HKSAR v. ALI MUHAMMAD KAMRAN

CACC 202 /2018

[2019] HKCA 835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMININAL APPEAL NO 202 OF 2018

(ON APPEAL FROM DCCC NO 541 OF 2017)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  The applicant originally faced five charges of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210, which spanned a period of almost 18 months and involved making use of a false, backdated sick leave certificate that was obtained from a medical doctor (“the doctor”) and then used as a tool to extort millions of dollars from him; initially, by three men including the applicant acting in concert (Charges 1, 2 and 3), and later, by the applicant acting on his own account (Charges 4 and 5). The applicant was the only defendant to be arraigned; the other two suspects in relation to Charges 1, 2 and 3 remain at large. He pleaded not guilty to all charges and denied any knowledge of, or participation in, any blackmail of the doctor.

2.  On 28 June 2018, following his trial before Deputy Judge Don So (“the judge”) in the District Court, the applicant was acquitted of Charges 1 and 2 but convicted of Charges 3, 4 and 5.  On 6 July 2018, he was sentenced to 36 months’ imprisonment in respect of Charges 3 and 4; and 30 months’ imprisonment in respect of Charge 5.  The judge ordered 6 months of the sentences on Charges 4 and 5 to run consecutively to the sentence on Charge 3, thus making an overall sentence of 4 years’ imprisonment.

3.  On 23 July 2018, the applicant filed a Notice of Application for leave to appeal by way of Form XI against both conviction and sentence.  Legal aid was granted only in respect of his application for leave to appeal against conviction.

4.  On 31 January 2019, sitting as a Single Judge at the leave application, I found no merit in the application for leave to appeal against sentence, after which the applicant abandoned his appeal.  His application for leave to appeal against sentence was accordingly formally dismissed.

5.  However, in respect of his appeal against conviction, I reserved the application for leave to appeal against conviction to the full Court of Appeal to be dealt with at the same time as the appeal.  The reasons for adopting this procedure, which I gave in an ex tempore judgment at the time, derived from the judge’s finding that the doctor’s evidence was not to be believed unless it was supported by “extraneous facts”.  Since the grounds of appeal advanced entailed a close scrutiny and evaluation of the evidence in order to determine whether such extraneous facts as the judge found there to be did in fact support the victim’s evidence, I considered that it was, in a case where the applicant had been acquitted on some charges but convicted on others, more appropriate for the full Court to conduct that exercise.

6.  On 18 July 2019, having heard argument from the parties, this Court refused the applicant leave to appeal against conviction and dismissed his appeal, saying that we would hand down our reasons in due course.  These are our reasons.

The facts

7.  The facts of the case are somewhat convoluted, but essentially all five charges concerned the same victim doctor and his issuance of a false, backdated sick leave certificate to a man called Satar, who was a friend of the applicant’s.  It is important, therefore, to understand the background circumstances leading to Charges 1 and 2, even though the applicant was found not guilty of these particular charges.

8.  It was common ground that the applicant was a registered patient of the doctor and had been seen and treated by him on several occasions prior to the alleged offences^[1]. The other two men involved were called Abbas, who was described by the judge as the “mastermind”; and Satar, who was described by the judge as an “accessory” to Abbas^[2]. The applicant described both men as his “friends”[3].  Like the applicant, Abbas was a previous patient of the doctor, while Satar was a new patient who first visited the doctor on 2 October 2015, the date of the offence particularised in Charge 1^[4].

9.  There were three witnesses who gave evidence at the trial: the doctor, PW1; his nurse, PW2, who was relevant to Charge 5; and the applicant himself, DW1.

The prosecution case

Charge 1

10.  On 2 October 2015, Abbas, Satar and the applicant visited the doctor at his clinic in Mong Kok, Kowloon (“the MK Clinic”)^[5]. All three men entered the doctor’s consultation room.  As the doctor was about to examine Satar’s injury, he having claimed to have been injured at work, Abbas interrupted and asked the doctor to issue a backdated sick leave certificate to Satar.  The doctor maintained that he initially refused, saying that he could not just issue such a certificate without first examining the patient.  Abbas then threatened the doctor that he had “better comply”, since Abbas knew where he lived and worked.  When Abbas made the threat, both Satar and the applicant were inside the consultation room^[6].

11.  Feeling concerned for his own safety and that of his family, the doctor claimed that he unwillingly acceded to the threat and issued a false, backdated sick leave certificate to Satar, as directed by Abbas^[7]. The certificate was issued in writing under the name of his clinic in Sham Shui Po (“the SSP Clinic”), since he did not know how to backdate it on the electronic system at the MK Clinic^[8]. In the event, some $400 was paid for the consultation, the money being placed on the doctor’s desk rather than paid at the nursing counter^[9].

12.  Unknown to the doctor at that time, his act of issuing the false sick leave certificate was being covertly video-recorded by Abbas^[10]. Although the doctor did not see any camera, he remembered being instructed by Abbas that he could not look around and should ignore any sounds^[11].

13.  The doctor said that although the applicant was present throughout the consultation, he did not utter any threatening words to him, nor did he demand any money from him on that occasion^[12].  He nevertheless described the applicant as continually pacing up and down behind the doctor^[13].

14.  The doctor denied in cross-examination that he had voluntarily issued the false sick leave certificate^[14].  He claimed that, at the time, he simply wanted to get the three men out of his room as soon as possible^[15].

Charge 2

15.  In the evening of 2 October 2015, Abbas called the doctor’s mobile telephone number and demanded $500,000 for the return of the false, backdated sick leave certificate and the video-recording he had made of the event^[16]. The doctor agreed and paid the money demanded on two separate occasions between 3 and 6 October 2015^[17]. On the first occasion, $100,000 was handed over to Abbas in Mong Kok near the MK Clinic.  He could not recall seeing the applicant on that occasion^[18]. On the second occasion, $400,000 was paid over at a bus terminal near to Sha Tin Railway Station^[19]. Initially, the doctor said it was the applicant who met him at Sha Tin Railway Station and escorted him to the bus terminal, where he met and handed over the balance of the money to Abbas, in the presence of Satar and the applicant^[20]. Under cross-examination, however, the doctor admitted he could not be “100% sure” that the person who escorted him was in fact the applicant, since he was wearing a face mask at the time^[21]. When further pressed by the judge, however, the doctor added that this person subsequently removed his face mask inside the bus terminal and he was able to see the face of the applicant^[22].

16.  Having received the balance of the money, Abbas showed the doctor the false sick leave certificate, which the doctor said he promptly tore up.  At the doctor’s request, Abbas further deleted a video file on his mobile telephone in the presence of the doctor, Satar and the applicant before they parted company^[23]. The doctor said the applicant did not threaten him at any stage during their meeting in Sha Tin.  Nevertheless, he described the applicant as appearing to be very obedient to Abbas^[24] and actively assisting him^[25]. 

Charge 3

17.  On 7 October 2015, the same three men visited the MK Clinic again^[26]. On seeing the doctor, Abbas made a gesture to him at the nursing station suggesting that he wished to talk to him about the video-recording which was still on his telephone^[27]. The doctor accordingly took Abbas into his consultation room and asked him what he wanted^[28]. Abbas told the doctor that he had a “boss” who was demanding $1 million, or else the video-recording would be sold to the media^[29]; furthermore, his boss would show no mercy and would put him and his loved ones in danger^[30].

18.  The doctor said he could not remember where Satar and the applicant were at that time^[31]. In any event, he said the two would not have been able to hear their conversation inside the consultation room^[32].

19.  The doctor said he then gave Abbas a cash cheque in the sum of $100,000 inside the MK Clinic, representing a “deposit”^[33]; within the next 10 days, he drew another cheque in the sum of $100,000, which he thought was picked up by the applicant^[34]. Under cross-examination, however, the doctor retreated from that assertion and said he was not sure if it was the applicant who had collected the cheque^[35].

20.  As for the balance of $800,000, the doctor said it was mainly paid to Abbas in cash on a number of occasions in the Mong Kok area over the course of about a week^[36]. He did not recall seeing the applicant on any of those occasions^[37].

21.  Agreed banker’s affirmation evidence showed that on 7 October 2015, the doctor drew one cash cheque of $100,000, which was in turn cashed by the applicant^[38]. Then, on 14 October 2015 (one week after the visit in Charge 3), another $100,000 cash cheque was drawn by the doctor and cashed^[39]. Immigration records showed that the applicant had left Hong Kong in the late afternoon of 7 October 2015, and only returned on 22 October 2015^[40]. It was therefore eventually accepted by the doctor in cross-examination that the applicant could not have been the one to cash this second cheque^[41].

Charge 4

22.  On 30 December 2016, more than a year after the events described in Charge 3, the applicant resurfaced at the doctor’s clinic in Tsim Sha Tsui (“the TST Clinic”) ^[42].  The applicant arrived with a friend, but only the applicant went into the doctor’s consultation room.  The doctor said the applicant used a false name in order to register at the clinic^[43].

23.  The applicant told the doctor that he was suffering from back pain; and the doctor accordingly treated him^[44]. The applicant then asked if the doctor still remembered the USB (which the doctor understood to contain the video-recording), and asked him to purchase the video-recording and the copy of the false sick leave certificate for $1 million^[45].

24.  The doctor said he did not have that much money. He suggested to the applicant that if the applicant gave him his bank account number, he would make the deposit when he could^[46].  To the doctor’s surprise, the applicant supplied him with his account number^[47]. He said the applicant also agreed to a reduced “deal” of $330,000^[48]; and that he would promise to return the USB if the money was paid over within a short period of time[49].

25.  The evidence established that, on the day following the visit (31 December 2016), the doctor deposited $100,000 into the applicant’s bank account, for which he produced a deposit slip (Exhibit P7)^[50]; then, on an unknown day between 1 and 4 January 2016, he gave the applicant a further $100,000 in cash somewhere close to the TST Clinic[51]; and, on 5 January 2017, he deposited a further $130,000 into the applicant’s bank account and, again, produced a deposit slip (Exhibit P8)[52]. The first and third of those payments to the applicant were supported by bankers’ affirmation evidence and were agreed by way of admitted facts[53].  The doctor said that he then received from the applicant an empty USB, which did not contain the promised video-recording^[54].

Charge 5

26.  On 6 March 2017, the applicant turned up again at the doctor’s TST Clinic without a booking^[55]. Being the last patient on that day, the applicant sat in the reception area for a while before the doctor showed him into a consultation room^[56].  The applicant reminded the doctor that the original “deal” was for $1 million, yet he had only paid $330,000 and he should therefore settle the balance of $670,000^[57].  The doctor refused and told him to leave the premises^[58]. However, the applicant went out to the nursing station, asked the nurse for a piece of paper and a pen, and wrote down a note^[59].  The doctor then came out of his room and took the note away from the applicant.

27.  The doctor made an immediate report that evening to Tsim Sha Tsui Police Station^[60]. He also handed over to the police the note written by the applicant, which was produced at trial as Exhibit P9, and read as follows:

“53190559 Tomorrow I can bring Previous Document feel free to call when you are free”.

The doctor said he understood the reference to “Previous Document” in Exhibit P9 to mean the false, backdated sick leave certificate^[61].

28.  On the following day, 7 March 2017, the applicant did not, however, return as expected to the TST Clinic^[62]. However, the doctor received two text messages (Exhibit P5) on that day (7 March 2017) on his mobile telephone^[63] from telephone number ‘53190559’, which was the number which the applicant had written on Exhibit P9, as follows:-

Message 1

“hi doctor sorry i cannot come today but just want to discuss on phone that total deal will be 1 million if u can give its ok otherwise I have a guy in tvb news he can give me that much if i pass him recording now go to bank and deposit at least 200k in my account then i will tell u what time nd where i can meet u up”

Message 2

“2140038858 dbs bank just deposit now then i will tell u where i will meet u up”

The banker’s affirmation evidence showed that the DBS account number 2140038858 had been opened in the name of the applicant, ‘Ali Muhammad Kamran’^[64].

29.  On 9 March 2017, the applicant was stopped at a Hong Kong International Airport Checkpoint and arrested in respect of the present offences^[65].

30.  In relation to Charge 5, the prosecution further relied on the testimony of the doctor’s nurse at the TST Clinic, PW2.  She recalled that on the day in question, an existing patient of the doctor, who was a foreigner with a long name that started with the letters “Ali”, came to the TST Clinic.  He was the last patient before the clinic closed.

31.  She said that Ali first waited at the reception area before entering the consultation room.  Later, he came out and asked her for a piece of paper and a pen.  She saw Ali write something on the paper, but she could not see what he wrote.  When she was about to receive the paper from him, the doctor suddenly emerged from the consultation room and took it from Ali’s hand.  PW2 said the doctor later went to report the matter to the police[66].

The defence case

32.  The applicant, who had a clear record, elected to testify but called no defence witness.  The gist of his case was that he had no knowledge of, and did not participate at any stage in, any blackmail scheme, whether with others or on his own account.  In respect of Charge 1, the applicant said that he had gone to the MK Clinic on 2 October 2015 with Abbas and Satar because Satar wanted to see the doctor[67]. He denied knowledge at the time of the secret video-recording made by Abbas[68], or of hearing anything being said about a false, backdated sick leave certificate[69]. He did not hear any threats uttered at that time[70], and regarded the conversation in the consultation room as normal[71].

33.  In respect of Charge 2, the applicant denied knowledge of any telephone call being made by Abbas, nor was he aware of any ongoing blackmail scheme.  In particular, he did not go to Sha Tin Railway Station to collect any money from the doctor[72].

34.  As for Charge 3, the applicant said that in the early afternoon of 7 October 2015, between 12 and 3 pm, he did visit the MK Clinic with Abbas and Satar[73]. He had been told that there were mistakes on the sick leave certificate issued by the doctor on 2 October 2015[74]. However, he did not go into the consultation room with the others[75]. He denied hearing any demands or threats made to the doctor.  He accepted that Abbas had subsequently given him a cash cheque and asked him to cash it.  He did so and then gave the money to Abbas[76]. He did not know that the cheque he cashed was in fact drawn on the doctor’s account[77]. In the early evening of that same day, he left Hong Kong for Pakistan and only returned on 22 October 2015[78].

35.  It was the applicant’s case on Charge 4 that he visited the doctor’s TST Clinic on the date of offence for treatment of his back pain[79]. He denied making any threat to the doctor, or giving him his bank account number[80]. He said that Abbas had earlier called him from Pakistan, saying that he needed to use his bank account in order to receive money from a friend[81]. The applicant therefore told Abbas his bank account number.  He subsequently made withdrawals in order to remit the money to Abbas[82]. He did not know who had made the deposits into his bank account[83].

36.  In respect of Charge 5, the applicant visited the TST Clinic again on the date of offence in order to receive laser treatment[84]. He denied making any threat to the doctor[85]. He did not write any note[86], nor did he subsequently send any text message to press the doctor for more money.  He denied using a mobile telephone with the number that had been written on Exhibit P9[87].

37.  The defence produced the video-recording, which was accepted at trial to be the secret video-recording taken by Abbas on 2 October 2015 at the MK Clinic^[88]. The video-recording lasted slightly less than 13 minutes.  The applicant claimed he only became aware of its existence after he was arrested and prosecuted in respect of the present offences^[89]. He denied possessing the video-recording for the purpose of blackmailing the doctor.  He had only later received it from Abbas.

38.  A transcript of the video-recording was produced at trial as Exhibit D2A^[90].  The following facts are apparent from this evidence^[91]:

(1)   The applicant was present in the consultation room on 2 October 2015 but he was not engaged in the conversation with the doctor.  He simply sat there without saying anything;

(2)   Satar had a bandage on his leg.  The doctor was mainly looking at, and talking to, Satar, who was sitting beside him;

(3)   Abbas was secretly making the video-recording.  As he did so, he was actively giving instructions to Satar;

(4)   Satar explained how he had injured himself at work some time earlier.  He then told the doctor that the sick leave certificate issued by the hospital did not cover the two weeks preceding the consultation; hence he needed a backdated sick leave certificate to cover that period;

(5)   The doctor asked Satar if he was in Hong Kong during that time.  Both Abbas and Satar kept reassuring the doctor that Satar had been in Hong Kong on the purported date of issue of the backdated sick leave certificate (namely, 18 September 2015), that they would pay for the backdated sick leave certificate, and that they would keep bringing more friends to see the doctor;

(6)   The doctor agreed to issue the backdated sick leave certificate, but under the letterhead of the SSP Clinic;

(7)   The doctor said that he owned the SSP Clinic and would go there after finishing his work at the MK Clinic.  He also added that they could bring their Pakistani friend who they said had “missed the sick leave for two months” and “could give big money” to the SSP Clinic; 

(8)   A session of bargaining took place in respect of the backdated sick leave certificate.  Initially, the doctor requested $600.  When Satar said he was only willing to pay $300 and promised to introduce more friends to the doctor, the doctor said “it was too little”, saying at one point, “Don’t make it too difficult for me”.  In the end, he accepted $400, nevertheless adding, “Only for this time… Next time at least $500”;

(9)   The doctor gave the SSP Clinic business card in order for their Pakistani friends to know the way to the clinic;

(10)   The doctor noticed a mistake with the purported date of the consultation on the backdated certificate, which he corrected by replacing it with another certificate;

(11)   Satar said he would visit the SSP Clinic again.  The doctor said he should first make an appointment with him, and reminded him that he usually worked in the MK Clinic on Fridays, after which he would have appointments at the SSP Clinic;

(12)   Both Abbas and Satar referred to the backdated sick leave certificate as “fake”.  The doctor asked them not to describe it as such. 

39.  It was accepted that the video-recording did not capture the entire course of events inside the consultation room at the MK Clinic on 2 October 2015[92].

Reasons for Verdict

The doctor’s testimony

40.  At the outset of his Reasons for Verdict, the judge made the following findings^[93]:

“41. As a whole, I find the doctor to be an unreliable witness. Unless his testimony is supported by extraneous facts, his whole account of events is highly unbelievable.

……

“56. … In fact, I am very skeptical about all his testimony in the case. As said, unless his evidence is supported by extraneous facts, I would not believe him.”

41.  The judge found that the doctor had all along engaged in the bad practice of issuing backdated sick leave certificates to patients upon payment^[94]. In the video-recording, the doctor appeared calm and did not look as though he had been threatened as he claimed.  He had even indicated that he was not happy when the men bargained for a lower price.  He gave out his business card and invited Satar to share his telephone number with his friends so that they could attend the SSP Clinic for false sick leave certificates.

42.  Furthermore, according to the video-recording, the doctor seemed very concerned to know whether Satar was in Hong Kong on the purported date of issue of the backdated certificate.  The judge was of the view that he had asked because he wanted to protect himself from possible sanction by disciplinary authorities should the backdated certificate be exposed as false.

43.  The doctor failed to report the matter to the police after the alleged threat in Charge 1 on 2 October 2015; rather, he decided to wait until 6 March 2017.  He said it was because he intended to “gather some hard evidence” before going to the police.  However, the banking records showed that he had already issued two cash cheques by 14 October 2015.  Furthermore, he was in possession of the CCTV recordings of the MK Clinic.  By early 2017, the doctor had even more hard evidence because he also made two cash deposits to the applicant’s personal account, yet he still only reported the matter to the police two months after the occurrence of Charge 4.

44.  The judge found the doctor’s recollection of events to be “questionable”^[95]. The doctor had first claimed to have handed another $100,000 cheque to the applicant in person in Hong Kong a few days after the visit in Charge 3, which was on 7 October 2015.  However, the immigration records revealed that the applicant was out of Hong Kong from 7 to 22 October 2015.  Having realised the problem, the doctor altered his testimony to advance the date of the purported payment.  However, the bank records showed that the cheque was only cashed on 14 October 2015, which meant that the applicant could not have been the person who collected and handled the cheque.  The judge found that the doctor had no choice but to concede that the cheque was cashed by someone other than the applicant.

Existence of a blackmail scheme

45.  The judge found that the consultation on 2 October 2015 at the MK Clinic was deliberately recorded by Abbas so that the video‑recording, along with the false, backdated sick leave certificate, would be subsequently used to blackmail the doctor for his misconduct.  Both Abbas and Satar had repeatedly voiced out loud that the backdated certificate was fake or illegal.  Furthermore, Abbas had spoken to Satar in Urdu whenever he wanted to make sure that certain things were recorded.  

46.  It was clear from the video-recording that Abbas and Satar were acting in concert in order to target the doctor.

Charge 1

47.  The judge acquitted the applicant on Charge 1 on the basis that he simply did not believe that the doctor was threatened by Abbas at the beginning of the consultation.  He found that there was no need for any threat or demand to be made at all, since the doctor was obviously used to issuing false sick leave certificates for payment.  Accordingly, the judge accepted the applicant’s testimony that he did not see and did not hear any threat being uttered by Abbas or Satar on that occasion. 

Charge 2

48.  In his consideration of Charge 2, the judge accepted the doctor’s testimony that two meetings had taken place at Mong Kok and Sha Tin Railway Stations, since the doctor would know that there were CCTV cameras installed in those areas and would not risk making up a false story.  He further accepted that he had made two payments: $100,000, which was paid near Mong Kok Railway Station; and $400,000, which was paid near Sha Tin Railway Station.  Furthermore, after handing over $500,000, he had indeed seen the video being apparently deleted and the false sick leave certificate destroyed.

49.  However, he considered the doctor’s answers as to whether the applicant had escorted him from Sha Tin Railway Station to be inconsistent and unreliable.  He found that the applicant had no knowledge of Abbas’s threatening telephone call, or the subsequent handing over of cash either in Mong Kok or Sha Tin, and accordingly acquitted the applicant. 

Charge 3

50.  In convicting the applicant on Charge 3, the judge relied on certain “extraneous facts”^[96]. First, the applicant must have known from the conversation inside the consultation room on 2 October 2015 that Abbas and Satar had procured a false, backdated sick leave certificate from the doctor.  Secondly, Abbas had indeed managed to extort $500,000 from the doctor between 2 October and 6 October 2015.  Thirdly, Abbas, Satar and the applicant had visited the MK Clinic again on 7 October 2015.  Fourthly, on 7 October 2015, the doctor had drawn one cash cheque in the sum of $100,000, which was cashed by the applicant the same day.  Fifthly, on 14 October 2015, the doctor had drawn another cash cheque of $100,000, which had been cashed by someone other than the applicant.

51.  The judge accepted the doctor’s testimony and found that after already getting $500,000 out of the doctor, Abbas had visited the clinic again in order to “have another bite on the doctor”[97].  Only Abbas went into the consultation room to blackmail the doctor, this time for $1,000,000, while Satar and the applicant remained outside.  The doctor gave in to the demand and handed Abbas an initial cheque in the sum of $100,000, which was in turn passed to, and cashed by, the applicant on the same day.  The doctor drew another cheque in the sum of $100,000 and passed it to Abbas on 14 October 2015.  The doctor paid the remaining $800,000 in cash to Abbas on multiple occasions, all in the absence of the applicant.

52.  The judge reasoned that since the applicant knew there was a false, backdated sick leave certificate when he visited the doctor again with the others on 7 October 2015, he must by then have been aware of the blackmail scheme.  The judge did not believe that the applicant would still not know what was going on, or that he merely followed his friends innocently a second time to the MK Clinic.  When he entered the clinic, he knew it was to blackmail the doctor, against the background of a false sick leave certificate having already been obtained from the doctor.  When he left the clinic and cashed the cheque for $100,000 that same day, he knew it was the proceeds of that blackmail.

Charge 4

53.  In convicting the applicant on Charge 4, the judge relied on several facts which he found to be “extraneous”^[98].  Firstly, the applicant knew from the conversation inside the consultation room on 2 October 2015 that his friends had already procured a false sick leave certificate from the doctor.  Secondly, on 30 December 2016, the applicant had gone to see the doctor at the TST Clinic.  Thirdly, two substantial cash deposits were made into the applicant’s bank account shortly thereafter: the first, in the sum of $100,000, being made on the following day; the second, in the sum of $130,000, being made within a week of the applicant’s visit to the TST Clinic.

Charge 5

54.  In convicting the applicant on Charge 5, the judge relied on the following facts, which he found to be “extraneous”^[99]. Firstly, two months previously, the applicant had already succeeded in obtaining $330,000 from the doctor out of the original demand of $1 million.   Secondly, on 6 March 2017, the applicant went alone to the TST Clinic and entered the consultation room, while the nurse was working at the reception area.  Thirdly, later that day, the doctor reported the case to the police, handing over a copy of Exhibit P9.  Fourthly, on 7 March 2017, the doctor received two text messages (Exhibit P5) from a mobile telephone number which was identical to the one written on Exhibit P9.  Fifthly, the bank account number written on Exhibit P9 was the applicant’s personal bank account number.  It was also the bank account into which the doctor had deposited $230,000 about two months previously (Charge 4).  Sixthly, the applicant’s full name was “Ali Muhammad Kamran”, which appeared on his Immigration Department movement records as well as his personal bank account documents; he was a foreigner and not ethnically Chinese.

55.  Having accepted PW2’s testimony in full, the judge was sure that the “Ali” described by the nurse was indeed the applicant.  He found that Exhibit P9 had been written by the applicant.  The “Previous Document” referred to in Exhibit P9 was a reference, which both the applicant and the doctor would have understood, to the false sick leave certificate. Furthermore, since the doctor had evidently received an empty USB on the previous occasion, Exhibit P9 supported the doctor’s evidence that he had rejected the applicant’s demand, which prompted the applicant to press home his demand by writing the note.  The judge also found that the applicant must have sent the two text messages.

Grounds of appeal against conviction

56.  Mr Phillip Ross, on behalf of the applicant here and below, submitted that there was no sufficient evidence to prove the applicant’s link to any blackmail at any stage.  In advancing his submissions, he seized as the platform for his submissions on the finding of the judge[100]:

“As a whole, I find the doctor to be an unreliable witness. Unless his testimony is supported by extraneous facts, his whole account of events is highly unbelievable.”

Although this statement appears to have been made in the context of his evaluation of Charge 1, the judge then made a similar comment when addressing Charge 2[101]:

“I do not believe in the doctor in this. In fact, I am very sceptical about all his testimony in the case. As said, unless his evidence is supported by extraneous facts, I would not believe him.”

57.  Accordingly, Mr Ross argues by Ground 1 that the warning the judge gave himself about not believing the doctor’s evidence unless it was supported by extraneous facts was a continuing warning, which he failed to apply in evaluating the evidence on Charges 3, 4 and 5. 

58.  Ground 2 is an illustration of the judge’s failing referred to in Ground 1, since the second extraneous fact relied upon by the judge in convicting the applicant on Charge 3 was that Abbas had indeed managed to extort $500,000 from the doctor between 2 and 6 October 2015.  Mr Ross argued that this could not be an extraneous fact, which was usable against the applicant, since it was wholly reliant upon the doctor’s evidence.  Moreover, the applicant had been acquitted of Charge 2 and could not therefore be taken to have known anything about Abbas’s earlier blackmail.

59.  If, therefore, one removes that fact from the equation, the only remaining extraneous facts before the judge were (i) the applicant knew that Abbas and Satar had successfully procured a false sick leave certificate from the doctor on 2 October 2015; (ii) the same group of men had visited the doctor on 7 October as had visited him on 2 October 2017; and (iii) the applicant had cashed the $100,000 cheque issued by the doctor.  These facts alone, it is submitted, would not support an irresistible inference that the applicant knew of Abbas’s blackmail scheme by the time of Charge 3.  

60.  A similar complaint lay behind Ground 3, by which it was argued that the extraneous facts relied upon by the judge did not lead to the irresistible inference that the applicant was guilty of Charge 4. Furthermore, it was contended that the judge must have used the fact of the applicant’s knowledge of the earlier blackmails by Abbas as an extraneous fact in support of his conviction on Charge 4.  A subsidiary argument was that the prosecution had shifted its position from its opening in which prosecuting counsel had alleged that the menace was “to expose the false medical certificate and the video”^[102]; whereas the doctor merely claimed that the demand was that he should purchase the video-recording or it would be kept by the blackmailers. 

61.  In a similar vein, Ground 4 also averred that the judge had made use of the alleged blackmail in Charge 4 (or, for that matter, Charge 3) as an extraneous fact to convict on Charge 5, when it amounted to evidence of propensity.  Furthermore, the judge had relied upon the fact that the applicant had written Exhibit P9 when it was not an extraneous fact that he was the author of the document: for the allegation of authorship depended essentially upon the doctor’s evidence alone.  Accordingly, the two subsequent text messages were hearsay, as the judge appeared to accept, since the telephone number from which they were sent was that recorded on Exhibit P9, which was not extraneous evidence and therefore of no value.  Mr Ross submitted, without relying on the contents of the text messages as to their truth, or the judge’s earlier finding in respect of the applicant’s criminality on Charge 4, there were insufficient extraneous facts to support the doctor’s testimony on Charge 5.

Discussion

62.  It must be accepted that the applicant was acquitted of Charges 1 and 2 because the judge accepted that the applicant had heard no threat being exercised at any stage on the doctor inside the consultation room on 2 October 2015 (Charge 1)[103]; nor was he present in Sha Tin receiving any money; nor did he know of the blackmail carried out by Abbas and Satar[104]. However, by the time the same three men visited the doctor again on 7 October 2015, the judge was satisfied that the applicant did know of the intended blackmail scheme[105].

63.  It must also be accepted that, although the judge’s remarks about not believing the doctor unless there were “extraneous facts” supporting his evidence were made in the context of his assessment of the evidence in Charges 1 and 2, on which the applicant was acquitted, we think that the later references in his Reasons for Verdict to “extraneous facts” when addressing the other charges must mean that his approach obtained throughout his evaluation of the case.  We do not, therefore, accept Mr Ross’s complaint in Ground 1 that the judge did not remind himself of his own direction when addressing the evidence on each charge.  Having said that, we do not believe the judge was seeking to apply the “whole florid regime of the old corroboration rules”[106], which were abolished in this jurisdiction in 1994, but which counsel’s argument at times seemed to invoke.  The judge simply wanted supporting evidence from an extraneous source before he would believe the doctor on a material issue.

64.  Thus, we approach the evidence and the judge’s findings conscious both of the applicant’s acquittal on Charges 1 and 2 and the judges’ misgivings about relying upon the doctor’s evidence unless it was supported by other evidence.

65.  In addressing the grounds of appeal, it is necessary to remember that the applicant was (firstly) present at the doctor’s MK Clinic on 2 October 2015 and (lastly) present at his TST Clinic on 6 March 2017.  During that 17-month period, there were essentially four different, albeit related, attempts to blackmail the doctor arising out of the issuing of the same false sick leave certificate and the secret video-recording of its issuance: the first, between 2 and 6 October 2015, as a result of which the doctor paid out $500,000 by 6 October 2015; the second, between 7 and 14 October 2015, as a result of which the doctor paid out a further $1 million; the third, between 30 December 2016 and 5 January 2017, as a result of which the doctor paid out yet another $330,000; and the fourth, on 6 March 2017, when a further $670,000 was demanded, although nothing was paid following the report of the matter to the police.  

66.  The first blackmail involved Abbas, Satar and the applicant (although the applicant was acquitted of being knowingly involved in this blackmail).  The second blackmail also involved Abbas, Satar and the applicant.  The third and fourth blackmails were arguably one offence carried out by the applicant alone on two different occasions, in which he first successfully obtained $330,000, having demanded $1 million, but returned two months later to try unsuccessfully to obtain the balance of $670,000.

67.  Since the applicant was acquitted of the first blackmail, the question arises as to whether circumstances had changed, and if so how, by the time of the second blackmail a few days after the first.  On this matter, the judge was clear that they had and he relied on four matters to show that “by now”[107] the applicant must have known of the intended blackmail scheme.  It is obvious to anyone viewing the video-recording and the accompanying transcript that on 2 October 2015, Abbas and Satar, in the applicant’s presence, had set out to obtain, and did obtain, a false sick leave certificate from the doctor.  It may not have been obvious that the matter was being recorded on camera, but it was certainly obvious, and the applicant must have known, that the doctor had been inveigled into issuing a false sick leave certificate by Abbas and Satar.  Mr Ross does not challenge this finding.

68.  Therefore, when the same three men went up to the same clinic to see the same doctor on 7 October 2015 (the second blackmail), the applicant would have known that they were seeing a doctor who had the week before been paid to issue a false sick leave certificate.  The change in his understanding between the visits on 2 and 7 October is therefore critical.  On 2 October, when he entered the consultation room, the applicant could be said not to have known or to have foreseen “that his friends were going to get a false certificate and planning on using it to blackmail the doctor”, as indeed the judge found[108]. On 7 October, however, when he again accompanied Abbas and Satar to the MK Clinic, it was with the knowledge of the procuring of a false sick leave certificate from the doctor the previous week.  That knowledge and his attendance at the clinic with the same two men who had earlier procured the certificate make the visit on 7 October significantly different from the visit on 2 October.

69.  But the really telling difference between the first and the second blackmail attempts is that, in the first, there was no evidence accepted by the judge of the applicant having received, or having any knowledge of, the proceeds of the blackmail: whereas in the second, the applicant received and cashed a cheque from the doctor for $100,000 on the same day as the alleged blackmail.  We have looked at the cheque which bears the doctor’s printed name and signature, and obviously the doctor’s name would have been known to the applicant, since he was a previous patient of the doctor[109].  The applicant’s evidence in cross‑examination that he did not look at the cheque before he banked it[110] was hardly believable, given the size of the cheque for someone who was a security guard, and given the fact that he had had to sign it and have his Identity Card number recorded on the reverse.  The obvious question for him to have asked if he was an innocent conduit is why his own doctor should be giving such a large amount of money to a patient.  The fact that he never asked is revealing of his knowledge of the purpose of the cheque.

70.  At the end of the day, the judge did not believe the applicant’s innocent explanation for cashing the cheque.  Having rejected his evidence on the matter, as Mr Derek Wong for the respondent submitted, there was no other reasonable explanation for the applicant cashing such a large cheque from the doctor, against his clear knowledge that a false sick leave certificate had earlier been procured from him.  Accordingly, the inference was obvious.

71.  These extrinsic facts were by themselves more than sufficient to support the doctor’s evidence that he had been blackmailed and that the applicant was one of the blackmailers.  Mr Ross’s concentration in Ground 2 on the judge’s use of the previous blackmail as a further extrinsic fact is ultimately neither here nor there.  But in any event, we do not see why, having accepted that the doctor had been successfully blackmailed of $500,000 by Abbas and Satar between 2 and 6 October, which was rather obvious given Abbas and Satar’s deliberate connivance in order to obtain a false sick leave certificate and the making of a secret video-recording of the event, he could not use that fact to establish the background in which Charge 3 took place.

72.  A similar argument that the judge has made use of the fact of an earlier blackmail and the applicant’s consequent knowledge of the blackmail scheme was employed under Ground 3 in respect of Charge 4. However, the argument is somewhat attenuated because the judge did not expressly say that the earlier finding that the doctor had in fact been blackmailed (whether in Charge 2 or Charge 3) was an extrinsic fact.  The highest Mr Ross can put it is that it may be implied.  But whether it be expressed or implied, we see nothing wrong with the judge doing so.  The events of 30 December 2016 must be seen against the background of the earlier blackmail attempt by the applicant over a year before.  Not only was the applicant asking for a further $1 million, on top of the $1 million that had already been paid out under Charge 3, but the menaces were the same publication of the video-recording and the false sick leave certificate.  It was surely relevant to have in mind that this offence followed on an earlier successful blackmail, in which the applicant had been involved.

73.  However, it is not even necessary to engage this argument.  The extrinsic facts relied upon to support the doctor’s evidence under Charge 4 were the applicant’s direct knowledge that a false sick leave certificate had been procured from the doctor and the making of two substantial payments (one of $100,000, the other of $130,000) into the applicant’s bank account.  As the judge posed, the obvious question to ask is why such large deposits should have been made by the doctor into a patient’s bank account, the first payment being made on the very day after the consultation at which the doctor said he had been blackmailed by the applicant.  This evidence was clearly capable of supporting the doctor’s account.

74.  The applicant’s convoluted and rather fantastical explanation as to how the doctor might have known his bank account number, why the applicant should have received $230,000 into his bank account and what he subsequently did with the money was not surprisingly disbelieved by the judge.  On the basis of the extrinsic facts and his rejection of any innocent explanation by the applicant, the judge found that the applicant had indeed given the doctor his account number for him to deposit the blackmail money, as the doctor had testified, pursuant to a demand for $1 million for the handing over of the USB containing the video-recording.  In our judgment, he was entitled to so find.

75.  The subsidiary argument that the prosecution had changed its stance during the course of the prosecution case was not a substantive ground of appeal, nor was it addressed in oral argument.  We agree with Mr Wong that if the complaint had merit and materially impacted on the defence case, Mr Ross would have been the first to raise it with the judge and take advantage of the purported change in direction by the prosecution in cross-examination.  And even if there had been the slightest merit in the point, which we do not accept, we can see no prejudice to the applicant in his understanding of the prosecution case, nor has any been suggested before us.  We are, with respect, surprised this point was even taken.

76.  The argument under Ground 4 that the judge has used the earlier successful blackmailing of the doctor of $330,000 by the applicant (Charge 4) as an extrinsic fact in respect of Charge 5 is misconceived.  As we have pointed out, Charges 4 and 5 were essentially the same blackmail carried out by the applicant acting on his own, which began with the applicant’s demand for $1 million on 30 December 2016.  For reasons we have already described, a reduced “deal” was struck between the doctor and the applicant to settle the matter for $330,000.  However, the applicant reneged on the deal, gave the doctor an empty USB and two months later came back for more.  The facts and circumstances of Charge 4 were highly relevant to a consideration of Charge 5.  The judge was not saying that because the applicant was guilty of Charge 4, he was also guilty of Charge 5: all he was saying was that the fact of the earlier blackmail was relevant to a consideration of its continuation when the applicant came back to reinstate the original sum of $1 million and ask for the balance two months later.

77.  In any event, the other extrinsic facts were compelling and more than enough to support the doctor’s account.  The doctor’s nurse, PW2, gave evidence that the applicant was the last patient remaining in the TST clinic on 6 March 2017.  Having seen the doctor in his consultation room, the applicant came out and asked her for a piece of paper and a pen.  She gave him a piece of A4 paper and the applicant duly wrote something on the paper.  When he had finished, and when she was about to receive the paper from the applicant, the doctor suddenly emerged from his room and took it from the applicant’s hand.  The applicant left the clinic and subsequently the doctor went to the police.  All of this evidence was extrinsic of the doctor’s evidence but clearly supported his account that the applicant had tried to blackmail him again.

78.  We do not accept Mr Ross’s argument that the piece of paper, Exhibit P9, was probative of nothing because the nurse had not been able to read it and therefore provide extrinsic support for the doctor’s evidence that it was the note written by the applicant.  The nurse’s evidence, coupled with the taking of the note to the police, was plainly supportive of the doctor’s account.  Exhibit P9 was real and cogent evidence, written by the applicant himself and referring to his willingness to give up the false sick leave certificate.  It was also real evidence of the applicant’s telephone number.

79.  Mr Ross further argues under Ground 4 that the text messages received by the doctor on his mobile telephone on 7 March (Exhibit P5), threatening to pass the video-recording to TVB if his demands were not met, and supplying his bank account number (the same account into which the doctor had already deposited $230,000 two months earlier), were inadmissible hearsay and cannot support the doctor’s evidence that he was being blackmailed by the applicant.  We do not agree. 

80.  In our judgment, no issue of hearsay arises. The contents of a document or the contents of a text message are not automatically hearsay.  Whether the contents of these items are hearsay depends upon the purpose for which the contents are relied on by the party adducing them[111].

81.  Here, the prosecution case was that PW1 was being blackmailed and, in respect of charges 4 and 5, the applicant was the blackmailer.  The prosecution relied on these communications to prove its case, in addition, of course, to the evidence of PW1.  Because of the problems with PW1’s credibility, evidence independent of his testimony assumed greater importance.

82.  But the relevance of these three communications was that, on the prosecution case, they were created by the blackmailer and used by him in furtherance of his blackmail of PW1.  The three communications were the handwritten note, Exhibit P9, and the two text messages, Exhibit P5.

83.  The inference that Exhibit P9 emanated from the applicant was overwhelming and the judge was undoubtedly correct in so finding.  Exhibit P9 contained a set of numbers with the message “feel free to call when you are free”.  This was clearly an invitation to contact the applicant by calling him on the telephone using this set of numbers.  Once this document was proven to have come from the applicant, then there existed evidence of his telephone number, which could be obtained from the document without breach of the hearsay rule.

84.  The text messages are no more than digital documents.  The fact that they are stored digitally and exist in a virtual world rather than being stored on paper and existing in the real world is irrelevant to the question of whether they are hearsay.  All it does is make it a little more difficult, logistically, in presenting them to a jury.  With a paper document, one may simply make a photocopy of it; with digital documents, it is necessary to create a hard copy which can then be photocopied.

85.  Here, the creation of a hard copy was proved by an admitted fact to the effect that “on 17 March 2017, DPC 11636 took 7 photographs of the text messages on PW1’s mobile phone.  Copies of the photographs are printed out in a photograph album, numbered 1-7 and the album is listed in the List of Exhibits as P5”[112].

86.  The issue in relation to Exhibit P5 is the same as in relation to Exhibit P9.  Can the text messages be proved to have come from the applicant?  If they can, then they have relevance; if they cannot, then they may have some limited relevance in providing support to PW1’s assertion that he was being blackmailed, but without proving that the applicant was the blackmailer.  Consequently, the real probative value of the text messages lay in proving they were sent by the applicant.

87.  The messages, perhaps not surprisingly, do not bear the blackmailer’s name.  Proving the applicant was the sender must be by inference from the following primary facts.  Firstly, the telephone number of the sender was displayed on PW1’s telephone and it was the same number that was written by the applicant on Exhibit P9.  Exhibit P5 is not being used to prove the applicant’s telephone number, since that has already been done by Exhibit P9. The only use that is being made of the sender’s number in Exhibit P5 is as circumstantial evidence.  Secondly, the bank account number shown in the photograph of the second admitted message is clearly that of the applicant.  Thirdly, the contents of the text messages were a repetition of a blackmail demand for $1 million made to the doctor by the applicant the previous evening. 

88.  Once the relevance of the text messages was established by proving that they were sent by the applicant, then the fact that he sent them was clearly extrinsic of the doctor and plainly supportive of the doctor’s account that he was being blackmailed by the applicant.

89.  In our judgment, allowing for the judge’s obvious concerns about the doctor’s testimony, the evidence supporting the essentials of his account was compelling.  The evidence that the applicant must have known, at least from 7 October 2015 when he went up to the MK Clinic with the other blackmailers, that the doctor was to be blackmailed for a substantial sum of money using a false sick leave certificate, which had earlier been procured in his presence, is similarly compelling.  The evidence that he then embarked on a “frolic of his own” over a year later to try and get even more money out of someone who must have seemed a very compliant victim to the blackmailers is overwhelming.

90.  We did not accept the complaints made of the judge’s careful reasoning.  For these reasons, the application for leave to appeal against conviction was refused and the appeal dismissed.

Postscript

91.  Before we leave this case, we would like to comment, lest this case be subsequently taken as an indication of the correct level of sentence in such cases, that 4 years’ imprisonment for these offences was an unduly lenient sentence.  The unfortunate doctor, who of course was to some extent the author of his own misfortune, was fleeced of $1.33 million by the applicant on Charges 3, 4 and 5 (a further $500,000 being obtained by Abbas and Satar under Charge 2).  It is clear that the doctor could ill afford these sums and, finally, when the applicant’s appalling greed got the better of him, the doctor sought the help of the police.

92.  Blackmail in these circumstances is a cowardly and despicable offence.  It preys on the mistakes, frailties and fears of its victims and basks in the merciless greed of its perpetrators.  And, as this case demonstrates, it can be unyielding and relentless, bringing those who are blackmailed to the point of ruin.  It should be remembered that while the maximum sentence on indictment for theft is 10 years’ imprisonment, the maximum sentence for blackmail is 14 years’ imprisonment.

93.  In this particular case, having successfully obtained $1 million pursuant to the blackmail in Charge 3, the applicant waited 14 months before returning on his own to blackmail the same victim for a further $1 million.  He managed to obtain $330,000 from his victim before the doctor, unable to suffer any longer, brought the matter to the attention of the police.

94.  In our judgment, the judge should have ordered a significant element of the sentences on Charges 4 and 5, which were separate offences committed more than a year after the offence in Charge 3, to run consecutively to the sentence on Charge 3.  We would not have interfered with an overall sentence in the applicant’s case of 6 years’ imprisonment.  The applicant is extremely fortunate that he abandoned his appeal against sentence well in advance of the hearing of his appeal.