THE QUEEN v. SIU YUK SHING AND ANOTHER

IN THE COURT OF APPEAL

1986, No. 502
(Criminal)

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Date of Decision : 30th April 1987

Date of Handing Down Judgment : 19th May 1987

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J U D G NE N T

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Si1ke, J. A. :

1. We gave our majority decision allowing the appeals of both Dl and D2 on the 30th April. We stated we would give our reason later. This we now do.

2. Siu Yuk Shing - "DI" - and Ho Fuk Sing - "D2" faced trial in the District Court on a Charge Sheet containing 6 counts. They were all triad related.

3. Dl. was convicted on the 1st, 3^rd, 4th and 6th counts. D2 was convicted on the 1st, 3rd and 4th counts. Dl received a sentence of 18 months' imprisonment in total and D2 a sentence of 12 months' imprisonment in total, suspended for 2 years. They both seek leave to appeal against their convictions and Dl, in addition, originally sought leave to appeal against his sentence. Before us that application was abandoned.

4. The 1st count, which was a joint charge, was that of membership of a triad society. Particulars alleged that on the 26th February 1986, they were members of the l4K, Chung Yee Tong Society, also known as the Chung Yee Wui "the society".

5. The 3rd count, again a joint charge was that of assisting in the management of an unlawful society. Particulars alleged that on the 26th February 1986, they assisted in the management of the society.

6. The 4th count, again joints was that they were 1n possession of insignia relating to the society and the Particulars alleged that on the same day as in the other counts they had in their possession insignia namely an altar bearing the name "Chung Yee Tong".

7. The 6th count, laid against Dl only, was that of possession of writings relating to the triad society. The Particulars alleged that on the 28th February 1986 at 232 Nathan Road, third floor, Rear Portion, he had in his possession writings namely one white paper fan bearing a triad writing marked "Siu Wah" with a seal, two scrolls bearing triad writings, and a box of approximately 150 red cards bearing a list of members and triad writings of the society.

8. On the 26th February, a police party hid gone to 232 Nathan Road second floor, Rear Portion with a search warrant. The premises were searched and a large number of items were found which included those items referred to in count 6 and the Kwan Ti altar referred to in Count 4.  A great deal of the cross-examination of the witnesses in the items seized, including the altar and its decorations, could have been purchased in the shops of Hong Kong and without comment. One of the witnesses Chief Superintendant Mumford, who has given evidence in the Courts on previous occasions on triad matters, accepted that separately all the items on the alter could have had an innocent connotation but he went on to say:

"Together, in my impression, this altar has been used for Triad initiations.”

9. It was the Crown's evidence that, taken together, the exhibits had triad connotations.  It is not now contested that the trial judge would have been entitled so to find.

10. Further, the premises were shown to be in the possession of Dl and the judge would have been entitled to find possession of the altar. The "possession" by D2 is, however, in question and I shall return to this later.

11. There was sufficient evidence upon which the judge could find the existence of the triad society referred to in the counts in the Charge Sheet and it is not contested that he could properly have come to that conclusion.

12. In the course of the trial, the Crown made an application to adduce in evidence a previous conviction of Dl. That conviction was in 1975 and it was for membership of a triad society. The basis upon which its introduction was sought was first: that it would be relevant to show knowledge by DI that the items seized were associated with triad activity. Second: that it was relevant for the purpose of rebutting a clearly identified defence.  On this, it was the Crown’s submission that the "fundamentally foreshadowed" was the lack of knowledge.  This submission clearly stemmed from the nature of the cross-examination to which I have earlier referred. The trial judge ruled, following Makin⁽¹⁾ that the evidence which the Crown sought to lead was for the purpose of rebutting a clearly identified defence - that Dl was not aware and did not have knowledge of the nature of the items seized - and was admissible. It was not to show that by reason of his conviction Dl was likely to have committed any of the offences charged. He accepted that the evidence would have a prejudicial effect but fe1t that, as he was sitting as both judge of fact and law, such effect would be minimal compare with its effect upon a jury. He held that the probative effect of the evidence outweighed its prejudicial.

In, with respect, a somewhat confusing two-part Reasons for Verdict, the trial judge held that the evidence of the items in the possession of Dl left him in no doubt that D1 was a member of the 14K triad society, that he was an office bearer in the triad society though not, as was alleged, a white paper fan, and in no doubt that he was assisting in the management of the 14K society. He found it inconceivable that Dl did not know the nature and significance of the material in his possession and he went on:

"The fact that he was convicted in 1975 for membership of 14K Triad Society is an additional matter the effect of which is to leave me in no doubt whatsoever that he knew the nature and purpose of the exhibited material of some of which I am satisfied he was the author (in the sense of writer)."

He made another reference to knowledge in the first half of his Reasons for Verdict, saying

"I want to say finally that in respect of knowledge that the combination of the items which can be sheeted home to 1st accused leaves me in no doubt, no reasonable doubt that he was a member of triad society and that on those and on the presumption that he was assisting in the management of an unlawful society 14K. It arises also on the presumption in respect of the 6th charge but that with the previous conviction of the 1st accused admitted from 1975 in North Kowloon Magistracy of membership of the' I~K triad society I am left in no doubt at all as to his knowledge of the nature of the items."

13. The presumption to which the judge had made reference is that contained in section 28 of the Societies Ordinance, Cap.151 which reads:

"28       (1) Where any books, accounts, writings, lists of members, seals, banners or insignia of or relating to or purporting to relate to any society are found in the possession of any person, it shall be presumed, until the contrary is proved, that such person is a member of such society, and such society shall be presumed until the contrary is proved, to be in existence at the time such books, accounts, writings, lists or members, seals, banners or insignia are found?

(2) Where any books, accounts, writings, lists of members, seals, banners or insignia of or relating to any society are found in the' possession of any person, it shall be further presumed, until the contrary is proved, that 'such person assists in the management of such society."

14. These presumption were also applied in respect of D2.  Dl was not found upon the premises. D2 was.

15. Mr. Howard, with him Mr. Johnson Lam, who appears for both Applicants in this Court submits, in respect of Dl, that the trial judge was wrong in law to permit the Crown to adduce evidence of the previous conviction; alternatively that its prejudicial effect outweighed its probative value; and finally that the tria1 judge was wrong in law in that he misdirected himself by using the previous conviction of DI in coming to his conclusion that he had no doubt that Dl had knowledge of the nature of the triad items found in the premises. In all the circumstances, therefore, the convictions of Dl are unsafe and unsatisfactory.

16. Mr. Howard makes the subsidiary point that the 1975 record of conviction does not disclose what triad society Dl had been a member of. It was admitted at trial, an admission made as counsel "put it "(but) only on the basis of your ruling that such evidence is admissible in this trial", that the conviction did relate to the 14K.

17. Neither Applicant gave evidence at trial.

18. It is Mr. Howard's basic submission that here there was not sufficient evidence of system nor was there such a striking similarity of facts as to ground the admissibility of the evidence of conviction.

19. In Makin ^{( 1)} - where the accused was charged wit h murder of a child and admissibility of evidence relating to the finding of other dead children and that other children had been entrusted to the appellants, Makin and his wife, was in issue - Lord Herschell L.C. said of' similar fact evidence at p.65:

"In their Lordships' opinion the, principles which must govern the decision of the case are clear, though' the application of them is by no means free from difficulty. It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused' has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if, it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other." (Emphasis supplied)

20. In Harris⁽²⁾, Viscount Simon reviewed in his Speech various authorities which had come after Makin⁽¹⁾ and said, at page 52, of the passage in Makin⁽¹⁾ referring to the rebutting of a defence that:

"(Lord Herschell) is not using the vocabulary of civil pleadings and requiring a special line of defence to be set up before evidence is tendered which would overthrow it. If it were so, instances would arise where the magistrates might be urged not to commit for trial, or it might be ruled at the trial, at the end of the prosecution’s case, that enough had not been established to displace the presumption of innocence, when all the time evidence properly available to support the prosecution was being withheld."

He went on to quote with approval the words of Lord du Parcq in Noor Mohamed⁽³⁾ where, in commenting on that which Lord Sumner had said in Thompson v. Director of Public Prosecution⁽⁴⁾, Lord du Parcq said:

"An accused person need set up no defence other than a general denial of the crime alleged. The plea of not guilty may be equivalent to saying: 'Let the prosecution prove, its case, if it can,' and, having said so much, the accused may take refuge in silence. In such a case it may appear (for instance) that the facts and circumstances of the particular offence charged are consistent with innocent intention, whereas further evidence, which incidentally shows that the accused has committed one or more other offences, may tend to prove that they are consistent only with a guilty intent. The prosecution could not be said, in their Lordship's opinion, to be 'crediting the accused with a fancy defence' if they sought to adduce such evidence."

21. He concluded that he did not understand Lord Hershell's words to mean that the prosecution must withhold evidence which has a bearing on the issue of accident or designs or intention until after an accused had set up a specific defence which called for rebuttal.

22. In the D.P.P. v. Boardman⁽⁵⁾, the decision of the House of Lords starting at page 435, Lord Wilberforce having made reference to the matter at issue - the admissibility, on a charge against the appellant of buggery with one boy, of evidence that the appellant had incited another boy to buggery, and vice versa, said at p.442:

"Whether in the field of sexual conduct or otherwise, there is no general or automatic answer to be given to the question whether evidence of facts similar to those the subject of a particular charge ought to be admitted. In each case it is necessary to estimate (i) whether, and if so how strongly, the evidence as to, other facts tends to support, i.e. to make more credible, the evidence given as to the fact in question, (ii) whether such evidence, if given, is likely to be prejudicial to the accused. Both these elements involve questions of degree."

23. He continued that it was a matter for the trial judge to estimate the respective and relative weight of those two factors and only to allow the evidence to be put before the jury if he is satisfied that the answer to the first question is clearly positive and assuming that the second question is similarly answered that on combination of the two the interests of justice clearly requite that the evidence be admitted.

24. Lord Hailsham in his speech, having quoted that classic statement of Lord Herschell L.C. in Makin⁽¹⁾, at page 451, divided it into its component parts. The first sentence laid down a general rule of exclusion. Similar fact evidence, or evidence of bad character is not admissible for the purpose of leading to the conclusion that a person, from his criminal conduct or character is likely to have committed the offence for which he is being held. He went on:

"When there is nothing to connect the accused with a particular crime except bad character or similar crimes committed in the past, the probative value of the evidence is nil and the evidence is rejected on that ground."

He continued that even where there is some evidence connecting the accused with the crime, in the eyes of most people, guilt of similar offences in the past might well be considered to have probative value. But nonetheless in the absence of a statutory provision to the contrary, the evidence is to be excluded under the First rule in Makin⁽¹⁾ because its prejudicia1 effect may be more powerful than its probative effects and thus endanger a fair trial.

25. It is Mr. Howard 's contention here that if the trial judge had applied Boardman⁽⁵⁾, then he would have excluded this “similar fact” evidence.

26. I agree. A bare conviction of this nature does not come within similar fact evidence in the Makin^(l) sense . It certainly could not be introduced by the prosecution to indicate knowledge. Nor does it pass the "unique test" set out at page 462 of Boardman⁽⁵⁾ and adopted by another Division of this Court in Yuen Chi Hung⁽⁶⁾.

27. None of these several comments, applies to a bare conviction.

28. Was it permissible to introduce it to rebut a defence which would otherwise be open to the accused?

29. Mr. McCoy, who appears in this Court for the Crown, while seeking to rely on the similar fact basis, suggesting that the triad conviction is strikingly similar, nevertheless urges strongly upon us that here was a false defence being erected by the defendant which the Crown were entitled to show to be false by virtue of the conviction.

30. He relies on Thompson⁽⁴⁾ where Lord Sumner his Speech said at p.232:

"No one doubts that it does not tend to prove a man guilty of a particular crime to show that he is the kind of man who would commit a crimes, or that he is generally disposed to crime and even to a particular crime; but, sometimes for one reason sometimes for another, evidence is admissible, notwithstanding that its general character is to show that the accused had in him the making of a criminal, for example, in proving guilty knowledge, or intent, or system, or in rebutting an appearance of innocence which, unexplained, the facts might wear."

31. Mr. McCoy further relies on Noor Mohamed v. The King⁽³⁾ and submits that we are bound by this decision and not by Boardman⁽⁵⁾. He draws our attention to a passage in the speech of Lord du Parcq which, at p.192, comes after the passage approved by Viscount Simon and cited earlier:

"It is right to add, however, that in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge."

32. Despite the nature of the exhaustive cross examination as to the individuality and accessibility of the items found, and in this I include the altar and its attachments, there was evidence upon which the judge could have found, without the aid of any previous conviction that, taken together, these materials were triad related. This cross-examination was not, as e see it, raising an explicit defence that DI was without knowledge of triad activities. Had Dl gone into the witness box and asserted lack of knowledge then it might well have been possible to introduce evidence of the conviction in rebuttal.

33. I do not think that the evidence of the previous conviction was properly admissible in the circumstances here. Additionally it does appear from, the Reasons for Verdict of the trial judge that the conviction was used for the purpose of showing knowledge. Had the admission been a proper one, it would still not have been available for that purpose. It influenced the trial judge to such an extent that all the convictions as recorded against D1 are rendered unsafe and unsatisfactory. The application for leave is, therefore, granted, the appeal treated as the hearing of the appeal, conviction quashed and the sentence set aside.

34. Mr. McCoy had informed us that should we come to that conclusion, he would wish to address us on the issue of a re-trial.

35. (Having heard counsel the retrial of D1 was ordered on a fresh "indictment" containing that which have been the 1st, 3rd, 4th and 6^th counts in the original Charge Sheet).

D2

36. Mr. Howard submits that there was insufficient evidence to prove control in D2. It was incumbent upon the Crown to possitively prove possession and this they have failed to do. He further submits that the admission of the triad conviction of D1 impinged upon the convictions of D2 and was prejudicial to him. D2 was an mere employee. The trial judge was therefore in error in holding, by virtue of D2's long connection with the premises in which the alter was situated, of which there was some evidence, that this amounted to "at least joint possession of that shrine" even if D2 knew of the existence or the Kwan Ti shrine.

37. It was accepted that D2 was an employee of DJ. He had some connection with a firm whose name appeared on a name board outside the premises amongst a considerable number of other names. He had the keys to 232. He let the police in. He is, says Mr. McCoy, caught by the presumptions.

38. There was no evidence to show that D2 had knowledge that the Kwan Ti altar had triad connections - and it is on this aspect that the wrongful admission of the conviction of D1 had particular effect. The presumptions, say. Mr. Howard, avail the Crown nothing for those under both sub-section (1) and (2) of section 28 require proof of possession to erect them and this means custody and control - giving "possession" its normal -meaning.

39. The trial judge held that the evidence led to an inference of D2's being "at least in joint possession" of the altar; and from that it then followed that he was "at least" a member of the 14K. He further found the presumptions to have arisen that he was both a member of the 14K and an assistant in the management of the society.

40. With respect to the trial judge, his initial findings were not, in my view, sustainable. The evidence did not prove possession. Something more was needed. The previous conviction of D1 did, we feel, influence the trial judge in coming to his conclusions.

41. Mr. McCoy had been good enough to indicate to us that he would not seek a re-trial of D2.

Yang, V.-P.

I agree.

Penlington, - J. :

42. Evidence of the 1st applicant's (Dl) previous conviction was admitted by the trial judge only on the basis that it concerned membership of the particular Triad Society with which he was charged, the 14K. That was the correct approach as the evidence must be relevant to the offence charged, riot just to an offence.

43. Evidence had been called which showed beyond any doubt that a police party had found a very large amount of alleged 14K Triad material in premises which were used by Dl as his home and place of business . These articles included  an altar which had the words "Chung Yee Tong" written on it in Chinese characters. There was evidence that, while these characters can simply be translated as "Shrine of loyalty and righteousness" they are also a name for the 14K Triad Society. There was also evidence of white paper fans on the altar, portriats of Kwun Kung, squares of carpet with characters written on them and other paraphenalia most of which, it was agreed, taken individually, might be perfectly innocent but taken together showed, in the opinion of the expert witnesses called for the Crown, that the premises had been used for holding 14K Triad initiation ceremon1es. Those expert witnesses were cross-examined on the basis that there was a perfectly innocent explanation for each of the items found, many of which it was agreed could be purchased in the shops. It was the cumulative effect of all the items being together in the one place which enabled the experts to come to the conclusion they did.

44. Neither applicant gave evidence but I am satisfied that the line of cross-examination disclosed a defence that not only was each item was a normal article which in itself had no significance but that the applicants had no reason to believe that they held the meaning attributed to them by the expert witnesses. The trial judge, in ruling on the admissibility of the previous conviction said, "But the Crown must prove knowledge in an accused and it has been clearly foreshadowed that such knowledge is denied in DI of the nature of the items the Crown says were in his possession and which the Crown says in its opening it can establish are Triad materials". I agree.

45. Leading Counsel for Dl submitted that evidence of similar facts must be "strikingly similar". Here the Crown cannot prove any facts at all, apart from the bare evidence of the previous conviction. He relies, on Boardman, 1975 A.C. 421 and on dicta of this Court in R. v. Yuen Chi-hung C.A. 401/1985.

46. In Makin 1894 A.C. 57, Lord Herschell L.C. said that evidence that the accused has committed other crime~ 1S admissible if it is relevant to an issue before the jury:

"It maybe so relevant if it bears on the question whether .the acts alleged to constitute the crime charged in the indictment were designed or accidental or to rebut a defence otherwise  open to the accused."

47. Here the evidence was the finding of the. 14K Triad material in Dl's home. That in itself was not enough. The Crown had to prove not only that it was in fact such triad material but also that DI must have known what it was. The whole thrust of the defence cross-examination was that the items could be quite innocent and therefore Dl could have them in his home not realising what they were and not for an unlawful purpose.

48. That Dl was a member of the 14K Triad Society in 1975 seems to me to be highly relevant to a consideration of that issue. The Crown could not prove anything apart from the conviction and it is argued that, applying the "strikingly similar facts" test the evidence should not have been admitted. However in Boardman Lord Salmon said:

"The test must be: is the evidence capable of tending to persuade a reasonable jury of the accused's guilt on some ground other than his bad character and disposition to commit the sort of crime with which he is charged. "

Here I have no doubt the previous conviction came within that test. It had positive probative value.

49. In R. v. Rance and Herron, 1976, 62, Cr. App. R.118, the Lord Chief Justice said at 121, with reference to the dicta in Boardman:

"It seems to us that one must be careful not to attach too much importance to Lord Salmon's vivid phrase 'uniquely or strikingly similar'. The gist of what is being said by Lord Cross and Lord Salmon is that evidence is admissible as similar fact evidence if, but only if, it goes beyond showing a tendency to commit crimes of this kind and is positively probative in regard to the crime now charged."