HKSAR v. CHOY KA FAI AND OTHERS

[English Translation]
CACC 195/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

APPLICATIONS FOR LEAVE TO APPEAL

AGAINST CONVICTION AND SENTENCE

(ON APPEAL FROM DCCC 960 OF 2008)

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REASONS FOR DECISION

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Tang, V-P (giving the reasons for decision of the Court): 

1. Between August 2007 and June 2008, police constable NG Wai-man (PW4) participated in an undercover operation in which he was mainly to collect intelligence of criminal activities in New Territories North Region.  As a result of the undercover operation, the seven defendants in the present case were respectively charged with one or more than one offence relating to triad societies (namely, contrary to the Societies Ordinance, Cap 151, Laws of Hong Kong).  D2 was further charged with trafficking in a dangerous drug involving 2.49 grammes of cannabis (in herbal form), to which he has pleaded guilty.

2. All the defendants were convicted after trial by Deputy District Judge Sham and were sentenced to imprisonment for a term ranging from 24 months to 45 months.

3. As the undercover operation had lasted for a period of almost 10 months, which is not a short period, and there are as many as 7 defendants involved, the following table showing the respective charges and sentences in relation to each defendant has been prepared by Ms Alice Chan Shook-man, Senior Public Prosecutor, for the sake of convenience:

4. Leave to appeal against conviction is being sought by D2, D4 and D6, among whom D2 and D4 act in person whereas D6 is represented by Counsel Mr. Kwan Tong-lee.

5. Leave to appeal against sentence is being sought by D2, D4, D5, D6 and D7, among whom D2, D5 and D6 are represented by Counsel Mr. Kwan Tong-lee whereas D4 and D7 by Counsel Mr. Steve Chui.

6. At the outset of the hearing, D2 and D4 abandon their applications for leave to appeal against conviction.  The applications are therefore dismissed.

7. After the hearing, D6's application for leave to appeal against conviction is dismissed by this Court.

8. Leave is granted to D2, D4, D5, D6 and D7 to appeal against sentence.  The results are as follows:

9. For D2, as there is no appeal against sentence in respect of Charge 3 (the offence of trafficking in a dangerous drug), the original sentence of two months' imprisonment is upheld by this Court; in respect of Charges 4 and 10, the original sentences of two years' imprisonment for each charge are reduced by this Court to 15 months for each charge; in respect of Charge 8, the original sentence of 15 months' imprisonment is altered to 3 months' imprisonment; 4 months in respect of Charge 4 shall run consecutively to the sentences on Charges 3, 8 and 10.  The total term of sentence for D2 is reduced from the original term of 38 months to 24 months.

10. For D4, in relation to Charges 6, 9 and 14, the original sentences are a term of imprisonment for 2 years and 9 months on each charge, of which 6 months in respect of each of Charge 9 and Charge 14 shall run consecutively, making a total term of sentence of 45 months.  After the hearing of the appeal, it is ordered by this Court that the sentence on Charge 6 be altered to 12 months, that on Charge 9 be altered to 15 months, and that on Charge 14 be altered to 2 years, of which 3 months in respect of Charge 6 and 6 months in respect of Charge 9 shall run consecutively to the sentence on Charge 14.  The total term of sentence for D4 is 33 months.

11. As regards D5, at the conclusion of the trial he pleaded guilty to a charge of claiming to be a member of a triad society (Charge 7) and a charge of acting as a member of a triad society (Charge 13).  D5 was sentenced by the trial judge to 15 months' imprisonment on Charge 7 and 2 years' imprisonment on Charge 13, to be reduced by 3 months for each charge because of his plea of guilty.  Further, of the 12 months in respect of Charge 7 and of the 21 months in respect of Charge 13, 6 months were to run consecutively to each other, making a total term of sentence of 27 months.  After the hearing of the appeal, it is ordered by this Court that the original sentence of 12 months on Charge 7 be altered to 3 months, the original sentence of 21 months on Charge 13 be altered to 12 months, and the total term of sentence for D5 be reduced from 27 months to 15 months.

12. Furthermore, it is ordered by this Court that in relation to D6, the original sentence of 27 months' imprisonment on Charge 11 be reduced to 15 months.

13. As regards D7, the original sentence of 24 months on Charge 12 is altered to 9 months.

14. As there is no dispute between the parties as to the facts of the various charges, we have adopted the written submission by Ms Alice Chan Shook-man, Senior Public Prosecutor.  An extract is given below:

“Charge 4 – Acting as a member of a triad society (against D2)

8. On 11 December 2007 at around 8:00 p.m., PW4 was having dinner with D2, nicknamed Ah Mike, and other persons including D7, nicknamed Ah Chuen, in Yuen Long.  During that time, D7 was informed to go to Shing Kee Restaurant at 11 o'clock on the following morning and he said, ‘Fei Wah will “blow the whistle” tomorrow, …… seems to be saying that there will be a settlement talk at a table.'  It was the understanding of PW4 that the purpose of the gathering was to have a settlement talk.  D2 asked PW4 to attend (the gathering) the following day in answer to the summons from Fei Wah who ‘blew the whistle'.

9. At around 10:30 a.m. on 12 December, PW4, having met up with D2, arrived at Shing Kee Restaurant.  During that time, PW4 said, ‘Ah Dee, just follow what I do in a moment.  Brother Wah might not have a settlement talk.  Maybe it's just to collect “Tor Tei”, it's unknown yet.'  Afterwards, D2 introduced a number of males including Chui Shui Wah, Ah Yiu and Ah Sor to PW4 and told PW4 that they were ‘all belonging to “Number”, and also followers of Fei Wah'.  D2 also told PW4 to sit at a separate table, saying, ‘So that (we) won't get arrested altogether in case the police make arrest.  If any cops come up in a moment, just say (you are) having breakfast and know nothing at all.'  Later on, Ah Sor received a phone call and came to know that the place of meeting had been changed.  Everybody then dispersed and eventually nothing particular happened that morning.

10.   PW7, Woman Sergeant WONG Pui-kam, while giving evidence as a triad expert, stated that ‘blowing the whistle' is a triad jargon, which represents a triad summons to convene an assembly.

Charge 6 – Acting as a member of a triad society (against D4)

11. At around 1:15 a.m. on 3 January 2008, PW4 met D4, nicknamed Fei Wah, and another male in Neway Karaoke in Yuen Long.  During that time, D4 said to PW4, ‘Ah Dee, when “the whistle was blown” at Shing Li on the last occasion, you were the first one who arrived there.  (You) also helped out in putting things and did it well.  I know that you can do it.  Ah Mike did mention that to me.  Well, I now promote you by one rank, you are my immediate follower.  If anything happens, just reveal my identity Fei Wah.  Work hard.  Ah Kung knows that (you) can do it.'  Later on, D4 further said to PW4, ‘(You) got to change the mode of address, now call me Ah Dai.'  Afterwards, D4 further introduced another male to PW4, ‘This is Brother Nam, a fellow brother belonging to our “Number”, (he) is a follower of Wah Hei.'

12.   PW7 testified that “Number” is a nickname of 14K Triad Society.  The phrase ‘I promote you by one rank' means to follow another triad protector.

Charges 7 and 8 – Claiming to be a member of a triad society (against D5 and D2)

13.   On the evening of 15 January 2008, PW4 and D2 went to Summer Pub in Ping Cheong Path for entertainment.  During that time, D2 introduced D5, nicknamed Ho Wan, to PW4.  Pointing at D5, D2 said, ‘This is Ho Wan, a fellow brother belonging to our “Number”, also a follower of Fei Wah.'  After that, D2 said to D5, ‘This is Ah Dee, he's been assigned to Fei Wah.'  Then D5 and PW4 shook hands and D5 said, ‘Alright, we are fellow brethrens, let's have more contacts in future.'

Charges 9 to 13 – Acting as a member of a triad society (against D2, D4, D5, D6 and D7)

14.   In the small hours of the morning of 16 January 2008, outside Choi Hung Store, PW4 together with D2, D5, D7 and a number of males left Summer Pub and proceeded to Choi Hung Store.  Outside the store, they met D6 and his friends.  As early as 24 October 2007, PW4 had come to know D6, nicknamed Ah Ming, through the introduction by D2.  At that time, D2 and D6 had a quarrel.  A man called Sei Ngan Man joined in the quarrel with D2.  During that time, Sei Ngan Man told D2, ‘Get lost if (you) are going crazy.'  Then D2 said, ‘No need to talk.  Those of “Number”, get ready.'  D7 said, ‘Alright, brothers.'  After that D4 came forward to mediate and said, ‘Ah Mike, don't make any noise for the time being.  Listen to Big Brother.  Big Brother is in charge.'  D5 said to D4, ‘Ah Dai, frankly speaking, do we “Number” still have a share in this establishment now?'  D4 replied, ‘Yes, of course.'  Sei Ngan Man then said to D4, ‘Brother Wah, you are backing up the juniors.  He humiliates me like this, do (you) treat us Wo Shing Wo as nothing?'  Then D6 said to Sei Ngan Man, ‘Ah Dai, just ignore him, “blow the whistle”.'  Sei Ngan Man then made a phone call, saying, ‘Blow the whistle.  Call up everybody to come over to Choi Hung.'  D4 asked D2 to leave first.  Five minutes later, about 20-odd young men arrived at the scene, some of whom were holding long black torches.  Shortly afterwards, two uniformed police officers arrived and all people dispersed.  The illumination at the scene was sufficient.  PW4 had seen D6 for about half an hour.

Charge 14 – Acting as a member of a triad society (against D4)

15.   On 11 April 2008, D4 paid a pre-arranged visit with PW4 and several males to the Chinese Permanent Cemetery in Chai Wan for grave-sweeping.  On the way to the cemetery, D4 indicated to PW4 that they were going to pay respects to Big Nose Dung, the founding master of Number 14, for the purpose that it was hoped that ‘brothers from more branches of water would gather together, and with the gathering of brothers, it can avoid the situation where brothers, when bumping into each other, would not know they are of the same side.'  Around 100-odd people gathered at the cemetery on that day.  They lined up to offer joss sticks and pay respects at a particular grave.  On the stone tablet at the grave was printed with the wording of No. 14, and below a photograph was written ‘The Grave of Ho Kong Dung Esquire'.  Everybody dispersed after the ceremony.”

15.  All the charges of the present case involve the breach of Section 20(2) of the Societies Ordinance, Cap. 151, Laws of Hong Kong.  The provision is as follows:

“(2)  Any person who is or acts as a member of a triad society or professes or claims to be a member of a triad society or attends a meeting of a triad society or who pays money or gives any aid to or for the purposes of the triad society or is found in possession of or has the custody or control of any books, accounts, writing, lists of members, seals, banners or insignia of or relating to any triad society or to any branch of a triad society whether or not such society or branch is established in Hong Kong, shall be guilty of an offence and shall be liable on conviction on indictment- (Amended 36 of 1964 s. 4; 30 of 1988 s. 4)

(a)   in the case of a first conviction for that offence to a fine of $100,000 and to imprisonment for 3 years; and

(b)  in the case of a second or subsequent conviction for that offence to a fine of $250,000 and to imprisonment for 7 years.”

16. It can be seen from the substance of the Ordinance that Section 20(2) includes a great variety of activities, the gravity of which may vary substantially.

17. The offences of the present case can be divided into three categories.

18. The first category is about the so-called “blowing the whistle”.  “Blowing the whistle” means a member of a triad society summons other members of the triad society to assemble at a certain place in order to make an impressive show of strength.  Offences of this category have been dealt with by courts on numerous occasions, from which two cases may be cited here.

19. One: HKSAR v. Yeung Chi Keung and Anor, CACC 96/1998 (4 August 1998, unreported) (before Hon. Chan, CJHC, Mortimer, V-P and Liu, JA in Court).  The defendants of the case blew the whistle at entertainment establishments in Wanchai and Causeway Bay on different occasions and it was “an impressive show of force” with the number of people involved.   The trial judge, District Judge Wright (as he then was), adopted a starting point of 15 months for each of the two cases in which “blowing the whistle” was involved.  For the clear record of the defendants, the sentences were reduced to 12 months (for each offence) to run consecutively, making a total of 24 months.  Liu, JA, had this to say in his judgment:

“… In each of the offences, Yeung and Wong blew, so to speak, the whistle to summon followers.  They came and it was an impressive show of force.  At the end of each incident, counsel is quite right that there was no violence but it is not to be forgotten that a show of force might, and not infrequently did, lead to disagreement with skirmishes of various degrees to follow.  It is also true that the protection extended to the establishments were not forced upon their operators but that is not the real point.  The point is protection by triad societies, and common sense tells us that it is a service which no self-respecting establishment would welcome.  Whether or not violence would ensue is, in most cases, unpredictable.  Blowing the whistle for the congregation of a triad group to stand against the presence of a rival gang is, itself, a serious menace to tranquility.  These activities are likely to stir up an inexonerable spiral of triad transgressions.  The applicants, both members of a triad society, “blew the whistle” on different occasions for summoning followers to stage a meaningful presence at entertainment establishments.  Acting as a triad member in the course of baring the teeth of the underworld is no small crime.  Disturbances in the Wan Chai night scene are best left in the hands of law enforcement agencies.  In these circumstances, this court does not regard the starting point adopted by the judge as inappropriate.  Taking these occasions as known to the court, personal circumstances and the involvement and activities of these applicants, and also the number of offences of which each was convicted, the sentences passed upon each of the applicants by the Deputy Judge cannot be said to be manifestly excessive.  In totality, the sentence for each is, in the opinion of this court, not out of line.  The respective applications of the applicants therefore stand dismissed.”

20. Two:  HKSAR v. Wong Sing Chi and Ors, CACC 245/1999 (31 August 1999, unreported) (before Hon. Nazareth, V-P, Stuart-Moore, V-P, and Leong, JA in Court).  There was also an undercover police officer in the case which also involved offences related to blowing the whistle.  On one of the occasions, the offence took place at around 10 p.m. at a restaurant where members of two triad societies, namely, 14K Triad Society and Wo Shing Wo Triad Society, blew the whistle for the purpose of “having a settlement talk”.  The location where the offence of the case took place was in Wanchai.  At the time when the whistle was blown, on one side there was a group of about 20 people, whereas on the other side, there was another group of 40-odd.  Having considered the case of Yeung Chi Keung, the Court of Appeal took the view that a starting point of 15 months was appropriate and had this to say:

“We agree that a case of the present nature is no small crime and it is a case where punishment sufficient to deter such triad activities should be imposed.  The Judge's adoption of 15 months for a defendant acting in the role of an officer and 9 months for a defendant in the role of a soldier were sentence starting points which we have no reason to disturb.”

21. In the present case, the trial judge, Deputy District Judge Sham said:

“26. … I understand that the most desirable situation under our system is that similar sentences are imposed by courts on offenders having more or less the same degree of criminality, in order to avoid unnecessary grievances.  Nevertheless, in the absence of any sentencing guideline laid down by the Court of Appeal, the ultimate question that has to be asked is – is the sentence imposed appropriate, based on the facts of the case and having considered the mitigation of the offender, etc.?”

22.  Although there is no sentencing guideline laid down by the Court for this type of offences, a court should still give full weight to the approach on sentencing adopted by other courts, particularly the Court of Appeal, in dealing with cases of the same category.  The trial judge also understood that it is most desirable that similar sentences in terms of severity are imposed by courts on offenders having similar degree of criminality.  He, however, has not provided any satisfactory explanation as to why such an ideal could not be achieved in the present case.

23.  It was pointed out by the trial judge that:

“The court always considers triad offences as serious crimes.”

24. This point was also emphasized by the Court of Appeal in Yeung Chi Keung and Wong Sing Chi.  The trial judge, however, did not explain why the sentences in the above two cases were not applicable to the present one.  Of course, sentencing should not be formularized.  Nevertheless, for offences which involve comparable facts in nature and gravity, comparable sentences should be imposed.  This is exactly the most desirable situation referred to by the trial judge, which should not be neglected unless there are otherwise sufficient reasons.

25. The circumstances in which the whistle was blown in the present case are not as serious as those in the above two cases.  In the present case, the whistle was blown for the first time on 11 and 12 December 2007, but to no avail.  On the second occasion, it was D6 (a member of Wo Shing Wo) who blew the whistle.  Although D2, D4, D5 and D7 were present at the scene, they did not blow the whistle.  Meanwhile, D4 even asked D2 to leave the scene.  From this, we can see no reasons sufficient for imposing a sentence higher than 15 months for the role of “officer” and 9 months for the role of “soldier” as mentioned in the above two cases.  There is not much difference between the circumstances of D6 and those of the defendants in the above two cases.  Therefore, in the opinion of this Court, the sentences imposed by the trial judge on these defendants are manifestly excessive.

26. As regards the second category of offence, i.e. claiming to be a member of a triad society (Charge 8 against D2 and Charge 7 against D5), its gravity depends on: in what circumstances does a person claim to be a member of a triad society; and for what purposes is the claim to be a member of a triad society made?  For instance, if a member of a triad society claims to be a member of a triad society to an ordinary member of the public for the purpose of intimidation, thereby causing fear to the member of the public, the gravity of making such a claim is naturally much greater.  The circumstances of the present case, however, are not like this.  The trial judge should make reference to the judgment by Deputy High Court Judge Line (as he then was) in HKSAR v Lau Chi-hung, HCMA 1079/2004 (22 April 2005, unreported).  The case involved an undercover operation by the police.  The appellant of the case said to the undercover officer:

“From now on, pay more visits here to have fun.  We are Wo Hop To, just like a family.”

27. The appellant of the case was sentenced to 3 months' imprisonment.  Judge Line said:

“…  All I need say is that the sentence, to me, is entirely appropriate.  It was a gentle claim made in a social context, but that is reflected in the gentle sentence of 3 months which is at the bottom end of the bracket for claiming to be a member of a triad society.  Triad societies are a continuing menace to our society and claiming to be a member is bound to attract a custodial sentence in circumstances like this.”

28. Given the circumstances of the present case, the respective sentences of 15 months and 12 months imposed by the trial judge on D2 and D5 on the charge of claiming to be a member of a triad society are manifestly excessive.  In the opinion of this Court, a term of 3 months' imprisonment is sufficient to reflect the gravity of the crime.  The trial judge mentioned about AG v Lee Chi Man [1980] HKLR 483.   The defendant of the case claimed to an undercover police officer:

“… he was a member of Sun Yee On Triad Society, that he was due to be promoted, that he had several boys and girls following him and that he would in future recruit members in his own name.”

29. The defendant was fined $2,000.  An appeal was lodged by the Attorney General.  The Court of Appeal took the view that the appropriate sentence should be 1 year's imprisonment.  As it was an application by the Attorney General for review of the sentence, the sentence was therefore reduced to 9 months.  It was stressed by the Court of Appeal in the case that:

“… each case must be looked at in the light of its own facts.”

30. The factual background of the case was rather unusual.  The case took place against a background where there was a large-scale undercover operation through which a syndicate trafficking in dangerous drugs and a gigantic triad society had been crumbled, as can be seen from the following paragraph of the judgment:

“… round the clock raids commenced on several hundred locations in the Kowloon Area resulting in the arrest of a large number of persons who were subsequently charged with various offences relating to their involvement with this society.”

31. Although the defendant was not arrested as a direct result of the operation, and surrendered to the police and pleaded guilty instead, it can be seen from the background of the case that it is very much different from that of the present case.

32. The third category of offence includes the following charge:  D4 of the present case paid a visit to the grave of a triad founder at the Chinese Permanent Cemetery during the Ching Ming Festival in April 2008 (Charge 14 against him: acting as a member of a triad society).  In our view, with more than 100 people visiting a cemetery in broad daylight during the Ching Ming Festival, it might cause fear to other grave-sweepers.  This is particularly so on grave-sweeping occasions where very often there would be children, women and the elderly around.  As such, the circumstances are more serious than “blowing the whistle” in the nighttime (at an entertainment establishment, for instance).  This Court, therefore, is of the view that the starting point should be fixed at 2 years.  The reason why we adopt the starting point of 2 years, not 2 years and several months, is that the maximum penalty for this offence is 3 years' imprisonment, which should only be adopted in cases of the same kind with the most serious circumstances.

33. Charge 6 against D4 is about his commending PW4 for his ability in dealing with matters: “You are promoted by one rank. You are my immediate follower.”  In view of the maximum penalty for this offence being 3 year's imprisonment, the original sentence of imprisonment for 2 years and 9 months imposed by the trial judge is indeed excessive.  In the opinion of this Court, the appropriate term should be 12 months.

34. Charge 9 is related to an incident in which the whistle was blown at Choi Hung Store on 16 January 2008.  The defendant, as submitted by Counsel Mr. Chui, dealt with the conflict by way of patching up the quarrel and reconciling the parties concerned.  After a party including D6 had blown the whistle, D4 not only did not blow the whistle, but quite the contrary, he even asked D2 Ah Mike to leave the scene.  In the light of such circumstances, the sentence of 2 years and 9 months imposed by the trial judge is far above the appropriate standard.  Hence the sentence on this charge is reduced by this Court to 15 months.

35. This Court, having taken into account the above-mentioned facts, is of the view that a total term of 33 months can appropriately reflect the gravity of the offences committed by D4.

36. As regards D6's appeal against conviction, the ground of appeal submitted by Counsel Mr. Kwan is that PW4 mistakenly identified D6.  The evidence, however, clearly shows that PW4 had seen D6 on two occasions.  The first occasion was on 24 October 2007, and the second one on 16 January 2008.  In a police identification parade, when PW4 positively identified D6 and another person, PW4 pointed out that these two persons were at the positions of No. 7 and No. 8, but he did not specifically point out who was at No. 7 or No. 8.  During the trial, PW4 agreed to the suggestion by counsel for the Prosecution that the position occupied by D6 was No. 7.  In fact, according to the undisputed evidence, the relevant record of the identification parade shows that at the time D6 was standing at the position of No. 8, while the other person who was positively identified by PW4 was at the position of No. 7.

37. The trial judge clearly dealt with this in paragraphs 102 to 105 of his Reasons for Verdict.  The relevant evidence, as submitted by the Prosecution, was in fact quite sufficient, which included:

“(i)  PW4 testified that he came to know D6 through the introduction by D2 at Choi Hung Store on 24 October 2007;

(ii) The testimony given by D2 in defence regarding this aspect is consistent with that of PW4;

(iii)   The illumination at the time was sufficient.  PW4 remained at Choi Hung Store for about 2 hours during which there was sufficient time for him to observe the face of D6 who was then responsible for attending to customers at Choi Hung Store;

(iv)    D2 also mentioned that subsequently, on the evening of 16 January 2008, when D6 was at Choi Hung Store, he and D6 had a quarrel.  The content of their conversation is consistent with the evidence of PW4;

(v)   On that evening, D6 was seen to be staying outside Choi Hung Store for about half an hour.  His demeanour was conspicuous.  Further, Cheung Dik-hong was not present at the scene on that evening;

(vi)    PW4 positively identified D6 inside Choi Hung Store in the presence of other police officers on the evening of 26 June 2008; and

(vii)  During the trial, PW4 also positively identified D6 amongst a large number of defendants.”

38. Further, as regards the details of Charge 11 against D6, i.e. acting as a member of a triad society (14K Triad Society) outside Choi Hung Store, it was pointed out by Counsel Mr. Kwan that as can be seen from the facts of the case, D6 was not a member of 14K Triad Society, and instead he belonged to Wo Shing Wo.  As submitted by the Prosecution, however, the Prosecution is not required to prove to which triad society D6 belonged, and there are sufficient reasons to convict him so long as he did act as a member of a triad society.

39. D7 was involved because he had taken part in the incident on 16 January 2008.  Despite his presence at the scene where the whistle was blown, his sentence should be 9 months in the light of his role as a “soldier” in the offence.  Although the sentence imposed on D7 has been reduced to 9 months, the term that he has served already exceeds 9 months.  The hearing of this appeal could have been brought before this Court at the beginning of this year.  It was, however, postponed to 2 June due to some problem with fixing a date in consultation with counsel's diary.  We suggest that if similar situation arises in future, counsel should explain to his client and, unless there are extraordinary reasons, should consider returning the brief so that the client can be represented by another counsel, in order to avoid any delay to the client's appeal.