HKSAR v. CHAN YUET CHING

HCMA 313/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 313 OF 2008

(ON APPEAL FROM TWCC 3150/2007)

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J U D G M E N T

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1.  The Appellant was convicted by Mr John Glass, after trial in the Magistracy, on two counts of “Acting as a member of triad society”, contrary to section 20(2) of the Societies Ordinance, Cap. 151.  He appealed against conviction only.

2.  The incident, the basis of the first charge, took place at Co Co Duck Disco, in Tsun Wan on the 13 March 2000.  The Appellant had been seen with a group of men believed to be triads, in the early hours of 12 April 2000, and was seen to adopt a position as leader. The incident, which was interpreted by PW2, the triad expert, as a triad show of strength occurred over a number of hours.  Initially a small group gathered at the Ngau Chuen Restaurant; later the group went to another restaurant where they were joined by a group of 7 persons. The enlarged group went to Room 2, upstairs in the Co Co Duck Disco. A group of about 60 people was either sitting at the tables in the room, or standing just outside it. In Room 1, separated from Room 2 by a curtain, 20 more people were seated.

3.  None of those present drank beer (despite its having been served), played finger-guessing games, or danced, as one might have expected them to do at a discotheque.  After some time, a man came in and spoke to the Appellant for about 30 minutes; he then left.  Throughout this time, the assembled group had been silent with serious facial expressions.  After the man had gone the Appellant spoke to a man at his table and then announced to those assembled, ‘the matter with Lo Fuk has been settled’.  The reference to “Lo Fuk” was believed to be a reference to the Fuk Yee Hing Triad Society.  After that the group began to engage in drinking, dancing and playing finger-guessing games. The Magistrate found that the Appellant was in control of the persons gathered at the disco and was taking a leadership role in a typical triad show of force following a “blowing of the whistle”.

4.  The second charge was based on a similar incident which occurred, allegedly, on the 21 April 2000 at Jungle King Karaoke Box in Tsuen Wan. The Appellant was found by the Magistrate to have adopted a role as one of the leaders of a group which was intent on creating a show of force apparently to put pressure on the owners, or management, of the Jungle King.  A group of about 9 persons travelled to the Nam Fung Centre where they were joined by another group of 20 and the combined groups went up to the Jungle King.  At the lobby the group adopted an angry demeanour to create a show of force.  A discussion ensued between the karaoke management and the leaders of the waiting group, which included the Appellant.

5.  Those waiting blocked access to potential patrons of the Jungle King by putting rubbish bins in the lifts.  A fight, in which knives were used, broke out between the lobby group and those inside the Jungle King. The Magistrate found the fight was between opposing triad groups.  The Appellant took charge when one of the waiting lobby group was injured and later visited him in hospital.  At the hospital he directed the injured man’s ‘big brother’ to look after him.

6.  The Magistrate found that this gathering too was a typical triad show of force, consequent on a blowing of the whistle.

7.  The three Perfected Grounds of Appeal can be summarized thus:

(1)     The Magistrate in determining that the Appellant was correctly identified as a person acting as a member of a triad society, erred in his evaluation of the identification evidence.

(2)     The Magistrate erred in convicting the Appellant of the offence under section 20(2) of the Societies Ordinance, Cap. 151, when it had not been proved that the Appellant knew that his conduct was such that he was acting as a member of a triad society.

(3)     There was no, or insufficient, evidence to establish that the acts or declarations of others at either of the events the basis of the charges, were in furtherance of the offence charged, so insofar as they tended to prove the triad nature of the event, they were not admissible against the Appellant.

Ground 1

8.  The major evidence came from PW1, a police officer, who had infiltrated a triad organisation and its sub-culture for the purposes of an undercover operation which ran from July 1999 to June 2000, at which time the operation turned overt.

9.  In the course of that duty, PW1 was able to see the Appellant on a number of occasions and in different settings; he reported those sightings and gave details of the Appellant’s activities, as observed by him, regularly to a senior officer at a safe house during that time.  He kept a diary, mainly for his own purposes but available to others, particularly his de-briefing officer, if necessary, and at intervals composed witness statements which normally he wrote after checking the case reports.  Over the period of his surveillance activities, he identified the Appellant as Cheung Ying Ching a.k.a. “Ching Gor”, or “Mr Chan”.  The formal identification of the Appellant was not carried out until an Identification Parade was held on 24 October 2007; a period of 7 years after the last sighting of the Appellant by PW1.

10.  The identification of the Appellant was attacked in two aspects.

11.  The first was simply that the formal identification could not possibly be safe being made, as it was, after such a long interval.  In presenting his arguments Mr Bruce, SC came very close to submitting that any identification made after such a time lapse must be too risky to be reliable.  While that cannot be correct, it was clear the identification evidence demanded rigorous scrutiny.

12.  The second point was that PW1 had erred by identifying a man known as “Chiu Mo” as a participant in the events when it was proved, and accepted by the prosecution, that he had been outside Hong Kong at the relevant times.  Mr Bruce, SC submitted that as the Magistrate had never given a positive explanation for his wrong identification, the matter had not been resolved satisfactorily.  Further, as the identification of Chiu Mo had been made by PW1 in similar circumstances to that of the Appellant, it meant that PW1 was an unreliable identification witness, whose identification of the Appellant was likely to be mistaken.  The interval between the last time PW1 saw “Chiu Mo” and the formal Identification Parade was only a few months.  Thus, if PW1 had made a wrong identification in those circumstances, it was very likely that he had wrongly identified the Appellant.

13.  The Magistrate explained how he dealt with identification from pages 13 to 16 of his Statement of Findings.  He gave himself a full Turnbull direction.  He set out the many occasions on which PW1 had seen the Appellant; the nature of the occasions and times of day at which he had seen him and, where relevant, the lighting and other conditions were considered.  He had reviewed in detail the number, type, length and quality of PW1’s sightings of, or encounters with, the Appellant.

14.  The Magistrate in assessing the identification evidence also took into account that PW1 was not tasked to recall just a single face, that of the Appellant, but had been obliged during the period of the covert operation to recall a number of faces.  The Magistrate considered too the possibility and the likelihood that there might have been significant changes in the Appellant’s appearance in the 7 years’ gap.  Having considered the relevant evidence, he was satisfied that PW1 had identified correctly the Appellant as Cheung Ying Ching, alias “Ching Gor” and “Mr Chan” and that there was no mistake in the identification.

15.  The Magistrate discussed the erroneous identification of Chiu Mo at paragraph 15 of his Statement of Findings.  [B15 – 16]  He found that it was not clear from the evidence under what circumstances the identification had been made e.g. whether PW1’s identification of Chiu Mo had been based upon a single encounter, or a number of fleeting glance identifications, or a continuous identification made at close quarters without obstruction.  He noted that there was no evidence how close PW1 and Chiu Mo were to each other during such encounters, or what peculiar physical conditions prevailed which might have affected the accuracy of any identification.  The paucity of information and evidence made the identification of Chiu unreliable.  The Magistrate found he could not give the mis-identification much weight, as the circumstances were so very different from those pertaining to that of the Appellant.

16.  I am satisfied, having considered the evidence and his findings, that the Magistrate took into account all relevant matters when considering whether he could rely on PW1’s identification of the Appellant.  He was a professional tribunal and was aware of the importance of assessing the identification evidence in the proper context of the case.  Having reviewed that evidence carefully and having reminded himself of the relevant Turnbull factors, he found he could rely on PW1’s evidence.

17.  The 7 years’ gap and the incorrect identification of “Chiu Mo” required great caution from the Magistrate but those factors did not by themselves destroy the validity of the identification by PW1, as long as the Magistrate gave himself the appropriate warnings.  I do not find that this ground of appeal has been made out.

Ground 2

18.  This ground alleged that the Magistrate erred in law in that before a person could be convicted of an offence under section 20(2) of the Societies Ordinance, he must be proved to have known that his conduct was such that he was acting as a member of a triad society.  The relevant section states:

“s.20(2)    Any person who is or acts as a member of a triad society or professes or claims to be a member of a triad society or attends a meeting of a triad society or who pays money or gives any aid to or for the purposes of the triad society or is found in possession of or has the custody or control of any books, accounts, writing, lists of members, seals, banners or insignia of or relating to any triad society or to any branch of a triad society whether or not such society or branch is established in Hong Kong, shall be guilty of an offence and shall be liable on conviction on indictment.”

19.  Mr Bruce, SC, who appeared for the Appellant, submitted that there was a difference between proving a person to have intentionally done the kind of act that a triad would do, and proof that the accused acted thus, knowing that his act had such a character.  It was not enough to establish that the acts were acts that a triad would do; it must be proved that the Appellant knew them to be such acts and that as there had been no finding by the Magistrate of that nature the charge could not be established.

20.  The court was referred to HKSAR v. WONG Shing-chi CACC 245/1999, a Court of Appeal decision, which established that the prosecution for an offence of this nature did not have to prove that the person was a triad society member.  The Court said that there must be some overt act which was done by the offender as a triad.  According to Mr Bruce, SC the Court of Appeal did not directly address the point he was seeking to make.  He submitted that the Appellant had to know that what he was doing was a triad act and the prosecution had to prove and show that the Appellant was aware he was acting as a triad society member.  It did not have to be proved that he knew the relevant law, but there had to be some advertence to the nature of his conduct as being that of a member of a triad society.  He had to be shown to have recognised that what he did was the act of a triad and nothing short of that would do.

21.  Mr Tam, who appeared for the Respondent, argued that there had never been such a requirement as was submitted by Mr Bruce, SC.  He referred to YIP Lai-ying v. HKSAR, FAMC 80/2005 where the Appeal Committee cited with approval a passage in WONG Shing-chi (supra), which stated:

“… a triad would normally go out as a triad in answer to a summons from a triad, and band together with others in order to show strength in a confrontation and any one acting in this way was acting as a member of a triad society.”

22.  Further, in HKSAR v. LAM Yan-ming, HCMA 1078/2003, McMahon J in considering s. 20(2) stated:

“The actus reus of the offence is ‘acting as a member of a triad society’.  Those words speak for themselves, but if any further explanation of them were required they could perhaps be said to mean that the offender’s acts emulated those of a person who was a member of a triad society.”

23.  Thereafter, McMahon J described the mens rea of the offence as an intention to act as a member of a triad society, which must mean, given his explanation of the actus reus, an intention to do acts which emulate those of a person who was a member of a triad society. 

24.  Mr Tam submitted that in the context of this case, the Appellant had evinced a clear intention to participate in the banding together with others to show strength in a confrontation, and on the basis of the facts that the Magistrate found, it was clear that the Appellant had acted as a member of a triad society on the two occasions charged.

25.  Mr Tam submitted further that if, before a person could be convicted of an offence under s. 20(2), he had to be proved to have known that his conduct or acts were such that he was acting as a member of a triad society, then that amounted to a requirement that he had to be proved to have known the relevant law before he could be convicted, a situation the legislature could not have intended.

26.  After considering counsels’ submissions I am of the view that s. 20(2) cannot support the more extreme interpretation, or gloss, that Mr Bruce, SC would like to give it.  On a clear reading of the section all the prosecution needed to prove was that the Appellant was acting in a manner which emulated the actions of a member of a triad society; that he was taking part in the kind of activities of a triad society a member might be required to take part in.  Presence alone during such activities would be insufficient.  An overt act, or acts, must have been done consciously in circumstances which left no room for doubt.  As Mr Justice McMahon stated:

“The offence is restricted to acting as if the offender were a member of a triad society, not merely doing something which a triad might also occasionally do”.  Lam Yan-ming (supra)

27.  To interpret the section in any other way would be to miss the point of it.  The section is cast wide deliberately, to enable triad-type activities to be stamped out.  It would place an unreasonably heavy burden on the prosecution to constrict the section in the manner suggested by Mr Bruce, SC.

Ground 3

28.  Mr Bruce’s third ground related only to Charge 1 and effectively was a complaint that the Magistrate invoked the co-conspirator’s rule to allow him to include and rely on inadmissible hearsay to establish the Appellant’s guilt.  This related allegedly, both to a question that PW1 asked during the gathering at the Co Co Duck Disco, “Why on earth are they blowing the whistle tonight?” and what was referred to as “an utterance” made by “Ah Kei” during the same gathering.

29.  The question was asked by PW1, but there was no evidence that anybody answered it.  Nor was it clear whether PW1 had asked the question to give verisimilitude to his pose as a triad member, or whether he asked it in his role as an undercover police officer, hoping to elicit a response from a person, or persons, present.  The utterance attributed to “Ah Kei” cannot have been relevant in any way except, perhaps, as part of a chronological description of events at the disco.  There was no indication of the content of the utterance, what it related to, or why it was made.

30.  In neither instance did the Magistrate use this material to attribute to the Appellant the elements of triad-related behaviour.  Neither item had any evidential relevance – nor did the Magistrate rely on them through an incorrect invoking of the co-conspirators’ rule.  This ground is wholly misconceived.

conclusion

31.  Overall I am satisfied that the Magistrate dealt correctly with the important question of identification and that he found correctly, as he was entitled to do, that the activities of the Appellant as described during the two incidents, amounted to behaviour which emulated that of a member of a triad society.

32.  This appeal against conviction is dismissed.