THE QUEEN v. WAI HIN KEUNG

IN THE COURT OF APPEAL

1986, No. 133
(Criminal)

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. The application for leave to appeal against conviction in this instance was dealt with 2 days ago. We are now concerned with the application for leave to appeal against sentence.

2. The Applicant, ("the Defendant"), was convicted on 3 charges; claiming to be an office bearer of an unlawful society, being a member of a triad society and possession of writings relating to a triad society.

3. On the 1st Charge he was fined $5,000 and sent to prison for 3 years, to be followed by police supervision for a further 3 years. On the 2nd Charge he was fined $2,000 and sent to prison for 1 year, concurrent with the prison sentence on the 1st Charge. On the 3rd, or as it was at the trial, the 10th Charge he was fined a further $2,000 and again sent to prison for 1 year, to be served concurrently with the other terms.

4. Counsel for the Crown concedes, as the judge himself later realised, that there was no jurisdiction to impose a term of police supervision at the conclusion of the prison sentences.

5. We think it would be fair to summarise the complaints laid against the sentences by Mr. Buchanan, who appears for the Defendant, as being basically that the judge placed an unjustified reliance on the aggravating features of the case and underestimated the favourable parts of the mitigation. The substance of the mitigation is that the Defendant has a family to support, that is a wife and four children, that he has a clear record for almost 10 years and, as he put it himself in his own grounds of appeal, the report from the Probation Officer was quite sympathetic. With every respect to him, we do not read that emotion into the Probation Officer's comments.

6. The judge made mention of these matters in his Reasons for Sentence. We see no reason to think that he underestimated them, although there is perhaps one matter which is not common, as the others are, to most defendants. That is, that because of his imprisonment, he has lost the business which was his financial support and that of his family. As we indicated at the outset the judge imposed fines in addition to a lengthy prison sentence. That is an unusual order and in the particular circumstances of this case we think it was unnecessary.

7. The aggravating feature of the case is that the evidence disclosed the Defendant to have been active amongst a group of young people, and although he was acquitted of inviting any of those young people to become members of a triad society, it is quite clear that he was to some extent initiating them into triad ways. The principal feature of the evidence was that he was attempting to teach them triad poems.

8. Complaint is made that the judge in his Reasons for Sentence said that the Defendant was "exploiting the situation". "Exploiting" is a strong word but we think the complaint is only a matter of semantics. The Defendant was approaching young people with triad overtones. That is conduct which is not to be encouraged.

9. In our view the judge's approach to sentencing was correct. We feel bound to observe that triad offences of any kind are very serious offences. Although the sentence of 3 years that he imposed was heavy, we cannot say that it, or the other terms, were manifestly excessive.

10. For that reason, although we grant. the application and allow the appeal to the limited extent of setting aside the fines and the order for police supervision, the appeal is otherwise dismissed.