HKSAR v. MONY MANOJ

HCMA 58/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 58 OF 2009

(ON APPEAL FROM ESCC 2019/2008)

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REASONS   FOR   JUDGMENT

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1.  On 24 November 2008, the Appellant was convicted by a Magistrate sitting at Eastern Magistracy of an offence of claiming to be a member of a triad society contrary to Section 20(2) of the Societies Ordinance, Chapter 151, Laws of Hong Kong.  He was sentenced to three months’ imprisonment.  It is against the conviction only that the Appellant now appeals.

2.  On 18 December 2008, the Appellant filed notice of appeal in Form 101 on the general ground that the conviction was against the weight of evidence or that there was no evidence or no sufficient evidence whereon to found the said conviction.

3.  On 24 March 2009, the Appellant appeared before me in person on the hearing of his appeal, and after hearing his submissions and those from the Senior Public Prosecutor on behalf of the Department of Justice, I dismissed the appeal indicating I would hand down my reasons for doing so in due course.  I now do so.

4.  In the court below, there was only one witness, PW1, a 15-year-old boy, whose evidence in relation to this particular charge was disputed.  He testified to the fact that on the day in question, i.e. at about 2.00 am on 11 January 2008, he was approached by the Appellant in a 7-11 store who having tapped him on the shoulder and pushed him around asked him, PW1, if he followed anyone.  After PW1 replied in the negative, the Appellant kept pressing him with the same question in a fierce manner and told PW1 that he was “Lo Fuk” which PW1 understood to be a triad society.  He also told him that he would beat PW1 up every time he saw him in the Chai Wan area.  Eventually, someone pulled the Appellant out of the store.  PW1 called the police and the Appellant was arrested.

5.  A triad expert testified to the fact that “Lo Fuk” is the short name for Fuk Yee Hing which is an active triad society in Hong Kong.  This was not disputed, neither was the identity of the Appellant ever in dispute.

6.  The Appellant testified in the court below, and whilst he agreed that he did meet PW1 in 7-11 and had a conversation with him, he did so in circumstances which were quite different to those testified to by PW1.  Whilst he agreed that he did ask PW1 where he came from and where he lived, he denied that he claimed to be “Lo Fuk”, nor did he threaten that he would beat him up every time he saw him in the Chai Wan area.

7.  As identified by the learned Magistrate, the only issue for him to determine was whether or not the Appellant did indeed claim to be a member of Fuk Yee Hing.  In order to determine this, clearly, the credibility of PW1 on the one hand and the Appellant on the other was fundamental.

8.  Despite some inconsistencies between PW1’s evidence in court and his witness statement to the police which the learned Magistrate resolved, he found PW1 to be an honest and mostly reliable witness and he believed his testimony.  With regard to the testimony of the Appellant, the learned Magistrate said this:

“I find the defendant not to be telling the truth about the incident in King’s Road 7-11 with PW1.  He is lying about the exchange between himself and PW1.”

9.  The learned Magistrate had the benefit of hearing and seeing both PW1 and the Appellant give evidence.  He is in the best position to determine the question of credibility.  The Magistrate was perfectly entitled to come to the conclusions that he did in this regard.

10.  Having found that he accepted the evidence of PW1 and disbelieved the Appellant, it was inevitable that a conviction would follow.

11.  It is for these reasons that I dismissed the appeal against conviction.