HKSAR v. Singh Gurmail

CACC 495/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 495 OF 2012

(ON APPEAL FROM DCCC NO. 362 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the reasons for judgment of the court):

Introduction

1.The applicant was joint charged with another (the 1^st accused) with blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210.  The offence was alleged to have occurred at an internet café on 18 February 2012.  The 1^st accused pleaded guilty and was sentenced to 28 months’ imprisonment after the judge, Deputy District Judge Longley, adopted a starting point of 3½ years’ imprisonment.  The applicant pleaded not guilty and was tried in the District Court also before Deputy District Judge Longley, and on 30 November 2012 was convicted of this offence.  On the same day he was sentenced by the deputy judge to 3 years’ imprisonment.  He then appealed against both his conviction and sentence.

2.At the hearing of the application for leave to appeal against conviction and sentence, we dismissed both applications and said we would give our reasons for so doing at a later date.  These are our reasons.

The Trial

3.The prosecution case alleged that on 18 February 2012 at an internet café in Yau Ma Tei, the applicant together with the 1^st accused, made an unwarranted demand of $1,000 from the proprietor of the internet café.

4.The prosecution case was a very straightforward one as it consisted of only one witness giving live testimony, a number of Admitted Facts, the CCTV images captured by a camera at the internet café and a video record of interview of the applicant.  The applicant did not give evidence and so the only evidence before the deputy judge of an explanation for his conduct came from what he had told the police in his video record interview.

5.The evidence of the proprietor of the internet café, who testified under an anonymity preserving pseudonym of Mr X, was that on previous occasions he had had experience of the 1^st accused attending at his internet café and, essentially, demanding protection money.  He had come to an arrangement with the 1^st accused that rather than paying cash to him he would allow him to use, free of charge, the services of the internet café to play computer games.  This first incident occurred in May 2011 and since then the 1^st accused had from time to time availed himself of the services of the internet café without having to pay for them.

6.On 18 February 2012 Mr X said that he received a call from a staff member who said that the 1^st accused, together with a number of his friends, were occupying all the seats of the internet café thereby preventing it from operating.  Mr X spoke to the 1^st accused and told him that he would come to the premises.  This he subsequently did and when he arrived he met the 1^st accused and had a conversation with him.  In the course of that conversation the 1^st accused demanded ‘tor tei’ of $1,500 per month and threatened that if he did not receive it he would cause disturbance to Mr X’s business.  This was a repeat of the demand that the 1^st accused had made of Mr X back in May 2011 when he claimed to be a follower of a well-known local triad.  At that time he had also used the expression ‘tor tei’ to refer to the regular payment that he was demanding that Mr X make to him.

7.In response to this new demand Mr X again refused to pay.  The 1^st accused then made a call on his mobile phone and spoke to a person in Cantonese saying “Ricky, I-ONE.  Do things”.  About ten minutes later the applicant, who is a Pakistani, and a number of Indian/Pakistani men arrived and went into the store room where the 1^st accused and Mr X then were.  They surrounded Mr X.  The 1^st accused then spoke in Cantonese to the men who had arrived with the applicant and told them to wait outside at the staircase.  A conversation then took place in Cantonese between the 1^st accused and Mr X in the presence of the applicant.  In this conversation the 1^st accused again asked for ‘tor tei’ of $1,500 per month.  Mr X sought to bargain him down to $500 per month but the 1^st accused said that such an amount was too little.  At this time the applicant intervened in the conversation and suggested that both parties make some concession by Mr X increasing the amount he was willing to pay and the 1^st accused decreasing the amount he was demanding and suggested that they agree on a figure of $1,000 per month.

8.Although the applicant did not, himself, at any time use the term ‘tor tei’ in the course of this conversation, he was present when the 1^st accused repeatedly used it in reference to the payment which he was demanding Mr X to make.  Mr X reluctantly agreed to the figure of $1,000.  The applicant gave Mr X his telephone number and asked him to call that number each month in order that the applicant could collect the money from him.  It was Mr X’s evidence that all who were present understood that the amount of money being demanded to be paid on a regular basis was ‘tor tei’.  It was also his evidence that at some stage in his conversation with the 1^st accused after the applicant had arrived that the 1^st accused introduced the applicant to him as “Ricky” and had said of him that he was “one of his people”. These words of introduction linked the applicant to the phone call earlier made by the 1^st accused in which he instructed the “Ricky” to whom he was talking to “do things”.

9.In his video record of interview the applicant claimed that he came to Hong Kong in 1993 and spoke a little Chinese.  He said that he had met the 1^st accused in a game centre in early February, the month in which the incident occurred.  He only knew the 1^st accused by his nickname and claimed that on the day in question he had received a phone call from the 1^st accused suggesting that they go to the video game centre to play games.  He said that he had come to the building alone and, coincidently, had run into two persons of similar race to him who spoke his language.  He said they asked him where he was going and he told them that he was going upstairs to meet a friend.  He said that they came upstairs but after looking around they went downstairs again.

10.As to the conversation between the 1^st accused and Mr X he said that he was present at the conversation but did not know what the problem was that they were talking about.  He said that one of the parties to the conversation was referring to an amount of $500 and the other to an amount of $1,500.  He agreed that he told them not to quarrel and said why don’t they resolve the matter by reaching a compromise with one increasing the amount he was willing to pay and the other decreasing the amount he was willing to accept.  He agreed that he had suggested to them that they compromise on the amount of $1,000.  He said that because the two men were arguing, he left and went on his own to To Kwa Wan.

The Reasons for Verdict

11.The deputy judge correctly identified the issue as being one of the credibility of Mr X, the alleged victim.  He discussed his evidence in some detail and after addressing a number of issues that had been raised in relation to his credibility he concluded that Mr X was a completely honest witness whose evidence was reliable.  In respect of the reference to ‘tor tei’ the deputy judge concluded:

“In particular, I accept his evidence that in the presence of the defendant the 1^st 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.”

12.In reaching this conclusion the deputy judge specifically rejected the contention advanced on behalf of the applicant that all the applicant had done was act as a middle man trying to resolve a quarrel between two persons, namely the 1^st accused and Mr X.  He also concluded that the applicant was able to understand and speak Cantonese sufficiently well to understand the term ‘tor tei’.  In this respect he said:

“I am satisfied that he would have been well aware that the 1^st 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.”

13.Although this was an important piece of information linking the applicant to the blackmail demand the deputy judge was well aware that it was not the only evidence.  Indeed he expressed the clear view that even without this evidence he would have been satisfied that it had been proven by the prosecution that the applicant was a party to the blackmail.  He said:

“Even if I had not been satisfied that the 1^st 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 1^st defendant for protection money.”

14.He concluded that the applicant was the person Ricky to whom the 1^st accused had referred when he made the telephone call in the presence of Mr X.  He rejected as fanciful the applicant’s excuse in his video record of interview that the telephone call was nothing more than a request by the 1^st accused for him to come and join him to play games in the internet café.  He also rejected the applicant’s explanation in his interview that the three men accompanying him into the internet café premises were persons whom he had not met before but who, coincidently, he had encountered on the street outside the internet café and with whom he had happened to strike up a conversation.  In reaching this conclusion he relied upon the CCTV images from the internet café premises which showed the applicant looking back down the flight of stairs which went from the street level to the first floor where the internet café was located and the deputy judge inferred from his conduct that he was ensuring that these men were following him.

15.Having accepted the evidence of Mr X and rejected entirely the exculpatory explanation advanced by the applicant in his video record of interview, the deputy judge found himself satisfied beyond reasonable doubt that the applicant was a party, with the 1^st accused, to an unwarranted demand of $1,000 from Mr X with menaces and that this demand was that with a view to gain for himself or others or cause loss to Mr X.  He thereupon convicted the applicant of the offence.

The Reasons for Sentence

16.In his Reasons for Sentence the significance of the role played by the applicant was succinctly described by the deputy judge as follows:

“In order to reinforce his demand Kwok (the 1^st accused) called you and you came to the café with three other men.  Kwok introduced you to the victim as “one of his people”.  Clearly, the purpose of your presence and the presence of the other men was to intimidate the victim into paying the money demanded.

After arriving, you suggested that the victim only pay $1,000 per month rather than $1,500 earlier demanded by Kwok.  The victim felt he had no choice but to agree.  Discussions then followed as to how he would make payment.  You gave him your telephone number and told him to call him in order to make payment.  You then left the premises and the victim gave Kwok $1,000 representing the protection fee for the first month.”

17.The deputy judge then referred to the seriousness of this type of crime and the difficulties faced by victims in such circumstances in knowing how to respond to it.  It is not unusual, he noted, for victim’s to be too frightened to report this type of demand and he felt that courts are bound to make it clear by the sentences they passed that this sort of conduct was not be tolerated.  He took into account all the matters advanced in mitigation by the applicant’s counsel and adopted as his starting point a sentence of 3 years’ imprisonment, six months less than the starting point he adopted for the 1^st accused.  Having reviewed what had been said on the applicant’s behalf he concluded that there was nothing which warranted a discount from that starting point and thereupon imposed a sentence of 3 years’ imprisonment.

Grounds of Appeal

18.There are only two grounds of appeal, one in respect of conviction and one in respect of sentence.  The ground of appeal against conviction is that the deputy judge was wrong to find that the applicant must have known the meaning of the colloquial expression ‘tor tei’ and that it refers to extortion money. The other ground of appeal in relation to sentence is simply that the sentence of 3 years’ imprisonment is manifestly excessive.

19.In respect of the first ground of appeal Mr Ma, for the applicant, argued that the only issue in his application for leave to appeal against conviction is whether the applicant was a knowing party to the extortionate demand for money from Mr X.  In this respect he submitted that the important question to be answered is whether it had been satisfactorily proved that the applicant knew the meaning of the colloquial expression ‘tor tei’ and, therefore, knew that the 1^st accused was extorting money from Mr X.  Effectively Mr Ma’s argument boiled down to a submission that the applicant is not a native Chinese speaker, he only has a very limited knowledge of Cantonese and his knowledge of the language is not such as would have enabled him to understand an expression as colloquial in nature as ‘tor tei’.  He argued that without this finding the evidence was insufficient to have enabled the deputy judge to be satisfied beyond reasonable doubt that the applicant was a party to the blackmail.

20.In respect of the appeal against sentence Mr Ma argued that the 3 years’ imprisonment starting point was excessive because it insufficiently reflected the difference in culpability between the 1^st accused and the applicant.  Mr Ma argued that the 1^st accused was the instigator of the blackmail, the person who made repeated demands of Mr X, following them up with acts of intimidation, and of course it was he who received the $1,000 dollars from Mr X.  In contradistinction to the 1^st accused it is said that the applicant had never appeared at the internet café before and that when he did attend on the day in question he only stayed there for a short while.  He did not make any threat and in fact no threat was uttered in his presence.  Furthermore, the applicant reduced the amount being demanded by Mr X and there was no evidence to show that he benefited from the blackmail.  In view of all these matters it was submitted that his role was much less than that of the 1^st accused and that their culpability should not, therefore, be treated as the same.

Discussion

21.Mr Ma is right in saying that the sole issue in this appeal is whether there was sufficient evidence to entitle the deputy judge to reach the conclusion beyond reasonable doubt that the applicant was a party to this blackmail demand.  Mr Ma is also right to say that the evidence in relation to the use of the word ‘tor tei’ is an important piece of evidence but it must be remembered that it was not the only evidence which proved the applicant was a party to the blackmail demand.  Furthermore, it is clear from the passage already quoted that the deputy judge would have convicted the applicant of this blackmail offence even if he was not satisfied that the applicant understood the term ‘tor tei’ and all that it meant.

22.The deputy judge gave very detailed reasons for why he concluded the applicant was a party to this blackmail demand and those reasons are compelling ones.  He was perfectly right to conclude that the applicant was the person Ricky to whom the 1^st accused had referred when he made a phone call in the presence of Mr X.  Having rejected the applicant’s explanations in his record of interview, which on the evidence he was clearly entitled to do, it was inevitable that he would conclude that the men that came to the internet café were, in fact, with the applicant and, given their conduct in surrounding Mr X, that they were engaging in behaviour which was designed to intimidate Mr X.  Having achieved that goal they left but the applicant remained in order to lend further physical intimidatory support to the 1^st accused.

23.It is clear to us that the deputy judge carefully analysed the evidence and we can find no fault in that analysis, in the facts that he found proven consequent upon that analysis and in the conclusions he reached.  This is so even in respect of the finding that the applicant understood the meaning of ‘tor tei’. There was ample evidence to justify that finding.  The phone conversation between the applicant and the 1^st accused that brought the applicant to the internet café was in Cantonese and the applicant knew that he was required to bring persons with him who could be an intimidatory presence at the meeting with Mr X.  Moreover, the conversation with Mr X was in Cantonese and the applicant not only understood it but could join in it.

24.We were also in no doubt that even without the finding of the applicant understanding the meaning of ‘tor tei’, there was sufficient evidence to enable the deputy judge to be satisfied beyond reasonable doubt that he was a party to the 1^st accused’s blackmail demand.  The involvement in the blackmail conversation went well beyond merely being there and playing a mediating role. The applicant displayed by his conduct in attending in response to the phone call and bringing with him other men that he was playing the role of the 1^st accused’s ‘enforcer’; and by instructing Mr X to call him when ready to pay the monthly ‘tor tei’ he revealed his role as the 1^st accused’s collector of the fee.

25.The application for leave to appeal against conviction was, for these reasons, dismissed.

26.In respect of the application for leave to appeal against sentence, we again find no merit in this application.  The role of the applicant was clearly a significant one.  As we have pointed out his presence was needed in order to lend substance to the 1^st accused’s demand for money and in effect represented the “menaces” element of the offence.  Without the presence of the applicant the demand of the 1^st accused would have lacked force and it was only because of the physical presence of the applicant and his friends that Mr X felt overwhelmed and vulnerable and, therefore, intimidated into paying the money.  Additionally, the applicant was to be the collector of the extortion monies.

27.In these circumstances the deputy judge was perfectly entitled not to draw any greater distinction between the 1^st accused and the applicant than that reflected by his respective starting points.  The starting point of 3 years’ imprisonment was, in all the circumstances, an appropriate one and we could see no justification for interfering with it.

28.We therefore dismissed the application for leave to appeal against sentence.

Miss Alice Chan SADPP, of the Department of Justice, for the respondent

Mr Ma Wai Kwan David, instructed by Francis Kong & Co, assigned by D.L.A., for the applicant