HKSAR v. LEUNG KWOK CHUNG

CACC 216/2023

[2026] HKCA 1221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 216 OF 2023

(ON APPEAL FROM HCCC NO 252 OF 2020)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  On 15 November 2023, following a trial before Barnes J (the Judge)  and a jury, Leung Kwok-chung, also known as “Man Sun Chung” (the appellant), was convicted of the murder of Lee Tai-lung, also known as “Tai Lung” (the deceased), by unanimous verdict of the jury.  He was sentenced to a mandatory term of life imprisonment. 

2.  The appellant applied for leave to appeal against his conviction, advancing three grounds of appeal: Ground 1 alleged that the jury directions were unbalanced; Ground 2 complained that the Judge misdirected the jury in relation to a false alibi; and Ground 3 alleged that the Judge wrongfully admitted hearsay evidence.  By a judgment dated 11 February 2025, the Single Judge granted leave on Ground 2 only, rejecting Grounds 1 and 3 as not reasonably arguable.  In addition to pursuing Ground 2, the appellant now renews his application for leave to appeal on Ground 3.

The case at trial

3.  The prosecution case was that the killing of the deceased was a triad revenge attack by the appellant.  It was alleged that, on 4 August 2009, the appellant, together with Lee Wan-kong (known as “Kong Chai”), Lo Chin-wang (known as “Mao Chai”), Lee Chun-kong (known as “Po Chai”)  and others, murdered the deceased.[1]

4.  It was common ground at the trial that the deceased was a senior member of the Sun Yee On triad society, who was attacked and killed outside the Kowloon Shangri-La Hotel in the early hours of 4 August 2009.  The attack involved the deceased first being run down by a vehicle, followed by a group of men repeatedly chopping him as he lay on the ground. 

5.  The principal issue at the appellant’s trial was whether he was a party to a joint plan to attack the deceased, in the course of which the deceased was killed, and thus guilty of murder.  The jury were also directed that if they were not sure that there was any intention to kill or to cause serious bodily harm to the deceased, they should go on to consider whether he was guilty of manslaughter by an unlawful and dangerous act.[2]

6.  The key witness in the prosecution case was Lam Ka-chun (Lam), PW1 at trial, who testified as an accomplice witness under a grant of immunity.  He was a former member of the Tai Kok Tsui faction of the Wo Shing Wo triad society and had previously testified as an immunised witness in an earlier related trial in 2011 (the 2011 Trial).  He was the only witness who gave evidence about the appellant’s involvement in the killing of the deceased.[3] 

7.  The prosecution also called another immunised witness, Man Pui Ying (Man), PW2 at trial, who was a triad follower of the deceased.  He testified as to the background of the deceased and what occurred at the scene of the murder.

8.  In the late 1990s, when Lam was around 12 years old, he followed his childhood friends, nicknamed “Ng Tung”, “Sor Kai” and “Po Chai”, and joined the Tai Kok Tsui faction of the Wo Shing Wo.  Ng Tung was regarded as Lam’s “big brother”.

9.  On 23 July 2006, there was a fight at a bar in Tsim Sha Tsui between two rival triad societies.  On one side were the deceased, a senior member of the Sun Yee On, and other members, including Man; on the other side were the appellant, a senior member of the Wo Shing Wo, and other members.  During the fight, the deceased struck the appellant with a bottle, leaving a long scar on his face.  After the fight, members of the Wo Shing Wo, including Lam, were instructed to locate the deceased, but were unable to find him.

10.  Lam testified as to how he came to know the appellant, whom he knew by the nickname “Man Sun Chung”.  During the period between 2004 and 2009, Lam was assigned to act as a lookout at a gambling stall at Tung Chau Street Park, which was run by the Wo Shing Wo.  According to Lam, the appellant and Mao Chai, another senior member of the Wo Shing Wo, were the managers of the gambling stall.  The appellant would come to the stall four to five times a week, staying for periods ranging from less than an hour to several hours.

11.  Shortly after midnight on 4 August 2009, Lam received a call from Ng Tung, who told him that “something had to be done”.[4]  Lam met other triad members, including Kong Chai, who was driving a saloon car (Car A).[5]  They went to Lok Kwan Street Park, where other triad members, including the appellant and Mao Chai, were present.  Lam heard Mao Chai instruct Ng Tung and Sor Kai, “Don’t chop the head.  Don’t chop the neck.  Don’t chop the main artery.”[6]  He heard the appellant give a similar instruction to them, “Don’t chop vital parts.”[7]  Lam agreed in cross-examination that these remarks could mean that it was just to teach a person a lesson and not to kill.  As for this exchange, the Judge explained to the jury that they had to consider only what Lam said he had seen and heard.[8]

12.  Mao Chai also instructed Kong Chai to act as a lookout.  Ng Tung then told Lam that the target was the deceased and that Lam was to act as a lookout.[9]

13.  The group of twelve men remained in Lok Kwan Street Park for about two hours, until the appellant ordered “Let’s go” and everyone got into three vehicles.[10] Lam, Kong Chai and two others got into one saloon car (Car A); the appellant and three others got into another saloon car (Car B); while Mao Chai, Ng Tung, Sor Kai and Po Chai got into a 7-seater car (the 7-seater).  The three vehicles went to the Chinachem cinema at Tsim Sha Tsui East, where they waited for about an hour.[11]  After Kong Chai received a telephone call, he drove to the slip road next to the Kowloon Shangri-La Hotel, acting as a lookout.[12]  A short while later, the seven-seater sped into the forecourt of the hotel and knocked down the deceased.  Ng Tung, Sor Kai and Po Chai alighted from the 7-seater, each holding a 50 cm long knife, rushed towards the deceased, and chopped him repeatedly.[13]  Two men alighted from Car B and witnessed the attack.[14]  The men got back into their vehicles and fled the scene.  The three vehicles had been stolen, and they were set on fire after the attack on the deceased.[15] 

14.  The deceased was certified dead shortly after he was conveyed to hospital.  The forensic pathologist performed an autopsy on the deceased and determined that the cause of death was “multiple injuries”.[16] 

15.  The appellant did not testify at the trial.  His case was that he was out of the jurisdiction at the time of the offence and he had no connection with the attack.  It was put to Lam in cross-examination that he had never met or known the appellant, although he knew his name.

Grounds of appeal against conviction

Ground 2: The Circularity Ground

“The learned Judge in the summing-up erred in adopting an erroneous circular approach that if the alibi of the appellant was false, it would support Lam’s identification of the appellant in the offence, when the proof that the alibi was false came from Lam’s evidence of identification of the appellant.”[17]

The alibi evidence

16.  The defence contended that the appellant was out of Hong Kong and therefore not at the scene of the crime at the material time. The evidence relied upon by the defence to support the appellant’s alibi was limited to the appellant’s travel movement record, which was adduced by way of admitted facts as follows:[18]

“22. Travel Movement Record of the Defendant kept by the Immigration Department shows that the Defendant departed from Hong Kong via Lok Ma Chau Control Point on 1 August 2009 at 8:53:33 p.m.. Apart from this departure record of 1 August 2009, the Immigration Department has no record of the Defendant entering or leaving Hong Kong via any of the Control Points for the period between 1 July 2009 and 24 February 2010; and between 1 July 2010 and 12 July 2020.

23. After the attack of the Deceased on 4 August 2009, the Defendant’s name was included in the Watch List on 9 September 2009. If a person’s name is included in the Watch list, and whenever that person enters or leaves Hong Kong through any of the Control Points, Immigration Officers would intercept that person and hand over that person over to the relevant law enforcement agency.

24. The Defendant’s name was remained in the Watch List until 21 January 2020, namely the day of his arrest, when his name was removed as a result of his arrest.

…

31.  On 21 January 2020 at about 12:20 p.m., the Defendant, accompanied by his lawyer, surrendered himself at Wanchai Police Station where he was arrested by PC 24500 for the offence of ‘Murder’.”

17.  The defence relied on the admitted fact that the appellant was officially recorded as having departed from Hong Kong on 1 August 2009 in submitting that he was out of Hong Kong at the time of the killing. However, he was shown as being present in Hong Kong on 21 January 2020, with no official record of his having returned in the interim.  There was no additional evidence from the defence on this matter, as the appellant did not give evidence or call any witnesses on his behalf.

18.  In contrast, the prosecution contended that this evidence was not only insufficient to establish the alibi, but was in fact false.  In order to undermine the appellant’s alibi, the prosecution called a triad expert, who, amongst other things, testified that triad members owned and used vehicles to leave and enter Hong Kong illegally.  The Judge summarised this expert evidence as follows:

“Now, the next bit that I want to remind you is about expert evidence. Now, the prosecution called a number of expert witnesses in this case. They are … then you have the Chief Inspector Yuen, Yuen Chin-hang, he monitors the human trafficking situation in Hong Kong. And you have Inspector Kwok Shing-pui and he gives you evidence about the triad society in Hong Kong. So he is a triads expert. …

…

… Expert evidence is only part of all the evidence in this case and to assist you with regard to different aspects of the case. What are their evidence about? Helping you in what area? Say, for instance, … matters about triad society, how the members were recruited and so on, and how one can leave Hong Kong or enter Hong Kong not through proper control points, that is, coming illegally in and out. …”[19]

“… Now, I have already mentioned the triad expert about 426. Now, according to the triad expert, in the past, in the long past, people do have to go through initiation ceremony before you can become a member of a triad society, but not anymore. For, you know, recent years or even back in the ‘90s and ‘20s, you can become a member, the lowest member is 49. You can become a member by just verbal confirmation. You follow a 大佬, a big brother, and you give the amount, either $3.60 or 36 3-6 the amount, you already become a member. And then you do not have to go through any proper ceremony and you become a member, you can already recruit other members. So if someone else come to you and treat you as a 大佬 and say, you know, would follow you, you being the 大佬 and give you the 利是 of 3.6 or 3-6. Then that person already become your follower. So basically, that is what the triad expert was telling you.

The triad expert also said that when members of triads, whether it is in the same triad society or with other triad society, when a dispute, they tend to resolve matters themselves. They settle matters themselves. They do not go to get the help of the police officers. So that is what they do. And also, he said if say a triad member had injured another person involved in some sort of dispute, that person would run away, hide somewhere, to avoid revenge, avoid being located by the police.

And triad members have their own vessel that such like 大飛, the speedboat or have close association of people operate this kind of vessels like 大飛. And so it would be quite easy for triad members to use these vessels to leave Hong Kong or to enter Hong Kong illegally.

And you also have the evidence of the chief inspector who monitor the human smuggling in Hong Kong. Of course, he was mainly concerned with illegal immigrants coming in to Hong Kong or leaving Hong Kong. But he told you that in his investigation, in his job dealing with these illegal immigrants he had come across Hong Kong residents, not illegal immigrants, Hong Kong residents using these illegal methods to either enter or leave Hong Kong.

He told you generally there are two routes to do it, either by sea or by land. And by sea, it could be 大飛, it could be fishing boat. And by land, usually they hid inside container trucks. So his evidence really is to let you know that it is possible, he has seen it that Hong Kong residents use illegal means to either enter or leave Hong Kong. So that is his evidence relevant in this case.”[20] (Emphasis added)

19.  Relevant to the issue of the appellant’s alibi was the triad expert’s opinion that rival triad gangs tend to resolve physical altercations between themselves by engaging in acts of reprisal, and that triad members have the means to enter and leave Hong Kong illegally.  Also relevant was the evidence that the appellant was a member of the Wo Shing Wo triad society and that the deceased was a member of the Sun Yee On triad society, and that, on 23 July 2006, there had been a fight between members of the Wo Shing Wo and the Sun Yee On at a bar, during which the deceased struck the appellant in the face with a bottle, causing injury and leaving a scar[21].

The circular approach

20.  Mr Tse submits that the Judge, in the summing-up, erred in adopting a circular approach on the issue of whether the appellant’s alibi was false.  He points out that the Judge directed that Lam’s identification (or recognition)  of the appellant could prove that the appellant’s alibi was false, and yet she also directed that if the appellant’s alibi was false, that could be used to support Lam’s identification of the appellant.  He argues that the Judge’s directions on alibi served only to create confusion and unnecessary difficulty for the jury.[22] 

21.  Mr Tse further points out that, whilst there is no record of when the appellant returned to Hong Kong, there is also nothing to indicate when he actually returned, other than it must have been some time before the day he surrendered to the police on 21 January 2020.  As the sole evidence that the appellant was present at the park and at the scene of the attack on the deceased comes from Lam, it is only on this evidence, if accepted, that the appellant’s alibi could be found to be false.  He argues that it was wrong to direct the jury that, if they found the alibi was false, they could use that finding to support Lam’s identification of the appellant.  This is the basis of his circularity argument.

22.  The respondent argues that there was no confusion or difficulty on the part of the jury in respect of this issue.  It is submitted that when considering whether the alibi was false, the jury, as instructed, would be required to consider all the relevant evidence.  Furthermore, there was no real issue of misidentification by Lam of the appellant, as he had known the appellant for about five years and had contact with him on numerous occasions, if his evidence was accepted.  The defence case was that Lam did not know the appellant and that he was lying and framing the appellant for the murder.

Discussion

23.  The evidence on which the defence relied to advance the alibi was tenuous and limited.  It merely consisted of the appellant having been officially recorded as departing from Hong Kong prior to the killing of the deceased, and there being no official record of his return, even though he was later in Hong Kong when he surrendered to the police.  As there is no official record, or any other evidence, of when the appellant returned, it could have been at any time after his departure from Hong Kong in the evening of 1 August 2009.  The killing of the deceased took place in the early hours of 4 August 2009.  In our view, the jury would have considered the question of the alibi on an assessment of the evidence it had accepted.

24.  On a careful reading of the summing-up, the structure of the Judge’s directions in respect of the alibi was of particular importance.  She introduced the issue of alibi by explaining what it meant and setting out the defence case:[23]

“Now, the next thing I want to address you is what is called alibi. Alibi means you are not there. You are not at the crime of the scene [sic], 不在場. Now, the defendant exercise his right. He did not give evidence. But there is Admitted Facts that he had left Hong Kong legally through the control point on 1 August 2009. So the defence is relying on that. ‘Look, I am not in Hong Kong or I was not in Hong Kong. I’ve left Hong Kong on the 1^st. How could I be on 4 August being in Hong Kong and took part in all these things?’ So that is really what the defence is relying. They are relying on an alibi that he was not anywhere near the crime scene, not anywhere in Hong Kong, let alone the crime scene.”

25.  The Judge then directed the jury on how they should approach the question of an alibi, emphasising that it was for the prosecution to disprove the alibi and that, even if they concluded that it was false, this did not by itself prove the appellant’s guilt:[24]

“Now, I will give you my direction on how to deal with alibi. I must remind you that it is not for the defendant to prove that he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. You must also remember and bear in mind that even if you conclude the alibi was false, that does not by itself prove the defendant’s guilt. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a genuine defence.” (Emphasis added)

26.  The Judge then went on to explain to the jury how they should approach the alibi if they decided it was false, in relation to Lam’s identification of the appellant at the material times:[25]

“So if you decide that the defendant’s alibi is false, that does not prove that Lam’s identification, that is, recognition of the defendant, must be right. But if you decide that the defendant had no innocent reason for putting this alibi forward, then you may treat this false alibi as some support for Lam’s identification, recognition. Of course, if you are sure of Lam’s identification, recognition of the defendant is reliable, it would follow that the defendant’s alibi is false.” (Emphasis added)

27.  It is clear from this passage that the Judge was addressing the circumstances in which the jury might decide that the alibi was false, without taking Lam’s identification of the appellant into account, and that they could only use the finding of a false alibi in support of Lam’s identification of the appellant if they found there was no innocent reason for advancing it.  The Judge separately noted that if the jury accepted Lam’s identification of the appellant, it would necessarily follow that the appellant’s alibi was false. 

28.  The Judge thus examined the question of the alibi from two different perspectives: first, where the jury concluded on the evidence, excluding Lam’s identification of the appellant, that the alibi was false, there being no innocent explanation for putting it forward; and secondly, where the jury concluded, on the basis of Lam’s identification of the appellant, that the alibi was false, there also being no innocent explanation for putting it forward. 

29.  The Judge then summarised the prosecution case that the alibi was false, which naturally included Lam’s identification of the appellant:[26]

“The prosecution’s case is that, based on the following that I will remind you, it is reasonable to infer that Man Sun Chung had departed Hong Kong on the first and had sneaked back by illegal means to Hong Kong to be present and on 4 August part of the joint plan to attack Tai Lung and then after the attack sneaked away from Hong Kong again. That is what the prosecution says.

Now, what evidence are they relying and asking you to draw such a conclusion? First of all, Lam’s evidence that Man Sun Chung was there on the 4^th, both at the park, at the Chinachem, and asking you to draw the inference that he must also be there at the Shangri-La Hotel, the first one. Second one, after Tai Lung was killed, 31 persons were arrested by the police. And so it would be unreasonable to infer that Man Sun Chung would be hanging around knowing that all these people were arrested, so he must have gone away hiding himself somewhere so he had sneaked out of Hong Kong after the crime. That is what the prosecution ask you to infer.

Now, there were 4 months, you know, according to the admitted facts that there was no record of immigration, or the immigration had no record of the defendant either entering or leaving. The prosecution accepted that. But the prosecution ask you to consider the other part of the admitted facts, and that is, the defendant had been put on watch list. And when someone is put on watch list, if you come in through control channel, control point, you will be stopped because you are on the watch list. And you will be stopped and taken by the police.

So the prosecution ask you to infer the very fact that the defendant was never stopped anywhere as a result of this watch list at the control point, that the defendant did not come back to Hong Kong during those 4 months either. So that is another point that the prosecution want you to consider.

And the evidence of the triad expert, of course, that the triad members have connection with people operating vessel, either themselves or associated to them, so it is easy for a triad member to get on a大飛just leave Hong Kong, get on a大飛to come back to Hong Kong.

And lastly, the fact that you know as a fact that the defendant surrendered himself together with a lawyer. Now, the prosecution says there is no record of him coming in legally through any control point. So he must have some means of entering Hong Kong illegally by appearing over 10 years later in Hong Kong. So the prosecution ask you to bear all this in mind to decide whether you can be sure that the alibi was false, that he created the alibi saying that he left Hong Kong on the 1^st, in fact, he sneaked back into Hong Kong after the 1^st, definitely before 4 August. The prosecution cannot say whether it is the 2^nd or 3^rd or whatever, but anyway, sometime after he left Hong Kong on the 1^st, he had sneaked back to Hong Kong and was present on the 4^th to take part in the attack. So that is what the prosecution is saying to you.

And then because it is unreasonable to expect someone who had been involved in a crime like this and knowing that the police had been going around arresting a lot of people, 31 of them, and so it would be unreasonable to say that Man Sun Chung had been hiding in Hong Kong all this 10 odd years and waiting to be caught or trying to avoid the police. So the inference, the reasonable inference, must be that he had gone away after the attack and then 10 odd years later decided to come back through illegal means. That is what the prosecution asks you to infer. Whether you can do it or not is a matter for you. All right.” (Emphasis added)

30.  Having summarised the prosecution case, the Judge went on to remind the jury that they had to be sure that the alibi was false and that they should adhere to her previous direction:[27]

“So basically, the prosecution is relying on a false alibi, that the defendant engineered this false alibi. So consider whether you can be sure that the alibi is false. If you can be sure the alibi is false, then follow the direction I have given you. If it is false, because by itself it does not prove that Lam must be correct to say that the defendant was there on the 4^th. But if you decide there is no innocent reason for the defendant to make up a false alibi, then you can use that as part of the alibi to support the identification by Lam.” (Emphasis added)

31.  In the first part of this passage, the Judge was referring to the prosecution case and reminding the jury that, even if they were sure the alibi was false, they had to follow her previous direction that it did not by itself prove the appellant’s guilt, and that even though they might take it into account, they had to bear in mind that an alibi is sometimes invented to bolster a genuine defence.  She reiterated that, if the alibi was false, it did not by itself prove that Lam must be correct that the appellant was present on 4 August.  She then instructed the jury that, if they decided that there was no innocent reason for the appellant to make up a false alibi, they could use it to support Lam’s identification.  She treated Lam’s identification of the appellant separately, and instructed the jury that if they were to find that the alibi was false without any innocent explanation, then they could use it to support Lam’s identification

32.  The Judge then, in a conclusion, reminded the jury to consider all the evidence in deciding the prosecution’s case that the alibi was false, particularly Lam’s evidence, and emphasised that, even if they decided the alibi was false, they had to follow the direction she had previously given them:[28]

“So consider all the evidence, whether you can draw this irresistible inference that the alibi was false, in other words, whether you can accept Lam’s evidence. Because if you find Lam’s evidence true and reliable, Man Sun Chung was there on the 4^th, then he must have come back somehow after leaving 1 August. And then you can decide whether that was a false alibi created by the defendant. And if so, use the direction I have given you.” (Emphasis added)

33.  There was no circularity in the Judge’s directions regarding the alibi evidence.  She instructed the jury to consider whether the alibi was false, on an assessment of the evidence, without reference to Lam’s identification of the appellant, and that if they decided it was false, they could not use it to support Lam’s identification of the appellant unless they were satisfied that there was no innocent explanation for the appellant putting it forward.  She then instructed the jury to consider the evidence relied upon by the prosecution to show that the alibi was false, including Lam’s evidence, and that if they accepted Lam’s identification evidence, it followed that the alibi was false, subject to the direction she gave them regarding an innocent explanation.

34.  We consider that, in the circumstances, the jury would not have been confused as to their task in assessing the evidence regarding the appellant’s alibi, and would therefore not have engaged in impermissible reasoning by concluding that the alibi was false on the basis of Lam’s identification of the appellant before accepting his evidence, and then relying on the finding of a false alibi to support Lam’s identification.

35.  For the foregoing reasons, we have concluded that this ground of appeal must fail.

Ground 3: The Hearsay Ground

“The bulk of the prosecution’s evidence that the appellant was a senior member of a triad society was from Lam, which was hearsay/opinion evidence. Notwithstanding there was no objection from the trial defence counsel, such evidence remained inadmissible hearsay, and the learned Judge had a duty to exclude them from the jury’s consideration, and to give appropriate and adequate direction to the jury to ignore it. The learned Judge was in error in failing to do so.”[29]

36.  It was accepted that the triad element was a relevant feature of the case.  Once it was established that this case involved an attack between rival triad gangs, references to triads were simply a reflection of the evidence presented at trial.  It was open to the prosecution, based on the evidence, to put its case that this was a revenge attack by the appellant.  It should be noted that there was no objection to the triad evidence being presented before the jury, save in relation to the description of the appellant as a “senior” triad member.  There were occasions when the defence relied on the triad involvement of the prosecution witnesses, Lam and Man.  In this regard, the Judge gave an appropriate warning about the triad evidence to the jury[30], which was justified in the circumstances.  She told the jury:[31]

“Now, you may have feelings, strong feelings, about triads, but I must ask you not to base your finding of fact in any way because of your emotional reaction to triads. So you must not prejudice against the defendant just because you have heard that he is a senior member of the Wo Shing Wo triad society or that you heard that he was involved in this gambling store in Tai Kok Tsui in the Tung Chau Street Park.

  In other words, you cannot find the defendant guilty just because he is a triad member. You cannot do that.  You must base your verdict on the evidence you saw and heard in this case.  So you must base your findings of fact and your verdict on an objective appraisal of the evidence.  It is very important.  Do not be prejudiced against the defendant.  Do not assume that he must be guilty, he is a triad.” 

37.  Mr Tse points out that the bulk of the prosecution’s evidence that the appellant was a senior member of a triad society came from Lam. He contends that this evidence was hearsay or opinion evidence.[32]  He argues that there were occasions when this evidence was given to assert the truth of the appellant’s status within the triad society and was therefore inadmissible hearsay.  He submits that the Judge had a duty to exclude this evidence from the jury’s consideration and to give an appropriate and adequate direction to the jury to ignore it, and that the Judge erred in failing to do so.

38.  The evidence before the court was that Lam did not specifically know that the appellant was a senior triad member, other than from his dealings with him and his observations of how the appellant conducted himself in operating the gambling stall and amongst other triad members.[33]  Lam said he had been told by his big brother, Ng Tung, that the appellant was a senior triad member.[34]  However, as already noted, there was other evidence from which to draw the inference that the appellant was a senior triad member.  It is not without significance that both Lam and Man gave direct evidence of their membership of the triad society to which they belonged and of the involvement and activities of others.  It was also relevant how they regarded or treated others as members of the triad society, which evidenced their state of mind or belief and would not have infringed the hearsay rule: Oei Hengky Wiryo v HKSAR (No 2) [35]. 

39.  As we have already noted, the Judge dealt with Lam’s evidence as to why he regarded the appellant as a senior member of the Wo Shing Wo, as well as with the other evidence from which such an inference could be drawn.  The Judge also summarised the defence case that the appellant was not a “senior” triad member.  Accordingly, the issue was properly put before the jury for them to resolve. 

40.  This ground of appeal is without merit.

Conclusion

41.  It follows from what we have said that we do not find merit in either of the two grounds of appeal.  The appellant’s appeal against conviction is therefore dismissed.