HKSAR v. ALI MUHAMMAD KAMRAN

DCCC 541/2017

[2018] HKDC 737

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 541 OF 2017

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REASONS FOR VERDICT

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BACKGROUND

1.  The defendant is facing 5 charges of blackmailing a doctor (the “doctor”).  The 5 charges spanned over a period of more than one year (2015 October to 2017 March).  The prosecution case very broadly stated is this.  Initially a fake sick leave was procured under the doctor’s hand which was subsequently used to extort money from him.  The defence case, again in the broadest terms, claims no knowledge, no participation, the defendant did not do blackmail, not by himself, not with the others.

PROSECUTION CASE

2.  The prosecution allegation in more details is this.

3.  The defendant though not being the mastermind, at least not at the beginning, went with the gang to attend the doctor’s clinic in the morning. The gang threatened the doctor’s safety as well as that of his family, and as a result the gang procured a fake sick leave certificate from the doctor (Charge 1: a joint charge).

4.  Starting that evening, the fake certificate (together with the gang secretly filmed video) were used to extort money from the doctor.  The doctor was threatened to buy the certificate (and the video), or else it would be retained, and/or would be sold to other parties.

5.  There were 4 occasions of this money extortion.  The first 2 times were done by the defendant with the gang (Charges 2 and 3: joint charges).  The last 2 were done by the defendant alone (Charges 4 and 5: single charges).

DEFENCE CASE

6.  The defendant pleaded not guilty to all 5 charges.  His defence is this.

7.  For Charges 1 to 3, the defendant was ignorant.  For some occasions, he was not even there.  And even if he was there, he did not know and was no part at all of his friends’ blackmail master scheme (if any).  He was just there to accompany some friends or innocently help out some friends cash a cheque.  This was all he knew and all he cared about.

8.  For Charges 4 and 5, the defendant simply did not blackmail respondent as the prosecution alleges.  It is true that he visited the doctor clinic on those 2 charge days and that he met with and talked to the doctor.  But he was there just to receive treatment for his back pain.  Only after he was arrested by the police that he came to know that in fact the doctor had, subsequent to his treatment, deposited some money (HK$230,000) into his personal bank account.  It is true that he withdrew almost all the money from his account within the next 2 weeks but back then he did it only because his friend had asked him to.  He did not know the exact source of the funds at that time.  He remitted the money to his good friend in Pakistan already, again as his good friend has asked him to.

ISSUES

9.  The issues in this case are thus:-

(i) Was there blackmail?

(ii) If yes, did the defendant know it?

(iii) Even if the defendant knew it, did the defendant do it or take part in it?

WITNESSES

10.  There are only 3 witnesses in the trial:-

(i) the doctor;

(ii) the nurse; and

(iii) the defendant.

11.  Both the doctor and the defendant testified on all 5 charges, whereas the nurse testified on the last charge, Charge 5 only.  To avoid regurgitation, I do not propose to set out their testimony here but would do so below during my “Consideration”.

EXHIBITS

12.  Both parties produced some exhibits along the trial.  Most of the exhibits are agreed upon in this case, including a defence exhibit (number D2), which is a secretly filmed video clip about 20 minutes long, where a substantial part of how the fake certificate came about in the consultation room was recorded.  The video, which has been played and shown in court, was substantial but not the complete because the beginning of the “consultation”, some part in the middle and the end were obviously missing.

13.  The video was filmed by the Mastermind, who the defendant referred to as friend in his testimony.  I will explain why I call this person the Mastermind later.  The video was sent over to the defence lawyer (the Lawyer) in Hong Kong from Pakistan, this was what the defendant has testified that he had asked his friend (the Mastermind) in Pakistan to send to him to assist him in the preparation of his trial.  The video shows that inside the consultation room there were 4 people:-

(i) the doctor;

(ii) Abbas (the Mastermind);

(iii) Satar (the “Accessory”, I will also explain why I gave Satar this name later); and

(iv) the defendant.

COMMON GROUND: FACTS

14.  From the agreed upon exhibits and from the common or uncontested testimony of both parties, some facts are readily apparent and could be easily discerned and distilled.  Some “inherent probabilities or improbabilities” will inevitably spawn in the minds of the readers of this document.  The prosecution allegations in each charge (as they transpired in the trial, which were somewhat different from the opening) are stated here too, just to bring relevance in the thinking.

Charge 1: Allegedly, on this day, inside the MK clinic, the 3 men threatened the doctor for a fake sick leave certificate by intimidating harm to the doctor personally and to his family

15.  As a matter of fact, the Mastermind and the defendant were the existing patients of the doctor, each of whom the doctor had seen and treated a few times, whereas the Accessory was a totally new patient.

16.  In the morning of this charge day, the Mastermind and the defendant accompanied the Accessory to visit the doctor in the Mongkok (MK) Clinic.  The Accessory had big bandage wrapped round his leg.  Inside the consultation room, for most of the time, the doctor was looking and talking to the Accessory who was sitting next to him.  The defendant was sitting at one end of the room, saying nothing at all, whereas the Mastermind who was sitting at the other end, was very busy filming (secretly), talking and actively interposing the conversation between the doctor and the Accessory.  As said, the consultation lasted for about 20 minutes.  For the summary and extract of the video of this consultation, please see Annex.

17.  At the end of the consultation, the doctor issued a false sick leave certificate and handed it to the Accessory.  A few hundred dollars’ cash were paid.  The group left the MK clinic.

Charge 2: Allegedly, very soon after charge 1, the 3 men threatened the doctor with the fact that the consultation was secretly video-recorded and that the doctor had to buy the video (and the false certificate) for a $500,000, meaning or else they would keep them

18.  Under this charge, the Lawyer agrees and admits nothing because it is their case that the defendant was not present in any of these occasions.  Everything was challenged.

Charge 3: Allegedly, about 1 week later, the 3 men threatened the doctor that they retained the video which the doctor had to buy from them at an additional cost of $1,000,000 or else, they would sell it to other parties like TVB, and the doctor and his family would also be in danger

19.  Five days after the consultation, the same 3 people did go to the MK clinic again.

20.  Subsequently, the doctor has drawn a cash cheque of HK$100,000 which was countersigned and cashed by the defendant on the same day (before the defendant flew out of Hong Kong in the evening).

21.  The defendant departed Hong Kong at about 6 pm on this day and came back to Hong Kong 2 weeks later on 22 October.

22.  In the meantime, on 14 October 2015, the doctor has again drawn cash cheque of HK$100,000, which was cashed by an unknown person on the same day.

Charge 4: Allegedly, more than a year later, the defendant appeared in the doctor’s TST clinic and demanded the doctor to buy a copy of the video which allegedly was now on the defendant’s hands, for 1 million dollars, meaning that or else the defendant would keep it

23.  30 December 2016, the defendant alone met the doctor at the consultation room of TST clinic to have his back pain treated.  Subsequently, 2 substantial cash deposits were made into the defendant’s personal bank account:-

- 1^st deposit of $100,000 immediately on the next day;

- 2^nd deposit of $130,000 within a week.

24.  Within the next 2 weeks, the defendant gradually withdrew most of the cash from his personal bank account ie a few thousand dollars on each day.

Charge 5: Allegedly, 2 months later, the defendant threatened the doctor with the fact that he had copy of the false sick leave certificate on hand and the doctor had to buy it from him at $670,000, meaning or else the defendant would keep it

25.  6 March 2017, the defendant alone went to see the doctor in his TST clinic.  They met each other in the consultation room while the nurse was working outside in the reception area.

26.  Later on the same day, the doctor went to TST Police Station to make a report where he was referred to Mongkok Police Station for further enquiry.  He has given the police a copy of an A4 size paper note which is now produced as exhibit P9, on which it was hand-written:-

Hand note

“5319-0559 Tomorrow I can bring Previous Document feel free to call when you can (and then a word being illegible)”

27.  9 March 2017, the defendant was stopped at the Hong Kong Airport Immigration Checkpoint and was arrested by the police and brought to Mongkok Police Station.

28.  About 2 weeks later, on 17 March 2017, the police found from the doctor’s mobile phone 2 text messages, the content of both of which (including the date, time and sender) are multiple hearsay evidence I know.  But apparently and only apparently from the display monitor of the phone:-

(i) the doctor received these two messages on 7 March; and

(ii) both messages came from the phone number 5319-0559 (which is the same number written on the above Hand note) where:-

Message One

“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 atleast 200k in my account then i will tell u what time nd where i can meet u up”

Message Two

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

29.  2140038858 is the number of the defendant’s personal bank account into which the doctor has deposited a total of $230,000 two months ago (above para 23).

30.  Both the defendant’s immigration movement record and personal bank account (bankers’ affirmations) exhibited to court state his full name, Ali Muhammad Kamran.  The defendant is a foreigner (not Chinese) which I can see for myself in court.

CONSIDERATION

Charge 1: Allegedly, on this day, inside the MK clinic, the 3 men threatened the doctor for a fake sick leave certificate by intimidating harm to the doctor personally and to his family

31.  Simply put, I do not believe in the doctor when he said he was so threatened by the Mastermind.  I do not believe in his testimony that he was threatened at the very beginning of the consultation.  I do not believe his evidence that the Mastermind uttered intimidating words to him when they both were behind the room curtain.  I do not believe in him when he said that the Mastermind threatened him that the Mastermind would hurt him personally or his family if he was not to issue the fake certificate.  I do not believe that there was any threat inside the consultation room which the doctor said was not recorded by video.  I do not believe that the threat was omitted or deleted from the video either.

32.  I believe on the contrary, the doctor simply issued the fake certificate to the Accessory because he has a bad practice of so issuing upon receiving payment.  The reasons are these.

33.  In the video, the doctor was calm with all 3 people inside the room.  He did not seem like he had been threatened.  The doctor even indicated on the video that he was not happy if he was to receive a low price of the false certificate that he was about to issue.  He also gave his mobile phone number to the Accessory telling the Accessory that the latter could share the phone number with friends and if friends want fake certificate, they have to go to SSP clinic.

34.  Another reason is this.  When the doctor was questioned in court why in the video he bothered to ask the Accessory if the Accessory was actually in Hong Kong on those past days when the fake certificate had to cover, the doctor answered that it was because of his own practice of asking so.  He said, before he issues any certificate, he usually asks the patient if the patient is physically in Hong Kong and not anywhere else.  I was thinking why he needs to ask this if the patient is physically sitting right in front of him.  He was given so many chances to explain in court why he has this kind of asking practice.  He just repeated that he simply has this practice.  He did not explain why.  The inference is this (the word “inference” employed in this document means the only irresistible factual inference).  He has this weird asking practice because he has the fake certificate issuing practice.  He always asks because he wants to make sure that the patient was in Hong Kong so that the certificate of physical examination would not outright be disproved by the immigration movement record or any authorities.  If the patient is exposed, the doctor would be busted too.  He knows that he would have to ask this just to be safe.  He wants to protect himself.  He did not just do it this time.  He always asks it because he has a practice of so issuing fake certificates.  He has a reputation of this bad practice and that was why the Accessory went to him when the Accessory wanted one fake sheet.

35.  After consideration, I believe the defendant (this young, still 26 years old, married man who has a perfectly clear criminal record) when he testified that he saw no threat at all being exercised on the doctor when he was inside the room the whole time.  He did not see and did not hear at all that his friends ever threatened the doctor.

36.  Another reason against the doctor ‘s testimony in this charge is this.  The doctor did not report to the police immediately after he said he was threatened on 2 October 2015.  The doctor reported only one and a half years later, on 6 March 2017, that is after he had, according to him, handed over millions of dollars for numerous extortions (some extortions even done by some other groups headed by a woman called “Joanne”, who may or may not be related to the Mastermind).  He said he was exhausted, almost all his savings from the 30 years of medical practice were gone.  That was why he said he could only afford to buy a small (some 200 square foot) commercial unit in TST to start his own medical practice in the Summer of year 2016.  His reason for this late reporting was that he needed to gather evidence.  He explained that only when he has obtained some hard evidence, like bank account number etc, then he would report the blackmail to the police.  However, it is a fact that he had already issued 2 cheques (above paras 20 and 22) by 14 October 2015 (about 2 weeks after the “threatened consultation”).  These 2 were cash cheques, meaning that the cashing person would have to leave with the bank teller his/her personal details, identity card number etc.  It was some of kind of banking procedure that the doctor said in court he knew.  So, once the doctor knew the cheques were cashed (from his monthly bank statement or otherwise), he could have gone to the police with this readily available hard evidence.  But he still did not report.

37.  Also, according to the doctor, at the end of the month (October 2015), he instructed the MK Clinic manager to retain the CCTV records of the gang (and Joanne) visits.  These CCTV records proved their visits, and with hard bank evidence, why did the doctor still wait?  Surprisingly, instead of reporting to police, the doctor simply kept on paying out millions of dollars.

38.  Further, by early 2017, the doctor had additional banking evidence.  He had the number of the defendant’s personal bank account into which he paid $230,000 (above para 23).  He still did not report.  He reported only 2 months later on 6 March 2017, after what he said the defendant came to his TST clinic to blackmail him again.  He was slapping on his own reason for not reporting to police on time.  I still do not see why he did not go to the police earlier.

39.  His explanation for late reporting so far does not make any sense and is full of contradictions.  He was unduly late in reporting.  He has shown himself to be extraordinarily submissive to repeated unwarranted demands (alleged) throughout the one and half year period.  The inference is this.  He knew that he himself had something to blame in the alleged ordeal.  He was wrong from the start.  He issued the wrong certificate voluntarily and for money.  That was why he hesitated to report to police.  After considering the whole case, I come to realize that it was only when things got really intolerable, he was even given an empty USB (containing no video at all) and he managed to come up with what he believed was a sufficient reason to perhaps free himself from possible disciplinary hearing, then he disclosed the matter to the world.

40.  Apart from the above creditability issue of his, the doctor’s accuracy is questionable too.  His recollection of the events was tested and at least so far as the 2^nd $100,000 cash cheque (above para 22) is concerned, he is not reliable.  He said that he had handed to Ali (meaning the defendant) in person, somewhere in HK, this cheque a few days after their 7 October visit (Charge 3).  However, the meeting or encounter is impossible because the defendant was not in Hong Kong for 2 weeks from the evening of 7 to 22 October.  How could the doctor have met the defendant in Hong Kong when the defendant was physically outside Hong Kong?  When so pressed by the Lawyer, the doctor changed the date of the meeting to a bit later, but obviously the cheque was cashed by the bank on 14 October and the relevant cheque handover meeting must be before 14 October, which was when the defendant was still physically outside Hong Kong.  The alleged meeting is therefore still impossible.  Only then in his evidence did the doctor admit that it could be somebody else who took the cheque from him, not the defendant.

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.

42.  Suffice to say now, Charge 1 alleging that the group threatened the doctor his family safety etc in order get the certificate must fail.  As I have found above, there was no threat.  There was no need for threat because the doctor issued the certificate for payment as his usual.  It was his bad practice.  The 3 men (including the defendant) should be acquitted of this Charge 1 and I will do it at the end of this document.

USE OF THE CERTIFICATE AND THE VIDEO

43.  What was the idea of the defendant’s friends when they set out to get this certificate from the doctor?  For what use did they have in mind?  Just for the Accessory to seek employees’ compensation?  Or a few more days paid sick leaves?  Why did the Accessory stress out laud a few times in the video that the certificate was illegal?  Why did the Mastermind secretly record the consultation?  Knowing that the fake certificate is illegal, why did the Mastermind want a record of him being part of the illegality or crime?  Why did the Mastermind shout to the record too that the certificate was “fake” such that the falsity element must be there on the video record?  Why did the Mastermind remind the Accessory that the Accessory was being recorded too?  The inference is this.  The Mastermind recorded the consultation because he would use the video record later.  He would use it to blackmail the doctor for having issued this wrongful illegal certificate.  The video (along with the certificate) is a handle for extortion.  The Mastermind asked the Accessory to shut up to make sure only things favorable are recorded.  At some point, the Mastermind reminded (in Urdu) the Accessory to bring up the like situation of a friend, who needed a fake certificate too to test and to record the doctor’s response.  He even asked the Accessory to propose to the doctor a price reduction, to likewise test the doctor to see if the doctor would greedily respond to it and have the response recorded.  The doctor fell for these, because the doctor was in fact greedy.

44.  The interaction between the Mastermind and the Accessory points to the inference that they were acting in concern and that they set out to target this infamous doctor, first to get a fake certificate under his hand and then to use it (together with the video) to extort money out of him.

45.  The Mastermind was monitoring and leading the Accessory’s behavior in the consultation room to ensure that the Accessory do and say the right things to the doctor.  This is why I started calling these people the Mastermind and the Accessory since the beginning of this document.  The intention of the Mastermind and the Accessory are clear now, but what about the defendant?

DEFENDANT’S KNOWLEDGE OF THE BLACKMAIL SCHEME

46.  First of all, should the defendant know of the Mastermind’s blackmail scheme beforehand, before he entered the consultation room with the friends on October 2?  Unlike the Accessory, the defendant did not say a word nor do a thing inside the room.  Nothing could link the defendant to the blackmail scheme.  Merely being present could not make him an accomplice.  After consideration, I believe in this young man again when he said that he did not know nor did he foresee at all that his friends were going to get a false certificate and planning on using it to blackmail the doctor, when he entered the room with them.  He simply accompanied his friend (Satar) to the clinic for a medical checkup.

47.  But, what about after the 20-minute consultation?  Was the defendant not aware of the conversations inside this small tiny consultation room (video shows that it was tiny)?  Falsity and illegality were shouted and emphasized by his friends so that the video recorded it.  So, did the defendant not notice that a false certificate was being procured and in fact eventually given?  The inference is this.  He knew it was inside the room, having been forced (by the size of the room) to listen to their conversations.  I therefore reject his evidence that he did not notice that a false certificate was being issued.  Again, his friends talked about the falsity and illegality out loud.  The inference is this.  By the time when the defendant left the room, he knew full well that a false sick leave certificate had been procured.  However, knowing the certificate being false is one thing, knowing its use is another.  Up to this paragraph, the prosecution still could not prove that the defendant knows the use of the video (and the certificate) which is for extortion.

Charge 2: Allegedly, very soon after charge 1, the 3 men threatened the doctor that the consultation was secretly video-recorded and that the doctor had to buy the video (and the false certificate) for a $500,000, meaning or else they would keep them

48.  I have stated above (at paras 43-45) that I find that in fact the Mastermind and the Accessory set out to blackmail the doctor.  It is an extraneous fact to support the doctor in his testimony that immediately on the same day at the evening the Mastermind called him on the phone (which number was available on the internet too) threatening him with the possession of the certificate and a secretly filmed video.  After all, why would the Mastermind wait, having all the handles he needs for extortion?

49.  About the alleged subsequent payments, it was obvious that there should be CCTV cameras in the Mongkok and Shatin Train Stations.  The doctor knew it and he therefore dare not make up these stations payment stories if he actually did not. I accept his evidence that he went to see the Mastermind in the stations.  So, why would the doctor go to see the Mastermind?  If not to hand over ransom money, what was the going for?  For an out-patient treatment on a patient in a train station?  Which is ridiculous in the circumstances.

50.  The doctor creditability under this charge is generally supported by extraneous facts.  I have no difficulty in accepting that the doctor was telling the truth that he went to these 2 places each to deliver a sum of ransom money to the Mastermind.  I believe in the doctor when he said after 2 payments, he saw the video and the certificate being deleted and destroyed in front of him.  I believe that this was what the doctor would insist to see, having paid half a million dollars.

51.  However, his evidence implicating the Mastermind is one thing, his implicating the defendant is another where as it will be seen below, there is a big problem.

52.  In terms of accuracy, I also believe in the doctor when he said he was demanded $500,000 in the phone which is any easy number to remember.

53.  Likewise, I believe that the doctor was accurate when he said $500,000 was split into 2 sums: one sum of $100,000 was paid near Mongkok Train Station and another sum of $400,000 near Shatin Train Station, because again they are easy numbers to remember.

54.  For Mongkok Station, the doctor said that he did not see the defendant at all.  He had nothing to implicate the defendant here.

55.  Big problem: for Shatin Station, the doctor said that it was the defendant who received him from the station concourse and then escorted him to the ground floor bus terminal where he met and handed over the $400,000 to the Mastermind. He said that the defendant was wearing a mask so he was not 100% sure that the escort person was Ali (the defendant).  When tested if he himself just said in court he was not sure, he supplemented that though the defendant wore the mask in the concourse, the defendant took it off later in the bus terminal so that he could see his face then.  He was asked if he observed any reason the defendant would drop his mask, having decided to wear it in the first place?  He answered that perhaps because the defendant knew that there were CCTV cameras inside the concourse but there was no more CCTV in the bus terminal.  But how would the defendant know that there was no CCTV in bus terminal, given the terminal is necessarily huge?  I wonder how the defendant checked and confirmed that he was safe in exposing his face inside the bus terminal?  Why would the defendant take off the mask at his peril?  And, why did the doctor not say it in the first place in court during the examination in chief?  He only came up with this observation when challenged by the Lawyer.

56.  I do not believe in the doctor in this.  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.

57.  On this issue of escort, after consideration, I believe in the defendant.  I believe that the defendant was not there in Shatin, he was not the escort person.  I further believe in the defendant that he was no part of anything of this $400,000 cash transaction or the whole $500,000.  He was no part of this blackmail.  The defendant was no use to the Mastermind for this transaction.  The defendant would not have a share.  The defendant would of know of this blackmail.  Only the Mastermind deserves conviction under this charge.  Prosecution fails to connect the defendant to this charge.  The defendant did not know the Mastermind’s initial threatening phone call, not know any subsequent cash receipts in this charge.  The defendant’s knowledge of the procured false certificate acquired from the consultation room does not help the prosecution in this charge.  He took no part in this incident.  The defendant should be acquitted of this Charge 2 and I will do it at the end of this document.

Charge 3: Allegedly, about 1 week later, the 3 men threatened the doctor that they retained the video which the doctor had to buy from them at an additional cost of $1,000,000 or else, they would sell it to other parties like TVB, and the doctor and his family would also be in danger

58.  The relevant extraneous facts established are these:-

(i) the defendant knew from the conversations inside consultation room on 2 October 2015 that his friends have procured a false certificate from the doctor (above paras 46 and 47);

(ii) the Mastermind managed to extort the doctor $500,000 (above paras 48 to 53);

(iii) 7 October 2015 in the morning, the 3 men visited the doctor’s MK clinic again;

(iv) same day, the doctor drew one cash cheque of $100,000 which was cashed by the defendant on the same day before the defendant departed HK about 6 pm;

(v) one week later, on 14 October, the doctor drew another $100,000 cash cheque which was cashed by an unknown person.

59.  The obvious question to ask is why the doctor drew out 2 substantial cheques in these circumstances and he drew them at this point of time: the first cheque on the same day of the 3 men’s visit and the second 1 week later?  The inference is this. the Mastermind wanted to have another bite on the doctor.  What else would the Mastermind want this time of visit, having blackmailed half a million dollars a few days ago?  I therefore believe in the doctor when he testified that:-

(i) even though 3 men came to the clinic, only the Mastermind alone approached him at the consultation room and asked him for $1,000,000 ransom for another copy of the same video which the Mastermind said he still retained. The defendant and the Accessory were inside the clinic but did not talk to him. Rather, these 2 people stayed at the corridors or the reception area;

(ii) the Mastermind gave him two choices, but effectively, he was told to buy the video at $1 million or else the Mastermind (alleging being instructed by his boss) would sell the video to other parties eg TVB and he and his family would also be in danger;

(iii) he succumbed to the Mastermind’s demand;

(iv) he therefore drew one $100,000 cheque on the same day to the Mastermind to please the Mastermind (which cheque was cashed by the defendant) and subsequently drew another $100,000 cheque to the Mastermind on 14 October;

(v) he further paid over the remaining $800,000 by cash to the Mastermind by several instalments on occasions where the defendant was absent.

60.  So, why the defendant accompanied the group to the clinic this time?  Why would the defendant help the Mastermind cashing a cheque on the same day, knowing that the Mastermind has procured a false certificate from the doctor in the first place and they had just been to the clinic?  The inference is this.  The defendant knew of the Mastermind’s blackmail scheme by now, he went with the Mastermind and the Accessory to the clinic this time knowing that the Mastermind would blackmail the doctor and blackmail the said sum.  His accompanying the Mastermind this time was knowingly assisting the Mastermind in the pursuit of the said blackmail.  As it turned out, a cheque needed to be cashed.  He allowed him himself to be used by the Mastermind.  He went to cash it as the Mastermind requested.  He departed Hong Kong the same evening.

61.  I do not believe in the defendant when he said he was ignorant.  I do not believe in him that he did not know what was going on with the Mastermind inside the clinic on that day.  I do not believe in him when he said he just innocently accompanied his friends (the Mastermind and the Accessory) to the clinic and that he subsequently helped Mastermind to cash their cheque simply because they were busy and he was simply giving them a hand, to help cashing a what he believed to be regular cheque.  As said, I find that he knew the cheque represented ransom money.

62.  I find that in fact that the group (including the defendant) arrived MK clinic on 7 October 2015 morning for the Mastermind to compel the doctor to buy the copy of the video at $1,000,000, threatening the doctor that the copy would otherwise be sold and thus disclosed to somebody else and that he and his family would otherwise be in danger.  The threats did alarm the doctor as he said he cared about his family which I also believe.  The doctor knew that he was wrong in issuing the fake certificate in the first place.  He never wants anyone else to know of his misdeed.  The doctor therefore succumbed to the compulsion and eventually paid $1,000,000.  The defendant knew of the plan.  He thus went with the gang.  The plan worked.

63.  I find that the prosecution has proved all the elements of Charge 3 against the defendant beyond all reasonable doubts.  I will convict the defendant as such.

Charge 4: Allegedly, more than a year later, the defendant appeared in the doctor’s TST clinic and demanded the doctor to buy a copy of the video which allegedly was now on the defendant’s hands, for 1 million dollars, meaning that or else the defendant would keep it

64.  The relevant extraneous facts established are these:-

(i) the defendant knew from the friends’ conversations inside consultation room on 2 October 2015 that his friends have procured a false certificate from the doctor (above paras 46 and 47);

(ii) on the day of the Charge (30 December 2016), the defendant alone met the doctor at the consultation room of TST clinic to have his back pain treated. Subsequently, 2 substantial cash deposits were made into the defendant’s personal bank account:-

- 1^st deposit of $100,000 immediately on the next day;

- 2^nd deposit of $130,000 within a week.

65.  The neutral question to ask is why these large deposits were made, made to the defendant’s account, and more importantly made at this time (first payment made on next day of the defendant’s visit)?

66.  In the circumstances of the case, the inference is this.  The deposits must be paid for the video (and/or the copy certificate).  The payments must be the ransom money.  This is the inference.  There is no other plausible explanation in the circumstances of the case.  What else could it be?

67.  So, was it that the Mastermind or his gangs or Joanne or some other gangs knowing of the history, approached the doctor to use the same handle to blackmail the doctor?  Why the defendant’s personal bank account was used to receive the deposits?  Was it because the Mastermind or his gang trusted the defendant so much that the defendant would not question along and more importantly, would not flee with the money?  Even if the answer was yes, why was the first deposit made on the next day of the defendant’s visit?

68.  It was the defendant’s testimony that nothing wrong happened during his visit.  His back pain was treated as usual.  He did not show the doctor any USB.  He did not demand from the doctor 1 million dollars or any money.  He did not provide his personal bank account number to the doctor.  He does not know how the doctor managed to get his account number.  But, during that period, he was helping, his friend (Abbas-the Mastermind).  At the end of December, Abbas who was in Pakistan who called him, asking him to help, saying that his (Abba’s) Hong Kong ATM card cannot work in Pakistan, cannot withdraw money straight from HK account.  The defendant therefore gave Abbas his personal account number, so that Abba’s fund in Hong Kong could be deposited into it.  The defendant then withdrew the money from his account and remitted it to Abbas in Pakistan.  He did withdraw the money (bit by bit though because of the bank daily withdrawal limit), and remitted the money back to Abbas in Pakistan already.  He did not ask any questions along.  He just obeyed Abbas’s instructions.

69.  While the defence does not have to prove anything in criminal trial (only the prosecution has the burden to prove), the defendant’s above version of events left behind too many doubts.  Why Abbas had to take the extra trouble to go through the defendant’s bank account to wire the money?  Abbas could have asked the depositor (whoever it was) to remit straight from Hong Kong to Pakistan?  Abbas did not have to go an extra mile to involve the defendant in the chain of wiring.  In addition, the defendant’s version does not answer the neutral question and does not fit in the above factual matrix.  His version avoids the matrix.  The defendant’s absolute obedience to Abbas is hard to believe too.  After consideration, I do not believe in the defendant’s evidence in this charge.

70.  Out of the factual matrix, the inference is this.  Something has happened inside the clinic on 30 December 2016 between the doctor and the defendant. I could not imagine any possible explanation for the payments except the one offered by the doctor in court.  I therefore accept the doctor’s testimony that:-

(i) the defendant on that date came to this small TST clinic with a friend but the friend did not come inside the consultation room. The friend was waiting outside;

(ii) he treated the defendant on his back but when the treatment was done, the defendant shew him an USB telling him that the defendant broke off from his friends (meaning the Mastermind and Accessory) and that the USB on his hand contained a copy of the video about the fake certificate and that the doctor had to buy it from him at $1,000,000, meaning or else he would keep the video, which retention was a potential danger to the doctor’s reputation and medical practice which they both knew very well;

(iii) he succumbed to the demand and asked the defendant for his bank account number, which the defendant, being too eager for money, foolishly gave to the doctor;

(iv) he deposited cash 2 times into the defendant ‘s bank account total $230,000. He also paid cash $100,000 to the defendant within the next week. This total sum of $330,000 was the later agreed amount between the two of them over the phone to settle the matter. This specific amount was a negotiated sum, which the doctor remembers;

(v) upon receiving the total of $330,000, somewhere in Hong Kong, the defendant gave him an USB, which he reasonably insisted but which was subsequently found to contain nothing, which was empty.

71.  With the facts established in above para 70, I find that the prosecution has proved all the elements of Charge 4 beyond all reasonable doubt and I will convict the defendant as such.

Charge 5: Allegedly, 2 months later, the defendant threatened the doctor that he had copy of the false sick leave certificate on hand and the doctor had to buy it from him at $670,000, meaning or else the defendant would keep it

72.  The relevant extraneous facts are these:-

(i) 2 months ago, the defendant already succeeded in blackmailing the doctor $330,000 out of the original demand of 1 million with the threat of retaining the video;

(ii) on this day (6 March 2017), the defendant alone went to see the doctor in his TST clinic. The defendant went inside the consultation room to meet the doctor while the nurse was working outside in the reception area;

(iii) whatever happened or did not happen inside the consultation room, later on the same day, the doctor went to TST Police Station to make a report where he was referred to Mongkok Police Station for further investigation. He has given the police a copy of an A4 size paper on which it was hand-written:-

Hand note

“5319-0559 Tomorrow I can bring Previous Document feel free to call when you can (and then a word being illegible)”

(iv) 2 days later (on 9 March 2017), the defendant was stopped at the Hong Kong Airport Immigration Checkpoint and was arrested by the police and brought to Mongkok Police station.

(v) About 2 weeks later, on 17 March 2017, the police found from the doctor’s mobile phone 2 test messages, the content of both of which (including the date, time and sender) are multiple hearsay evidence. But apparently and only apparently from the display monitor of the phone:-

(a) the doctor received these two messages on 7 March; and

(b) both messages came from the phone number 5319-0559 (which is the same number written on the above Hand note) where:-

Message One

“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 atleast 200k in my account then i will tell u what time nd where i can meet u up”

Message Two

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

(vi) 2140038858 is the number of the defendant’s personal bank account into which the doctor has deposited $230,000 two months ago;

(vii) both the defendant’s immigration movement record and personal bank account (bankers’ affirmations) exhibited to court state his full name, Ali Muhammad Kamran. The defendant is a foreigner (not Chinese) which I can see for myself in court;

73.  Apart from the above, some more extraneous facts are found from the testimony of the nurse.

THE NURSE

74.  The nurse gave evidence in front of me.  In a word, she was unassailable.  She has no vested interest in this case.  Her account of the events on that day (Charge 5 day: 6 March 2017) is perfectly clear and reasonable.  She has no hesitation in answering any Lawyer’s questions.  She was speaking in an unequivocal voice and in firm tune.  I have no difficulty in accepting that she was telling the exact truth in court.

75.  From the testimony of the nurse, I find in fact that she has been working for the doctor for many years.  Usually, the doctor would have 15 to 20 patients a day where 3 or 4 of them would be foreigners.  On the charge day, an existing patient, a foreigner with a long name which starts with letters “Ali” came to the TST clinic.  Ali was the last patient on that day.  Ali waited in the reception area for some time but later went inside the consultation room to see the doctor.  After a while, Ali came back out and asked her for a piece of paper and a pen.  She gave an A4 size paper and a pen to Ali.  Ali wrote something onto the paper which words she could not see.  After Ali finished writing and when she was about to receive the paper from Ali, the doctor suddenly came out from the consultation room and took the paper from Ali’s hand.  Ali left and she did not see the paper again.  She knew that the doctor went to the police later.

76.  I have said, the defendant is in fact a foreigner.  He also has a rather long name, obviously longer than an average Chinese person.  His name starts with “Ali”, and he did visit the doctor on the very same day.  The inference is this.  The “Ali” who the nurse referred to in her evidence was in fact the defendant. It could not be anyone else.

77.  So, where is the hand note now, which the nurse truthfully said the doctor had taken from the hands of Ali (the defendant)?  If the hand note was not exhibit P9 which the doctor gave the police in the investigation, what could it be?  I cannot think of other possibility in the circumstances of the case. P9 hand note existed just too closed in time and place to match with the testimony of the nurse and that of the doctor.  I refute any suggestion that the doctor destroyed the original note and made up this P9 hand note to frame up the defendant in the meantime.  I am sure that it was the defendant who wrote this P9 hand note, which was taken by the doctor in front of the nurse.  The defendant wrote on it “previous document” to refer to the fake certificate which they both knew what it was.

78.  The meaning of the words on this hand note is clear and it supports what the doctor said in court ie the doctor, having been given an empty USB last time, rejected outright the defendant’s demand which necessitated the defendant to write that he would come the next day with the copy certificate to press further.  The defendant meant every word he had written on the hand note.

79.  I therefore accept the doctor’s testimony as true and accurate that:-

(i) the defendant entered the consultation room and asked the doctor for the remaining $670,000 ransom. The doctor refused saying that the sum was agreed at 330,000 last time and that he had paid already. The defendant did not leave immediately but went to write the hand note, leaving behind a telephone number on the hand note too. The defendant wrote to remind the doctor that he would come back the next day and would bring the previous document (meaning a copy of the false certificate which they both knew what it was);

(ii) the defendant was thus repeating verbally his unwarranted (though remaining, remaining from the previous 1 million dollars) demand of $670,000 on the doctor and threatened the doctor that he still retained a copy of the false certificate which retention the defendant knew has been troubling the doctor for more than a year. But this time, the doctor, having been given an empty USB 2 months ago, resisted and went to police.

80.  I do not believe in the defendant when he said he was there to visit TST clinic on 6 March 2017 simply wanting a treatment but because the doctor was busy so the doctor told him to come the other week.

81.  While disbelieving the defendant would not help the prosecution version, I accept the doctor ‘s testimony that the next day, the defendant did not come back.  Instead, the doctor received 2 text messages on his mobile phone.

82.  The messages were hearsay in nature, but the inference in all the circumstances of the case is that the 2 text messages in fact came from the number of telephone that the defendant has written on the hand note and thus further that it was the defendant who sent those 2 messages.  I ask who else could have sent them?  Among other things, Message 1 contained words like “1 million” and “recording” whereas Message 2 contained the defendant ‘s personal bank account number.  What are the odds of all these happening together?

83.  I am sure that it was the defendant who sent these 2 messages and that the defendant meant every word he texted in them.  He has gone further than $670,000 and reiterated the previous $1 million ransom saying that or else he would sell the recording to TVB news at the same price.  The defendant through the messages asked the doctor to deposit 200,000 immediately.  He foolishly used his own personal bank account again.  He stated the account number in the Message 2.

84.  I reject the defendant’s evidence that he did not refer to TVB and that he did not send these 2 messages.

85.  It has to be noted though that the defendant is not being charged of the unwarranted demand on 7 March, but on 6 March.

86.  Based on the fact finding in the above para 79, all the elements of charge 5 are proved (beyond all reason doubt) and I will convict the defendant as such.

DIRECTIONS

87.  I have all along borne in my mind:-

(a) all the evidence in the case including the testimony of the defendant, all Lawyer’s cross-examination and the answers thereto;

(b) all inconsistencies in the doctor’s testimony, both individually and collectively;

(c) all submissions including those of the defence; and

(d) the 2 limbs of Barrada directions because the defendant has a clear record.

IDENTIFICATION AT THE DOCK

88.  At the beginning the trial, Lawyer indicated that he would object to prosecution attempt to invite the doctor to identify the defendant at the dock (in court).

89.  After hearing submission and considering the development of the case, I refused prosecution attempt/application.  I refused it because I think dock identification, though relevant, was not material.  It was already not material at that time because Lawyer admitted that the defendant (together with his 2 friends) was actually there inside the consultation room on the first material day (Charge 1 day) where the false certificate was issued.  Lawyer even admitted that the defendant was the existing patient of the doctor.  The doctor in the witness box has been referring to each of the 3 men in the consultation room by their very specific full names, one of which is the name of the defendant. If not the defendant, who else was the doctor referral to when he mentioned the name Ali Muhammad Kamran?  Obviously, prosecution could simply allow the doctor to keep referring the names of the 3 men in his testimony and everyone would know who the doctor was talking about.

VERDICT

90.  Of Charge 1, the defendant is acquitted;

Of Charge 2, the defendant is acquitted;

Of Charge 3, the defendant is convicted;

Of Charge 4, the defendant is convicted;

Of Charge 5, the defendant is convicted.

  

  

ANNEX

Video of the consultation room

Summary and Extract

(a)  Initially, the Accessory explained to the doctor how he was injured at work some time ago.  The Accessory later told the doctor that the hospital sick leave proof failed to cover the preceding 2 weeks and therefore the Accessory needed a fake sick leave certificate to cover the missing period.

(b)  The Mastermind interposed a few times to reiterate the need for the certificate to cover the missing period.

(c)  The doctor asked the Accessory if the Accessory was in Hong Kong during the missing period, which the Accessory answered he was.  The doctor agreed to issue the fake “back-dated” certificate, but under the letterhead of another clinic in Sham Shui Po District (SSP clinic).

(d)  The Mastermind shouted in English:-

“Doctor he will pay you money…... for the fake sick leave”

Counters 99-101

“Just paying money and get your sick leave and don’t tell anybody”

Counter 110

(e)  The Accessory shouted:-

“Just …… I know it’s illegal but ……”

Counter 135

(f)  The Accessory mentioned this practice being illegal 2 more times subsequently.

(g)  The doctor was telling the Accessory of the address of the SSP clinic and was teaching him how to take the MTR to get there, just in case anyone asks the Accessory in the future.

(h)  The Accessory said:-

“If listen yea if I need to go abroad and then I need more sick leave, you can also give me”

The doctor replied:-

“You have to tell me at first because if you are not Ah …… in Hong Kong on that day I cannot give you”; and

“The day that you come it must be, I mean the day that we start the sick leave you must be in Hong Kong”

Counters 176-186

(i)  Then there were mentions of $500 and $600.

(j)  The Mastermind then prompted the Accessory to talk about a friend and the Accessory immediately told the doctor that he had a friend sharing a similar situation needing back-dated sick leave certificate but had gone back to Pakistan for 2 months but that his friend could pay more money $1,000.

(k)  The doctor replied that his friend will have to attend SSP clinic to see him.

(l)  The Accessory proposed to reduce the price to $300 or $100.

(m)  The doctor replied that it was “Too little money hah”.

Counter 259

(n)  The price was resolved at $400 but the doctor said “Only for this time …… hah”

Counter 273

(o)  The Accessory was saying something else but the Mastermind tried to stop the Accessory from saying further by speaking Urdu to him which when translated into English is this:-

“Quiet, don’t talk like this.  Yours is recorded”

Counter 291

(p)  The doctor gave the Accessory his mobile phone number so that the Accessory could give it to his friends.

Counter 299

(q)  The fake backdated certificate was eventually issued and handed to the Accessory.  The first certificate contained a spelling mistake which certificate was subsequently replaced by a second corrected one.  The fact of replacement is not a significant matter in this case.  In any event, the two certificates were false because they recommended some days of sick leave when the doctor has not even seen the Accessory.

(r)  The doctor handed the fake certificate to the Accessory.

(s)  The Mastermind shouted that the sick leave certificate was fake again.  The Accessory said it too where the doctor asked him not to use this term.  The Mastermind said “Don’t use its matter, he can get caught”.  The Accessory apologized to the doctor.

Counters 332 to 338

(t)  MK Clinic filing and documentary system is fully computerized, where the doctor could not generate the back-dated certificate without compromising the system.  The doctor was an employed practitioner in this clinic.  The doctor was not the boss here.  However, SSP is doctor’s own clinic and the system there is manual, the doctor could easily generate any wrong-dated certificate on any of the SSP clinic letterheads.