HKSAR v. LO KA WAI AND ANOTHER

HCMA235/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 235 OF 1998

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J U D G M E N T

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1. On 25 February 1998, before Mr Paul Kelly, Permanent Magistrate at Eastern Magistracy, the appellants, Lo Ka Wai and Lau Kam To, were convicted on their own pleas of an offence of acting as a member of an unlawful society, contrary to s.20(1) of the Societies Ordinance, Cap.151. They were charged with that offence along with others who have not appealed.

2. The circumstances of their plea were somewhat unusual, as may be seen from the following extract from the transcript of the proceedings :-

"Prosecutor : 'Good morning, your Worship, my name is Madigan, I appear for the SAR in this case. Before we go anywhere, I'm making an application to amend the charge from attending a triad meeting, sir, to acting as a member of an unlawful society. It's part of the same section, it's an alternative in the section, subsection (1) of section 20, sir.'

Court : 'Well, it's an amendment as opposed to an alternative charge, is it?'

Prosecutor : 'It's an amendment as opposed to alternative charge. Because there's only one charge, it's not an alternative at the moment. So I make an application to change it from attending a triad meeting to acting as a member of an unlawful society.'

Court : 'Do you have an amended charge there?'

Prosecutor : 'I don't sir, no, I'm sorry. It just involves changing the heading of the charge from attending a triad meeting to acting as a member of an unlawful society, and the words at the end of the charge, 'you did act as a member of an unlawful society, namely, the Sun Yee On'.'"

The Magistrate then asked if there were any objections from those who appeared for the defendants before him, there were no objections and he proceeded to take plea. As I have said, the two appellants entered guilty pleas.

3. When he came to the question of the facts, the Magistrate said to the prosecutor.

Court : "I'm going to have the facts of the case read to you defendants 2, 3 and 7 and say if you agree."

Prosecutor : "Sorry, I don't have a copy of the facts for you, but I will read some facts."

Court : "Yes, please. Listen as the facts are read to you, defendants."

The prosecutor then read these facts.

Prosecutor : "In early 1997 a police officer was tasked to infiltrate the triad societies active in the Wan Chai area. At the end of April, that officer successfully infiltrated into a faction of the Sun Yee On triad society and managed to closely associate with its members. The defendants were members of the triad society.

4. In the small hours of 13 June 1997 the officer was having entertainment at the California Red Karaoke at 441 Lockhart Road, Wan Chai. That karaoke bar was under the protection of the Sun Yee On. The officer learned that a Sun Yee On member nicknamed 'Ah Ken' had been assaulted by some Wo Hop To people in Room 23.

5. Shortly afterwards, these defendants, together with some 40-odd others, arrived at the karaoke and went into Room 23. The officer heard some glass breaking sounds coming from the room. A moment later a person came out of the room with a bleeding eye.

6. The 2nd and 3rd defendants were arrested on 15 August 1997 and the 7th accused was also arrested on 15 August 97."

The Magistrate asked to look at the charge sheet and then said :

"On your guilty pleas, defendants 2, 3 and 7 and upon your having admitted the facts of the case, you are each convicted of the offence of acting as a member of an unlawful society."

Before he did that, the record shows in italics - "facts agreed by 2nd, 3rd and 7th defendants".

7. The appellants now, with the leave of Beeson J. granted on 18 December 1998, appeal against their conviction out of time. They are represented by Mr David Ma of Counsel. He advances the following grounds of appeal.

"The appellants pleaded guilty to an offence of acting as a member of an unlawful society, contrary to s.20(1) of the Societies Ordinance, Cap.151. However the facts read out by the prosecuting Counsel and admitted by the appellants did not support the charge. In the circumstances the convictions as entered by the learned Magistrate was wrong."

8. It is Mr Ma's argument that the facts read to the Magistrate and agreed by the appellants were insufficient to support a conviction on the s.20(1) Societies Ordinance charge. In particular, Mr Ma contends that proof of what had happened in Room 23 of the karaoke bar was dependant upon inadmissible hearsay evidence.

9. The general rule is that if a defendant pleads guilty, the prosecution are released from their obligation to prove the case. The defendant stands convicted simply by virtue of the word 'guilty' that has came out of his own month. On a trial on indictment, there is no need to empanel a jury. However, it was recognised by the Court of Appeal in England in R. v. Boal [1992] 95 Cr.App.R. 272, that if the evidence did not form a sufficient basis for finding an essential ingredient of the offence proved, an appeal against conviction can lie, even though the appellant pleaded guilty to the charge at trial. This being on the basis that such conviction is unsafe and unsatisfactory.

10. Mr Ma says that without admissible evidence that a man had been assaulted in Room 23, there was no evidence explaining why the appellants went into that room. The undercover police officer did not enter the room, therefore, he did not see what happened in the room, or hear what was said there. The only evidence the prosecution had was that the appellants and others entered into the room, the undercover police officer heard the sound of breaking glass, and shortly after a man came out of the room with a bleeding eye. Mr Ma says that was not enough to prove what happened in the room. The cause of the man's injuries could have been accidental and not caused as a result of an assault on him in Room 23 of the karaoke bar either by the appellants, or by others.

11. Had the officer given evidence, I accept that the sentence in the facts read to the learned Magistrate, which Mr Ma takes objection to, would have been hearsay and inadmissible at trial in support of the prosecution case.

12. Mr Ma's argument is an attractive one, but it ignores the fact that the appellants agreed to the assertion in the facts that they were both members of an unlawful society - the Sun Yee On triad society, and that the bar - the California Red Karaoke - was under the protection of the unlawful association they considered themselves to be members of and that the facts further indicated that they had gone to that bar in pursuance of the purposes of that society. That, to my mind, is all the prosecution was obliged to prove in order to succeed on the charge. Had they been called upon to prove their case, the prosecution would not have needed to prove that a further unlawful act took place in Room 23 of the bar. In this case, the appellants have not been able to put themselves within the scope of the English Court of Appeal's judgment in Boal and their appeal against conviction must fail. It is dismissed.

13. I turn now to their appeal against sentence.

14. For their offences, the Magistrate sentenced each of them to serve 10 months' imprisonment, to be served consecutively to sentences of imprisonment for acting as members of a triad society imposed earlier in the District Court which they were serving at the time of the trial before him. In arriving at his sentence of 10 months' imprisonment, he took 15 months imprisonment as the appropriate sentence after trial and reduced that by five months to reflect their guilty pleas. He was right to give them that discount. However, the Magistrate failed to appreciate that the offence of acting as a member of an unlawful society, carries on conviction a maximum sentence of 12 months' imprisonment for a first time offender : see s.20(1)(a) of the Ordinance. He failed to appreciate that this was the first time either of the appellants had been convicted of this offence, though they had earlier convictions for acting as members of a triad society which is, however, a separate offence created by s.20(2) of the Societies Ordinance. Twelve months' imprisonment was the most they could have been sentenced to by law and that penalty is appropriate only for those convicted after trial and who have no mitigation.

15. Speaking for myself, I cannot see why the prosecution chose to proceed under s.20(1) and not under s.20(2), but that was their choice, and in doing so they must be taken to have accepted that the Magistrate's sentencing powers were limited by s.20(1)(a).

16. The offence the appellants pleaded guilty to was undoubtedly a serious one, calling for an immediate custodial sentence. The Courts cannot and will not, tolerate organized protection rackets and the use of violence - for I have no doubt that violence was deliberately used in Room 23 of that bar - in the enforcement of those protection rackets. After trial, a sentence of 12 months' imprisonment, the maximum permitted by law, was the appropriate punishment for these two young men. They are entitled to a one-third discount to reflect their guilty pleas. The Magistrate was right to order that the sentence he passed on the appellants be served consecutively to the sentences they were then serving, as those offences and those he was concerned with arose out of entirely separate instances.

17. I allow the appellants' appeals against sentence to this extent : in substitution for the Magistrate's sentences of 10 months' imprisonment, I impose sentences on each appellant of eight months' imprisonment. They will be served consecutively to the sentences imposed on them by the learned District Court Judge in the earlier proceedings.