HKSAR v. WU SHING CHEUNG AND ANOTHER

HCMA 125/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 125 OF 1999

(ON APPEAL FROM TMCC 2691/1997)

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J U D G M E N T

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Background

1. On 24 February 1998 the two appellants WU Shing-cheung (1st Appellant) and CHAN Chi-kin (2nd Appellant) together with 13 others appeared at Tuen Mun Magistracy before Mr Graeme Mackay, sitting as a Temporary Permanent Magistrate. The whole group faced a number of charges, which it is not necessary for me to list. Mr Paul Dinan and Mr WU Chi-shing represented the two appellants and their co-accused.

2. The trial lasted a considerable number of days, only concluding on 15 September 1998, when Mr Mackay found the 1st Appellant guilty of Unlawful Assembly, contrary to ss.18(1) & (3) of the Public Order Ordinance and the 2nd Appellant guilty of Acting as a Member of a Triad Society, contrary to s.20(2) of the Societies Ordinance. On 3 October 1998 Mr Mackay sentenced the 1st Appellant to serve 4 months' imprisonment suspended for 18 months and the 2nd Appellant to serve 6 months' immediate imprisonment for their offences.

3. They now appeal against their convictions, having abandoned their appeals against sentence.

The facts

4. The case concerned a disturbance at a so-called 'flea market' at Pat Heung Sheung Tsuen, Yuen Long, New Territories on 13 September 1996. A large group of people had gathered to support the stallholders at that market in a confrontation with an equally large group who for some reason opposed its presence. The 1st Appellant was one of the promoters of the market. Large numbers of people, both supporters and opposers, had gathered in the vicinity of the market. It is estimated that around 600 people were involved from both sides. Members of each side identified their allegiance either by the wearing of a white tissue or piece of cloth (the supporters) or the wearing of orange coloured T-shirts (the opposers). Violence was relatively low-key consisting of 'cat-calling', occasional scuffles and the sporadic throwing of plastic water bottles, or stones. Firm, determined, action by the police, assisted by a shower of heavy rain - Hong Kong hooligans having a particular dislike of getting wet - prevented the incident from getting out of hand and eventually the protagonists departed the would be field of battle.

5. I will deal with the two appellants' appeals separately.

1st Appellant - 1st ground of appeal

6. The 1st Appellant's first ground of appeal is that Mr Mackay erred in law in determining in his Statement of Findings and acting upon that determination, that the 1st Appellant:

"... is presumed to have intended the consequences of his own actions, namely setting the train of events in motion, with the reasonable probability that there would be a breach of the peace." (Bundle page 2536 paragraph 84)

7. No such presumption now exists. That is expressly provided for by s.65A(1) of the Criminal Procedure Ordinance, which provides that in respect of a defendant, a court:

"(a) shall not be bound in law to infer that he intended or foresaw a result of his acts or omissions by reason only of its being a natural and probable consequence of those acts or omissions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances."

8. The sub-section abolished the Common Law presumption identified in DPP v Smith [1961] AC 290 (HL) that a person intends the natural and ordinary consequences of his acts. It puts in the hands of the jury, or the trier of facts, the task of deciding whether a defendant intended or foresaw the consequences of his acts by drawing proper influences from the evidence. It follows an analogous English provision, s.8 of the Criminal Justice Act 1968. According to the rubric in the "Laws" it was enacted in Hong Kong in 1971.

9. For the prosecution, Ms Maria Ip argued that Mr Mackay was well aware of s.65A(1)'s provisions. At paragraph 5, page 2508 of the bundle he said:

"There is no presumption that a person intends the natural consequences of his conduct by his mere presence, and all the evidence in relation to each defendant, must therefore be considered."

10. This, she argued, shows that he was well aware that no presumption existed and that he had to look at all the evidence to make a finding. She argued that his use of the word "presumed" in the questioned paragraph 84 is no more than a wrong choice of word. She illustrated her argument by drawing my attention to various other paragraphs in the Statement of Findings where, she said, it is clear that Mr Mackay based his findings on the evidence or on proper inferences drawn from the evidence.

11. However, I find on a reading of the Statement of Findings that Mr. Mackay, perhaps overwhelmed by the voluminous legal research and discussion that he put into that statement, appears to have fallen into error in following pre-1968 Criminal Justice Act English authorities that took account of the now repealed common law rule.

12. For example at paragraph 39, page 2516 we find the following passage:

"I accept that Beatty v Gilbanks ([1882] QBD 308) is good law, relating as it does, to an initially peaceful assembly. It was quoted with approval in another leading case Wise v Dunning [1902] 1KB 167 at 174.

'Now I entirely conceed that everyone must be taken to intend the natural consequences of his own acts, and it is clear to me that if this disturbance of the peace was the natural consequence of acts of the appellants they would be liable.' "

13. And at paragraph 40, page 2517, this passage appears.

"Those whom it is proved joined the assembly and who were present when it was apparent that there was vociferous and growing antagonism from the other group must be taken to have intended the natural consequence of their acts, namely that by so doing it was reasonably probable that their conduct would provoke a breach of the peace."

14. The net result appears to be that by the time he reached the questioned paragraph 84, Mr Mackay appears to have forgotten what he said, correctly, at paragraph 5.

15. Try as I might, I cannot read the clear words of paragraph 84 as being no more than an inadvertent choice of words. It is a clear exposition of the law as it existed until it was changed by statute in England in 1968 and in Hong Kong in 1971. As an exposition of the law since then it is wrong. Unlike Humpty Dumpty in Lewis Carroll's "Alice Through the Looking Glass" neither Mr Mackay, nor I, can say, "when I use a word...it means just what I choose it to mean - neither more nor less". I am driven to the conclusion that Mr Mackay based his verdict against the 1st Appellant relying on a repealed legal presumption and for that reason alone the conviction of the 1st Appellant cannot stand.

1st Appellant - 2nd ground of appeal

16. Having decided the first ground of appeal in the 1st Appellant's favour, it is not necessary for me to deal with his second ground of appeal.

17. The 1st Appellant's appeal against conviction is allowed.

2nd Appellant - 1st ground of appeal

18. The 2nd Appellant's first ground of appeal is that there was no or insufficient evidence for Mr Mackay to find that the activities in which he participated on 13 September 1996 related to triad matters.

19. The evidence against the 2nd Appellant came from his cautioned statement, Exhibit P7(7A), the evidence of PC52840 CHO Ho-wai (PW44), a police under-cover agent who had successfully infiltrated a group of supporters of the 14K triad society - this is paraphrased at paragraph 92 of Mr Mackay's Statement of Findings - and the evidence of D.Sgt 9061 Kwok Shu-wing (PW46) a triad society expert, who spoke as to the meaning of a number of terms and phrases when used in a triad context.

20. There was evidence from which Mr Mackay could properly infer that the 2nd Appellant was a member of the 14K Triad Society of 'uncle rank'. He admitted in his cautioned statement that he went to the flea market to 'sai ma' against the Wo Shing Wo Triad Society in response to an order from the 1st Appellant. He went in the company of members of the 14K Triad Society including PC52840 - see Mr Mackay's Statement of Findings at paragraph 91.

21. According to D.Sgt 9061, the Cantonese phrase 'sai ma' means to have a confrontation and also to show power. In a 'sai ma', the triad society protector, or protectors, from the same society gathers his, or their, followers together. Such a gathering is described as "blowing the whistle". Those summoned are bound by the internal code of the society to obey the instruction to gather. If any one disobeys, he stands at risk of being punished by the others in the society.

22. It was PC52840's evidence that the 12th & 13th defendants told him their 'Big Brother' wanted them to go to the Diamond Karaoke by 8 a.m. on 13 September 1996 under pain of punishment.

23. The above evidence is sufficient to establish Mr Mackay's finding that the meeting at the flea market on 13 September 1996 was to deal with triad matters and that by turning up at that meeting, the 2nd Appellant was acting as a triad member.

24. This ground of appeal fails.

2nd Appellant - 2nd ground of appeal

25. The 2nd Appellant's second ground of appeal claims that Mr Mackay's approach when evaluating the prosecution's evidence deprived him of a fair trial. The main complaint is directed at the evidence of PC52840, the undercover officer.

26. The transcript shows that Mr Mackay assessed PC52840's evidence in the same way as he did that of the other witnesses. He took the view that PC52840 had to keep detailed records and to retain a large amount of accurate impressions in his memory. Despite PC52840's omission to mention names and some incidents that appeared in the Occurrence Book, Mr Mackay was satisfied that he had an honest recollection of events and acted on his evidence in convicting the 2nd Appellant. This approach can in no way be said to have deprived the 2nd Appellant of a fair trial.

27. This ground of appeal fails.

2nd Appellant - 3rd ground of appeal

28. The 2nd Appellant's third ground of appeal is that an unresolved discrepancy relating to the 2nd Appellant in PC52840's identification evidence makes the conviction unsafe and unsatisfactory.

29. PC52840 said that he had met the 2nd Appellant on many occasions between July 1996 and January 1997 [transcript pages 1400-1401]. He said that he was familiar with the 2nd Appellant. PC52840 identified the 2nd appellant on 11th January 1997 at Wong Tai Sin Police Station. His failure to identify him on the video tape (Exhibit P33) played at trial does not affect the accuracy of his evidence that the 2nd Appellant was among those present at the flea market on 13 September 1996.

30. This ground of appeal fails.

31. The 2nd Appellant's appeal against conviction is dismissed.