HKSAR v. POON TIN YAN

HCMA 1321/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1321 OF 2001

(ON APPEAL FROM TMCC 2587/2001)

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J U D G M E N T

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1. This is an appeal against the conviction by a Magistrate on a single charge of claiming to be a member of a triad society. The Appellant was sentenced to serve a period of four months imprisonment. He has been on bail pending appeal. There is no appeal against sentence.

2. This appeal was originally listed for hearing on 9th May 2002. The Appellant failed to appear. The appeal was dismissed for want of prosecution. It was re-instated four days later when the appellant appeared and provided an acceptable reason for his non-appearance.

3. Three witnesses were called by the prosecution. The third witness testified to the fact that the Appellant had been to the premises some days before the offence and left a note of his telephone number with a request that the "boss" contact him. The first witness testified that by arrangement the Appellant had gone to his place of business: there had been a conversation between them during which the Appellant claimed to be a member of "Wo Shing Wo" and insisted that the witness employ him. The witness understood this to be a demand for payment and subsequently arranged for a single payment of $5 400.00 to be made by his business partner to the Appellant. That was a figure which the witness understood members of triad societies regarded as being symbolic.

4. The second witness was the business partner of the first. He confirmed having been present when the conversation occurred but out of earshot. He confirmed further that he had paid the stipulated amount to the Appellant.

5. It was an admitted fact that "Wo Shing Wo" is a triad society, that saying "I am Wo Shing Wo" constitutes claiming membership of it and that describing oneself as "belonging to" another indicates that that other is the "protector".

6. The Appellant elected not to testify. The Appellant accepts that he made that decision after being advised of his rights by his counsel. The Magistrate directed himself, correctly, on the effect of the Appellant's election and the fact that he was of previous good character.

7. A witness was called whose evidence related to instructions he had given to the Appellant to make enquiries concerning the occupation of land which he claimed belonged to him. The accuracy and relevance of this evidence is hard to comprehend given that he says that he only became aware of his rights to the land when he received a letter from the government. That letter was produced. It is dated some six months after the commission of this offence. There was no suggestion that the witness was present during the conversation between the first witness and the Appellant when the offence was committed.

8. The Magistrate gave comprehensive reasons for his decision both at the time of conviction and in his Statement of Findings. He recognised that there were some inconsistencies in the evidence of the prosecution witnesses but did not regard them as material. A magistrate is not required to resolve every inconsistency that may arise. He dealt, convincingly, with those he regarded as the more important.

9. The real issue in this matter was whether he was entitled to accept the evidence of the first prosecution witness. He did so and was so entitled. The Magistrate indicated why he accepted the evidence of the prosecution witnesses and why he rejected the evidence, insofar as it may ever have been relevant, of the Appellant's witness. He saw and heard the witnesses and was in the best position to assess their creditworthiness and evaluate their evidence.

10. There is no merit in this appeal. It is dismissed. The Appellant is to be taken into custody to serve his sentence.