THE QUEEN v. CHAU CHUN-MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No.834 of 1985

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BETWEEN

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JUDGMENT

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1. The Appellant pleaded not guilty to a charge of being a member of a triad society contrary to section 20(2) of the Societies Ordinance. The particulars of the charge alleged that he was a member of the Wo Shing Wo, a triad society on the 8th July 1985.

2. At the trial, the magistrate had before him certain evidence by way of agreed facts and the substantial part of those agreed facts consisted of a cautioned statement made by the Appellant to a police officer, in which he said that he joined the Wo Shing Wo in 1982, and that his protector was Ah Shing. He said that he joined the society "just for fun", and that he took his protector Ah Shing to tea instead of paying any admission fee. He went on to say that his position in the triad society was "hanging the blue lantern", and the main activities of his gang were just to gather together and play together. Ah Shing had told him that in case of any trouble he had to tell others that Ah Shing was his protector.

3. The other evidence given at the trial came from a police sergeant who said that he was attached to the Anti Triad Section of Shamshuipo Police Station. He went on to give further evidence about his background for the purpose of establishing that he was an expert regarding triad societies. In the course of his cross-examination by the solicitor who then represented the Appellant, that witness said that membership of a triad society through the introduction of a protector could be validly achieved only if the protector were himself a member of that same triad society.

4. At the end of the evidence, a submission was made on behalf of the Appellant that the prosecution had not established all the ingredients of the offence because it has not been proved that the protector was a member of, the triad society at the time he.introduced the Appellant. The learned magistrate, in dealing with this submission in his statement of findings, said this:-

Although counsel for the Respondent sought to persuade me that the first paragraph is not a misdirection, I find myself unable to agree with his submission. In my view, the learned magistrate has clearly misdirected himself as to the burden of proof. He referred to a particular defence being set up when, in fact, the defence was a general denial of guilt. It was not for the Appellant to prove that Ah Shing was not a member of the Wo Shing Wo: it was for the Prosecution to prove that he was unless the learned magistrate did not accept that part of the experts evidence.

5. Counsel for the Respondent referred to the second of the two paragraphs quoted earlier and submitted that the learned magistrate had found that membership had been proved. But, since the learned magistrate thought that there were matters which the Appellant had to prove he may well have found that he could draw those inferences because the Appellant had failed to discharge the burden which rested upon him.

6. The first paragraph contains such a glaring misdirection as to the onus of proof that no conviction following upon it could ever be regarded as safe and/or satisfactory. In Kwan Ping-bong [1979] HKLR 1, the Privy Council said that a verdict of guilt following upon a misdirection as to the onus of proving an essential fact in issue cannot be other than unsafe and unsatisfactory.

7. Accordingly, in this case, it seems to me that I have no option but to allow this appeal and quash the conviction and sentence. I, therefore, order that the conviction and sentence by quashed.