R. v. WONG YAT LIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 213 OF 1996

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J U D G M E N T

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1. The appellant was convicted on 12th December 1995 of being a member of a triad society and was sentenced to 9 months' imprisonment.

2. The evidence against the appellant arose solely from a police constable named Lo Chi Shing who for a period of time operated a covert operation in Tsim Sha Tsui pursuant to which he joined the Sun Yee On Triad Society, kept notes of the association he had with persons involved with that triad society and later gave evidence in a number of cases involving his activities and those with whom he associated.

3. In respect of this appellant, the evidence is very narrow in compass. It relates to the events of the night of 22nd April 1994. The evidence which involves the appellant is as follows.

4. Firstly, in respect of the appellant, the witness Lo said he knew his big brother.

"Answer : Also his big brother, I know him

Court : This is an assertion again.

Prosecutor : How knew D3 had a big brother?

Answer : The members of Sun Yee On told me.

Court : Hearsay. Must be ignored. Prosecutor should try not to lead it.

Answer : When Fei Chai Lin saw his big brother - he addressed him as such.

Court : Is that something else you were told?

Answer : Yes, but I saw some of it."

It is common ground that Fei Chai Lin refers to the appellant. The second piece of evidence relates to a meeting between PW1, Lo and the appellant outside a building. The witness, prior to the passage which relates to the appellant, had had a conversation with another defendant in the same trial. That conversation related to the reason why that defendant and the appellant were present at that place. The learned Magistrate, when he considered the evidence relating to the 1st defendant at that place, categorised it as hearsay evidence. He could have only done so if he were satisfied that the appellant was not present and party to the conversation between the witness and the 1st defendant. That being so, the evidence of that conversation must be inadmissible where its only use can be as to the truth of the matters contained in it. I am not satisfied that any argument has been raised to show that words used in that conversation have a use in this trial other than if the truth of those words is accepted.

5. The witness did have a conversation with the appellant at that place which goes as follows :

"D3 said 'Ricky, do you have anyone here, if yes please give me assistance.'

I am Ricky. He continued 'later at 8 go to Winton Restaurant to attend a negotiation talk.

If no agreement can be settled then a fight would commence.

'Hoi to'.

'Hoi to' is to have a fight."

Later evidence from a triad expert indicated that the words "Hoi to" meant to have a fight in triad parlance. That witness testified that such a term was almost always used by triad members but did concede that it was a term that could be used by youths in the street in areas such as Mongkok. The result of that evidence is that it was not only used by triad society members nor that it was always used by triad society members. The sum total of that evidence was that it was frequently used by them and sometimes used by others.

6. The third passage of evidence that could be said to involve the appellant is an answer given by the witness to the questions :

"Q. How did you know D3 was a member of Sun Yee On - only answer if you can from own knowledge?

A. Because often he and I always frequented Tung Fai Restaurant we were always with other members of Sun Yee On.

Q. What were the purposes of the gatherings with other members of Sun Yee On?

A. On one occasion D3's big brother had a negotiation talk with the others. He and I also, with some other Lan Chai's, helped him.

Q. Approximate time and date?

A. About June 94.

Court - Assertion that was D3's big brother - how know that?

Defendant - And June 94 - 3 months after the charge."

7. There was no further evidence concerning the events of June 94. The association with triad members whilst relevant to put the matters in context for the Magistrate did not assist him in finding that the appellant was a member and I cannot see that the Court's ruling that the meeting in June 1994 concerning the assertion that there was a big brother for the appellant, which remained unanswered, can have any probative value whatsoever.

8. At the end of the day, the learned Magistrate relied upon the assertion that the appellant had told PW1 that he had a big brother. That is all that he had addressed a person as his big brother. That is qualified by the Court's question as I have quoted above "Is that something else you were told", answer "Yes, but I saw some of it". The learned Magistrate in his findings on this matter said : "PW1 told me that D3 addressed his big brother as such". That would seem not to be strictly in accordance with the evidence.

9. The second matter is the conversation in the street concerning the meeting at Winton Restaurant, in respect of which meeting, the Magistrate conceded there was no evidence of the attendance by the appellant. The second matter that the Magistrate relied upon was the words "Hoi to" which the learned Magistrate said :

"In particular : 'Hoi to' is triad slang for fighting, normally only used by triads although others might hear the expression; ..."

10. The Magistrate ruled that "Hoi to", "big brother" and such phrases might individually be used by someone who is not a triad but here there was a collection of such phrases used by D3 which together with his involvement in activities like settlement talks on 22nd April and others in June left him in no doubt that he was a member of the triad society. With respect to the learned Magistrate, the use of the words "Hoi to" was by the evidence qualified. The use of the words "big brother" were not unequivocally attributed to the appellant. The only other word that could be attributed as a triad phrase was the word "negotiation" used by the appellant when he met Lo in the street. That word is open to many interpretations not involving triad affiliations. The activities, like settlement talks on 22nd April referred by the learned Magistrate, can only be placed in triad context if the inadmissible conversation between the witness and the 1st defendant in that trial is taken as truthful evidence. At the highest, that could be no more than hearsay evidence which shows the reaction of the appellant and cannot be considered as to its truth. The reference to the meeting in June was queried by the Magistrate and was never, on the evidence, sufficiently dealt with for the learned Magistrate to use it as a piece of evidence in respect of his findings.

11. At the end of day, I must have a doubt as to whether the evidence was sufficient to found the conviction and the appeal against conviction is allowed and the sentence is quashed.