R. v. LO TAK WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.810 OF 1995

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J U D G M E N T

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1. The appellant was convicted at a trial on a charge of being a member of the triad society. The evidence upon which the conviction was based came from a statement made under caution by the appellant in which certain questions were put to him relating to his association with Yung Shun Wing.

2. The appellant gave evidence and said that he had come to know Yung many years ago when he was 13 years old and that in 1980, he had been subjected to bullying at school. Yung had said he was a member of a triad society and that he would provide protection. They were no ceremonies or the like to make the appellant a member of the society. He was simply told part of a poem and no money was exchanged. Given the age of the appellant, it is difficult to conceive that he was, in fact, being incorporated into the body of an active triad society. Be that as it may the evidence was, and this was not in dispute, that he has a clear record and that there was no association that could be shown between himself and Yung or any members of a triad society or any involvement in triad activities up to 1993 when in his statement he said he met Yung again. The association with Yung in 1993 was of a social nature but he did attend some discussions that Yung was having concerning motor repairs. There was no suggestion that he and Yung were associated in criminal activities at that time.

3. In my view, the lack of evidence of any triad activity from 1980 through to his alleged confession in 1995, is sufficient to raise a reasonable doubt that he was still a member of the triad society, if in fact he had been. The caution statement made reference to his addressing Yung as big brother and the magistrate seems to put considerable weight upon that and upon the fact that the appellant in his evidence said that he had paid of a debt for Yung. The evidence against the appellant on this charge was, in my view, very thin and the facts of the case are such as to raise in my mind a lurking doubt that this conviction is safe and satisfactory.

4. I therefore allowed the appeal and set aside the conviction and the consequent sentence.

5. The cost of the appeal to the appellant to be taxed.