HKSAR v. TSE MING HONG ANDY

HCMA 436/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 436 OF 2005

(ON APPEAL FROM KTCC 7991 OF 2004)

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J U D G M E N T

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1.  This Appellant, a man in his late 20s, stood trial before D.J. Dufton, Esq. in the Magistrate’s Court at Kwun Tong on two charges of acting as a member of a triad society, contrary to s. 29(2) of the Societies Ordinance, Cap. 151.  He was convicted on both charges, and was sentenced to a total of 18 months’ imprisonment by way of consecutive sentences of 9 months’ imprisonment on each charge.  He now appeals against conviction and sentence.

2.  The Bar Free Legal Service Scheme has assigned counsel, Mr Leslie Parry, to represent the Appellant in appealing against his conviction on Charge 2 and against his total sentence of 18 months’ imprisonment.

3.  Charge 1 was of acting as a triad member in the Mongkok area on 20 December 2003.  Charge 2 was of so acting in that area on 31 January 2004.

4.  A Station Sergeant (PW3) gave expert evidence for the prosecution.  His expert evidence accepted by the Magistrate includes the following.  The Wo Shing Wo is a very active triad society in Hong Kong.  “Chui Kai” is a triad expression which involves triad members responding to their triad society’s call to make a show of strength.  “Heung Tor” is a triad expression meaning to reveal the identity of the triad society to which a person belongs.

5.  Prosecution evidence was also given by two Police Constables (PW1 and PW2) who, working undercover, had infiltrated the Wo Shing Wo.

6.  On Charge 1, the Magistrate said in his Statement of Findings that he found the following facts on the evidence of PW1:

“(i)	PW1 attended the Cheung Lung restaurant in response to the call of “Chui Kai”;
(ii)	The call was made because of a dispute with another faction of the Wo Shing Wo triad society;
(iii)	At the junction of Tung Choi Street and Nelson Street Sai Fei instructed a group of about 30, including the appellant, to present in high profile;
(iv)	As the other party had not arrived Sai Fei instructed the group to hide in an amusement game centre or restaurant.  PW1, the appellant and Sai D waited in a restaurant until Gary announced the fight had already started;
(v)	PW1, the appellant and Sai D followed Gary and rushed to the fight where they saw the fight take place;
(vi)	The appellant instructed two injured persons to seek medical treatment and to say they were assaulted in Tsim Sha Tsui and not to “Heung Tor”; and
(vii)	Later at the appellant’s flat the appellant told Sai Fei about what had happened.”

7.  On Charge, 2 the Magistrate said in his Statement of Findings that he found the following facts on the evidence of PW2:

“(i)	Inside the Cheung Lung restaurant Sai Fei received a telephone call informing him that Kai Chai had a quarrel with someone at the Mongkok Bo amusement game centre;
(ii)	Sai Fei told PW2, the appellant and Sai D to gather together at the junction of Tung Choi Street and Nelson Street;
(iii)	At the junction other followers of Sai Fei arrived, one of whom asked Sai Fei if he knew a person called Tai Sing of 14K;
(iv)	Sai Fei said he was not one of their people and they need not give him face;
(v)	Sai Fei then instructed the group, including the appellant, to go to Mongkok Bo amusement game centre to give assistance using the colloquial expression “Chui Kai”;
(vi)	PW2 was told not to join the fight;
(vii)	Shortly after midnight the group returned, including the appellant, saying the fight was over and that some of the other party had sustained injury;
(viii)	Police sirens were heard when Sai Fei instructed the group to go to a snooker parlour; and
(ix)	On the way to the snooker parlour the appellant told PW2 that the fight took place at the subway of Sai Yeung Choi Street.”

8.  I see no basis on which to overturn the conviction on Charge 1.  What about Charge 2?  Two perfected grounds of appeal signed by Mr Parry have been lodged in respect of the conviction on Charge 2.  They read:

“1.	The learned magistrate erred when concluding that the only inference to be drawn from the Appellant’s actions were those consistent with acting as a member of a triad society.
2.	The learned magistrate erred when concluding that the prosecution proved all the elements of the offence beyond reasonable doubt.”

9.  It is said on the Appellant’s behalf that the evidence that he went off with the group and returned with them did not mean that he had gone to take part in a fight, or that he had taken part in a fight or even that there had been a fight.  It is submitted that it has not been proved that the Appellant assembled at Mongkok Bo as instructed. But there was evidence, accepted by the Magistrate, that the Appellant answered the call to gather at the junction of Tung Choi Street and Nelson Street and that he then moved off with the group as instructed.  That conduct is, in my view, sufficient to support the charge which, after all, is of acting as a member of a triad society and not of an offence such as assault, affray or fighting in a public place.

10.  In my judgment, the Magistrate was entitled to convict the Appellant on Charge 2 as well as Charge 1.  The appeal against conviction is accordingly dismissed.

11.  One perfected ground of appeal against sentence has been lodged.  It reads:

“The learned magistrate erred in failing to give sufficient consideration to the principles of totality and failed to reduce the overall sentence accordingly, resulting in a sentence that was manifestly excessive. ”

12.  The Magistrate said that he was satisfied that the proper sentence on each charge was 9 months’ imprisonment, that he was satisfied that consecutive sentences were appropriate and that a total sentence of 18 months’ imprisonment properly reflected the Appellant’s criminal culpability.

13.  The Magistrate’s statement that he was satisfied that the total sentence of 18 months’ imprisonment properly reflected the Appellant’s criminal culpability tends to suggest that the Magistrate had considered totality.  But his statement that he was satisfied that the proper sentence on each charge was 9 months’ imprisonment casts doubt on whether the totality principle had actually been applied.  On the face of that statement, it sounds as if 9 months’ imprisonment on each charge alone was regarded by the Magistrate as appropriate.  Although the Respondent contends that the total sentence is not manifestly excessive, the Respondent does recognise that the sentence can be said to be on the high side.

14.  Given that the sentence is on the high side and having regard to the doubt as to whether the totality principle was applied, I think that the just course is to allow the appeal against sentence to the extent of reducing the total sentence to 15 months’ imprisonment by ordering that only 6 months of the sentence on Charge 2 run consecutively to the sentence on Charge 1.  The appeal against sentence is allowed to that extent accordingly.

15.  Finally I thank both counsel, and acknowledge the value to the courts of the services of able and dedicated counsel provided through the Bar Free Legal Service Scheme to persons who would not otherwise be legally represented.