THE QUEEN v. TSOT SAI PUI AND OTHERS

Magistracy Appeal No.236 of 1992

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H E A D N O T E

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MEMBERSHIP OF TRIAD SOCIETY - PROOF - EFFECT OF S.3C OF JUVENILE OFFENDERS ORDINANCE - ATTEMPT ON APPEAL TO RAISE OBJECTION TO CAUTION STATEMENTS NOT RAISED AT TRIAL.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.236 OF 1992

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J U D G M E N T

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1. The appellants were convicted by Mr Wright in Causeway Bay Magistrates Court of Membership of a Triad Society and were ordered to be detained in a Detention Centre. Three co-defendants were placed an probation and have not appealed. Two other co-defendants were sentenced to 6 months imprisonment and have abandoned their appeals. These two appellants (D6 and D7) appeal against both conviction and sentence.

2. It was submitted by Mr Percy, who appears for both appellants, that the trial of D7 was a nullity in view of the magistrate's non-compliance with s.3C of the Juvenile Offenders Ordinance, Cap.226.

3. This section provides :-

(1) Subject as hereinafter provided, no charge against a child or young person shall be heard by a court of summary jurisdiction which is not a juvenile court.

(2) Notwithstanding subsection (1)-

(a) a charge made jointly against a child or young person and a person who has attained the age of 16 years shall be heard by a court of summary jurisdiction other than a juvenile court;

(b) where a child or young person is charged with an offence, the charge may be heard by a court of summary jurisdiction which is not a juvenile court if a person who has attained the age fo 16 years is charged at the same time with aiding, abetting, causing, procuring, allowing or permitting that offence; and

(c) where, in the course of any proceedings before any court of summary jurisdiction other than a juvenile court, it appears that the person to whom the proceedings relate is a child or young person, nothing in this subsection shall be construed as preventing the court, if it thinks fit so to do, from proceeding with the hearing and determination of those proceedings.

(3) ...

4. Sub-section 2(a) does not apply as D7 was not jointly charged. Nor obviously does sub-section 2(b). Mr Percy argues that sub-section (c) also does not apply for two reasons. First that because of the word "and" at the end of sub-section 2(b), the two sub-sections must be read conjunctively. Second that there is nothing on the record to show that the appellant's age was brought to the attention of the magistrate in order that he might exercise his discretion to proceed with the trial against D7.

5. It seems to me that if Mr Percy is right about the first point, sub-section 2(b) is superfluous because it is covered by the wide discretion contained in sub-section 2(c). Moreover if the sub-sections are to be read conjunctively, there is no need for sub-section 2(c) to be contained in a separate sub-section; but that would result in an unusually clumsy and indeed ugly sub-section 2(b) to an extent that militates against such a construction.

6. The age of D7 is stated in the charge sheet and the word "boy" appears in his caution statements. I must give the magistrate credit for being aware that he was dealing with a young person. The words "in the course of" cover the commencement of the trial and I am satisfied that there is no need for a magistrate at that stage to record that he is exercising his discretion to proceed.

7. A similar situation arose in R. v. Wong Kam-wah and another CA No.270/91 in which the trial judge made no order under s 3F(1), which reads :-

"If a child or young person is found guilty of an offence other than homicide by any court other than a juvenile court, the court shall, unless satisfied that it would be undesirable to do so, remit the case to a juvenile court; and where any such case is so remitted the offender shall be brought before the juvenile court accordingly, and that court may deal with him in any way in which it might have dealt with him if he had been tried and found guilty by that court."

Silke V.-P. said at p.5 : -

"While that option may, and we express no decided opinion on that, have been open to the trial judge, nevertheless, the whole tenor of his Reasons for Verdict indicates quite clearly that in the circumstances of this case he would have felt it undesirable to remit the case to a juvenile court. We do not fault him for that. If a youth of this age carries a weapon with a 20 inch long blade on a voyage of robbery with other and older persons, we find no reason why he should not be dealt with as Choy was."

8. In the circumstances of the present case, likewise, it was quite proper that the magistrate should deal with D7 himself.

9. The appellants were aged 17 and 15 respectively at the time of their arrest. Each made two caution statements in which they described their induction to the 14K Triad Society. Each alleged at trial that they did so because they were aware that, if they provided this information, they would be released with a Superintendent's Warning. Neither appellant gave evidence supporting the alleged inducement. The magistrate ruled that all the statements were made voluntarily.

10. During the taking of the statements the elder sisters of each appellant were present. There was no evidence as to the age of these ladies. Mr Percy's second ground of appeal was that "There was no evidence that (the appellant) got the protection or advice that the law envisaged he should get from an adult being present with sufficient understanding of a suspect's right of silence. To question (the appellant) in these circumstances was both unfair and oppressive."

11. Mr Percy points to the provisions of The Police and Criminal Evidence Act 1984, which makes detailed provision for the questioning of juveniles and others. This legislation has no application in Hong Kong and police officers are not expected to follow it.

12. The Directions attached to the Judges Rules, which do apply in Hong Kong, state "So far as practicable, children and young persons under the age of 16 years ... should only be interviewed in the presence of a parent or guardian, or, in their absence, some person who is not a police officer and is of the same sex as the child."

13. There was however no allegation of oppression and the magistrate never had to address his mind to it. The age of the sisters is therefore irrelevant. The only issue was whether the police made the offer of a Superintendent's Warning.

14. In R. v. Chena Ho-shing CA No.356/81, Silke J.A. (as he then was) said at p.3 "... it is not open to counsel how to address us on further grounds of objection to admissibility not canvassed in the Court below nor emerging from the evidence given there. If it were, it would be impossible for the Crown ever to know with finality the objections which it has to meet and, if possible, counter."

15. In R. v. Wu Hung-moon and others (1984) HKLR 354 at p.361 Li J.A. said "No issue of oppression was raised at trial. The issue of assault, threat and violence was raised and resolved by the trial judge after hearing evidence. We could see no reason why this court should interfere and take upon ourselves to add yet another objection on behalf of the applicant."

16. As the question of oppression neither was raised nor emerges from the evidence, I am satisfied that there is no merit in this ground.

17. The final ground of appeal against conviction is that the magistrate "was wrong to have concluded that (each appellant) had become a Member of a Triad Society based upon his own admissions and the opinion of the expert PW11 without further proof by way of admissible evidence of the fact that (his) recruiter/protector i.e. D8, was himself an existing member of a Triad Society at the time of recruitment, and that D8 in addition had the authority and consent from his 'Ah Kung' to recruit (each appellant)".

18. Detective Station Sergeant Leung Siu-yuk gave expert evidence about the method of joining a Triad Society. He said in chief:-

"The 'Blue Lantern' method of admission is one adopted by 14K : it is commonly used by every Triad society. If a person only promises to follow someone but paid no fee, taken no oath and been taught no poems - if he understands this and there is a protector and he orally promises he would be considered a member. It matters not whether 'Lai See' is paid. 14K recognizes this form of admission."

However in re-examination he appears to have taken this further:-

"Q. What sort of knowledge must the joining member have of the Triad society before he joins?

A. At least he must know which one it is and 'Ah Kung' of the protector. The Big Brother will be taking care of all the things he does outside e.g. fighting.

Q. What is 'Ah Kung'?

A. Big Brother/protector.

Court : Who is the 'member' - the new follower or the protector?

A. The new member.

Q. Is there any restriction on a member of Triad society recruiting a new follower?

A. No.

Q. Would a person who 'hangs the Blue Lantern' only and has done nothing be entitled to recruit a new member?

A. In the past, no, but nowadays if his Big Brother and the Ah Kung agree he can recruit new member too."

In his Statement of Findings, the magistrate interpreted this evidence as follows:-

"In re-examination he confirmed that the background knowledge the recruit must have of the Triad society is its name and the identity of the Ah Kung (protector). In response to questions by me he indicated that there was no restriction on a member of a Triad society recruiting new members and that even one who simply 'hangs the Blue Lantern' may do so if his 'big brother' and Ah Kung agree."

19. It would seem that if these matters are to be proved in any prosecution, evidence would have to be given by either the recruiter or the recruiter's protector. That is unlikely to happen.

20. The evidence against the appellants was that each admitted membership of the Triad Society as soon as he was arrested and that he later in his caution statement told the police his reasons for believing himself to be a member.

21. D6 said "I promised to follow (D8) verbally. That is why I know I am a member of 14K Yee Triad Society." Asked what was his post he said."I am hanging the Blue Lantern."

22. D7 was asked why he believed he was a member of 14K Yee group. He replied "It was because (D8) told me that I promised to follow him verbally was enough to be reckoned as having joined 14K Yee group." He also said "My rank is 'hanging blue'."

23. The magistrate referred, as he was entitled to do under s.39 of The Societies Ordinance, to "The Triads : The Chinese Criminal Fraternity" by Martin Booth, in which the author says that today "The shortened ceremony is called 'Hanging the Blue Lantern' and consists of reciting a few poems or even just a simple affirmation."

24. As was stated in A.G. v. Chik Wai-lun (1987) HKLR 41 at p.43:-

"When considering that aspect in relation to joining a society a magistrate will no doubt take into account the evidence given as to the practices of such societies generally and the practices of the particular society in question. But that does not clothe those practices with the mantle of law. Nor will they necessarily be conclusive of the issue. The magistrate must consider them in the light of the other evidence and then decide, as best he can, in all the circumstances of the case whether he is satisfied that the defendant did in fact join. It is thus ultimately a question of fact, and fact alone."

25. There was more than a "bald admission" in this case and I was satisfied that the evidence was sufficient to justify the magistrate's conclusion that each appellant had become a member of the Triad Society.

26. When sentencing the defendants the magistrate split them into two groups. The first group of three defendants he placed on probation, even though two of them have a previous conviction, on the basis that their presence at the scene of arrest - the vicinity of a school - was innocent in the sense that they were meeting their girl friends. The appellants' group, on the other hand, the magistrate found had gone to the area in case they were needed to assist in a fight.

27. I do not criticise the magistrate for taking this approach but I am more concerned to see if the order made in each case is the one most likely to lead to the rehabilitation of the appellants. I do not attach weight to any sense of grievance that the appellants may have that their co-defendants have been treated more leniently.

28. The reports on both boys are extremely comprehensive. Their families are supportive and probation is recommended in each case. In these circumstances and having regard to their ages and clear,records and the fact that they have spent over two months in custody, I feel that a detention centre order is too severe at this time and indeed that there is a better prospect of a favourable response to probation.

29. The appeals against sentence are allowed. The detention centre orders are set aside. Both appellants are placed on probation for 18 months.