THE QUEEN v. LAU WAI MING (D1)

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JUDGMENT

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Litton V-P:

Introduction

1. There is one appellant before the court: Lau Wai-ming (D1) 33 years old. He was tried together with two other men before Mr D.I. Thomas at the Kwun Tong Magistracy in March 1996 and was convicted on one charge of acting as a member of a triad society, contrary to s20(2) of the Societies Ordinance, Cap 151.

2. The prosecution related to a number of men, some of whom were dealt with by other courts. The charge on which the appellant stood convicted alleged that he, together with others, on 21 November 1994, outside the Tai Yau Lee Mahjong School on the ground floor of 79 Hip Wo Street, Kwun Tong acted as a member of a triad society.

The facts

3. The facts constituting the offence are these: At about 11.30pm, on the night in question, a large group of men gathered outside the entrance of the Tai Yau Lee Mahjong School in Kwun Tong. One of the group, identified as D1, went into the premises together with someone identified as the "second eldest brother" and one or two others. Five minutes later D1 walked out and said to the group: "Pai tau has been given to them, we can go". This meant, according to the prosecution case, that D1 had displayed the power of the Sun Yee On triad society to the other party who was inside the mahjong school. The gathering then broke up.

4. There was other evidence as to how the group came to be gathered outside the mahjong school which gave a strong triad flavour to the gathering: (1) Earlier that evening, at about 8.45pm, 7 or 8 members of the Sun Yee On triad society had gathered at a place called Sun Fat, in response to a request to assemble ("blowing whistles" in triad jargon). D1 was among them. D1 said: "We are going to kick off this time, once we get inside". Kick off was understood to mean to engage in a fight: apparently because D1 had had a quarrel with a member of the 14K triad society earlier. (2) Later, 40 or 50 members gathered at a cooked-food stall at Yan Oi Circuit. D1 was amongst them. He told one of the gang (who was in fact an undercover police officer) to go inside and have some food as "we are not yet ready". (3) D1 left and came back to the cooked-food stall at around 10.45pm and began distributing packets of cigarettes and $100 notes. He said as he was so distributing: "This comes from the company; share them". (4) D1 then left the cooked-food stall and returned at 11pm saying: "Call the brothers to get ready. At 11.20 the whole group will march to Tai Yau Lee. The guy was playing mahjong inside. At 11.30pm sau pei". The last utterance meant that the mahjong school would close at 11.30pm.

5. The main evidence implicating the appellant came from PC 52558 Lo Chi-sing (PW1) who was a police officer who had gone undercover for some time prior to the night in question. He went through an initiation ceremony and joined the Sun Yee On triad society in February 1994. In that assumed capacity he observed a number of triad activities. It was at about 8.30pm on 21 November 1994 that he received the call to assemble, leading to his presence at the cooked-food stall as part of the gang and subsequently outside the mahjong school together with the others including the appellant.

6. When the appellant was arrested and interviewed by the police some seven months later, on 15 June 1995, he made no admissions.

The proceedings before the magistrate

7. At the trial, the appellant did not testify as to the main issue. This was his right, but it meant that PW1's testimony as to what he had said and did went uncontradicted. The first question for the magistrate to determine was that of identity. As to this, he approached the issue with meticulous care and his finding in this regard has not been challenged on appeal.

8. Once the appellant was properly identified as the person taking part as alleged, the evidence against him became extremely strong. The magistrate's finding is as follows:

"He (D1) was giving every impression of acting as if he were a triad member and that he was gathering followers or purported followers of a triad society in order to confront one or more persons who were supposed to have a background of membership of a rival triad society."

9. In conclusion, the magistrate said this:

"each of the defendants, looked at individually, had acted as a member of a triad society when they were outside the mah-jong school in Hip Wo Street in Kwun Tong. I was satisfied that D3 and D4 had each gone to the scene as professed or purported members of a triad society, in answer to a summons for assistance by another professed or purported triad member to come to lend weight or 'muscle' in the course of a dispute in which that other member was involved: I was equally satisfied that D1 was the, or an, organiser of that summons for assistance and that he used his professed or purported status as a triad member to use the other persons in the group to support him in the argument which he had with one or more persons whom he supposed to be in the mah-jong school."

10. These findings seem amply justified upon the evidence.

Grounds of appeal

11. In essence, the appeal focusses upon two main areas:

12. I should mention in parenthesis that there was in the perfected grounds of appeal another ground, focussed on the opinion evidence of the police triad expert Sergeant 14985 Cheung Yan-tak, but this has been abandoned by counsel this morning. The ground as stated is that the magistrate had erred in entertaining opinion evidence on triad matters from the sergeant when (i) by virtue of his employment as a police officer he was not an "independent and impartial witness" and (ii) his expertise as such was not sufficiently established. This having been abandoned I need say no more about it.

Hearsay evidence

13. The appellant was charged before the magistrate with five other named persons identified in the charge sheet, all allegedly members of the Sun Yee On triad society. In the event, three appeared before the magistrate. It was inevitable, in the course of PW1's evidence, that statements made by one defendant, though constituting evidence against him as the maker of the statement, would be inadmissible against the others.

14. Nothing suggests that the magistrate did not have this firmly in mind. Quite the contrary. As regards extra-judicial statements concerning D1, as related by PW1 in the course of his testimony, the magistrate said this:

"I took note of the reports given to him (PW1) by others as to the involvement of D1 to explain his own actions in going to the scene and to explain his own state of mind, but I rejected them as amounting to evidence against D1."

15. This ground of appeal fails.

PW1's opinion evidence

16. PW1 had been a member of the Sun Yee On triad society since February 1994 and he took part in the activities on the night of 21 November 1994 in that capacity. Inevitably, in the course of his evidence, opinion concerning the role and status of other members of the triad society would be expressed, in order to give meaning to his own narrative. For instance, he was asked in cross-examination (p63 of the appeal bundle) why he didn't go inside the mahjong school to hear what was being said, and his answer was:

"Because most of the brothers were standing outside the mahjong school. Besides D1 and the second elder brother were the ones who called the shots. That is why they should be the ones to lead the negotiations."

17. Plainly, from the tenor of PW1's evidence, D1 played a leading role: It was D1 who distributed the cigarette and the $100 notes saying that it was from the company. It was D1 who gave the order: "call the brothers to get ready. At 11.20 the whole group will march to Tai Yau Lee". And it was D1 who, together with the second elder brother, went into the mahjong school. In this context, PW1 testified to the effect that he knew D1 as a "426 red pole" member of the Sun Yee On, with the status of a "big brother" and the capacity to recruit members and to be paid by the triad society.

18. Counsel submits that such expression of opinion or belief should not have been entertained at the trial. I reject this submission. Obviously, PW1's understanding of D1's ranking within the triad society was not conclusive - such matters are seldom conclusive - but it certainly helped to highlight the relatively subordinate role that he and the other '49' members ("sei kau chai") played on the night in question vis-a-vis D1. As mentioned earlier, the main issue at the trial was identity. D1 denied taking part in the activities in question. It was put to PW1 in cross-examination that D1 was never at the cooked-food stall, never distributed money and cigarettes and did not go to the mahjong school. The effect of PW1's evidence was this: Not only did D1 take part, he did so as an elder brother, a 426 red pole. It is difficult to see how this can be said to be inadmissible evidence which tarnished the fair trial.

19. Counsel also complains of evidence given by PW1 concerning the meaning of "triad utterances": for instance the reference to the "brothers", meaning the members of the Sun Yee On triad society. Whether the utterances were made by D1 or not, they were in the context of a group acting in concert, to intimidate those inside the mahjong school by gathering in strength outside. It is difficult to see how, in law, such evidence can be said to be inadmissible. The weight of the evidence was for the magistrate to consider.

20. This ground of appeal fails.

Conclusion

21. In concluding, I would respectfully commend the magistrate for his conduct of the trial and the clarity of his findings. D1's appeal is dismissed.