R. v. YUE MAN SANG

IN THE COURT OF APPEAL

1993, No. 65
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. This is the judgment of the court.

2. On 15 January 1993, the applicant was convicted after trial of claiming to be a member of a triad society (count 2); blackmail (count 3); and membership of an unlawful society (count 8). On 1 February 1993, he was sentenced to concurrent terms of imprisonment of 15 months, three years, and three months respectively. He now seeks leave to appeal against both conviction and sentence. He was acquitted of four other charges of blackmail and a charge of claiming to be a member of a triad society.

3. The first three grounds of appeal against conviction revolve around the applicant's confession statement. It is contended that, in the light of various anomalies surrounding the taking of the confession, the learned trial judge could not have applied the criminal standard of proof when he ruled the confession admissible. It is further argued that there was a material irregularity in the course of the trial, in that the judge failed to exclude the confession. Thirdly, the applicant complains that the judge was wrong in relying upon admissions made in a post-recorded statement under caution by the applicant between 1810 and 2130 hours on 17 February 1992 as proof that the applicant was a member of the Wo Shing Wo Triad Society, when those admissions were based, not upon factual knowledge on the part of the applicant, but upon hearsay.

4. The fourth ground of appeal is that the verdict is unsafe and unsatisfactory.

5. The applicant's confession constituted the only evidence against the applicant. It was post-recorded, signed and adopted by him.

6. There was evidence from two employees of the Shek Wai Kok Restaurant at the Shek Wai Kok Estate that, in the evening of 16 February 1992, a man came in and demanded a protection fee (called a "tor tei fee") of $5,000, saying that he was a member of the Shing Wo, i.e., Wo Shing Wo, Triad Society. The man then said he would come back in a few days' time. Neither employee was able to identify the man.

7. On the following day, 17 February 1992, PC 19058 intercepted the applicant in a rear lane at the same Estate. After making enquiries he arrested the applicant for blackmail. The applicant admitted that he had "come out to look for money only", and that he was a member of the Wo Shing Wo Triad Society. He also gave details about his "grandfather" and his "brother protector". He said that he had stopped recruiting young kids, that his young kids had been given to others, that his young brothers were out of work and needed money, and that he personally went to shops to collect "tor tei fees" to take care of the young brothers. He also said that he was the elder brother and was responsible for the others.

8. Later at the police station, PC 19058 post- recorded what the applicant had said to him and proceeded to interview the applicant after caution. At the trial the admissibility of the statement was challenged, and the judge adopted the alternative procedure, during which the applicant gave evidence on the issue of admissibility. Having ruled the statement was made voluntarily, the judge admitted it into evidence.

9. A submission of no case to answer was made on behalf of the applicant. It failed. The applicant then gave evidence and called a witness on the general issue. The judge did not believe their evidence, but was favourably impressed by PC 19058. He said in his Reasons for Verdict as follows : -

" He made admissions to PC 19058 at the rear staircase, and these were later post recorded and adopted in his statement, P1. He provided the names of his 'grandfather' and his 'brother protector', and he described his concern for the 'younger brothers' and the fact that he was an 'elder', and was responsible for the younger brothers. In my view, all of this went considerably beyond a mere 'bald admission' of membership of a Triad Society."

10. The judge concluded his Reasons for Verdict by making three points, namely : -

(1) The prosecution succeeded in disproving the alibi raised by the applicant in his evidence.

(2) He adopted the alternative procedure as a matter of convenience. The defence objections to the admissibility of the statement were made before PC 19058's evidence on the general issue.

(3) He entirely ignored the applicant's evidence on the special issue when considering his credibility on the general issue.

11. Today, Mr Egan, acting for the applicant, made the point that the judge was selective in convicting the applicant on some charges and acquitting him on others. He referred to the "obvious discrepancies" of the evidence of the two police officers, namely, PC 19058 and PC 51235. Whilst PC 19058 gave clear evidence as to what the applicant said to him at the scene of his arrest, PC 51235 said he could not remember any conversation between his colleague and the applicant. It is argued that PC 51235 could not have failed to remember a substantial confession made by a suspect in his presence. It was further contended, on behalf of the applicant, that the confession itself was full of police jargon and that ordinary people simply do not talk in this fashion. Then, it was said that the judge did not deal with the conflict of the evidence of PC 19058 and PC 51235. In all the circumstances, Mr Egan argues that the judge should have exercised his discretion in excluding the confession statement.

12. In our judgement, there is nothing in either ground 1 or ground 2 of this appeal. Here we have a very experienced judge, hearing a relatively straight-forward case which did not last long. The judge could not have failed to have all the evidence in his mind, and there is no reason why he could not properly accept the evidence of PC 19058 in spite of the weakness of PC 51235's evidence. Quite clearly, the judge was impressed by PC 19058 as he was perfectly entitled to do.

13. As to ground 3, reliance was placed on the judgment of Cons, VP, in AG v. CHIK Wai-lun [1987] HKLR 41, where it was ruled that a bald statement admitting membership of a triad society would not be considered sufficient evidence in most cases. Authorities were also cited to show that if the contents of a statement consisted of hearsay evidence, then that part of the confession should not be relied on by the judge.

14. In our judgment, one has to look at the whole circumstances in which the admission to membership of a triad society was made. Here we have uncontradicted evidence that the applicant went to the restaurant and demanded protection fee, admitting himself to be a triad member. This, coupled with the admissions made in his confession, was in our view sufficient for the judge to come to the conclusion that the charge for being a member of a triad society was made out. Ground 3 also fails.

15. There is nothing in ground 4 of the appeal.

16. For these reasons, we dismissed the application for leave to appeal against conviction.

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17. In this application for leave to appeal against sentence, the applicant complains that the sentences totalling three years is manifestly excessive. We have taken into account the home-made grounds of appeal, as well as that which is advanced on his behalf by Mr Egan. It is stressed at this hearing that the applicant is a young man of 23, who committed the offence on the spur of the moment in an amateurish manner, and that he comes from a family background which cannot be described as anything other than the ordinary. Referring to the Bill of Rights, Mr Egan urges us to pay heed to the element of rehabilitation in our criminal justice.

18. The judge, in his Reasons for Sentence, refers to The Queen v. CHAN Shui-cheung, CA 167 of 1992, where the Court of Appeal, in similar circumstances, except that the accused who was a 19 years' old boy did return to the restaurant with 12 others after making the demand, said that a sentence of four years, though said to be severe, was held to be proper. There was in that earlier case only one charge of blackmail.

19. There is nothing said in this application which causes us any unease. The totality of sentence is in our judgment entirely proper, the application is therefore refused.