THE QUEEN v. TSUI YIP KEI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 125 OF 1988

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J U D G M E N T

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1. The appellant was convicted by Mr Yung in San Po Kong Magistrates Court of being a member of a triad society. Another defendant (D4) was convicted of the same offence. There was also a third defendant similarly charged (D5), who was acquitted.

2. The main ground of appeal was that the magistrate referred in his Statement of Findings, at length and in detail, to evidence that was hearsay as regards the appellant, though admissible in relation to his co-defendants.

3. I was satisfied that Mr McCoy, counsel for the appellant, was right and allowed the appeal. I now give my reasons for so doing.

4. The appellant admitted in a cautioned statement that he was a 49 member of Luen Ying She. In deciding what weight he could place on this admission, the magistrate said in his Statement of Findings:

"Obviously there is a danger in most cases to convict on admissions alone. It is not uncommon for young persons being misled by bullies who hold out themselves to be members of triad society into believing they have joined the triad societies when in fact they have not. D1 must have adhered to his belief for a year or he would not have admitted to be a member of Luen Ying She in his statement. During this period he came to know that two other defendants were also following the same protector. On the day of arrest, he readily responded to the request of D4 to assemble at the scene of arrest. He was told by D4 he was required to help in the revenge attack on the others. From all the circumstances of the case, the only compelling and irresistible inference was that Dl was willing and ready to assist D4 in his revenge attack irrespective of his claim that he had no knowledge of the weapons. He also admitted that the six defendants knew each other and they were there to assist D4 just like him. I found that Dl could not have been misled by his protector into believing he had joined Luen Ying She, when in fact he had not. From his admitted knowledge about his protector and about the other defendants, and his behaviour towards D4' request, I found full weight could be attached to his admission that he was a member of Luen Ying She."

5. The appellant admits in his cautioned statement that D4 asked him to meet him, following an argument with others and, when he did so, asked him to help him beat someone. The evidence about it being a revenge attack carne however from D4's cautioned statement. It was moreover irrelevant; so far as this charge was concerned, yet the magistrate seems to have placed much weight on this evidence.

6. If the magistrate also relied on D4's confession in his cautioned statement, that he was a triad society member, together with the appellant's belief in that fact, as he appears to have done, that was also inadmissible evidence.

7. In R. v. Lee Hing-yuk⁽¹⁾, O'Connor, J. said:-

"The learned magistrate in her findings related in considerable detail the evidence given before her. She referred in detail to evidence which, as regards the appellant, was hearsay, though it was admissible in relation to the person tried with him. For example it included evidence by a police officer; of what the other defendant told him about the appellant and his relationship to the drags. If the appellant had been tried alone such evidence would not have been admitted.

    As the magistrate recited that evidence, it appears she must have considered it as admissible, or at least failed to give thought to that."

8. The magistrate in this appeal has fallen into the same fatal error. There has been a blending of admissible and inadmissible evidence. For these reasons I allowed the appeal and quashed the conviction.

(1) Mag. App. No. 123 of 1980