HKSAR v. FUNG SAI LUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 412 OF 1998

(On appeal from ESCC720 of 1998)

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J U D G M E N T

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1. In April this year, the Appellant was tried before S. Smout Esq. in the Magistrate's Court at Kwun Tong on one charge of being a member of a triad society and two counts of acting as a member of a triad society. He pleaded not guilty to all the charges. At the end of the trial, he was acquitted on the two charges of acting as a member of a triad society and convicted on the one charge of being a member of a triad society. He was sentenced to 9 months' imprisonment in respect of that charge; and he now appeals against his conviction and sentence.

2. The 1st ground of appeal against conviction reads:

"The Learned Magistrate erred in that he placed little or no weight on the evidence of the triad expert (PW2), that it was essential for the prosecution to prove that the "big brother" or "protector" who had inducted the appellant into a triad society was himself a genuine triad society member, when in fact, there was no such evidence."

3. In fact the Magistrate did consider the point. He reviewed all the circumstances and was of the view that the notion that the Appellant was "following an impostor" could be safely excluded as fanciful. In my judgment, the Magistrate was entitled to take that view in all the circumstances.

4. The 2nd ground of appeal against conviction reads:

"The Learned Magistrate erred in his finding that since the Appellant associated with triad members and frequented establishments attended by triad members, that it was safe to rely on the "belief and opinion of the Appellant that he was a member of the Wo Shing Wo triad."

5. All the Magistrate was really saying here is that the Appellant's admissions should not be discounted on the basis that he might not have known what he was talking about when he made them.

6. The 3rd ground of appeal against conviction reads:

"The Learned Magistrate erred in placing no weight on the evidence of PW1, that the Appellant had told him that he had transferred from Sun Yee On to Wo Hop To, since the membership of a specific triad society was central to the issue."

7. In fact the Magistrate did consider the point and did so with care. Of this matter, he said:

"I was satisfied this was due either on this occasion, to a slight mis-recollection by PW1 as to the name of the society the appellant had joined or to the appellant's desire, for unknown reasons, not to reveal to PW1 the true Triad Society to which he belonged."

This approach is one which, in my judgment, was legitimately open to the Magistrate.

8. The 4th ground of appeal against conviction reads:

"The Learned Magistrate erred in his finding that the admissions of the Appellant went beyond bare or bald admissions of membership and he gave no reasons for so finding."

9. In fact the Magistrate did give reasons for so finding. Why he regarded the admissions as more than bare or bald admissions of triad membership appears in the sentence immediately preceding the one in which the Magistrate said that the admissions were not merely bare or bald. That preceding sentence reads:

"The gist of P3 was that the appellant was a member of the Wo Shing Wo Triad; that he had joined in mid-1995; that he followed Ah Cheong; that he did not give "Lai Sze" to him; nor had participated in any initiation ceremony."

There one finds details, both positive and negative.

10. The 5th and final ground of appeal against conviction reads:

"In all the circumstances the conviction was unsafe."

There is nothing in this ground, independent of the earlier ones.

11. I dismiss the appeal against conviction.

12. So I turn to the appeal against sentence. Two grounds of appeal against sentence have been filed. They read:

"1. Having regard to the fact that there was no evidence that the Appellant had ever been an active triad member, that his membership was nothing more than a mental state and that under the scrutiny of the undercover officer he had not acted as a member of a triad society, any immediate custodial sentence was uncalled for. The only known manifestation of his membership came about by the Magistrates finding that he had told the truth to the Police in his cautioned interview.

2. In all the circumstances, the sentence of 9 months imprisonment was excessive."

13. I am unable to accept the argument that no immediate custodial sentence was called for. However, it seems to me that the sentence is too severe. The Magistrate took a starting point of 12 months' imprisonment and deducted therefrom three months to take into account the lack of active participation in triad activities. It seems to me that a considerably greater deduction was called for. I allow the appeal against sentence to reduce the sentence from one of nine months' imprisonment to one of three months' imprisonment. So the appeal is allowed to that extent.