TOLUEN SHUN v. R.

1994, No. 70
(Criminal)

H E A D N O T E

Conviction of triad membership - applicant a first offender -nine months' imprisonment imposed as a deterrent sentence - conviction attacked as unsafe and unsatisfactory - urged that sentence should be suspended for the reason (among others) that applicant had been granted bail pending appeal and that returning him to prison would be a particular hardship in the form of "dashed hopes". - deterrent sentence on a first offender attacked as wrong in principle - result: conviction and sentence upheld.

As to conviction, the Court of Appeal said:-

(1) "When considering whether something tends to incriminate an accused, anything which can reasonably be resolved in favour of the defence must of course be so resolved. But that is not to be taken to the point of being unrealistic."

and

(2) "When it comes to looking at all the circumstances of a case and considering whether an inference of guilt is the only reasonable one to draw from the primary facts on which the prosecution relies and of which the tribunal of fact is sure, it is true that the piling of layer upon layer of unconvincing material cannot result in proof of guilt beyond reasonable doubt. But that is not to say that items of fact insufficient each in itself for the purpose of convicting may not, when taken together, form a body of fact upon which it would be proper to infer guilt and convict accordingly."

As to sentence, the Court of Appeal said:

(1) "The suggestion here is that for the applicant to be sent back to prison after having been released on bail pending appeal would be a particular hardship in the form of "dashed hopes". As to that, we note this statement in the judgment of the Court of Appeal in England in The Queen v. Daya Kalia (1974) 60 Cr. App. R. 200 at p.209 where Roskill LJ, delivering the judgment of the Court said:-

"This Court desires to say as plainly as possible that where (exceptionally) intending appellants or applicants are released on bail and delay follows in the hearing of the appeal, that delay cannot and must not be relied upon, whenever the appeal or application fails, as a reason for their not being sent back to prison to serve their sentence. That is usually made plain when bail is granted, and it must be clearly understood that that is so."

That statement is as applicable here as it is in the jurisdiction in which it was made. And, speaking entirely for myself at the moment, when dealing with applications for bail pending appeal made to me as a single judge of this Court, it is my practice to make it clear that such is the position."

and

(2) "This applicant is not a weak or vulnerable youth. On the contrary, he is a man of some position and substance. His triad membership was shown to have been for an appreciable period. And it appears that he did not hesitate to refer to it when dealing with persons like Mr Ma. Even though he is a first offender, it was necessary to make an example of him: in the sense of passing upon him a sentence to deter others who are thinking of doing or continuing to do what he did."

IN THE COURT OF APPEAL

1994, No. 70
(Criminal)

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J U D G M E N T

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Bokhary JA (delivering the judgment of the Court):

1. This is an application for leave to appeal against conviction and sentence.

2. On February 2 this year, before Deputy Judge Wright in the District Court, the applicant, a man in his late 20's and of previous good character, was convicted of being a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap.151.

3. The judge called for a probation officer's report, which he considered before passing sentence on the 16th of the same month, when he sentenced the applicant to nine months' imprisonment.

4. We are now dealing with conviction.

5. As to that, a single ground of appeal is advanced. It is that the conviction is unsafe and unsatisfactory. As to why that is said, three reasons are advanced.

6. To follow those reasons, we have to turn to the judge's Reasons for Verdict. There he said this:-

" Looking at a distillation of the evidence here, there is that of the statement made by the Accused to Mr MA in August 1992, the mention to Mr LEUNG that he 'followed' the boxing coach, the presence of the Accused at the meeting in the Harbour View Restaurant when Mr LEUNG agreed to 'follow' that same person at the end of 1988 or 1989, the Accused's presence in the same restaurant upon the occasion when an initiation ceremony was performed for Mr NG in August 1992 and the conversation overheard by Mr HUNG in late 1992 or early 1993. All of the references by the Accused were to the Sun Yee On triad society."

The question of whether or not a person is member of an unlawful society is one of fact. The totality of the evidence satisfies me beyond all reasonable doubt that the only inference I am able to draw, the irresistible inference, is that the Accused said the words he did and acted in the manner he did because he was a member of Sun Yee On Triad society during the period referred to in the charge."

7. What is urged on the applicant's behalf as to the first reason why his conviction is unsafe and unsatisfactory is that the body of evidence upon which the judge drew that inference, to quote from the end of paragraph 1 of the Amended Perfected Grounds of Appeal against Conviction:-

"... whether viewed individually or collectively, was so inherently weak, unreliable and neutralised by cross examination, that no reasonable tribunal properly directing itself could have been satisfied beyond reasonable doubt of the necessary primary facts from which to draw an inference of guilt."

8. That, on its own, is a bare assertion. But it is expanded upon in the second reason urged on the applicant's behalf as to why his conviction is unsafe and unsatisfactory.

9. Under the second reason, it is contended in effect that there were insurmountable difficulties in the way of the prosecution in regard to the evidence acted upon by the judge in inferring triad membership on the part of the applicant. That contention is developed along these lines.

10. As to the statement made to Mr Ma in August 1992, the Amended Perfected Grounds of Appeal against Conviction conveniently set out, in paragraph 2(i), these concessions made by Mr Ma in the course of his evidence:-

"(a) he did not pay much attention to them at the time and did not know what the applicant was talking about;

(b) the applicant said the words so softly that he could not hear them clearly;

(c) he did not hear what was said;

(d) the words he heard could have been something similar;

(e) he first realised that the words uttered might have been 'Sun Yee On' when he was questioned more than 6 months later by police from the Triad Bureau, having seen some newspapers there on a board;

(f) his memory was not very good;

(g) his recollection of important collateral events was conclusively demonstrated to be at gross variance with his initial statement to police and his original testimony."

11. All of that calls for anxious consideration on our part. But at the end of the day, what Mr Ma's evidence came to was this. When the applicant came up to him, the applicant said "Ah Ma, you know what kind of person I am." He then added what Mr Ma heard as "I am of Sun," followed by something which Mr Ma did not catch at the time, in turn followed by "On". When he was questioned by the police six months later, Mr Ma became convinced that what he had not caught six months earlier when the applicant spoke to him was the word "Yee". The "Sun Yee On" is of course a notorious triad society.

12. When it came to making what he could of what Mr Ma said, the judge had of course to perform that task in the context of the whole body of evidence before him.

13. We therefore move on. Moving on to the applicant's mention to Mr Leung that he, the applicant, "followed" the boxing coach mentioned and to the applicant's presence at the meeting in the restaurant at the end of 1988 or the beginning of 1989 when Mr Leung agreed to "follow" the same person, the attack upon the use which the judge made of those matters is in paragraph 2(ii) of the Amended Perfected Grounds of Appeal against Conviction.

14. That attack is essentially on the credibility of Mr Leung, who is referred to as "PW2". And this is how that attack is worded:-

"(a) PW2 admitted that he had a previous conviction for dishonesty and that he had himself joined the Sun Yee On triad society for about 1 month.

(b) PW2 was a self-confessed liar under oath in these proceedings in that he gave evidence twice in complete contradiction, the one occasion with the other - just 2 days apart.

(c) PW2 agreed that he only returned to court to give incriminating evidence against the applicant, after the police arrested him outside court after he had finished testifying for the first time. He further agreed that he believed he was at risk of being imprisonment for the offence of perjury unless he returned to court and retracted his evidence.

(d) PW2 maintained on his second appearance in court that his original statements to police on 23.3.93 and 24.3.93 where in fact the truth but was unable to give a coherent or rational explanation when confronted with flat contradictions in the two statements relating to the crucial passages concerning 1(ii) and (iii) above.

(e) PW2 was wholly unable to provide any detail in relation to his assertions.

(f) PW2 agreed that he made the 2nd statement implicating the applicant after he was told by police at the end of the 1st statement that the applicant was the target of the police investigations."

15. Those are powerful points, ably developed by Mr Plowman for the applicant in the course of his submission. But the judge had all the points because the applicant was well represented not only before us but also before the judge. And we must not forget that when the judge considered the points, he, unlike us, had the advantage of having seen and heard Mr Leung in the witness-box. What the judge said shows that he put that advantage to use, because we see that he said this about Mr Leung:-

" It is self-evident that his testimony has to be treated with the greatest care and circumspection: I have done so.

I have had the advantage of observing this witness in the witness box. It was quite apparent to me upon his first appearance that he was tailoring his evidence to accommodate the Accused. I accept his explanation that he had been threatened and that that was the reason for the apparent conflict between his oral testimony and his earlier statements. He was obviously not a man of great erudition and nor did he find it easy to express himself.

The question remains, however, as to the reliability of his renewed version of events. There were many discrepancies between his evidence in Court and that contained in the passages of his previous statements and between the two statements themselves, judging from the passages from them put to the witness: there were many discrepancies between his evidence-in-chief during his second appearance and the subsequent cross-examination. there were areas where he simply was unable to supply a meaningful answer to the question. There were times when he simply became lost in the train of cross-examination."

So much for that.

16. Moving further on, we come to the applicant's presence at the same restaurant during Mr Ng's initiation ceremony there in August 1992. As to that, this is what was said in paragraph 2(iii) of the Amended Perfected Grounds of Appeal against Conviction, in which Mr Ng is referred to as "PW3":-

"(a) the learned Deputy Judge stated that the presence of the applicant at the Harbour View restaurant was 'not disputed at any stage'. In fact the applicant's presence was in dispute. PW3 originally stated in evidence in chief that he thought the applicant was not present. Later, he was allowed to refresh his memory from an earlier statement, after which he said that the applicant was present. The cross examination of PW3 at page 97 was clearly directed to the issue of whether the applicant was present or not.

(b) PW3 also acknowledged that the statements upon which he was relying, without much independent recollection, were not always accurate, as he stated that sometimes he had deliberately altered certain events and the people present. As a result what was in the statements was not always true.

(c) the learned Deputy Judge further fell into error, when he apparently found as a fact that the applicant was present at the Harbour View restaurant at the time PW3 says he was forced to go through some type of ceremony, as the evidence of PW3 was to the following effect:

he glanced over and saw the applicant 3-4 tables away when he arrived in the main part of the restaurant, before the ceremony began, but never noticed him again;

the applicant left at some stage but he could not say when;

he was in the Harbour View restaurant from about 12:10 a.m. until some time before 3:00 a.m. but did not attempt to give even a rough estimate as to the time when the ceremony took place during that period, nor how long the ceremony lasted.

there was nothing to indicate that a person 3-4 tables away, even if present, would have been able to appreciate what was going on."

17. It is true that the cross-examination set out at page 97 of the Record shows a challenge to the evidence that the applicant was present at the restaurant. But later on, the focus of the cross-examination shifted. The defence came to rely on the witnesses' evidence that the applicant had left the restaurant before the initiation ceremony took place. And one finds this question and answer in cross-examination at page 100 of the Record:-

"Q. He obviously left at some point and you don't know when?

A. Yes."

18. Of course, the fact that the applicant left before the initiation ceremony itself was a powerful point for the defence. But it did not render wholly immaterial the fact that the applicant had been at the restaurant on that occasion. When considering whether something tends to incriminate an accused, anything which can reasonably be resolved in favour of the defence must of course be so resolved. But that is not to be taken to the point of being unrealistic. This is not a case of somebody just happening to be a diner at a restaurant very possibly in the ordinary way when something else untoward happened to be going on at that restaurant. This was a single organised gathering at a restaurant after its normal business hours.

19. Finally, in connection with the second reason, we come to the conversation overheard by Mr Hung in late 1992 or early 1993. As to that this appears in paragraph 2(iv) of the Amended Perfected Grounds of Appeal against Conviction in which Mr Hung is referred to "PW4":

"(a) PW4's evidence was that he had overhead part of one side of a telephone conversation more than a year earlier. His recollection was that the applicant had uttered the words: 'You don't have to be afraid. There are many 'Lo Sun's' there 'Lo Sun' are almighty there'. Even accepting the accuracy of what he heard, the context is unknown, and the words are at best ambiguous.

(b) In any event the words do not indicate that the speaker was himself a member of the Sun Yee On triad society."

20. There was material on which the judge could, as he did, take "Lo Sun" to mean members of the Sun Yee On. And whatever the words may or may not indicate on their own, the judge took them, not on their own, but in the context of the whole of the evidence.

21. In our judgment, the second reason is not made out. The things said against the prosecution evidence required careful consideration. Certainly they did. But they did not render a tribunal of fact incapable of accepting the prosecution evidence at the end of the day. The difficulties existed. But they are not rightly described as "insurmountable".

As to the third reason, it is set out in paragraph 3 of the Amended Perfected Grounds of Appeal against Conviction, which paragraph reads as follows:-

"The learned Deputy Judge in his reasons for verdict has failed to properly evaluate the evidence, in that, whilst he has recited some of the evidence and stated his conclusions, he has failed in any meaningful manner, to indicate the way in which he was able to resolve the very real difficulties which arose from the evidence of all four principal prosecution witnesses."

22. There are a number of statements in the cases as to what Reasons for Verdict given by a District Court Judge must do. In our judgment, this judge's Reasons for Verdict do not fall below the minimum standard set. Indeed, on the whole, we think that it demonstrates a conscientious and able approach to a case with threw up quite a few difficulties.

23. When it comes to looking at all the circumstances of a case and considering whether an inference of guilt is the only reasonable one to draw from the primary facts on which the prosecution relies and of which the tribunal of fact is sure, it is true that the piling of layer upon layer of unconvincing material cannot result in proof of guilt beyond reasonable doubt. But that is not to say that items of fact insufficient each in itself for the purpose of convicting may not, when taken together, form a body of fact upon which it would be proper to infer and convict accordingly.

24. It seems to us that the judge did deal with the case with the care which it required and that the result at which he arrived is not one with which we can interfere.

25. In the result, the application for leave to appeal against conviction is dismissed, leaving the application for leave to appeal against sentence - on which we will hear counsel now.

[Submissions on sentence]

26. We turn now to the application for leave to appeal against sentence.

27. There are two discrete points which we will deal with one after another at once. The first of these is the suggestion that, having regard to the period between arrest and trial in this case, which period was in the order of one year, the judge ought to have made a deduction for delay on the strength of the thinking that is reflected in this passage in the judgment of this Court in The Queen v. William Hung, [1994] 1 HKCLR 47 at p.57 lines 21-27, dealing with a deduction of three years made by the judge there from a starting point of 12 years in the light of the delay in that case:-

"That deduction was made on the basis that, even though time spent awaiting trial in custody is automatically taken into account in the computation of the time a defendant serves pursuant to his sentence, nevertheless it was necessary in cases of undue delay appropriately to recognize the effect upon a man of a prolonged wait before his trial on a criminal charge, particularly one of great severity.

So the learned judge was right to make a deduction; and he was entitled to make the one which he made."

But the problem in the way of the applicant's submission here is that the Court continued to say this (at p.57 lines 27-30):

"We say no more by way of guidance in regard to how deductions of this kind are to be approached, because if there is one thing of importance in the sentencing process it is a proper preservation of the discretion of sentencing judges to tailor the sentences which they pass to fit the many and varying circumstances of offenders and offences."

And there we come back to the all-important factor of the sentencing judge's discretion.

28. In our judgment, it is not possible to detect any erroneous exercise of discretion on the part of the judge in the present case when he refrained from making a deduction of the kind which it is suggested that he should have made.

29. Turning to the second of the two discrete points with which we are now dealing, it has to do with the fact that after spending 24 days in custody following conviction, the applicant was granted bail pending appeal. The suggestion here is that for the applicant to be sent back to prison after having been released on bail pending appeal would be a particular hardship in the form of "dashed hopes". As to that, we note this statement in the judgment of the Court of Appeal in England in The Queen v. Daya Kalia (1974) 60 Cr. App. R. 200 at p.209 where Roskill LJ, delivering the judgment of the Court said:-

"This Court desires to say as plainly as possible that where (exceptionally) intending appellants or applicants are released on bail and delay follows in the hearing of the appeal, that delay cannot and must not be relied upon, whenever the appeal or application fails, as a reason for their not being sent back to prison to serve their sentence. That is usually made plain when bail is granted, and it must be clearly understood that that is so."

30. That statement is as applicable here as it is in the jurisdiction in which it was made. And, speaking entirely for myself at the moment, when dealing with applications for bail pending appeal made to me as a single judge of this Court, it is my practice to make it clear that such is the position.

31. Now, with those two points out of the way, we turn to look at the matter on a broader plane. It must be said at once that the judge approached the sentencing process in a very balanced way. One sees that he said, among other things, this:-

"It must recognised immediately that there was no evidence of other criminal activities associated with the Accused or his membership in any way. However, it is equally clear that the Accused was and remained a member of the society for an appreciable period: he clearly had knowledge of the society's activities and its spheres of influence.

This was not a situation of opportunistic joining for a short period of time but of ongoing, conscious membership."

32. Also, the judge noted, quite rightly, that this instance did not represent the gravest possible instance of this kind of offence.

33. He did not suspend the sentence; and here there arose a difference between Mr Plowman for the applicant and Mr Saw for the prosecution in this sense. Mr Plowman submits that in considering whether a sentence should be suspended, the sentencing court ought to take into account, or at the very least was entitled to take into account, the circumstances not only of the offence but also of the offender. Mr Saw submits that when approaching that question, a sentencing court was confined to the circumstances of the offence.

34. In our judgment, however one approaches it, this is not a case for a suspended sentence. The present case, therefore, is not the best occasion for resolving that difference between counsel. That is so for another reason also, which is this. The point taken by each counsel seems to have come as a surprise to the other, so neither was as fully armed with authority as he might otherwise have been.

35. However, one case which Mr Plowman did show us is the judgment of this Court in Criminal Appeal No. 53 of 1984, The Queen v. Fung Hoi Chi, April 18, 1984, (unreported) in which the experienced judge who delivered the Court's judgment, now the Chief Justice, identified four matters as meriting consideration when it came to the question of whether the sentence there ought to be suspended: and those four matters certainly include factors which pertain to the offender as well as factors which pertain to the offence.

36. Finally, it is said that in passing a deterrent sentence the judge erred in principle. Undoubtedly, the judge did pass a deterrent sentence. Here, Mr Plowman's submission is that a deterrent sentence should not normally be passed on a first offender and can only be passed on a first offender if the circumstances are such as to make that course unavoidable. It seems to us that the judge did not take a different view of the principle. He said:-

"I am satisfied that this is an instance where a deterrent sentence is called for, even in the case of a first offender."

37. Was he right in thinking that the circumstances were such as to dictate a deterrent sentence? In this connection, we note this observation of the judge in passing sentence: referring to triad societies, which he described as "a cancer in society", he said:-

"Prosecution against them are inherently difficult due to the very nature of the societies themselves. They cannot function without members. There is unchallenged evidence before me that membership of the Sun Yee On has expanded from some 33000 in 1987 to some 56000 last year ..."

We pause here to mention that the judge was speaking of course in the year 1994. He continued:-

"... and that despite continuing efforts against them and custodial sentences even for simple membership. It is the largest society of this nature in Hong Kong and is involved in criminal activities of all sorts."

38. This applicant is not a weak or vulnerable youth. On the contrary, he is a man of some position and substance. His triad membership was shown to have been for an appreciable period. And it appears that he did not hesitate to refer to it when dealing with persons like Mr Ma. Even though he is a first offender, it was necessary to make an example of him: in the sense of passing upon him a sentence to deter others who are thinking of doing or continuing to do what he did.

39. All things considered and despite the points so ably developed by Mr Plowman in the course of his submission, we do not feel able to interfere with this sentence. The result is that the application for leave to appeal against sentence is also dismissed. All of what we do is done with expression of our indebtedness to counsel on both sides for their assistance on the question of conviction and on the question of sentence.