HKSAR v. GHALIB AWAIS

DCCC 397/2019

[2020] HKDC 836

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 397 OF 2019

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Reasons for Verdict

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1.  This is case of alleged triad members, members of the “Sun Yee On”, extorting money from a bar in Lan Kwai Fong, Central. This case involves two defendants who are alleged to have conspired with a wanted man, “Tai Lung”, to blackmail the owners of this bar with menace; they had to pay a protection fee. It is implied that if they did not pay, then unfortunate incidents may occur affecting their business and premises. This is the usual tactics of triad thugs collecting fees from businesses put under pressure.

2.  The 1st defendant pleaded guilty to the charge and admits he did conspire with Tai Lung to blackmail the owners of this bar. 

3.  The 2nd defendant has pleaded not guilty to the charge.  He essentially admits all the facts and does not dispute there was a conspiracy to blackmail the owners, but he was not part of it nor had any knowledge of it.  His presence at the bar when the 1st defendant went to collect the protection fee was admitted but he was merely present and not part of the conspiracy.

4.  The essence of a conspiracy is an agreement to commit a criminal offence and the prosecution must prove beyond reasonable doubt that each defendant agreed to join the conspiracy intending to commit the criminal offence which is the object of the conspiracy and have the requisite mens rea to that effect.

5.  This conspiracy occurred between 29 December 2018 and 22 January 2019.  The prosecution presents no evidence that implicates the 2nd defendant was involved before 22 January.  After his arrest, his mobile phone was examined and if there had been a connection or prior communications between the 2nd defendant and other conspirators, this would have been good evidence.  I can assume there was no connection found.  The only evidence is his physical presence on 22 January and the fact he was handed the protection fee which he put in his pocket.

6.  The evidence in this case was essentially all agreed.  There was a report to the police by owners of the bar and undercover police officers were deployed to communicate with the blackmailers and pretend to be staff dealing with this demand for money.  PW1 was a woman police officer who dealt with Tai Lung and then the 1st defendant on the phone.  She pretended to be a member of staff who communicated between the blackmailers and her boss. 

7.  The evidence is that there was communication between her and Tai Lung which concluded with an agreement to pay $6,000 a month to be protected by the Sun Yee On.  She tried to lure Tai Lung to the bar to meet and collect the fee so that the police could arrest him at the end of the transaction.  He avoided a face-to-face meeting and told her that a South Asian brother or brothers would communicate with her and collect money from her.  That is when she received a call from “Ah Wai” to arrange a meet.  The 1st defendant is Ah Wai.

8.  After several aborted attempts to get him or someone to come to the bar to collect the protection fee, eventually the 1st defendant arrived on 22 January 2019.  He came with the 2nd defendant. PW1 and another undercover officer was waiting in the bar when the 1st defendant called and said he was outside.  She opened the door to him, he walked in and then both of them turned to beckon the 2nd defendant inside.  He was originally standing some distance away from the door as if he was not going to enter the premises.  He followed PW1 and the 1st defendant inside the bar after being invited.  He sat on a stool at a table whilst the 1st defendant and PW1 were at the main bar at least 6 feet away from him. 

9.  There is clearly conversation between the 1st defendant and PW1 before she counts and hands over $6,000 to him.  She gives him an envelope and the money is placed in the envelope.  They are still talking when he puts his arm out and hands the envelope to the 2nd defendant.  He does not get up but takes the envelope and places it in his inside jacket pocket. Then the operation turned overt and other police officers entered the bar to arrest both defendants.

10.  There is CCTV footage from several cameras showing the entire course of events from the defendants approaching the outside of the bar to them both entering the bar.  It is clear in the CCTV footage that he was not following the 1st defendant inside the bar initially and but for the invite from both PW1 and the 1st defendant, he would have stayed outside.  The conversations and transactions between the 1st defendant and PW1 is captured as is the moment when the 1st defendant hands the 2nd defendant the envelope of money.  The CCTV footage from Exhibit P17 showing all different camera angles was viewed in open court.

11.  PW1’s evidence is that the 1st defendant did come in first.  They spoke, but she critically cannot recall the content of their conversation before the 1st defendant turned to beckon the 2nd defendant to come in as well.  He had not moved from his spot a few steps above the entrance.  Her evidence is that he did come in after she beckoned him in as well.  He sat apart from her and the 1st defendant. He did not utter one word throughout the whole transaction before his arrest.

12.  The 2nd defendant elected to give evidence and explained how he knew the 1st defendant from primary school and on the material day had met him at a videogame centre by accident.  They then decided to have lunch together.  He was working nights, so was free during the day.  The 1st defendant invited him to Lan Kwai Fong after lunch for drinks and to smoke a shisha pipe.  He agreed to go as he did not have to be at work until 6 pm. They took an MTR from Kwun Tong to Central and walked up to the bar area.

13.  The 1st defendant stopped outside a bar and told him to wait for him.  He also asked the 1st defendant if he should wait outside or words to that effect - this is in his video-recorded interview.  He confirmed that the female opened the bar door and the 1st defendant went in. Not long after that, the female told him to come inside as it was cold outside and both the 1st defendant and the female beckoned him in with a hand gesture. He says there was conversation between the 1st defendant and PW1 at the entrance, as can be seen in the CCTV footage, before they both beckoned the 2nd defendant in. 

14.  The 2nd defendant said he did not why they were in the bar and his Cantonese was not fluent enough to understand their whole conversation, nor was he paying attention.  He thought it was a personal matter relating to the 1st defendant.  He only entered because he was invited by both PW1 and the 1st defendant.

15.  I note that he did, after his arrest and under caution, deny the charge, deny all knowledge of any conspiracy or blackmail, but explained how and why he was there.  He also explained he was not fluent in Cantonese but did hear some discussion about monthly payments.  He agrees he did take the envelope from the 1st defendant’s hand when the 1st defendant said at the same time, in Urdu, “Take this and I’ll get it from you later”.  He thought nothing of it and put it in his jacket pocket.  PW1 did not hear any Urdu, but, as demonstrated by the 2nd defendant in his oral evidence, it was a very short sentence.

16.  In short, his evidence is that he had no idea the envelope contained the proceeds of a conspiracy to blackmail.  He was merely present at the scene without any knowledge of the conspiracy, nor was he part of the blackmail or the conspiracy.  He was not knowingly dealing with or carrying the proceeds of the blackmail.

17.  I have heard submissions from Mr Kelly and agree that there is not sufficient evidence to link the 2nd defendant to the conspiracy averred against him.  The CCTV footage and the oral evidence shows that he at first did not intend to go into the bar, and when he did, he sat to one side without any participation.  He did not join in the conversation. There is no evidence to prove he could even understand what was said in its entirety.

18.  The actual act of the 1st defendant being handed some money, who in turn passes it to the 2nd defendant, does not prove he must have known a crime was committed.  The only suspicious act was to put the envelope in his pocket when handed it by the 1st defendant.  However, it is not enough without more to incriminate him.

19.  The evidence does appear to show he is no more than merely present.  Even though I find that his mere presence clearly places him under some suspicion, suspicion is not enough when the prosecution must prove the commission of this offence beyond reasonable doubt.  If he was merely present, it is no criminal offence to stand by and be a mere passive spectator of a crime.  Non-interference to prevent a crime is not in itself a crime.

20.  As I have said, I find that his mere presence clearly places him under suspicion but it does not prove he is a party to a conspiracy to blackmail the owners of Bar X.  The prosecution are unable to prove beyond reasonable doubt that the 2nd defendant agreed to join this conspiracy, intended to commit the criminal offence of blackmail and had the requisite mens rea to that effect.

21.  Accordingly, he is acquitted of this charge.