R. v. LEE YUK WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL
NO. 1229 OF 1995

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J U D G M E N T

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Duffy, J.:

1. This was an appeal against a conviction for being a member of a triad society. It was an odd case in that the appellant who had at one stage in his life served a sentence of seven years imprisonment in Stanley for robbery had, since his release from that term of imprisonment, during which it was alleged that he had become a member of the Sun Yee On triad society, gone to Japan, performed extremely creditably academically, and was now an assistant manager with Mitsubishi Corporation, and highly regarded by his employers.

2. Mr Macrae who appeared on the appeal but not in the court below conceded that the evidence in support of the appellant having joined the triad society while he was a prisoner in Stanley was sufficient, though at trial, the defence had been that his joining the Sun Yee On triad society in Stanley was as a result of duress. However, while making this concession, Mr Macrae emphasised that there was evidence of a clear reluctance on the part of the appellant to join the triad society, which he did merely as a matter of expediency. The evidence was that, following his release from Stanley, he did not associate with these former prisoners who were his triad peers in Stanley, nor did he engage in any triad activity.

3. The facts leading up to the appellant being charged with the offence were that as a result of a large scale police anti-triad operation, the name of the appellant came to be known to the police. As a result he was arrested at Lowu and he made a cautioned statement on 9th January 1995. The admissibility of that statement was not challenged at his trial. In the preamble to that statement, it was alleged against him that he had attended a meeting of the Sun Yee On Triad Society in the Tung Fai Cafe in Kimberley Road, Tsimshatsui, and had there associated with known triad members. In his statement he explained his presence at that meeting. He told the police this :

"I remember that at about 11 o'clock on the 23rd day of September, 1994, after I had finished attending the dinner party of my company, (I) received a call from (my) friend Chai Tin who made an appointment with me to go to Tung Fai for tea. (I) arrived at Tung Fai at about 11:40 p.m. I saw Chai Tin in company with several people. I then walked over to sit with Chai Tin together. Chai Tin said to me that some of his friends had a dispute with a group of the members of Lo Sun, Tsim Sha Tsui, over the car hiring problem. As I might know them, (he) asked me to talk about (it) together, hoping that this matter could be solved. Later, I recognised that there was a person called WONG To of the other party. Wong To also recognised me. I said to both of them (Chai Tin and Wong To) that both were my friends and that in case there was any dispute, settled (it) step by step and did not cause trouble. That is the matter."

There was no admission in the statement that he knew beforehand why he was going to the restaurant. In the statement, he also related how he had joined the Sun Yee On Triad Society in Stanley Prison, having been told that it was in his best interests to do so, because he might need some protection.

4. In his Statement of Findings of Facts, the learned Magistrate, in the most comprehensive manner, conducted an analysis of the evidence. Of course, the crucial matter was the appellant's attendance at this so-called triad meeting in the Tung Fai Restaurant. The learned Magistrate said this :

"I did not believe the Appellant's evidence that he had had no triad contact since leaving prison. That evidence was in conflict with his answers (4), (5) and (10), in which he described contact with persons whom he believed to be Sun Yee On members. It was also in conflict with his admission of attendance at the meeting of 23 September 1994, which he admitted in his answers to the preamble, and to questions (2), (6), (7) and (11)."

With respect to the learned Magistrate, there is no admission by the appellant that he went to the Tung Fai for tea in order to attend a triad meeting. It is my view also that the answers to questions (6), (7) and (11) are equally exculpatory. There was, it seems to me, no evidence from which it could, in the rather special circumstances of this case, have been right to infer that the appellant was deliberately engaging in triad activities. Before drawing any inference about the appellant's presence at the Tung Fai Restaurant it was necessary for the learned Magistrate to weigh up all of the evidence, including the evidence of his reluctant joining of the Triad Society, and the evidence of his achievements since being released from prison. Taking all that evidence into account I do not think it is possible to conclude that the only reasonable inference to be drawn from his presence at the Tung Fai Restaurant was that he was engaging in triad activities. I did not regard the conviction as safe and allowed the appeal.

(J.M. Duffy)

Judge of the High Court