HKSAR v. CHAN MING FUNG

HCMA 622/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 622 OF 2008

(ON APPEAL FROM KCCC 76/2008)

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REASONS  FOR  JUDGMENT

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1.  The Appellant appeared before a Magistrate sitting at Kowloon City on 11^th June 2008 charged with a single count of claiming to be a member of a triad society contrary to Section 20(2) of the Societies Ordinance, Chapter 151, Laws of Hong Kong.  He was convicted after trial and sentenced to a term of three months’ imprisonment.

2.  Perfected grounds of appeal against conviction were filed on 18^th August 2008 on behalf of the Appellant and on 18^th September 2008 after hearing oral submissions, I dismissed the appeal against conviction and indicated that I would hand down my reasons at a later date.  I now do so.

3.  The particulars of the offence with which the Appellant was charged were quite simply that on an unknown date in January 2007 at the Esso Mobil Petrol Station at Tseung Kwan O, he claimed to be a member of a triad society, namely, Sun Yee On.

4.  In the course of the trial, some admitted facts marked as exhibit “P1” were produced in which, inter alia, the question of the identification of the Appellant was not put in issue and the meaning of “Tor Dei” as being protection money and Sun Yee On as being a triad society was not put in dispute.

5.  Only PW1, the alleged victim was called by the prosecution to give oral testimony.  It was his evidence that at the time of the alleged incident, that is in January 2007, he ran a business with a partner collecting waste paper called the Sam Keung Paper Recycling Company.  He said that on an unknown day in January 2007 at about 10.00 am, he was about to start business at the ESSO Mobil Gas Station in Tseung Kwan O when he was approached by a group of 5 to 6 young people.  The Appellant was amongst this group and allegedly told PW1 not to operate his business there.  He said that PW1 had failed to keep his promise to pay “Ah Kwan” “Lai See”, whereupon PW1 replied that it was a matter between himself and Ah Kwan.  The Appellant allegedly said that he was the “Tor Dei” whereas Ah Kwan was not the Tor Dei.  He said he was of Sun Yee On and PW1 was not to operate his business there.

6.  The perfected grounds of appeal concede that the only issue in this case was the credibility of PW1, the Appellant having elected not to give evidence.  Grounds two and three appear to be the same, effectively criticising the fact that the learned Magistrate found PW1 to be a credible witness when there were parts of his evidence that he disbelieved.

7.  In this regard, the only part of PW1’s evidence that the learned Magistrate did not believe was when he said that he (meaning PW1) did not believe that Ah Kwan was in some way related to the triads.  He said as much in his statement of findings.  He said this:

“Contrary to PW1’s assertions, I consider it quite possible (although I am unsure) that PW1 believed Ah Kwan to be related to the triads and was a person of some illegitimate power and influence in certain localities.”

8.  However, despite this, the learned Magistrate found that this did not in any way compromise the credibility of PW1 and the incident in January 2007 that he had testified about.  He found that any affiliation Ah Kwan may have had to the triads to be entirely peripheral to the issue that he had to decide, that is whether the defendant had at the material time claimed himself to be a member of the Sun Yee On triad society.  I agree with the learned Magistrate.

9.  The learned Magistrate was alive to the fact that PW1 had previous convictions and also that the Appellant was of previous good character.  He gave himself the appropriate warnings.

10.  The learned Magistrate had the benefit of seeing and hearing PW1 give evidence.  Having observed his demeanour, the Magistrate was impressed that PW1 was telling the truth in his testimony.

11.  On the evidence, the learned Magistrate was left in no doubt that the Appellant did indeed claim to be a member of Sun Yee On in January 2007 as PW1 had testified.  He was entitled to come to this conclusion.  The grounds of appeal fail.  I dismiss the appeal and confirm the conviction.