ‘tor tei’ of $1,500 from Mr Tung and Mr Tung had refused to pay that sum.  In such circumstances, the only reasonable inference is that his call to Ricky, the name in which the defendant was subsequently introduced to Mr Tung, was to summon Ricky to reinforce his demand for a protection fee.  It is clear that Ricky, whom he called on the telephone, was the defendant.

27.I am satisfied that the 1st defendant would not have called the defendant to come to the café to reinforce his demand unless the defendant had been well aware of the reason he was being summoned.  It is fanciful to suggest, as the defendant said in his video interview, that he had been asked to come to the café to play games with the 1st defendant.

28.The inference is even more overwhelming by the fact that I am satisfied that the defendant brought three other men with him up to the premises.  The only reasonable inference from the fact that they came up to the premises and went to the storeroom, showed themselves to Mr Tung and then immediately left, is that they were there to intimidate Mr Tung.

29.The account given by the defendant that these men were simply men from the Punjab he had coincidentally met downstairs and who just happened to come up to the internet café at the same time as him is belied by the evidence from the CCTV cameras.  When the defendant came up the first flight of stairs, he looked back down the stairs obviously to ensure that the men were following him.  The same thing happened when he reached the 1st floor and the first of the other men had reached that landing.  The defendant went back to the staircase and looked down, clearly again ensuring that all the men would come up and join him.

30.It follows that I disbelieve the account given by the defendant in his video interview.  His account was that simply he had arrived to find that the 1st defendant and Mr Tung were arguing about whether Mr Tung should pay $1,500 or $500 and that without understanding what the disagreement was about had suggested that they agree a figure of $1,000 and had left because they continued to argue.  That account is inconsistent with the evidence of Mr Tung, which I believe, that the parties had already agreed the figure of $1,000 before the defendant left.

31.The CCTV footage reveals the defendant was with the 1st defendant and Mr Tung both on the staircase lobby and in the storeroom for several minutes.  It is inconceivable in those circumstances that the defendant would not have been aware of the reason the 1st defendant was demanding money from Mr Tung.  It is, moreover, illogical that the defendant would have suggested that the 1st defendant reduce his demand from $1,500 to $1,000 without being aware of the basis of the demand.

32.I am satisfied beyond reasonable doubt the defendant was party with the 1st defendant to an unwarranted demand of $1,000 from Mr Tung with menaces and that the demand was with a view to gain for themselves or others or cause loss to Mr Tung.

33.I find the defendant guilty of the offence with which he is charged.

Please refer to CACC495/2012 for the relevant appeal(s) to the Court of Appeal.