HKSAR v. LAI CHI MAN AND ANOTHER

HCMA 642/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 642 OF 2002

(ON APPEAL FROM ESCC 1083/2002)

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J U D G M E N T

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1. Both Appellants were each charged with one count of claiming to be a member of a triad society, contrary to Section 20(2) of the Societies Ordinance, Cap. 151, Laws of Hong Kong. The particulars are that they did claim to be a member of a triad society namely "Wo Hop To Triad Society". They pleaded not guilty and were convicted after trial. Both Appellants now appeal against their conviction.

2. The evidence called at the trial was basically from the victim, PW1, his girlfriend, PW2 and another friend, PW3. According to PW1's evidence, he said that in the early hours of 3 March 2002 in Wanchai, a dispute arose between him and a male, and subsequently this male went away and then returned with two other people and these two were identified by PW1 as the 1st and 2nd Appellants. PW1 said the 1st Appellant asked if he was a member of a triad society. At that time, the 1st and 2nd Appellants then said almost simultaneously, "I am from the "Wo Hop To"". Therefore, nosy are requested from the Appellants for him to apologise to the male whom he had earlier had a dispute with. Subsequently, after PW1 did so, the 2nd Appellant told him to leave and the 1st Appellant then told him that if he ever saw him in the Wanchai area again, he would be hit. PW1 also said the 1st Appellant told him they were the protector of that street. The police were called and the two Appellants were identified within 15 minutes of that incident.

3. PW2 gave evidence that there was an assault on PW1 and that subsequently the assailant had gone to a nearby disco and returned with the two Appellants. She heard the 1st Appellant claimed that he was from "Wo Hop To", but she did not hear the 2nd Appellant say so, and she said that it was the 2nd Appellant who warned them not to be seen in this street again or they would be assaulted.

4. PW2 was cross-examined about the fact that the reasons for her 1st witness statement being so similar to that of PW1's witness statement. PW2 denied that she had studied or read PW1's statement before going to the police station. PW3 gave evidence of the assault, and he said he did hear somebody mention "Wo Hop To" but he could not recall who said those words.

5. Under cross-examination he agreed that he was sure that the 2nd Appellant did not mention the words "Wo Hop To". The Appellants did not give evidence and the learned Magistrate then considered the points raised by the defence in cross-examination of the prosecution witnesses mainly the similarity between PW2 and PW1's witness statements. She concluded that at the end of the day that they were similar because the facts of this case was clear and straightforward as were the facts of the incident. She also very properly noted that it was only PW1 who said that both Appellants had claimed to be members of the triad society. She also made special note of the fact that PW3's recollection was that the 2nd Appellant did not claim to be a member of the triad society but at the end of the day after carefully considering all the evidence, she decided that PW1 was in the best position to hear the words claiming to be "Wo Hop Top" from the 1st and 2nd Appellants. That is why at the end of the day, she relied on his evidence to convict both Appellants of these charges.

6. The Appellants appeared this morning on appeal against their convictions and the grounds of their appeal is similar to what was canvassed before the learned Magistrate in that the 1st ground of appeal is that the PW1 and PW2's witness statements were so similar as to affect their credibility, and that the 2nd ground of appeal is that the Magistrate was wrong to solely rely on the evidence of PW1 to the exclusion of the other prosecution witnesses.

7. It bears repeating here to both Appellants, because they are unrepresented that an appeal is not a re-trial. The learned Magistrate was in the best position to decide on the facts and on who to believe, because she had seen the witnesses give evidence, heard them being cross-examined, and therefore, she was in the best position to decide. It is rare for an Appeal Court to overturn the learned Magistrate's findings of facts unless she had made an error either procedurally or in law. I have read carefully the learned Magistrate's statement of findings and I cannot see that the learned Magistrate had in anyway committed an error in coming to her decision. So in those circumstances, the appeal is dismissed and the conviction stands.