R. v. WONG YUK WANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1047 of 1996

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J U D G M E N T

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1. The appellant was convicted on his own plea of the offence of attending a triad society. The admitted facts revealed that the appellant was a member of Sun Yee On and on 27 July 1994, he asked PW1 a police undercover agent to assemble other triad members to beat up the appellant's workmate. They arranged to meet at the Tung Fai Restaurant. PW1 arrived to find two Sun Yee On members were already there. The appellant later arrived with five other members of Sun Yee On. The appellant then told the members assembled there that he would have a settlement talk first and if he required any assistance, he would call PW1. The appellant then left the restaurant. Later, the appellant phoned PW1 informing him settlement had broken down. After that PW1 failed to establish contact with the appellant.

2. Prior to his present conviction, the appellant had been convicted on 6 March 1996 of a similar offence of attending a triad meeting and other offences for which he was sentenced to a total of 15 months imprisonment. The magistrate was aware of these previous convictions when he considered the appropriate sentence he would impose. He was informed that the similar offence in June 1996 was a meeting with triad members including the same undercover police agent PW1 in the present case. The magistrate in his reasons for sentence said :

"Attending a triad meeting is always a very serious offence. In the norm a 12 months prison sentence would be imposed on a plea of guilty. In this case consideration is given to the totality of the sentences and the sentence imposed was 9 months only (consecutive to all other sentences). ..."

3. Mr Wong for the appellant submitted that the magistrate had failed to indicate his starting point if the appellant had been convicted after a trial.

4. He relied on a passage inR. v. Lau Cheung Chan, CA 192/92 where the Court of Appeal stated :

"The trial judge did not see fit to indicate the starting point which he adopted when sentencing the three accused. This court has said, and we repeat, that a trial judge should give such an indication as it greatly assists the Court of Appeal when considering applications against sentence."

5. Mr Wong also complained that the magistrate had not given sufficient discount for the appellant's plea of guilty. He relied on a number of authorities.

6. R. v. Ng Ming Wah and others CA 193/95 - the Court of Appeal considered a discount should be given sufficient to reflect the defendant's plea of guilty and the defendant's acceptance of guilt throughout as well as any assistance the defendant had given to the police. However, the Court of Appeal also indicated that what discount the court gave was the court's discretion.

7. R. v. Lai Kwok Hung CA 691/93 - the Court of Appeal indicated that the court must recognise a defendant's early plea and pleas of guilty are to be encouraged. Mortimer JA said :

"If courts do not recognise that an early plea is a expression of remorse and if those who plead guilty and save time and expense to the public are not given full credit, there will be little benefit for an accused to plead guilty. For our part, we also recognise that a failure to give proper weight to a plea puts counsel in difficulty in the advice he is to give to those who may be inclined to be remorseful and accept their guilt."

8. R. v. Ho Chun Chau AR 17/84 - on an application for review by the Attorney General on sentences in the form of a fine and suspended sentence for convictions of being a member of a triad society, attending a triad meeting and managing a triad society, the Court of Appeal after considering the intention of the Legislature on penalties for offences of this kind, held that the sentences imposed by the magistrate were not manifestly inadequate.

9. R. v. Lee Chi Man [1980] HKLR 483 - the Court of Appeal allowed an appeal by the Attorney General by way of case stated and held that a fine of $2,000 for the offence of claiming to be a member of a triad society was manifestly inadequate. The appellant there claimed to be a member of the Sun Yee On and he had a number of followers and he would recruit member in his own name and he pleaded guilty to the offence of claiming to be a member of a triad society. The Court of Appeal held that the appropriate sentence would have been imprisonment for 12 months. The sentence of fine was varied to a sentence of 9 months imprisonment.

10. Mr Wong also complained that the magistrate should not have ordered the 9 months sentence to run consecutively to the other sentences the appellant was then serving. The total would be excessive. He also said if the two offences of attending a triad meeting were to go before the court at the same time, the sentences of the two meetings would have been concurrent.

11. From what the magistrate said as quoted above, the magistrate had adopted 12 months as the appropriate sentence after a plea of guilty and he further reduced that term to one of 9 months. Although it would be best if he mention the starting point after trial, nevertheless from what he had indicated, the starting point which he might have mentioned logically would be in any case higher than 12 months. In reducing the term to one of 9 months, the magistrate must have given a discount of more than 3 months for the plea and other mitigating factors. The adoption of 12 months as the norm for sentence after a plea was in line with Attorney General v. Lee Chi Man. The approach by the magistrate and the sentence of 9 months cannot be regarded as wrong in principle or manifestly excessive.

12. On the issue of totality, the conviction on 6 March 1996 and the conviction for the present offence were in respect of two different occasions when the appellant attended a triad meeting although the same undercover police officer was involved. These two occasions had a time gap of over two years between them and they could not be regarded as offences in the same group or a series of similar offences. Bearing in mind the appellant was convicted of other offences resulting in the 15 months imprisonment on 6 March 1996, the sentence of 9 months for the present offence being a separate and distinct offence, and further that triad offences are serious offences, the magistrate's order that the 9 months to run consecutively with his previous sentences was in no way wrong in principle. In the circumstances, the total of 24 months cannot be regarded as manifestly excessive.

13. The appeal against sentence is dismissed.