HKSAR v. CHU KWOK MING AND OTHERS

HCMA 781/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 781 OF 2010

(ON APPEAL FROM KCCC 403 OF 2010)

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BETWEEN

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J U D G M E N T

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1.  All four Appellants were convicted after trial of an offence of “Claiming to be a member of a triad society”, contrary to section 20(2) of the Societies Ordinance, Cap. 151, and each was sentenced to 6 months’ imprisonment. All four Appellants appeal against their convictions and the 1^st and 3^rd Appellants also appeal against their sentences.

PROSECUTION CASE

2.  The prosecution evidence mainly comes from the evidence of PW1, an undercover police officer.  PW1 was involved in an undercover operation to infiltrate certain groups, and after each encounter he would write in an occurrence book kept in a safe house.  For the purposes of this appeal, I will only give a brief account of the evidence as a more lengthy account can be seen from the learned Magistrate’s statement of findings.

3.  According to PW1 he had met the 1^st Appellant on the 26 October 2008 in the Flying Elephant Bar.  PW1 was in the bar with the 1^st Defendant (D1) and when the 1^st Appellant (D2) arrived, he called the 1^st Defendant “Dai Lo” (elder brother).  The 1^st Defendant then said to PW1 in the presence of the 2^nd Defendant that the 2^nd Defendant and others followed him in Shing Wo.  The 2^nd Defendant went on to say that there was a “settlement talk” which had involved fighting.  Someone from the other group had lifted a chair, and it was “Dai Lo” who kicked the person away.  The 2^nd Defendant went on to say, “Having been in Shing Wo for such a long time, he is the Dai Lo who I respect most.”

4.  PW1 said that Ah Fei (D2) had arrived with another man called “Ah Kui”.  On 23 September 2009, PW1 identified the 2^nd Defendant as being Ah Fei in an identification parade.  PW1 had described Ah Fei as being six feet tall and stocky.  PW1 agreed he had mentioned the 2^nd Defendant as being “fat” in his occurrence book entry and also had described the 2^nd Defendant as being “sturdy”.

5.  In the case of the 3^rd Defendant (the 2^nd Appellant), PW1 said on 24 July 2009, he was in the 80s Style Lounge with the 1^st Defendant who introduced the 3^rd Defendant to him as “Siu Lung Gor”.  At that time the 1^st Defendant said he was envious of the 3^rd Defendant as the 3^rd Defendant had his own bar and boxing centre, and a lot of girls liked him.  The 3^rd Defendant replied that he had obtained these after hard work.  When he was a junior, he worked in the “action team in Lo Sun” and he had to “collect weapons”.  Those who had followed him had already been promoted to senior positions and were “Dai Los” themselves.

6.  On 21 August 2009, PW1 said he was working in the 80s Style Lounge together with the 4^th Defendant (the 3^rd Appellant) and they had previously talked of illegal soccer betting.  On that day the 4^th Defendant pressed PW1 to open an illegal soccer betting account, and PW1 had asked if there would be any problems.  The 4^th Defendant said:

“What the fuck are you fearing? Everybody here places bets through me. As colleagues working in the 80s Style Lounge, you are in Lo Sun. You did not and do not need to be fucking afraid.”

7.  On 7 August 2009, whilst PW1 was in the 80s Style Lounge with the 1^st Defendant, the 1^st Defendant introduced PW1 to Tommy who was the 5^th Defendant (the 4^th Appellant) at the trial.  The 1^st Defendant said in front of the 5^th Defendant that he had just been released from prison:

“when we were juniors in Shing Wo, we followed Tak Gor; and until now we are still good brothers …”

The 5^th Defendant said:

“At that time, after being recruited by our Ah Tiu, though I have been transferred to Lo Sun and I have to abscond because of a case without saying anything, he gave me a sum of money for me to go away. So, I do not need to say. We have that fraternity between us.”

8.  The prosecution also called as its witness a triad expert, PW2, who said that the Shing Wo referred to is an abbreviation of the Wo Shing Wo triad society, which is an active triad society in Hong Kong, and similarly Lo Sun is an abbreviation of the Sun Yee On, another active triad society, and “Dai Lo” is a triad member responsible for giving protection to his subordinates.  When one refers to following a person, it means to pay loyalty to that person as a member of the triad society.  “Settlement talk” would be a negotiation within a society or between such societies.  The reference to an action group is a group responsible for fighting and carrying out operations such as sabotaging other establishments; and the expression “we’re all fellow Lo Sun” means they are members of the Sun Yee On triad society.

9.  The prosecution also produced the occurrence book which had been used by counsel to cross-examine PW1.  Also not in dispute was the fact that PW1, during the occasions mentioned above, had drunk alcohol, although PW1 had given evidence that he was not drunk on any of those occasions. 

THE DEFENCE CASE

10.  The 2^nd Defendant who is the 1^st Appellant is a man of clear record.  He gave evidence that he is an air-conditioning technician and had known the 1^st Defendant since childhood.  He denied ever having joined the Wo Shing Wo triad society. 

11.  The 2^nd Defendant agreed he was present in the Flying Elephant Bar on the evening of 26 October 2008.  He had a joint birthday celebration with his friend who is called Ah Fei.  The 2^nd Defendant agreed that he was introduced to PW1 by the 1^st Defendant.  The 2^nd Defendant said there was Ah Fei present and also a man called Ah Kui.  PW1, when he made his identification of the 2^nd Defendant 11 months later, had failed to identify this man called Ah Kui.  

12.  The 5^th Defendant (the 4^th Appellant) also elected to give evidence.  He said that he had been present in the VIP room on 7 August 2009 and did meet the 1^st Defendant.  He had arrived at about 2:45 am and been introduced to the 3^rd Defendant and also PW1 as Tommy.  The 1^st Defendant said he was a friend since childhood and the 1^st Defendant told PW1 that he, the 5^th Defendant, had done something wrong with guns and knives.  PW1 said, “That is marvelous.”  The 5^th Defendant said he retorted with the words: “If it’s so marvelous, why am I employed to sell vegetables?”  He said a lot of drink was taken and there was an exchange of telephone numbers.  PW1 left first and he was very drunk.  There was no conversation about triad membership. 

13.  The 5^th Defendant also said he met with PW1 on 24 August 2009, and that PW1 was trying to set him up by saying that he wanted to go to rob and asked the 5^th Defendant if he knew of a way to obtain weapons.  The 5^th Defendant told him he did not.

14.  It was the case of all the defendants that they had not uttered the words alleged by PW1, and that PW1 had taken a lot of alcohol during the time when he alleged the words were said and cannot be relied upon to be accurate or reliable.  Furthermore, it is the defence case also for all the defendants that the words which each of them had uttered did not imply a current membership of the triad society. 

MAGISTRATE’S FINDINGS

15.  The learned Magistrate, having considered the submissions made on behalf of each defendant and the evidence of all the witnesses, came to the conclusion that PW1 was a credible and reliable witness.  He also found that the discrepancies in his description of the 1^st Appellant as being “stocky” or “sturdy” or “fat” were of a trivial nature and did not affect PW1’s credibility or reliability.  He also found that the mistake made by PW1 in the occurrence book, where he had put down a wrong character for “watch” and made a mistake when he put down the Roman figures for the times, were not of such a material nature as to affect PW1’s credibility or reliability.

16.  The learned Magistrate, having further considered the evidence of the defence witnesses, came to the conclusion that they were not worthy of belief, and at the end of the day, convicted all the appellants of the charges.

APPEAL AGAINST CONVICTION

The 1^st Appellant

17.  Mr Chan on behalf of the 1^st Appellant submitted that the learned Magistrate had erred, in ruling that the identification of the 1^st Appellant by PW1 was proved beyond reasonable doubt, since the learned Magistrate had confused the evidence on the material discrepancies of the 1^st Appellant’s physical characteristics and failed to address properly the weakness in the evidence over identification, thereby rendering the conviction of the 2^nd charge unsafe and unsatisfactory. 

18.  Mr Chan basically complains that PW1 had described the 1^st Appellant as being “quite stocky”, then admitted that in his occurrence book he described the 1^st Appellant as being “fat”.  When asked in re-examination, PW1 said he meant that the 1^st Appellant was “sturdy”.  Mr Chan pointed out that the learned Magistrate had wrongly recorded in his statement of findings that PW1 had said in the occurrence book that the 1^st Appellant was “stocky” and gave evidence that he was “fat”.  Mr Chan argued that the learned Magistrate was factually incorrect, and this therefore renders the learned Magistrate’s findings against the 1^st Appellant, taken together with his having failed to properly warn himself on the identification evidence, renders the conviction of the 1^st Appellant unsafe and unsatisfactory.

19.  I do not find that the descriptions used by PW1 to describe the physical appearance of the 1^st Appellant to be of so material as to render the learned Magistrate’s findings unsafe.  As the learned Magistrate said, PW1 was describing a “large man”. 

20.  It is also clear from a reading of the learned Magistrate’s statement of findings that the learned Magistrate was well aware of the Turnbull directions and had decided that this was not an identification made under difficult circumstances or a fleeting glimpse, but one of recognition.  The evidence disclosed that PW1 had spent several hours with the 1^st Appellant after they had been introduced and had therefore plenty of opportunity to get himself familiar with the facial features and characteristics of the 1^st Appellant. 

21.  As for the fact that PW1 was drinking alcohol that evening which may have affected his recollection of the events and his identification of the 1^st Appellant, the learned Magistrate was well aware of the defence case, and as Ms Lau had pointed out at page 103 of the Appeal Bundle, the learned Magistrate had correctly identified the issues raised by the defence including that of PW1’s drinking that night.  The learned Magistrate clearly had it in mind when he considered the reliability of PW1’s evidence.  I therefore cannot see that there can be any complaint of the learned Magistrate ignoring this issue. 

22.  The learned Magistrate was also well aware of the fact that PW1 had failed to pick out Ah Kui at the identification parade, but at the end of the day he decided that all these did not detract from the accuracy of the identification PW1 made of the 1^st Appellant.

23.  Mr Chan further complained that the learned Magistrate had erred in ruling that this was a case of recognition and had also failed to give himself a proper and adequate direction on recognition according to the Turnbull guidelines, thus rendering his identification evidence unsafe and unsatisfactory.

24.  Upon reading the learned Magistrate’s statement of findings, it is clear that the learned Magistrate, though he found PW1 to be reliable and credible witness, did ask himself as far as the 2^nd accused was concerned, whether PW1 could have been mistaken in his recognition of him (the 1^st Appellant).  

25.  I agree with the submission of Ms Lau that it is not necessary for a professional magistrate or judge to expressly remind himself and enunciate the law if from a reading of his statement of findings, it is clear that the learned Magistrate had the law in mind.  In this case it was clear that the learned Magistrate did have the Turnbull guidelines in his mind on each occasion when he was analysing the evidence of PW1 as to his identification of each appellant and also considered the possibility of a truthful witness being mistaken.  I therefore do not find any merit in ground 2.

26.  It is submitted by Mr Chan that the learned Magistrate erred in ruling that the words of the 1^st Appellant is referring to a continuing membership.  The learned Magistrate, after having considered the evidence of PW1 as to what the 1^st Appellant had said, said this:

“… Although there’s a reference to something that happened in the past, the claim itself is referring to a continuing membership, a continuing respect – for his big brother; and the words are illustrative of an actual, continuous membership.” (Appeal Bundle page 113, paragraph 2.)

27.  It is clear that the learned Magistrate, after considering the submission of the defence that if the 1^st Appellant was merely referring to a historical association, found that the words uttered by the 1^st Appellant, though it referred to an event in the past where the 1^st Defendant had helped him during a fight to avoid physical injuries, nevertheless they were words which supported the fact that the 1^st Appellant was still in a continuing membership of the triad society and had a continuing respect for the 1^st Defendant.

28.  As Ms Lau pointed out in the case of AG v Chik Wai-lun [1987] HKLR 41 at page 45, sub- paragraph 14:

“14. With respect we do not think this proposition to be sound. We indicated earlier our agreement with O’Connor J. that the doctrine ‘once a triad member, always a triad member’, cannot hold good as a matter of law. We note also that it may no longer hold good as a matter of practice: Triad Societies of Hong Kong 1974 paragraphs 88/89. Nevertheless we take the view that where a person, even a young boy, has genuinely joined a triad society he may reasonably be presumed to have remained a member unless it appears that he has, as O’Connor J. put it, ‘ceased to adhere’ to it. In deciding that question a Magistrate may well have regard to evidence of lack of association or triad related activity over a lengthy period of time as showing that in fact his membership has so ceased. There was however no such evidence in the present case. The most that the Defendant’s statement could indicate was that he had not seen his big brother for a long time. …”

29.  As Ms Lau submitted there is no evidence in the present case indicating that the 1^st Appellant had ceased to belong to the triad society, and the evidence shows that the 1^st  Appellant, on that evening, had attended the gathering consisting of the the 1^st Defendant, whom he addressed as “Dai Lo” which was, as the triad expert said, a triad member responsible for giving protection to the subordinates. 

30.  Hence I do not find any grounds to interfere with the conviction of the 1^st Appellant.  The appeal against conviction is dismissed.

The 2^nd Appellant

31.  As for the 2^nd Appellant’s appeal which has been mistakenly referred to by Mr Cheng as “the 3^rd” Applicant, Mr Cheng has complained first of all that the learned Magistrate was wrong to conclude that the words spoken by the 2^nd Appellant: “implies a continuing involvement with the triad society” and that those words were capable of more than one interpretation. 

32.  Upon a reading of the words attributed to the 2^nd Appellant, it was clear that he was relating to PW1 that his success was due to his hard work when he was a junior in the action team in Lo Sun.  He has now become a senior person as he has had many followers and some of those had been promoted to senior positions in the organisation “being Dai Los”. 

33.  I totally agree with the learned Magistrate that the words were spoken by the 2^nd Appellant, and the only reasonable inference was that the words implied a continuing involvement.  As the learned Magistrate had noted, there is no evidence of a renunciation of such triad membership, and the words do indicate a continuing involvement.

34.  Mr Cheng’s second complaint is similar to his first which I have already dealt with.  I therefore find that there are no grounds in the case of the 2^nd Appellant to disturb the findings of the learned Magistrate.  So the appeal of the 2^nd Appellant against conviction is dismissed.

The 3^rd Appellant (D4 in the case)

35.  The 3^rd Appellant was unrepresented in the appeal, and he submitted that PW1’s credibility was not to be relied upon because if he was speaking the truth, why had PW1 not charged him for illegal betting. 

36.  There is in fact a simple answer to that because the operation in which PW1 was involved in was to uncover triad activity, and its aim was not to charge the 3^rd Appellant with illegal betting.  As the 3^rd Appellant was unrepresented I did consider the evidence of PW1 against him as to the words he said.  It is clear from the 3^rd Appellant’s words that he was a continuing member of Lo Sun, as he said very clearly to PW1 “as colleagues working in the 80s Style Lounge, you are in Lo Sun” and he told PW1 not to be afraid.  I therefore find that there is no merit whatsoever in the appeal against conviction.  The appeal is dismissed.

The 4^th Appellant

37.  Miss So, on behalf of the 4^th Appellant, first complained that the learned Magistrate had failed to sufficiently consider:

(a) the mistake made in the occurrence book by PW1; and

(b) the question of whether PW1 had asked the 4^th Appellant for his mobile telephone number and made a record of such in the occurrence book.

38.  Miss So pointed out that PW1 had admitted that he had wrongly written the character for money (錢) instead of “watch” (錶), and he had written “0200” hours instead of “0250” hours and “0058” hours instead of “0258” hours. Miss So contended that these mistakes were made because PW1 was affected by alcohol at the time, and therefore his recollection of the events concerning the 4^th Appellant cannot be relied upon.  

39.  As Ms Lau pointed out, a look at the full context of the entry in which the three mistakes had been made would make it clear that these were writing mistakes and the reader would not have been misled by such mistakes.  The learned Magistrate also considered these mistakes and found that these were of such a trivial nature that it did not affect PW1’s credibility and reliability. 

40.  The defence also alleged that in the same occurrence book entry there was a mistake made by PW1 for the time “0235” hours.  In effect, PW1 said it was not a mistake but that the way he had written the strokes, one could be mistaken that it was “0255” and not “0235” hours. 

41.  Again I do not find that these mistakes are of such materiality that it would affect the credibility of PW1, nor would it indicate that PW1 was under the influence of alcohol.  As I have pointed out to Miss So, these are mistakes which can occur in any situation when a person is making a long record of what had happened on that evening.

42.  Miss So also complained that PW1 was not clear about whether he had asked the 4^th Appellant for his telephone number and whether he had written the same in the occurrence book.   

43.  As Ms Lau had very clearly pointed out in the transcript, PW1 was not unsure at all.  He said that he did not ask the 4^th Appellant for his telephone number.  In fact the 4^th Appellant’s telephone number was supplied to him by the 1^st Defendant.  Having read the questions and answers made by PW1, I have to agree with Ms Lau that PW1 was not inconsistent on the subject.

44.  Tied to the 1^st ground it is submitted by Miss So that the learned Magistrate had failed to evaluate the inherent improbabilities of the evidence of PW1 and wrongly ruled that he is an accurate and reliable witness.

45.  Again Miss So complained that as a result of the mistakes which were made in the occurrence book which she had already pointed out, and the fact that PW1 had agreed that he had been drinking, the learned Magistrate should have properly considered the fact that PW1 was under the influence of alcohol and therefore would have been unable to have a clear and reliable recollection of earlier events when he wrote in his occurrence book. 

46.  As the learned Magistrate had pointed out when considering the submission by defence counsel, the learned Magistrate was aware that because it was a social occasion PW1 had to drink alcohol with the others in order not to blow his cover.  Having assessed the evidence of PW1, he found PW1’s evidence to be truthful, reliable and credible, and that he was not the worse for wear as alleged by the defence.  PW1 himself pointed out, his usual practice during that period was to avoid drinking too much.  There is no evidence to show that PW1 was drunk or so affected by alcohol that he was unable to have a clear recollection of the event.  The learned Magistrate had made a thorough assessment of all the evidence, and I therefore find no merit in this ground of appeal.

47.  Miss So complained that the learned Magistrate had failed to consider that PW1 was biased against the 4^th Appellant because he had been told that the 4^th Appellant had been in prison for 5 to 6 years.  As Ms Lau pointed out there is no evidence to show if at all PW1 was indeed biased against the 4^th Appellant nor could Miss So point out any evidence that would support her contention. This ground of appeal also fails.

48.  Finally, Miss So submitted that the learned Magistrate had erred in finding that the words uttered by the 4^th Appellant clearly illustrated his continuing membership of a triad society. 

49.  Again upon reading the words said by PW1 that the 4^th Appellant uttered and what was said by the 1^st Defendant in the presence of the 4^th Appellant which is not denied by the 4^th Appellant, it is clear that the 4^th Appellant was a continuing member of the triad society, and there was no evidence to show that the 4^th Appellant had ceased to adhere to the triad society. 

50.  Miss So also submitted that the learned Magistrate had failed to consider the evidence of PW1 against the 4^th Appellant independently and sufficiently. 

51.  All I need to say on this point is to refer to page 110 of the Appeal Bundle in his Statement of Findings at paragraph 2:

“ The evidence of PW1 has to be considered and applied to the individual cases against each defendant.”

52.  I therefore find no merit whatsoever in this appeal and so the appeal against conviction of the 4^th Appellant is dismissed.

APPEAL AGAINST SENTENCE

The 1^st Appellant

53.  The 1^st Appellant was sentenced to 6 months’ imprisonment after the conviction. Mr Chan complained that the learned Magistrate was wrong when he took into account that the 1^st Appellant had been a member of a triad society for a long period and was involved in violent conduct in the past.  Therefore, the learned Magistrate’s sentence of 6 months principle was manifestly excessive and wrong in principle.

54.  The learned Magistrate in considering sentence had taken into account that the words said by each appellant was said on a social occasion, and there was no evidence of any current unlawful activity. However, the learned Magistrate was entirely correct in saying that the suppression of unlawful societies is a serious matter in Hong Kong, and it has been a long-term problem.  And that the court recognising this have always said that even for persons of clear record, if they are convicted of the present offence, terms of immediate imprisonment are normally given.

55.  In the case of the 1^st Appellant the learned Magistrate properly considered that on the evidence the 1^st Appellant himself said he had been in Shing Wo “for such a long time”.  He had himself disclosed that in the past there was violent conduct, and the 1^st Defendant had saved him from physical injuries.  The learned Magistrate did take into account the background of the 1^st Appellant, his stable job and the report of the probation officer before sentencing the 1^st Appellant to 6 months’ imprisonment.

56.  Taking into account the fact that the 1^st Appellant himself said he had been a member of the Wo Shing Wo for a long time, and despite his stable family and work opportunity, he was still a continuing member.  I do not consider that 6 months’ imprisonment is manifestly excessive.  It is a severe sentence but it does not achieve the standard of being manifestly excessive.  So the 1^st Appellant’s appeal against sentence is dismissed.

The 3^rd Appellant

57.  The 3^rd Appellant submitted that since the age of 18 to the present he had never committed any other criminal offences, and that he had to work to support his family.  His family consists of his two elder brothers and his parents, so the 3^rd Appellant submitted that the sentence of 6 months’ imprisonment was manifestly excessive.

58.  The learned Magistrate, prior to sentencing, had obtained a background report on the 3^rd Appellant.  The learned Magistrate considered the background of the 3^rd Appellant together with the fact that he had a clear record, together with the fact that the 3^rd Defendant had told PW1 not to be afraid because working in the 80s Style Lounge, they are members of Lo Sun, meaning that he was a continuing member of the Sun Yee On triad society.  As in the case of the 1^st Appellant, although the 6 months’ imprisonment is high, I do not consider it to be manifestly excessive.  So the appeal is dismissed.