WU WAI SHIU v. R.

IN THE COURT OF APPEAL

1993, No. 650
(Criminal)

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JUDGMENT OF THE COURT

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Macdougall, V.-P.:

1. Initially there were two applicants before the Court today. The first of those applicants, one Sin Kam-fung, applied for and was granted an adjournment of the hearing of her application. This hearing is therefore concerned only with the applications of Wu Wai-shiu against conviction and sentence.

2. Both the applicant and Sin had stood trial with three other defendants before His Honour Judge Hartmann in the District Court, at the conclusion of which the applicant was convicted of two offences of inviting a person to become a member of an unlawful society, namely a triad society. He was sentenced to two concurrent terms of four and a half years' imprisonment.

3. The principal evidence for the prosecution was given by a young medical doctor, a Dr. Wong, who had recently opened a clinic in Hunghom. One of his early patients was Sin, who was a married woman. After a period of time over which she had been receiving treatment from Dr Wong, Sin approached him for a loan of $10,000 to enable her to settle a debt with loan sharks whom she said had been pressing her for payment. Dr Wong acceded to her request. It is not necessary to relate the details of the evidence which concerned Sin's subsequent blackmailing of Dr Wong. Suffice it to say that the doctor soon found that he had fallen into the clutches of triads and, as a result, money was extorted from him on four occasions. During the course of the commission of these blackmail offences one of Sin's accomplices, one Lau, visited the doctor in his clinic and told him that his big brother, Chan Kwong, wanted to meet him. It is relevant to indicate at this stage that the "big brother" had been mentioned to the doctor throughout the course of the blackmails.

4. An arrangement was then made for the doctor to meet the "big brother" at a restaurant. At the meeting which followed, Lau took Dr Wong to a table at which were seated five or six young men and a man around 40 years of age. The older man was the applicant. The applicant, having been introduced as big brother Chan Kwong, then announced himself that he was a member of the 14K Hau group and that he was a professional killer. Lau then suggested that Dr Wong should become the applicant's follower, saying that it was not good for him to be his, Lau's follower. The applicant then gave Dr Wong a piece of carved jade, who said that he would think the matter over.

5. The judge found that by openly boasting of his triad affiliations and stating that he was a professional killer, coupled with his presentation of the piece of jade to Dr Wong, the applicant was a party to the attempt to induce Dr Wong to become his follower and join his triad group.

6. Some time later Sin telephoned Dr Wong and told him that the applicant was insisting that Dr Wong become his follower. Dr Wong then agreed to meet Sin at a restaurant where she suggested to him that it would be advantageous to him to become a follower of her own protector, one Ko Fai. Dr Wong told Sin that he did not want to become a follower of anyone, and asked her to help him to find a solution to the problem. She said that Dr Wong would need to pay $100,000 to extricate himself from the position in which he found himself.

7. Later that day, Sin and two other defendants attended at Dr Wong's clinic and the amount was raised to $150,000. Eventually, it was agreed that as Dr Wong did not have the ready cash he should pay $5,000 immediately and the balance should be paid on the following day.

8. The police, who had already been notified by Dr Wong of the plight in which he found himself, had given him $5,000 in five marked $1,000 notes. When Sin and the other two defendants left the clinic they were arrested by the police and the $5,000 was found on the person of one of those defendants.

9. Dr Wong and the police then awaited the arrival of another defendant. When that defendant telephoned Dr Wong at the clinic, Dr Wong asked him to meet him at a restaurant and to bring along the applicant. At the restaurant the applicant, who had arrived without the other defendant, asked Dr Wong if he wished to become his follower and told him that if he declined there would be no one to protect the clinic. That was clearly a thinly veiled threat. He then told Dr Wong that if he agreed to be his follower all that he had to do was to pay $3.60. While Dr Wong was prevaricating, the other defendant arrived at the restaurant. The police then moved in and arrested both the applicant and that defendant.

10. None of the defendants including the applicant gave evidence or called witnesses at the trial. Although the judge rejected one part and had reservations about another aspect of Dr Wong's evidence, neither of which had any bearing on the case against the applicant, he found that the evidence which he had given concerning the applicant was truthful and reliable.

11. In his written grounds of appeal the applicant contends that there were discrepancies in the evidence and the judge was not impartial. However, he was unable to develop this contention beyond saying that a police officer who was involved in the case was subsequently convicted of corruption. Whether or not there is any truth in this assertion was of no relevance to the issue of the applicant's guilt, for it was the evidence of Dr Wong on which the judge relied. It is plain from a reading of the judge's Reasons for Verdict that he analysed the evidence with scrupulous care and fairness. He was entitled to believe Dr Wong's account of the incidents which involved the applicant. We are satisfied that there is no substance in either of the complaints raised by the applicant. The application for leave to appeal against conviction is therefore refused.

12. We now turn to the consideration of the application for leave to appeal against sentence.

13. Mr Marray, who appeared for the applicant in respect of this application, submitted that the sentences were manifestly excessive in that they were very close to the maximum of five years' imprisonment provided for this offence. He submitted that the offences committed by the applicant were not the worst of their kind and that the judge had erred in both stating that the applicant had held himself out to a major figure in the 14K Hau group and in attaching undue significance to the fact that he claimed to be a professional killer. It was Mr Marray's submission that the applicant's assertions should have been viewed as having been made in the context of a social occasion at which a group of happy males were enjoying themselves, and that it was significant that the applicant did not force Dr Wong to become a member of the triad society.

14. We would at once observe that the offence of which the applicant was convicted was that of inviting, not forcing, a person to become a member of an unlawful society. However, it is plain that the applicant made a barely disguised threat to Dr Wong that if he declined to become his follower there would be no one to protect his clinic. We think it is nonsensical to suggest that the judge should have characterised as jocular the assertions which the applicant made at the meeting in the restaurant. Moreover, what the applicant said at both meetings clearly justified the conclusion that he was holding himself out to be a major triad figure. It is true that he did not state what rank it was that he held in the triad society but he certainly conveyed the impression that he was a powerful triad figure.

15. The applicant has previous convictions for robbery, theft, possession of dangerous drugs and resisting arrest. The judge correctly observed: "There was no justification for giving a discount of sentence in this case." He also correctly stated that the maximum sentence for this offence had recently been increased to one of five years' imprisonment. We agree with his view that to invite a doctor to become a triad member comes within the category of the most serious case of its kind. The enticement of a doctor into triad ranks would, as the judge observed, enable the triad society to have recourse to his professional expertise in the treatment of chop and gunshot wounds, and to be secure in the knowledge that he would not report these matters to the authorities. Moreover, the triad society would have available to it a person who could provide prescribed drugs.

Obviously, the recruitment of a doctor into a triad society would be of great benefit to that society.

16. We accept that after the first meeting at a restaurant it was Sin who told Dr Wong that the applicant was insisting on another meeting with him. However the applicant was indeed present at that second meeting. It is clear that he must have been collaborating with Sin to ensure that Dr Wong would meet him again. We therefore think that there is no substance in this point.

17. The sentences, although undoubtedly heavy, are not wrong in principle nor are they manifestly excessive. The application in respect of both conviction and sentence is therefore refused.