HKSAR v. WONG SING CHI AND OTHERS

CACC245/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 245 OF 1999

(ON APPEAL FROM DCCC 1144, 1146 & 1147 OF 1998)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicants Wong Sing-chi (D1), Lam Chun-fai (D2), Lan Chung-wai (D4), Chan Yiu-man (D11), Chow Wai-keung (D12) and Yu Wan-cheong (D13) were convicted in the District Court by H. H. Judge Muttrie on 30th March 1999, inter alia, of various charges of acting as a member of a triad society. The respective charges each defendant was convicted of are as follows:

D1 was convicted of charge 2, 10, 11 and 12.

D2 was convicted of charge 2 and 12.

D4 was convicted of charge 2 and 3.

D11 was convicted of charge 10 and 11.

D12 was convicted of charge 10 and 11.

D13 was convicted of charge 11.

2. These charges all alleged that each of the defendants on the dates and places specified in the particulars of the charge acted as a member of a triad society, namely the Wo Shing Wo Triad Society. These defendants now seek leave to appeal against conviction.

3. D1 and D11 had also appealed against sentence, but they have now abandoned their appeal. Accordingly their applications for leave to appeal against sentence are dismissed.

4. D4 who was sentenced to 18 months imprisonment on charges 2 and 3 also applied for leave to appeal against sentence.

5. The applicant Ngai Tak-shing (D8) was convicted of the following charges:

Charge 6 inviting a person to become a member of a triad society, sentenced to 15 months imprisonment,

Charge 7 trafficking in a dangerous drug, sentenced to 6 months imprisonment,

Charge 8 possession of a dangerous drug, sentenced to 1 month imprisonment,

Charge 9 claiming to be a member of a triad society, sentenced to 9 months imprisonment.

6. The sentences on charges 7, 8 and 9 are concurrent with each other but consecutive to the sentence on charge 6 making a total of two years imprisonment. D8 now seeks leave to appeal against sentence only.

7. Dealing first with the applications for leave to appeal against conviction, the prosecution evidence was based on the evidence of an undercover police officer PW18 who had become the follower of Ah Chung. Ah Chung was a protector of the Wo Shing Wo Triad Society. PW18 had participated in the activities of the triad society. The prosecution evidence also included the evidence of a triad expert who gave expert evidence as to triad societies generally and how a person became a follower of a triad protector. According to him, PW18 had so become a follower of Ah Chung and a member of Wo Shing Wo which was a triad society. The expert also gave evidence on the significance of the phrase "Chui Kai" (blowing the whistle) meant that when a triad received this message, he would understand that he had to be there no matter what he was then doing and he was to do something, such as attend the settlement talk, flex muscle, fight or cause commotion in certain establishments or places. A member failing to comply with this requirement would be accused by brothers as disloyal or coward or in serious cases, would be punished.

8. The evidence of PW18 as to the events leading to the various charges against these defendants was as follows:

9. In relation to charge 2, PW18 on 25 February 1998 was called by a triad member to a restaurant at Woosung Street. There he met a group of people among whom were D1, D2, D3 and D4. D3 told him that the "whistle had been blown" which he understood to mean people had been summoned and something unusual was to happen. D1 then instructed the group that they were going to show off their power and directed them to go to the destination. They later assembled opposite to a Mahjong School in Wan Chai and there they waited until D1 received a telephone call which instructed them that there was "nothing for now" and they should return to Kowloon.

10. In relation to charge 3, on 1st April 1998, PW18 was called by D4 to the Luen Fat Restaurant. On arrival, he found D4 and D3 together with other members of the triad society and a group of 10 to 20 people outside the restaurant. D4 told him that the big brother had a quarrel with another group and the whistle was blown as usual. Later there was a talk between their leaders and the leader of another group that they should not fight among themselves. As a result they dispersed.

11. In relation to charge 10, on 9th April 1998 at about 7:00 p.m., PW18 went to meet D1 at the junction of Tam Ho Street and Saigon Street. On arrival, he found D1 with three other persons and they discussed about the settlement talk which would take place later that evening between D1 and one Sai Fei at the Tak Fat Restaurant. At around 10 p.m. they went there and found a group of 20 people outside the restaurant including D11 and D12 and other members known to PW18. Across the road, there was another group of 40-odd, two of whom PW18 recognised as followers of Sai Fei. There was a talk inside the restaurant after which D1 came out and told the group that it was fine and thanked them. PW18 understood to mean they were there to offer assistance if anything went wrong in the talk between the two groups.

12. In relation to charge 11, on 5th May 1998, PW18 was having a meal with D1, D11, D12 & D13 when D1 received a call after which, D1 said "blowing the whistle" and there was to be a settlement talk with a 14K group at Sun Kee next door and that they should go there to help. They went there and saw their big brother who told them to wait outside. They did as told and waited outside until a police party came to check their identities.

13. In relation to charge 12, on 7th May 1998, PW18 was at D1's home when D1 received a phone call. He told the others that the whistle had been blown because a member was having a quarrel with a No. 14 big brother. They then took a taxi to Nan Fung Centre. On the way they collected other members. When they arrived, the No. 14 group did not turn up and they left PW18 understood that to mean that they were there to assist if required.

14. On each of these occasions, PW18's big brother was there.

15. The defendants did not give evidence in defence.

16. There was no evidence from the defendants to contradict, rebut or explain the evidence of the prosecution witnesses. The District Judge accepted the evidence of PW18 and the evidence of the expert witness and relying on their evidence, he concluded that on these facts these defendants D1, D2, D4, D11, D12 and D13 all acted as members of the Wo Shing Wo Triad Society on the particular dates and places specified in the respective charges against them.

17. The Judge gave the following reasons for convicting the defendants on the evidence he accepted. He said on page 54 of the bundle in his reasons for verdict the following:

"I have no doubt that in each of the incidents which give rise to charges 2, 3, 10, 11, and 12, a triad summons rings out to call triads together to show strength for triad purposes. What those purposes were is irrelevant. The point is that the whistle was blown, strength or muscle had to be shown and the lads had to go. The remaining questions relate to the individual defendants. The primary question is in each case, was he there at all, or has PW18 made a mistake of identity?"

18. Later on the Judge said this:

"There is, of course, the secondary question: if he was there, why was he there? It is argued as always in this kind of case that mere presence is not enough to infer guilt. I think this can be disposed of quite simply. If a person sends out a triad summons for triads to come and show strength, then anyone who comes and joins the group which is there to show strength must be inferred, in the absence of any evidence to the contrary, to be there in answer to that summons and for that purpose. If there is evidence that that person is present for another purpose, the situation will obviously be different. But where there is no such evidence as to what the person is doing there, the inference that he is there acting as a member of a triad society is, in my view, the only inference which no reasonable man will fail to make. To infer otherwise would be to abandon that common sense and knowledge of life which juries are routinely directed to exercise."

19. This was a finding of fact by the Judge supported by evidence from which such inference may be drawn.

20. Earlier in his reasons for verdict at p.40 of the bundle, the Judge in dealing with what amounts to an offence of acting as a member of a triad society, said this:

"Mr. Paul Wu's argument is that while a person may be present at a meeting of triads, it does not necessarily mean, even if he is a triad himself, that he is acting as one. He must do some overt act as a triad. I agree. In order to act, one must do something. In order to act as a triad, one must do the kind of act that a triad does as a triad. Obviously, not everything that a triad does is done as a triad, but the act of joining a group, itself, is an overt act and so is the act of going somewhere or even being somewhere in order to confront others.

The position seems to me quite simple. To act as a member of a triad society, one must do something which a member of a triad society will commonly do as such member. If, on the expert evidence it is proved that a triad will commonly go out as a triad in answer to a summons from a triad, and band together with others in order to show strength in a confrontation, then anyone who is proved to have acted in this way must be taken to have acted as a member of triad society.

It matters not if he is himself a member any more than it matters whether or not a person who claims to be a member is actually a member. Though if he considers himself to be a member, he is more likely to act as a member than someone who is not a member. It matters not if the summons comes from a real triad or one who is himself merely acting as one, so long as it is the kind of summons a triad will commonly issue. It matters not whether the other side in the confrontation are themselves triads or not, or whether the subject matter of the confrontation is a triad matter. Triads commonly confront members of the public who are not triads over such matters as payment of protection money."

21. The grounds of appeal against conviction are the same in respect of all the defendants. They concentrate on the ground that the prosecution failed to prove the elements of the offence. Mr. Tong for all the applicants in the appeal against conviction submits firstly, that to amount to the offence of acting as a member of a triad society, it is necessary to prove that the defendants were members of the Wo Shing Wo Triad Society and did overt acts of a member of the Wo Shing Wo Triad Society and that they intended or knew these acts were so. Relying on R. v. Chan Ka-ngan MA 1740 of 1996, he submits that the Judge was wrong in law that membership of triad society was irrelevant.

22. Secondly, Mr. Tong says that the conclusions drawn by the Judge as stated above were wrong because there was no evidence that the defendants were members of Wo Shing Wo.

23. On the third ground, Mr. Tong says the activities the defendants engaged on the various occasions must be activities of the Wo Shing Wo Triad Society.

24. Mr. Saw, S.C. for the government submits that the grounds of appeal are misconceived. He submits that s.20(2) of the Societies Ordinance, Cap. 151 under which the defendants had been prosecuted for the offence of acting as a member of a triad society does not require proof of membership of a triad society. He also submits that the section provides for a number of offences, some require and some do not require proof of membership and the proposition by Mr. Tong on the requirement of membership had never been advanced or discussed in the Court of Appeal and there was no authority that there was such a requirement in this offence because the section is clear that such requirement is not part of the offence.

25. The charge of acting as a member of a triad society is under s.20(2) of the Societies Ordinance, Cap. 151. The relevant part of this section is as follows:

"20. Membership, etc.

(2) Any person who is or acts as a member of a triad society or professes or claims to be a member of a triad society or attends a meeting of a triad society or who pays money or gives any aid to or for the purposes of the triad society or is found in possession of or has the custody or control of any books, accounts, writing, lists of members, seals, banners or insignia of or relating to any triad society or to any branch of a triad society whether or not such society or branch is established in Hong Kong, shall be guilty of an offence and shall be liable on conviction on indictment -

(a) in the case of a first conviction for that offence to a fine of $100,000 and to imprisonment for 3 years; and

(b) in the case of a second or subsequent conviction for that offence to a fine of $250,000 and to imprisonment for 7 years."

26. The defendants were not charged with being a member of a triad society which is a separate offence under the same section and which requires proof of membership. It is plain from the section that an offence of acting as a member of a triad society does not require proof of membership of that society. It would be sufficient if there is proof that the defendants participated in activities of a triad society which a member of a triad society is required to participate. In R. v. Chan Ka-ngan, the defendant attended a meeting as a member of the Sun Yee On Triad Society with other members of that society and discussed whether a fellow-member should be punished for infringement of the rules of the society. Gall, J. held that although triad business was discussed at the meeting, it was not a triad meeting. It did not amount to the offence of attending a triad meeting but it amounted to the defendant acting as a member of a triad society. The case may have established that where there was a meeting of triad members where triad businesses were discussed, such attendance by a member would amount to acting as a member of a triad society. But the case does not establish that membership of the triad society is a necessary element of the offence of acting as a member of a triad society. This case does not support the applicant's case.

27. In our view, the Judge was quite correct in concluding that it was irrelevant whether the defendant is actually a member. The Judge was also correct in holding that mere presence in the group was insufficient and there must be some overt act done by the defendant which a triad does as a triad.

28. There was ample evidence for the Judge to conclude as stated above that a triad would normally go out as a triad in answer to a summons from a triad, and band together with others in order to show strength in a confrontation and any one acting in this way was acting as a member of triad society.

29. On ground three, while there was ample evidence to establish that these defendants were members of the Wo Shing Wo Triad Society, Mr. Saw, on behalf of the respondent submitted that there was no requirement for the prosecution to establish the name of a triad society on those charges which alleged that the defendants acted as members of a triad society, even though Wo Shing Wo Triad Society was named in those charges. We accept that submission. The naming of the triad society was unnecessary provided the prosecution could prove that the defendants acted as members of a triad society. If these were otherwise, it would make a mockery of the law that where a gathering involving more than one triad society, it should become necessary to establish to which society each person accused of acting as a member of a triad society was attached.

30. In our view on the evidence accepted by him, the Judge's conclusions that the defendants on the dates and places specified in the various charges against them acted as members of a triad society is assailable, even though the Judge had not specifically mentioned Wo Shing Wo Triad Society in his reasons for verdict.

31. The final ground put forward by Mr. Tong is that the charges against D8 should have been severed. This has now been abandoned by Mr. Tong.

32. For all the above reasons, the applications for leave to appeal against conviction should be refused and we refuse the applications.

33. We now deal with the applications for leave to appeal against sentences by D4 and D8.

34. The Judge in sentencing the defendants made certain opening remarks in his reasons for sentence and these are worth noting. He said firstly that the penalty for a first conviction of the offence of acting as a member of a triad society on indictment is 3 years imprisonment. He further said this:

"The incidents which give rise to these offences were incidents in which gangs formed in order to intimidate others. Someone in triad parlance 'blew the whistle' and others came in answer to the summons to gather together and show off their strength to other persons such as rival triad groups. The gangs so formed were not armed, or so it appears, nor did any actual conflict take place. In each case but one, some kind of settlement was reached and in one case the other side did not appear. In this sort of situation, the gang so formed, whether armed or not, may be regarded as a kind of force like a military unit; even though fighting is not done, yet fighting must be in contemplation."

35. The Judge then referred to HKSAR v. Yeung Chi-keung & Anor CACC 96 of 98, where 15 months as a starting point for such crime was held to be appropriate. In that case Liu, J. said that:

"... Acting as a triad member in the course of bearing the teeth of the underworld is no small crime."

36. We agree that a case of the present nature is no small crime and it is a case where punishment sufficient to deter such triad activities should be imposed. The Judge's adoption of 15 months for a defendant acting in the role of an officer and 9 months for a defendant in the role of a soldier were sentence starting points which we have no reason to disturb.

37. In sentencing D4 who has four previous convictions, the Judge considered that on charge 2, D4 was a common soldier but on charge 3, he directed the message to attend to PW18. He considered that the sentence of 9 months imprisonment was appropriate for each charge and the sentences should run consecutively, making a total of 18 months imprisonment.

38. Mr. Tong for D4 submits that there was a disparity of sentences between that of D4 and of other defendants who were convicted of similar offences but were given lighter sentences. For example, D2 was convicted of two charges and was sentenced to a total of only 12 months imprisonment, D12 was convicted of two charges was also sentenced to 12 months imprisonment only. Mr. Tong has no complaint about the starting point but he submits that the court should follow the case of So Hung-yee and Anor [1986] HKLR 1049. That case held that where there is a disparity between sentences passed on the same occasion by the same Judge, the sentence should be varied only if it could be shown that the Judge had not properly apportioned the blame between the accused.

39. D4 was sentenced to 9 months in respect of charge 2 and D2 and D3 who were D4's co-defendants in charge 2 were also sentenced to 9 months. In this charge, they were not officers. There was no disparity between their sentences. In charge 3, D4 was also sentenced to 9 months imprisonment. In this charge because he played the role of a messenger and it is a separate offence, it was open to the Judge to order the sentence to run consecutively to the sentence on charge 2. We see nothing improper about this sentence. The application for leave to appeal against sentence must be refused.

40. As regards D8, he was convicted of charge 6, inviting a person to become a member of a triad society and charge 7, trafficking in a dangerous drug and charge 9, claiming to be a member of a triad society. He pleaded guilty to charge 8, simple possession of a dangerous drug. Altogether he was sentenced to 2 years imprisonment. The facts found by the Judge and those admitted by him showed that he claimed to be a member of a triad society to PW18 when PW18 was posing as a waiter. He was annoyed with the officer because the officer poured him a small glass of Coca Cola. He assaulted the officer. Subsequently, he invited the officer to be a member of a triad society and at the same time he suggested to the officer that he would supply the officer with cannabis for sale because the officer's job as a waiter was coming to an end. Sometime later, he supplied the officer with 25.09 grammes of cannabis. When he was intercepted by the police, he was found in possession of a small quantity of herbal cannabis.

41. The Judge took into consideration that there was no intimidation accompanying the invitation to join a triad society and also that there was no blackmail or the like criminal activity accompanying the claiming offence. However, the Judge still considered the triad offences prevalent and a deterrent sentence should be imposed. He adopted a starting point of 18 months for the invitation offence and 9 months for the claiming offence. The trafficking offence appeared to the Judge to be minor and he adopted a starting point of 6 months while the simple possession charge to which D8 had pleaded guilty, attracted a sentence of 1 month after plea. D8 has a clear record. Apart from D8's clear record and that he was in full employment and his other personal circumstances for which the Judge gave a discount of 3 months from the sentence on the invitation charge, there were no other extenuating circumstances meriting further reduction. The Judge having regard to the principle of totality reached the final conclusion of 2 years imprisonment.

42. The grounds of appeal are that the starting point for charge 6 was too high and it was wrong to impose a custodial sentence for a first offender. Other grounds are that the Judge had failed to have regard to the element of entrapment because the undercover police officer had pursued the matter of sale of cannabis.

43. Further it was submitted that D8 was prejudiced because he was charged jointly with the other defendants for the sole reason that their common witness was PW18. These other offences were serious triad offences and the Judge could have been influenced by them when imposing the sentences on D8.

44. On the first ground, inviting a person to join a triad society is a serious crime and this may be seen from the maximum punishment laid down in s.22(2) of the Societies Ordinance, Cap. 151, the maximum penalty being $250,000 fine and 5 years imprisonment. It was more than for an offence under s.20(2) of the same ordinance. As the Judge said, these offences are prevalent in night clubs etc. and it should be deterred. In AG v. Lee Chi-man [1980] HKLR 483 at 489 and 490, it was held that even for claiming or professing to be a member of a triad society under s.20(2) which carries a lower maximum sentence of $100,000 fine and 3 years imprisonment on first conviction, a custodial sentence may be imposed on a first offender and that a sentence of 12 months imprisonment is not inappropriate. In another case To Luen-shun [1995] 1 HKCLR 318 at 325 and 326 cited by Mr. Tolliday-Wright for D8, it was held that deterrent sentence was justified for an offence under s.20 even for a first offender.

45. It would appear that where the nature of the crime is serious, the fact that a person has been hither to of good character does not mean that no custodial sentence should be imposed if the circumstances merit a custodial sentence.

46. We do not see it inappropriate in anyway for the Judge in this case to have imposed a custodial sentence and set the starting point for charge 6 at 18 months imprisonment.

47. The suggestion of supplying cannabis to the officer was initiated by D8. It was D8 who invited the officer to join a triad society and to sell cannabis which D8 would supply. There was no entrapment in the sense that the officer instigated or incited D8 to commit the offences which D8 would otherwise not have committed; moreover D8 is not a person of no criminal history. The cannabis was supplied to the officer pursuant to the suggestion of D8 although PW18 had chased D8 twice by phone to have the drug supplied. There is nothing in this process that would have affected the sentence on D8 in respect of his conviction on the offences.

48. As regards the ground that the offences on which D8 was convicted should not have been tried together with other offences, we see no prejudice to D8 in this. After all, the offences on which D8 was convicted involved two triad offences and the drug offences came about following the triad offences.

49. It may be said that the sentences on the drug offences should not have been concurrent. These are separate and distinct offences and the sentences should be consecutive to the triad offence sentences otherwise it would be wrong in principle. That said, in our view, the sentences imposed on charges 6 to 9 are appropriate either individually or in total. We see no reason to disturb these sentences. Perhaps D8 may consider himself fortunate that the drug sentences were not made consecutive. The application for leave to appeal against sentence by D8 must be dismissed.