HKSAR v. HO, TING CHAO

HCMA852/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

 COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 852/2005

(ON APPEAL FROM KCCC 2440 of 2005)

_________________

_________________

______________________

J U D G M E N T

______________________

1. This is an appeal against both conviction and sentence.  The Appellant was convicted of claiming to be a member of triad society.  He was sent to Training Centre.

2. All I need say about the facts is that there was trouble in a bar, and that as one group that had been associated with the trouble left, this Appellant was detained by the licensee of the bar.  The licensee gave evidence that, on seeking to detain him, this Appellant, “I’m Wo Shing-wo.  I follow Che Ye”.

3. The Appellant did not give evidence at the trial.  It was thus that the evidence was all one way.  The Magistrate believed the licensee and nothing in the material before me makes me doubt that that was the correct course to take.

4. The Appellant is unrepresented.  He makes the point that other people were at the bar but only one person heard the claim to being a member of a triad society.

5. The findings of fact made by the Magistrate indicate that this was an isolated incident with the Appellant being caught as he left the bar.  There is nothing to suggest that the words must have been heard by other people when they were uttered.

6. I pointed out to the Appellant that the evidence was all one way because he had chosen not to give evidence.  He tells me he was represented by a duty lawyer who advised him about giving evidence.  The Appellant says that the lawyer did not emphasise enough the importance of giving evidence.  He did not say that he did not receive advice thereon.

7. The Appellant is 20 years of age.  When it was pointed out to him that the natural reaction when accused of something you have not done is to say you have not done it, and why did he not therefore go into the witness-box at trial, he had no good answer.

8. Accordingly, I shall dismiss the appeal against conviction.  The evidence was all one way and it established his guilt, and no potential irregularity about his knowledge of his rights has been established before me.

9. As regards the sentence at Training Centre, it was inevitable.  The Appellant had been before the courts on previous occasions.  He had been to DATC, having involved himself in drugs and dealing with copyright material. 

10.  The report upon him revealed triad association and made the sentence the only appropriate one in the circumstances.  The Appellant, in effect, did not seek to urge me to any other disposal today.

11.  Accordingly, the appeal against sentence is also dismissed.