HKSAR v. LAM YAN MNG

HCMA1078/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1078 OF 2003

(ON APPEAL FROM KCCC 3949 OF 2003)

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J U D G M E N T

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1. This is an appeal against conviction only.

2. The appellant was convicted after trial of an offence of acting as a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap.151 (being the 1st charged offence); of an offence of offering to do an act preparatory to trafficking in a dangerous drug, contrary to section 4(1)(c) of the Dangerous Drugs Ordinance, Cap.134 (being the 2nd charge offence) and of an offence of trafficking in dangerous drugs, contrary to the same section of that Ordinance.

3. The sections under which the appellant was charged and convicted are set out hereunder for ease of reference.

4. Section 20(2) of the Societies Ordinance 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-

(a) in the case of a first conviction for that offence to a fine of $100000 and to imprisonment for 3 years; and

(b) in the case of a second or subsequent conviction for that offence to a fine of $250000 and to imprisonment for 7 years."

Section 4(1)(c) of the Dangerous Drugs Ordinance is as follows :

"(c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug or in a substance he believes to be a dangerous drug."

5. The facts of the case as found by the magistrate were that a police undercover officer, PW3, had managed to infiltrate the Sun Yee On triad society. To do so, he had obtained employment at the KK Bar in Mongkok as a waiter and come to know a person "Fei Wai" who frequented that area. Once when they were having breakfast together "Fei Wai" had told PW3 that he belonged to "Lo Sun", a shortened reference to the Sun Yee On triad society. "Fei Wai" at that time asked PW3 if he followed anyone, and when PW3 replied in the negative "Fei Wai" told him that he would act as PW3's big brother. PW3 promised "Fei Wai" that he would follow him.

6. Subsequently, PW3, apparently to further his investigation, wished to change his big brother and to follow a person other than "Fei Wai". A meeting between PW3, "Fei Wai" and a third person took place, and it was agreed PW3 and "Fei Wai" would separate. The events supporting the 1st charged offence then transpired.

7. Some days later, while PW3 was working in the KK Bar the appellant approached him. The appellant was with a person called "Sai Ming". The appellant said to PW3 : "Don't follow 'Fei Wai', later on I will introduce some good brothers for you to follow. Maybe you can follow 'Sai Ming' or me." The appellant then gave PW3 his mobile phone number and told him to call him later.

8. PW3 did so, and later PW3 and the appellant together with "Sai Ming" met at a bar. The appellant told PW3 that he would follow "Sai Ming" in future and asked him if he had any problem with that. PW3 said he had no problem and the appellant left, leaving PW3 with "Sai Ming". "Sai Ming" then told PW3 that as his follower he was to be of the "Kwong Goh" team of the Sun Yee On.

9. Some months later PW3 met the appellant again. They went to a restaurant in Tsim Sha Tsui. The appellant asked PW3 if his friends sniffed "K". PW3 said they did and the appellant said he could introduce PW3 to someone who could sell PW3 half an ounce of "K" for $1,000 and that that amount was sufficient to be separated into 40 to 50 packets. The appellant asked PW3 if he wished to do that, and PW3 replied in the affirmative, but that matter was not apparently taken any further. This conversation is the basis of the 2nd charged offence.

10. Some two weeks later PW3 met the appellant and "Sai Ming" in a restaurant in Tsim Sha Tsui. The appellant gave PW3 a Marlboro cigarette box and told him it contained "gully water" which, the magistrate accepted from expert evidence, meant a solution of ketamine. The appellant told PW3 to deliver it to a person, Connie, at a particular nightclub. PW3 looked inside the cigarette box and saw two packets of powder rather than any liquid solution. The appellant provided PW3 with Connie's phone number and PW3 left with an associate of the appellant to deliver the drugs to Connie. PW3 contacted Connie by telephone. They met at the nightclub and PW3 gave her the cigarette box. Those facts formed the basis of the 3rd charged offence.

11. Mr Cheung, for the appellant, advances the following grounds of appeal.

12. He says in respect of the 1st charged offence that the magistrate wrongly equated in his reasons for conviction the appellant "acting as a triad" with the requirement in section 20(2) of the Societies Ordinance that the offender be "acting as a member of a triad society". This is a somewhat fine distinction, but as I understand Mr Cheung's argument, he says that it may well be that a person acts in the same way as a triad by doing the sort of thing a triad might be found doing, but that is not the same thing as "acting as a member of a triad society" which requires proof that the offender was acting in the course of a triad society's affairs.

13. The magistrate, in his Statement of Findings, had said this :

" That the defendant himself be proven to be a triad is not an essential element of the offence of acting as a triad member. This was an overt triad act and the kind of act that a triad does as a triad. ..."

14. In my view that was a perfectly proper finding. The offence under section 20(2) does not require proof that the offender or was actually a member of a triad society or was in fact acting on behalf of a triad society in any way.

15. The actus reus of the offence is "acting as a member of a triad society". Those words speak for themselves, but if any further explanation of them were required they could perhaps be said to mean that the offenders acts emulated those of a person who was a member of a triad society. The words "acting" most certainly does not mean it is necessary to prove a defendant was acting in any formal capacity on behalf of a triad society. Indeed the offender could be provably not a member of a triad society but still be liable under the provision.

16. Mr Cheung complains that this would be too draconic and that many innocent persons would run the risk of offending against the section as the acts of a member of a triad society are many and varied. I do not agree that is so. It is difficult to imagine any activity which is that of a member of a triad society which an innocent person could accidentally perform. The offence is restricted to acting as if the offender were a member of a triad society, not merely doing something which a triad might also occasionally do.

17. Further, Mr Cheung's argument with respect overlooks the requirement of mens rea. Before an offence under section 20(2) of acting as a member of a triad society can be established, it must be proven that the defendant intended to act as a member of a triad society. That eliminates any possibility of an innocent person offending against the section.

18. The terms of the magistrate's Statement of Findings show that he was perfectly aware of this. The appeal against conviction in respect of the 1st charged offence must be dismissed.

19. As far as the 2nd charged offence is concerned, Mr Cheung says the conviction is unsafe because the magistrate failed to properly consider the possibility that the conversation which passed between the appellant and PW3 which formed the basis of the charged "offer" was merely a casual chat. He points out that following this conversation no further steps were taken so as to lend any substance to the purported offer to introduce PW3 to the seller of half an ounce of ketamine.

20. In his Statement of Findings, the magistrate said :

" As regards the 2nd charge, I am satisfied that the defendant did ask PW3 if his friends sniffed 'keh'. I have no doubt that he was referring to Ketamine, a dangerous drug. He then offered to introduce someone to PW3 to provide him with a half ounce of the drug at HK$1,000. He then said that it could be separated into 40 to 50 packets.

I have taken into account that the defendant never actually did introduce anyone to provide PW3 with drugs. But I am satisfied on the evidence that the defendant did offer to do an act preparatory to trafficking in dangerous drugs."

21. On the evidence before the magistrate, that was a perfectly proper finding. The "offer" that he found to have been made by the appellant was detailed. It was an offer to introduce PW3 to a supplier of drugs. Particulars of amount and price were included in that offer. Such an introduction would plainly amount to "an act preparatory" to trafficking in dangerous drugs within section 4(1)(c) of the Ordinance. The terms of this conversation seem to negate any possibility of a casual chat which the appellant never intended to be taken seriously.

22. And the magistrate later in his Statement of Findings said :

" ... I was satisfied beyond reasonable doubt on the evidence before me that the appellant meant what he said and he did have the intention to introduce such person when he uttered the relevant words. Any notion that it might have been a bluff or trick or joke could in my view be safely dismissed as fanciful."

23. The magistrate's findings plainly rule out any possibility that this may have been a casual chat. He addressed the appellant's intent. There is no merit to the appellant's appeal against his conviction on the 2nd charged offence.

24. As far as the 3rd charged offence is concerned that of trafficking in dangerous drug, Mr Cheung complains that there was no proof that the contents of the Marlboro cigarette packet were drugs. He points out that there was no forensic evidence and that the whole of the prosecution case therefore depended on the oral evidence of PW3.

25. PW3 did not obtain a sample of any part of the drug in the Marlboro cigarette box. That is understandable. He said, when cross-examined on this, that he did not do so because if he had interfered with the contents of the cigarette box it may have given the game away.

26. Accordingly, in the absence of forensic evidence there was no proof that the contents were in fact dangerous drugs. But the provisions of section 4(1)(c) under which the appellant was charged are in these terms : no person "shall do an act preparatory to or for the purpose of trafficking in a substance he believes to be a dangerous drug."

27. The magistrate said in his Statement of Findings :

" As regards the 3rd charge I was satisfied that appellant's action in providing PW3 with a substance which he described as 'gully water' with instructions to PW3 that he should deliver it to a 3rd party amounted to doing an act for the purpose of trafficking in a substance the appellant believed to be a dangerous drug. I was sure that the appellant believed the substance to be a dangerous drug. He used the common street name for Ketamine solution to describe it (although I took into account the substance was powder). The appellant's purpose was that PW3 should deliver the substance to a 3rd party. I was satisfied that amounted to 'the purpose of trafficking' ... I was sure that the appellant intended that PW3 should deliver to Connie a substance the appellant believed to be a dangerous drug."

28. It is plain the magistrate found that regardless of whether or not the substance in the Marlboro packet was in fact a dangerous drug the appellant believed it to be so and was accordingly in breach of the provisions of section 4(1)(c) of the Ordinance.

29. In arriving at that conclusion, the magistrate took into account that the appellant had, at one stage, referred to the contents of the Marlboro packet as "gully water" which is a solution of ketamine and when PW3 looked into the packet it contained two packets of whitish powder.

30. The magistrate considered this discrepancy in the evidence. He said in his Statement of Findings :

" I also take into account that the defendant told him to take 'gully water', whereas, in fact, the Marlboro box contained a powdery substance, and I accept that, on the evidence before me, that 'gully water' is colloquial for a liquid, not powdery, form of Ketamine. This, however, does not cause me to doubt PW3's credibility and reliability. A mistake by the defendant as to the form of Ketamine to be delivered does not strike me as strange or remarkable."

31. On all the evidence before him, it was open to the magistrate to come to that conclusion. Mr Cheung argues that this particular aspect of the evidence however should have fatally undermined PW3's credibility. But it was PW3's own evidence which pointed out the discrepancy. It is hard to see how or why he would have done so if he were fabricating his evidence generally as the appellant's case alleged. There is no merit in this final ground of appeal.

32. The appellant's appeals against conviction are dismissed.