HKSAR v. LAW SIU HON (羅少韓) AND ANOTHER

FAMC No. 33 of 2020

[2021] HKCFA 9

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2020 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 579 OF 2019)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.  At the hearing, we dismissed this application for leave to appeal for reasons which we now provide.

2.  It is convenient to refer to the 1^st and 2^nd applicants, Law Siu-hon and Lam Chuen-hon, as D2 and D3 respectively since that is how they stood trial, together with D1 (Kong Ho-wing), before the Magistrate, Ms Amy Chan Wai Mun.[1] The three were jointly charged with and convicted of one count of “acting as a member of a triad society” contrary to section 20(2) of the Societies Ordinance.[2]  They were respectively sentenced to seven, nine and five months’ terms of imprisonment.  On appeal,[3] Yau J upheld the convictions of D2 and D3 but allowed D1’s appeal against conviction.

3.  Section 20(2) relevantly provides:

“Any person who ... acts as a member of a triad society ... whether or not such society ... is established in Hong Kong, shall be guilty of an offence and shall be liable on conviction on indictment [to sentences of fines and imprisonment].”

4.  The prosecution’s case depended on the testimony of an undercover police officer (PW1) and a police expert on triad societies (PW2).  The evidence was that the defendants were involved in making preparations, assembling a hundred or so fellow triad members to attend a procession or parade to celebrate the birthday of the goddess Tin Hau (the Empress of Heaven) to be held on 8 May 2018 in Yuen Long, as a show of strength by the Wo Shing Wo triad society.

5.  PW1 gave evidence of how he took part in the gatherings and PW2 gave expert evidence as to how those activities were triad related.  He testified that the Wo Shing Wo are active in Hong Kong, that triad terminology was used by the defendants and that it was the practice of triad societies to participate in such public gatherings to demonstrate their strength and to promote bonds among members. 

6.  The points sought to be raised on appeal arise out of part of the evidence given by PW1 in telling the story of his participation in the events of that day.  He testified that following the instructions of his triad “big brother” (known as “Brother B”), he had first met up with a more senior triad member named Kwok Bung who had explained to PW1 the purpose of attending the parade, namely, for members of the triad to gather and flaunt their power and socialise.  Since that conversation was held in the absence of D2 and D3 and Kwok Bung was not called as a witness, objection was taken to its admissibility on the basis that it was hearsay and not capable of being admitted on any other basis. 

7.  The applicants sought certification of and leave to appeal on the following question:

“Whether evidence may be adduced at a trial of words spoken (namely a belief that an activity is triad-related), not spoken in the presence or hearing of the defendant, by a person not called as a witness, for the purpose not of establishing the truth of any fact narrated by the words, but of inviting the jury to draw an inference from the fact that the words were spoken (namely that the defendant is acting as a member of a triad)?”

8.  The question is formulated on the footing that the evidence was treated as admissible and relied on below in a situation in which, either treating it as hearsay or by applying the decision of the House of Lords in R v Kearley,[4] it ought to have been excluded.

9.  In our view, it is quite unnecessary to explore the effect of Kearley in the context of the law on hearsay.  Evidence of what Kwok Bung had told PW1 as to the purpose of the parade should not have been adduced simply because it was irrelevant.  Kwok Bung was not going to be called as a witness and his understanding or belief as to the purpose of taking part in the event did not bear on whether the defendants had acted as triad members.  In so far as expert evidence as to triad practices was required, it was provided by PW2 whose evidence was entirely accepted by the Magistrate (as was the evidence of PW1).[5]

10.  While the Magistrate erroneously held that the Kwok Bung evidence was admissible on the basis that it represented his “understanding of Tin Hau’s Birthday from the perspective of a triad society as background consideration”, that did not raise any Kearley issues and she obviously did not accord it any importance.  She duly considered the authorities on the elements of the offence[6] and never lost sight of the central questions, namely: “Whether or not D1 to D3 did in fact make the statements as alleged by PWI” and “If so, whether their words and demeanour constituted as acting as a member of a triad society”.[7] 

11.  Ignoring the irrelevant conversation between PW1 and Kwok Bung, there was more than ample evidence provided by PW1 to support the applicants’ convictions.  Thus, he testified to the assembling together of a growing group of triad members at particular locations; to D3 arriving and being addressed as “Brother Hon” or “big brother” and shown respect by those present; to D3 counting those present and confirming that they were “their own people”; to D3 telling them to expect “Brother Siu Hong”, D2, and to greet him on his arrival; to D2 then arriving and confirming that nearly all the men had arrived; to D2 instructing them to proceed with the procession and, if asked about their affiliation, to say that they were “Shing Wo Siu Hong”, whereas they were to say that they were just villagers joining the parade, if asked by the police; to everyone being told to put on white T-shirts printed with the name of a village and of a company, with the instruction about claiming affiliation with the Shing Wo Siu Hong branch repeated; and to there being a further instruction that they were to help out any brothers who might quarrel with others.  Supported by PW2’s expert confirmation that this represented triad related conduct, the Magistrate and the Judge had ample grounds for convicting the applicants as jointly acting as triad members in assembling members, preparing for and promoting participation in the Tin Hau procession.

12.  Mr So, appearing for the applicants, submitted that if admission of evidence as to the conversation between PW1 and Kwok Bung was erroneous, it was an irregularity that could not be dealt with as if by application of the proviso since there is no equivalent to section 83 of the Criminal Procedure Ordinance[8] in relation to magistrates’ appeals. He submitted that leave to appeal ought therefore to be granted at least to enable a retrial to be ordered.

13.  Whilst counsel is right in asserting that no equivalent to the section 83(1) proviso exists in relation to magistracy appeals, it does not follow that any irregularity must lead to a quashing of the conviction or at least to a retrial.  As the Court held in Ching Kwok Yin v HKSAR,[9] the position is governed by section 119(1)(d) of the Magistrates Ordinance[10] which gives the Judge a wide discretion as to what the interests of justice require in disposing of the appeal:

“... the Judge may by his order confirm, reverse or vary the magistrate’s decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to the magistrate, or may make such order in the matter as he thinks just, ...”

14.  It was evidently Yau J’s view[11] that, given the ample evidence supporting convictions, the magistrate would undoubtedly have entered the same verdict if she had ignored the irrelevant evidence of the conversation.  The Judge was thus entitled to confirm the convictions as the order justly to be made on the appeal.

15.  Accordingly, we did not see any basis for granting leave to appeal, the question of law proposed not being engaged, and saw no ground for any arguable suggestion that there had been a substantial and grave injustice.