R. v. WONG TIM LEUNG and Others

-----------------------

H E A D N O T E

-----------------------

Membership of Triad Society - Admission of being a member - "bald admission" not admissible - extent of a "bald admission".

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 981 OF 1995

----------------------

J U D G M E N T

----------------------

Hon Yang, C.J.:

1. Each of the three appellants was convicted after trial by Mr Allan Wyeth, sitting as a magistrate in Tuen Mun Magistracy, of being a member of a triad society. The particulars of each charge reads that the appellant was a member of the 14K Triad Society on 10 December 1993.

2. The appellants appealed against their convictions and were granted bail pending their appeals.

3. The appeal came before Gall J and he reserved the matter to the Court of Appeal pursuant to Sec.118(1)(d) of the Magistrates Ordinance. The principal basis on which the appeal was reserved to the Court of Appeal was the testimony of the expert witness retained by the Government in this case was not admissible because he was a serving Police Sergeant and therefore lacked impartiality.

Ground of Appeal

4. When the appeal came before us, however, only one ground of appeal was argued, namely, Ground 4. It reads:

" The Magistrate further erred in law in convicting the appellant on the contents of his Record of Interview when any such 'admissions' (so called) that were contained therein were so clearly admissions based upon hearsay or speculation or both and were therefore both inadmissible as well as incapable as a matter of law of providing admissible evidence of his membership of a triad society."

5. The records of interview referred to in that Ground were made during police interviews with the appellants under caution. We shall refer to each appellant's interview below.

6. The only evidence at trial implicating each appellant consisted of the evidence of Police Sergeant Kwok Shu Wing (accepted by the learned trial magistrate as an expert on triad matters) and the appellants' utterances during the interview.

7. The appellants did not give evidence.

The Records of Interview

8. The police interviews were conducted largely in the form of questions and answers. We now give a summary of what each appellant said under caution.

9. The first appellant, Wong Tim Leung, admitted that he was a member of the 14K of the Tak Character (Group), having joined two years previously, in 1993, but it could "not be regarded as having formally joined it." His "big brother" was Fu Chuk Chai, but after "following him" for a short while he "could not see him any more." The appellant had followed Fu Chuk Chai to join the 14K Triad Society at the Kar Shing Restaurant in Yuen Long. Fu Chuk Chai promised him to recruit him verbally only and did not teach him any triad poems nor ask him to pay a packet of lucky money. He joined the 14K because his friend, Fei Ming, had said that Fu Chuk Chai belonged to "the Tak Character of 14K Triad Society". Then he asked if Fu Chuk Chai could recruit him and he promised him in words, but he had taught the appellant nothing. He had not taken part in any triad activities, he only joined because he was afraid of being bullied by others, he thus found "a big brother" to protect him. He knew a Sheung Hoi Chai as "Lo Biu", meaning "cousin" and a fellow brother in the same triad society.

10. A number of references in these statements are worthy of note: (i) the appellant identifies Fu Chuk Chai as his "big brother", (ii) he said that Fu Chuk Chai had promised to recruit him verbally, (iii) he knew Sheung Hoi Chai as a fellow brother in the same triad society.

11. According to Sergeant Kwok, "follow" means being loyal to both protector and society.

12. The second appellant, Au Yeung Yau Choi, said the following in answer to questions:

"Q(12): What is the relationship between your big brother TSANG Kau and you?

A(12): He is my Sam Tim Shui big brother.

Q(13): What do you mean by Sam Tim Shui?

A(13): That is the triad society you mentioned.

Q(14): Which triad society does TSANG Kau belong to?

A(14): He belongs to 14K (Triad Society).

Q(15): Which character group of 14K (Triad Society) does he belong to?

A(15): Tak Character.

Q(16): Why do you call TSANG Kau big brother?

A(16): He asked me to follow him. If I was in trouble, he would protect me."

13. Then:

"TSANG Kau said that if I was in trouble, just revealed Lau Ming Kau's identity and that my big brother's protector was Sze Ngan Sai."

14. Tsang Kau told him he was a member of the Tak Character of the 14K Triad Society. The appellant "saw several other followers who hung out with him." Tsang Kau asked the appellant to give him a packet of lucky money, $108 as a token. Tsang Kau also taught him the 14K Title Poem and some hand signs but he could no longer recall them. Tsang Kau introduced Ah Chun and Maau Chai who had followed Tsang Kau as triad members.

15. Also:

"Q(28): Did TSANG Kau tell you of what rank you are?

A(28): He asked me to hang the blue lantern, acting as a 49 member for the time being.

Q(29): why did you join the triad society? Was there anyone exerting a coercion on you?

A(29): At that time, I was out of job. He invited me to dine and to have entertainments together. Then, I joined his group. Afterwards, he asked me to follow him. Then, I followed him."

16. Six points in the second appellant's answers could be highlighted: (i) he identifies Tsang Kau as "big brother" or protector, (ii) he gave Tsang Kau $108, (iii) he was taught the 14K Title Poem and hand signs, (iv) he tells the police where, when and by whom he was recruited, (v) he was told to "hang the blue lantern", i.e. acting as a 49 member, and (vi) he saw several followers hanging out with him.

17. The third appellant is Lam Yu Wing. He said under caution, "Although I am a member of 14K Triad Society, I didn't tell the two police officers that I am a member of 14K Triad Society." He was asked by the interviewing police officer what he meant by this statement, and he answered, "I meant I am a member of 14K Triad Society."

18. The following questions and answers are relevant:

"Q7: When did you join 14K Triad Society?

A7: In mid 1990.

Q8: Can you tell me in detail how you came to join 14K Triad Society?

A8: In mid 1990, when I drank at Bull's Head Bar in Yuen Long, a man approached me and asked me which triad society I belonged to and followed whom I told him that I didn't follow anybody. He suggested I should follow him. He said he belonged to 14K (Triad Society) and if anybody tried to bully me, I could reveal my identity as a member of 14K (Triad Society), my Big Brother being Shaau Nga Hung. After that I treated Shaau Nga Hung to drink.

Q9: Have you undergone any initiation ceremony?

A9: No, Shaau Nga Hung asked me to hang the blue lantern first.

Q10: Have you given any lucky money to Shaau Nga Hung?

A10: No, I haven't.

Q11: Has Shaau Nga Hung taught you any triad poems or hand signs of 14K Triad Society?

A11: No, he hasn't."

19. He addressed Shaau Nga Hung as "Tai Lo", i.e. the protector.

20. Lastly, the third appellant made several references which seem significant, namely, (i) he was invited by Shaau Nga Hung to follow him, (ii) Shaau Nga Hung told him he should reveal his name and the 14K if bullied, (iii) he was told to hang a blue lantern first and (iv) he addressed Shaau Nga Hung as "Tai Lo", i.e. the protector.

The Issue

21. The issue in this appeal is confined within a very narrow compass, i.e. whether the appellants' cautioned statements were so based on hearsay or speculation so as to be inadmissible: Ground 4 (supra). In the course of arguments, it was suggested on behalf of the appellants that their statements are merely "bald admissions" and do not disclose the offences charged.

The Law

22. The earliest authority on the point is Attorney General v. Chik Wai Lun [1987] HKLR 41, where in a case-stated, the Court of Appeal was called upon to consider whether a bald admission by a person that he was a member of a triad society cannot on its own be regarded as sufficient evidence.

23. The Court of Appeal said (at p.42):

"By a 'bald admission' we take to be meant a statement such as 'I am a member of such and such a society' and no more, which we assume that the magistrate would reject as being a matter of mere hearsay or belief. That however was not the position before him because the statement concluded in the police station contained other admissions which, taken together with the evidence of the superintendent, would in our view provide at least prima facie evidence of membership."

24. The Court went on (at p.45):

"To return to the question posed, it is possible therefore to envisage circumstances in which a 'bald admission' may be regarded as sufficient evidence, although we feel bound to observe that we think they would be unusual and in most cases we would expect proof of other facts to indicate membership, whether by way of admission by the defendant or otherwise."

25. In The Queen v. Yun Kai Hong and Another [1995] 1 HKCLR 269, the Court of Appeal had the occasion to consider Chik Wai Lun (above). There the Court said (at p.274):

"We state at the outset that we do not consider that to establish the offence there must always be expert evidence. Given the informality of modern triad inductions, which Mr. Plowman does not dispute, we cannot see how the evidence of an expert could have taken this matter any further. Here we have in each case admissions of joining, admissions of payment of an induction fee and admissions of a triad protector. In the case of D1 we have an admission of the attainment of a rank in the triad society, and in the case of D2 an admission of preparedness to accept direction to participate in criminal activities. Finally there were admissions from both of preparedness to participate in the company of others in criminality of a type commonly perpetrated by triad members. There was no withdrawal from or qualification of any of these admissions by evidence in the trial from either defendant. We are satisfied that, on their face, those admissions were sufficient to allow the judge to come to the conclusion that each man was a member of the Wo Shing Tong triad society. We, therefore, also reject the second ground of appeal."

26. In the High Court, Chik Wai Lun's case was followed by Bewley J in R. v. Tsoi Sai Pui and Others [1992] 1 HKC 468, where he said (at p.473):

" The evidence against the appellants was that each admitted membership of the triad society as soon as he was arrested and that he, later in his cautioned statement, told the police his reasons for believing himself to be a member.

D6 said, 'I promised to follow D8 verbally. That is why I know I am a member of 14K Yee Triad Society.' Asked what his post was, he said, 'I am hanging the Blue Lantern.'

D7 was asked why he believed he was a member of 14K Yee group. He replied, 'It was because D8 told me that I promised to follow him verbally, this was enough to be reckoned as having joined 14K Yee group.' He also said, 'My rank is 'hanging blue'."

27. The judge concluded that there was more than a "bald admission" in this case and he was satisfied that the evidence was sufficient to justify the conclusion that D6 and D7 had become members of a triad society.

28. In a very recent case P Chan, J. had to consider a similar question in The Queen v. Ngan Lik Chung, Magistracy Appeal No.1085 of 1995. There Ngan Lik Chung said under caution that a Mr To told him that he, Mr To, was a member of the Sun Yee On Triad Society, and he had verbally agreed to follow this man who had taught him some poems which he had since forgotten.

29. The judge cited Chik Wai Lun and Yun Kai Hong and followed the judgments in these two cases. However on the evidence, he came to the view that what Ngan Lik Chung said was little more than a bald admission.

30. He concluded (at p.8):

" Was there other evidence connecting the appellant to the triad activities? In the present case, it appears that the appellant admitted that he drove some 'brothers' of the Sun Yee On to a hotel to attend a meeting. I am not sure that the driving of some persons to a hotel can be regarded as activity connected with a member of triad society. The appellant also said that he had friends who were members of this triad society, the Sun Yee On, and had their phone numbers. I do not think this would carry the matter any further. I am therefore left only with the verbal promise to follow a person by the name of To Luen Shun, who had taught him some poems. In the absence of evidence as to who this person is and what sort of authorities he had, particularly whether he was a member of a triad society, I think what was admitted by the appellant was little more than a bald admission."

31. This was a case decided on the facts. Another court might well find the words of the accused were more than a bald admission. As the Court of Appeal said in Chik Wai Lun (above), a bald admission is a statement admitting membership "and nothing more". We do not think that that strict interpretation ought to be extended.

32. The principle is not in doubt. Each case must be decided on its own facts: vide The Queen v. Yu Fung Hi and Another, Criminal Appeal No.710 of 1995.

33. Of the three appellants, the case against the first appellant is just enough to support a conviction; that against the second and third appellants are much stronger. As indicated earlier, their admissions are much more than "bald admissions".

34. Ground 4 of the appeal fails.

35. One ground, Ground 5, was not pursued. By Ground 6, the argument is that the convictions were unsafe and unsatisfactory. There is nothing in this last ground.

36. The appeal is dismissed.