HKSAR v. Chan Hei Lun

DCCC 769/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 769 OF 2014

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Reasons for Verdict

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1.The defendant is charged with conspiracy to commit blackmail. It is alleged that the owner of a recently opened pharmacy in Sheung Shui was blackmailed by threats of damage to his shop and required to pay $28,000 protection money to a triad society in Sheung Shui. The defendant collected the protection money.

2.As it is not disputed that the defendant collected the protection money, the issue to be determined is whether the defendant did this innocently or had he entered into an agreement to blackmail, with his part being the collection of the protection money from the blackmail.

3.The background is as follows.

4.In mid-February 2014, a new pharmacy opened in Sheung Shui.  PW1 was a worker in the shop. 

5.On 17 February 2014, he received a visit from an unidentified person and was given a phone number to call.  When the number was rung, there was a conversation and he was told by the person on the other end of the phone that opening a shop there required someone to look after it, and nothing was done at this stage.

6.But on 18 February, a further call was received.  That was taken as a threat, a threat that damage would be caused to the shop that evening, and the case was reported to police.

7.On 19 February, PW2, who is a police officer, posed as the boss of the shop.  He had a police mobile phone with the number 97774506.  That evening, the police number received a call, asking if the shop needed to be looked after and if he was the boss.  After negotiation, a figure of $28,000 was agreed as “protection money” for one year; someone would be arranged to collect the cash.  After further calls, it was agreed that the money would be paid that evening.

8.PW2 was arranged to wait outside the toilet in Shek Wu Hui playground and someone was to be arranged to collect the payment.

9.PW2 took a taxi to the location.  On reaching the location, he said he received a call from a different number, and that number is 90613060, this being the SIM card number for a Samsung yellow mobile phone the defendant was found in possession of when he was arrested that evening.

10.PW2 says he was told by a male that he was behind him and PW2 saw the man to be holding a telephone and walking towards him.  It was the defendant.

11.On reaching him, the defendant is alleged to have said to him that “My boss asked me to come and collect ‘tor tei’” (or “‘tor dei’”, “protection money”).  PW2 said he did not know who he was and asked him to call his - that is, PW2’s - phone.  The defendant did this.  The call was not connected or taken by PW2.  PW2 also asked if he could pay a lesser sum of $20,000.  The defendant said he could not make that decision. The police then arrested the defendant.

12.On arrest, the defendant is alleged to have admitted to another police officer, PW3, under caution, in the following terms:  “Ah Sir, it’s my big boss who asked me to come and collect ‘tor tei’.” And when asked by PW3, “Who is your big boss?”, he is alleged to have said, “Ah Sir, if it is said, someone will be killed.”

13.The defendant admitted that it was he who had come to collect what turned out to be the “protection money”, but he says he was unaware that it was actually “protection money”.  He denied he had said anything about a big boss or collecting “protection money” to either PW2 or PW3, or that the admissions had been made.

14.The defendant did, in fact, give evidence at trial. 

15.He is aged 25.  He is employed as a tester of construction materials, working in Kwai Chung and lives in Sheung Shui.

16.On the evening of 19 February, he had gone to a bar in Sheung Shui to play darts with his friend “Ah Lung”.  Whilst playing darts, he was approached by another friend, “Ah Fei”, and it was “Ah Fei”’s turn to play darts.  This person asked the defendant to do him a favour to help a friend, “Ah Chai”, to get back some money.  The defendant did not know this “Ah Chai”.  “Ah Fei” said he would have to go to the football pitch to help him get the money or get back the money and the defendant agreed to do this.  He was not told how much he had to collect and he was given a yellow mobile phone; that is the Samsung he was found with.  He was also given the number of the person from whom he would collect the money.

17.The defendant went to the playground.  He said he called the number using the yellow mobile phone and said, “’Ah Fei’ has asked me to come and collect money.”  The man said he was on the way to the playground in a taxi.

18.On reaching the playground, he waited about 10 minutes.  He made another call to the person, but there was no answer.  He said he went up to PW2 at the playground and said, “‘Ah Fei’ asked me to come and collect some money.”  He agreed that PW2 had said to him $28,000 was too expensive and asked to reduce the figure to 20,000.  He agreed he said he did not know about that and to “Call him yourself and talk to him about it.”

19.Then the other police arrived.  He never said anything to PW3.  He did not know or suspect the money was a “protection fee”. He refused to sign the Pol 153 (that is, the form given to him by the police) and also the post-record made by PW3 of what he is alleged to have said.

20.The defendant is charged with a conspiracy to blackmail.  There is no dispute on the evidence that between 17 February 2014 and 19 February 2014, that a blackmail offence occurred and that there was an unwarranted demand for $28,000 with menaces.  The main issue is whether the defendant was a party to that conspiracy. 

21.The actual blackmail was made by another person using the number 97609406.  PW2 himself said the defendant did not have the same voice as the person using this number and PW1, who had seen the original person who visited the shop, did not identify defendant as being that man.

22.It was necessary for the prosecution to prove beyond reasonable doubt the defendant was part of an agreement to commit this offence. 

23.The actus reus of that offence is the physical act of the conspirators by words, gestures or conduct that signifies the conclusion of the agreement.  Clearly, collecting the proceeds of the blackmail, with knowledge that they were the proceeds of the blackmail, would constitute evidence of that agreement and the defendant’s part in that agreement. 

24.The defendant does not dispute that he collected the money, and that money was, in fact, the proceeds of the blackmail.  He says he was unaware of that essential fact. 

25.The issue at trial was whether the defendant is proved to have known that the money was the proceeds of the blackmail (that “protection money”), for, if that is the case, that would evidence the existence of the agreement and the defendant’s agreement with other unknown perpetrators.

26.Naturally, the burden of proof lies at all times on the prosecution to prove that beyond a reasonable doubt.

27.Prosecution say that this is achieved by direct evidence of the defendant’s collection of the “protection money”, together with his utterances at the scene to both the second and third prosecution witnesses.

28.The prosecution say that the defendant’s agreement to blackmail can be clearly seen from his involvement in a key part of the plot (namely, the collection of the money) and that his utterances about working for a “big brother” and collecting “tor tei”, as related by PW2 and 3, which, on the evidence of the triad expert, are illustrative of the involvement of a triad society, organised triad society, seeking “protection money” for ensuring the security of the pharmacy. 

29.The defence say that the evidence of PW2 and 3, certainly in respect of what the defendant is alleged to have said, cannot be relied upon and is, in fact, untruthful.  They say it is at variance with other evidence, inconsistent and cannot be relied upon.

30.Furthermore, they say that the evidence of the defendant given in this case is unshaken and, taken together, all the evidence in the case is insufficient to establish beyond a reasonable doubt the defendant’s involvement in this agreement to blackmail.

31.The second prosecution witness was the police officer who pretended to be the boss of the pharmacy and was to give the money to the defendant at the football pitch.

32.In evidence-in-chief, he said he received one call from the defendant’s number and one call that was not connected, and that it was when the defendant approached him the defendant said he was there to collect the “tor tei” for his boss.

33.In cross-examination, he had said that he took two calls from the defendant’s number, 90613060, and he said there was also one that he did not answer, which would not, of course, be shown in the phone records.

34.In cross-examination, it was put to him that in an earlier statement he said he had received a call at 2048 and a man had said at that time “My ‘big brother’ asked me to collect ‘tor tei’.  I am coming in a taxi.  It won’t be long.  Wait outside the toilet at Fu Hing.”  PW2 agreed with that. 

35.It was put also that the call records, which are agreed in this case, show that PW2 only received one call from the defendant’s number; that is, the phone with the number 90613060.  PW2 disputed this.

36.It was put that PW2’s call records showed he received two calls from the number 97609406 at 2047 and 2055, and that number, 97609406, belonged to the other person he had spoken to that night and that the only call from the defendant was at 2042. 

37.PW2 said he had received his call from the defendant at 2048 and he understood that that was the time, because he had seen that from his watch.  He agreed that the defendant had been stopped by him and his colleagues around a period from 2052 to 2055.  PW2 said that he had informed PW3 about what had been said by the defendant, about him being sent by his “big brother” and had asked him to collect “tor tei”.

38.In summary, it was said that PW2 had given two accounts:  one whereby he received the call in the taxi and the defendant had said he was collecting “tor tei” for his “big brother”, but in evidence-in-chief he had said that call had been at the playground and the defendant had said he was collecting money, that his boss had told him to collect “tor tei”.

39.Furthermore, PW2 said in evidence-in-chief he had received one call and one non-taken call, whereas in cross-examination he said he received two calls and one non-taken call, and also that he said the call was taken at 2048 at the playground, when the undisputed call records show that the yellow Samsung phone found on the defendant made one call to PW2’s number at 2042.

40.It was also said PW3’s evidence was also untenable or unreliable, as PW3 had said he had stood by and observed.  He said he had seen the defendant appear to make a phone call whilst he was walking behind PW2, and before PW2 and the defendant had a conversation.  In cross-examination, he said he did not see PW2 answer that possible call.

41.Defence say that there was no evidence in the call records that the defendant called PW2 at the time when he was in the playground.  The only call was at 2042 or the only connected call was at 2042 and must have been made before the defendant or PW2 arrived at the playground, given that the arrest was declared at 2055.

42.Also, another police officer called PW4, who had also been at the scene, had said he did not see the defendant make any calls.

43.The defence also referred to the defendant’s evidence, was that PW2 had said he was in a taxi and that was consistent with the call record that showed the only call between them was at 2042 and that had been the defendant’s evidence.

44.In resolving this issue, I bore in mind the evidences of PW2 to 4, the police officers; the call records, which were admitted in evidence; and the evidence of the defendant.

45.As I have said, the call records show the only call between the yellow Samsung in the defendant’s possession with the number 90613060 and PW2’s phone was made at 2042 hours.

46.The call records, of course, only show calls that were picked up.  It is the evidence of both the defendant and PW2 that there was an unconnected second call.  As it was unconnected, it does not appear in the call records.

47.The evidence again of PW3 is the defendant was arrested at 2055.  Parties appear to accept this time.  This also means there must have been a call from the other person at around that time.

48.In cross-examination, PW2 agreed the first call he received was whilst he was in a taxi on the way there (this was a call he had not mentioned in examination-in-chief),  attributing that call, in fact, to the time when he had arrived at the playground.  On the timing, it would appear that the defendant’s number from the yellow mobile phone did not make any connected call while he was at the playground.

49.Having considered all the evidence, I did not consider either PW2 or 3 to be untruthful.  It is apparent from the undisputed times that PW2 must have been called while he was on his way to the meeting at the playground in Sheung Shui.  That was what he had put in his witness statement, but had not fully recalled when he had given evidence.  Furthermore, at the playground, he did not receive a connected call that he answered. 

50.I consider that there is an element of confusion in PW2’s evidence on that aspect of what he said about the timing of what the defendant had said to him about the involvement of both a “big brother” and collecting “tor tei”.  He did, however, communicate the fact of these utterances by the defendant to PW3, and PW3, on arrest, questioned the defendant about these matters. 

51.The defendant denies the answers that he gave to PW3, but I did not find, having heard and seen PW3, that he was lying or unreliable when he gave evidence about the replies to caution which he received and the subsequent conversation that he had with the defendant.

52.I know that PW3 did say he saw the defendant make a call at the playground, but what he was actually able to say was that, to him, the defendant appeared to make a call and that PW2 did not answer it.

53.I do not find that that observation, of necessity, impugns PW3’s evidence about other matters.

54.In making these findings, I did bear in mind the evidence of the defendant on these issues.  I bore in mind that the defendant is an apparently respectable working man.  He has one previous old conviction for possession of a dangerous drug, committed a number of years ago, which seems to have no bearing on this matter.

55.I found the defendant’s account of what had happened to be quite unbelievable.  That he should have left his game of darts and gone to collect money in these circumstances, in the darkness, without asking what the money was for and why he was doing it, and to take along another mobile phone to have conversations with the alleged person whom he was going to get the money from was a situation that, on the face of it, was redolent of illegality and covertness, yet the defendant says he had no question and no suspicion. 

56.I consider that to be simply unbelievable and incredible and I find it is unbelievable, because it is untrue.  I therefore rejected the evidence on these matters in its totality.

57.Clearly, the defendant went to the playground to collect what was the “protection money”.  I am sure that he had told PW2 that he was collecting “tor tei”; he was collecting it for his “big brother”.

58.Nevertheless, he did also say to PW3, under caution, the same account and I find PW3 is reliable when he said the defendant told him that his “big brother” had asked him to collect “tor tei”.  This provides clear evidence of the defendant’s involvement in the agreement to participate in the blackmail.

59.Together with his collection of the “protection money”, these facts provide abundant evidence to prove the defendant’s involvement in the agreement to blackmail and prove the charge against him beyond reasonable doubt, and I convict him accordingly.