HKSAR v. NG KWOK TO

HCMA 413/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 413 OF 1999

(On appeal from SKCC 2311 of 1998)

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J U D G M E N T

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1. The Appellant Ng Kwok To was convicted after trial on a charge of being a member of the Wo Shing Wo triad society.

2. The evidence against the Appellant rests entirely on the content of 2 video interviews which were admitted as evidence after a lengthy voir dire.

3. No issue is being taken on the admission of the record of interview as evidence in this appeal.

4. At the trial, the Appellant did not give evidence nor call any evidence and hence, the learned trial Magistrate could only refer to the record of the interviews to decide if the charge had been established to the required standard. Counsel seem to have no dispute about this aspect.

5. In the interview, the Appellant said how he came to know his triad big brother Ah Lung when they were in primary school. He told the officer in the interview that two of them actually studying together from Form 1 to Form 3 in the same school. To his knowledge, Ah Lung was active in the Temple Street. The Appellant also said that Ah Lung had told him that he was a member of the Wo Shing Wo triad society and he was in the business of selling counterfeit Rolex watches in Temple Street. He also said after he left school at the age of 16 having completed his Form 3, he followed Ah Lung to sell counterfeit Rolex watches in the Temple Street area until he was around 18.

6. From the content of the 2 video interviews which I have gone through, I think it is fair to say that the Appellant was in effect saying that the counterfeit Rolex watches business in Temple Street was under the control of the Wo Shing Wo triad society and that people engaged in such business were also, as far as he was aware, members of this triad society. He also mentioned the names of a few of them who were engaged in the business such as Ah Wai, Andy and Joey who were otherwise known as Ah Fai and Ah Kwok.

7. The Appellant also mentioned that Ah Lung had expressly told him that having followed him, he was a member of this triad society and that if anyone should cause any trouble to him, the Appellant could simply reveal that he had followed Ah Lung and that he would be alright. The Appellant also said that having followed Ah Lung, he was for a period of time active in the Temple Street. Although there was no regular meeting with his protector, he could look for Ah Lung in the Temple Street area. He also said that he had intended to withdraw from this triad society but he did not have the opportunity to raise the matter with Ah Lung.

8. Counsel for the Appellant, Mr. Hemmings makes a simple point. He suggests that there was no evidence at all to show that Ah Lung was in fact a member of the triad society and that the admission made by the Appellant in the course of the interview was just his own belief. Though Ah Lung had stated to the Appellant that he was a member of the triad society and that his name should be mentioned should the Appellant be in trouble, what the Appellant had admitted was just the state of his belief which might not be true.

9. Similar point had been made in an earlier case and the point had been conclusively dealt with.

10. Power V.-P. in the case of R. v. Yun Kai-hong & Anor. [1995] 1 HKCLR at p.269 made the following observation at p.274:

"It is submitted by Mr. Plowman, relying upon Attorney General v. Chik Wai-lun [1987] HKLR 41, that these admissions constitute no more than belief on the part of the two defendants and are not sufficient to warrant the finding of actual membership of a triad society. Cons, V.-P. stated in that case at p.43:

'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 this 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."

It is suggested by Mr. Plowman that there is no expert evidence here upon which the judge might have relied and to which she might have related the admissions. He submits that each is, in effect, no more than a bald admission and that this was not enough to warrant her conclusion that the two defendants were actually members of a triad society.

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."

11. It is fair to say, in my view, that much of the observation by Power V.P. are of equal application in the present case. The learned Magistrate clearly had in mind the observation of Power V.-P. in the case that I have just mentioned.

12. In the absence of any evidence from the Defendant to contradict or undermine the prosecution's allegation against the Appellant, it is in my view opened to the learned Magistrate to infer from the admission made by the Appellant in those interviews that the Appellant who was indeed a member of the Wo Shing Wo triad society which he joined in 1989 and remained a member until 1991 when he turned 18.

13. A simple point was made by Mr. Hemmings on behalf of the Appellant, a point that I do not agree.

14. On the evidence and the findings of the learned Magistrate, the Appellant was rightly convicted. The appeal must therefore be dismissed.