HKSAR v. CHAN KA FAI

CACC167/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.167 OF 2013

(ON APPEAL FROM DCCC 3 OF 2013)

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BETWEEN

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DECISION

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1.  This is the applicant’s application for bail pending appeal.

2.  On 19 April 2013, the applicant was convicted after trial of one count of claiming to be an office-bearer of a triad society, contrary to section 19(2) of the Societies Ordinance, Cap.151. He was sentenced to 18 months’ imprisonment on the same day. The expected date of discharge is 16 December 2013.

3.  On 16 May 2013, the applicant lodged an application for leave to appeal against conviction. The application is yet to be listed for hearing. Consequent upon queries raised by Stock VP, a set of Amended Grounds of Appeal was filed on 24 June 2013. 

4.  By summons filed on 3 July 2013, the applicant applies for bail pending appeal.

5.  The relevant legal principles are well settled. Bail pending appeal is exceptional and generally speaking should only be granted where it appears that the appeal would be successful, or where there is a risk that the whole or a substantial part of the sentence would have been served by the time the appeal was heard: HKSAR v. Lau Man Kin [2010] 1 HKLRD 336. Where the “time” basis is relied upon, an applicant must still demonstrate that his appeal is reasonably arguable.

6.  The applicant’s application is premised on both the “time” and “merits” basis. The respondent opposes the application on the basis that the appeal is not reasonably arguable.

7.  The gist of the prosecution case is as follows. In the early morning of 18 April 2013, PW1, who was an undercover agent, witnessed two groups each comprising ten or more people, swearing at each other outside the entrance of Why Club at Minden Avenue, Tsimshatsui.  PW1 knew the applicant, who was in one of the group, and two others in his group. Later, PW1 saw a man whose name was unknown arrive with four males and speak to the applicant, saying he was Ah Ho, the following of Tai Lung of Sun Yee On. The applicant was heard by PW1 to have responded by saying, “I am Ka Fai, staff of Sun Yee On. Your group of followers have made my subordinates suffer injuries by assaulting them. I look after the establishment. Don’t come to this place again for the fuck of it.” The man who claimed to be Ah Ho then said to the applicant that that meant it was unnecessary to discuss and he told his group to leave. 

8.  The applicant elected to give evidence but did not call any witness. His case is that he is neither a member of Sun Yee On triad society nor had he claimed to be an office-bearer or staff member of Sun Yee On. He gave evidence that he is an operator of restaurant and bar, and Why Club is one of them. At the time in question, he saw two groups of people having a dispute at the dance floor. One of the groups consisted of regular customers of the club whereas the people in the other group were not known to him. The bouncers he employed intervened and drove the two groups outside of the club. The applicant then went up to the two groups, who continued to argue at the entrance to the club, to find out what happened. He saw one of his bouncers bleeding at the corner of the mouth. He then spoke to the people in these words: “I am Ka Fai and I am the boss here. My colleagues were assaulted by you and you are still having a dispute here. You guys are so troublesome so don’t come to have fun again.” A man in one of the group then said, “In this case there is nothing to talk about.” The applicant replied by saying “I am the boss here. I call the shots here. I have made a report to police. You better go away as soon as possible.” The two groups then left. (Paras. 17 to 19, Reasons for Verdict)

9.  The Judge found PW1 an honest and reliable witness and accepted his evidence. He was of the view that the account given by PW1 was natural and logical. The Judge rejected the applicant’s evidence as being fraught with inherent improbability and untruthful. Among other things, the Judge considered it unthinkable that the applicant being a boss of the club and, on his own case, was a decent businessman who had recruited 12 to 13 bouncers and had paid protection money, would still take it upon himself to confront and disperse troublemakers of possible triad background without the assistance or intervention of triad related person who were present, such as the 2^nd defendant. The Judge found as a fact that the applicant did during the incident claim himself to be a staff of Sun Yee On in the manner related by PW1.

10.  There is no dispute that Sun Yee On is a triad society. On the basis of the evidence of the triad expert (PW3), which the Judge accepted, he held the term “staff” or “staff member”, used in the context, was a general term referring to the different ranks and offices over and above the rank of ordinary member of a triad society, and thus falls within the meaning of “office-bearer” under section 2 of the Societies Ordinance. The Judge therefore found the charge proved and convicted the applicant.

11.  The Amended Grounds of Appeal contain three grounds:

(1) The Judge erred in rejecting the evidence of the applicant.

(2) The Judge erred in failing to sufficiently consider the inherent improbability of the applicant to have committed the offence when he had already instructed his staff to make a report to the police. Alternatively, the Judge erred in rejecting this part of the applicant’s evidence.

(3) The conviction is unsafe and unsatisfactory.  

12.  Under the first ground of appeal, Mr Chan who appeared for the applicant made a number of complaints about the Judge’s Reasons for Verdict. Firstly, he submitted there was no evidential basis for the Judge to conclude that: (i) when the two groups were outside the club, the situation was out of control in that only one of the club staff was injured and the two groups were only having a dispute; and (ii) the applicant had conversation or confrontation with two groups of troublemakers when the applicant’s evidence was that he spoke to two or three of the people.

13.  Secondly, he submitted the Judge was wrong to consider there was no good reason for the applicant to be in the forefront during the confrontation without even trying to conceal his identity in that, as the operator of the club, the applicant had no option but to find out what the matter was and in so doing would have to reveal his identity.

14.  Thirdly, he complained the Judge had no basis to say that the applicant had the 2^nd defendant and a dozen or more bouncers to disperse the two groups for him because there was no evidence that the applicant knew that the 2^nd defendant was present.

15.  Fourthly, it was said that the Judge was wrong to reject the applicant’s evidence that he had already asked his colleague to call the police when this was not disputed by the prosecution. It was submitted that this part of the applicant’s evidence showed that the applicant did not comprehend a risk and the Judge therefore erred in considering there was no good reason for the applicant to take the risk to confront the two groups on his own. Mr Chan also made the point that as a liquor licence holder, the applicant had an interest in finding out what happened.

16.  Fifthly, it was said that when the Judge said the applicant “spearheaded”, he had not sufficiently considered the applicant’s evidence that he did not see one of the groups, that it did not transpire from the applicant’s evidence that he knew the two groups were triad related, and that there was no evidence to suggest he would not believe he was able to settle the dispute between a group of regular customers and another group whose background he did not know. Further, when the Judge said the two groups were of possible triad background, he was making an assumption.

17.  As for the second ground of appeal, it relates to the applicant’s evidence that he had already asked his staff to call the police. The arguments are primarily the same point as the fourth complaint mentioned in paragraph 15 above. Mr Chan further made the point that as the applicant had already asked his staff to call the police and was expecting their arrival, it is inherently improbable that he would claim to be triad related.  

18.  The third ground of appeal complains that the Judge failed to consider a number of matters. Firstly, as the applicant was the boss, why would he say “I look after the establishment”? Secondly, it is unreasonable for the applicant to say he was a staff of Sun Yee On because, in order to show off his power and status, he would either be specific with his rank or would have mentioned his association with someone of the trial society. Thirdly, having paid protection money, there was no need for the applicant to disclose his triad background and it is inherently improbable that he would have done so. Fourthly, the Judge was wrong to have approached the matter on the assumption that the applicant was indeed an office-bearer of Sun Yee On.

19.  Mr Li who appeared for the respondent had in his written submissions made a detailed response to the arguments advanced by Mr Chan by reference to the evidence in the trial and the Reasons for Verdict. In relation to the first ground of appeal, it was submitted that the arguments had ignored the reality of the situation for the undisputed evidence shows there were two groups of over 20 people who were very agitated and engaged in a heated dispute with one bouncer being injured. It is against such background that the exchanges between the applicant and the male took place. The factual matrix is also relevant to whether it was reasonable and inherently probable for the applicant to take it upon himself to disperse the two groups without enlisting the assistance of his bouncers, given that he had other options to deal with the situation without unduly risking his personal safety. Reference was also made to the Judge’s finding that, in his testimony, the applicant had tried to distance himself from the 2^nd defendant. The Judge would have taken the factual circumstances into account when assessing the credibility of the applicant and his evidence.

20.  On the second ground of appeal, Mr Li referred to paragraph 33 of the Reasons for Verdict in which the Judge rejected the entirety of the applicant’s evidence, which must mean the applicant’s evidence that before he went up to the two groups of people, he had already asked his staff to call the police, was also rejected by the Judge. It was submitted that although the prosecution did not cross-examine the applicant on this, it does not mean that the Judge was bound to accept the evidence. It was also pointed out that this part of the applicant’s evidence is at variance with another part of his evidence that he would try to mediate and police would be called if the attempt failed, hence making a report to police was a matter of last resort. Further, it is PW1’s evidence that the applicant had said “No problem! And there are police. Disperse the group of people first and then go down to have drinks”, which suggested he was not expecting the police.

21.  As for the third ground of appeal, Mr Li submitted that the core issue in the case is whether the evidence of PW1 and PW3 are credible and to be believed. Once the Judge accepted their evidence and his reasons for so doing cannot be faulted, the offence is proved and the conviction cannot be disturbed.   

22.  Application for bail pending appeal is not the occasion for in-depth discussions of the merits of appeal. I will not therefore embark upon a detailed analysis of the arguments on both sides. Instead, I will take a broad view of the case and come to a preliminary view on the merits of the grounds of appeal.   

23.  In a nutshell, the applicant’s appeal is a challenge to the finding of credibility made by the Judge. The law in this regard is trite. An appellate court will not, except in the most exceptional circumstances, interfere with a finding that depends on the credibility of a witness and that an appellate court ought to act with the greatest caution before interfering with the trial judge’s findings if, having regard to the whole of the evidence, such findings appear reasonable: see R v. R E Low [1961] HKLR 13 at 82 per Blair-Kerr J, adopted in HKSAR v. Yuen Shun Ying (unreported) CACC 273/2003 (6 May 2004).

24.  Mr Chan placed great reliance on the applicant’s evidence that he had already instructed his staff to call the police before he went up to the two groups of people, and argued that this takes the applicant’s appeal out of the ordinary appeals that seek to challenge the trial judge’s finding on credibility. However, this is not a point that either the defendant or the prosecution considered to be material at the trial. While the prosecution did not cross-examine or make submission on it, defence counsel also did not make submission on it. In fact, it is not the applicant’s evidence that because he was expecting the arrival of police, he would not have uttered the words complained of. On the other hand, as Mr Li’s submissions had identified, there are other parts of the applicant’s evidence that cast doubts on the veracity of this point. Importantly, the fact that there is no cross-examination or submission from the prosecution on the point does not mean the Judge must accept and could not have rejected it. In the final analysis, what is crucial is whether the Judge’s finding on the general credibility of the applicant and the rejection of his version of events is a reasonable one. If it is a reasonable finding and conclusion, which my tentative view is that it is, then there is no basis for the Court of Appeal to interfere.      

25.  In coming to the finding that the applicant did claim to be a staff of Sun Yee On in the manner described by PW1 and rejecting the defence case that the applicant was merely mediating and had said nothing about triad society, the trial judge had carefully analyzed and considered the inherent probabilities of the evidence of PW1 and the applicant. In my view, it is not readily apparent that the trial judge’s analysis and findings as to credibility are utterly devoid of evidential support or completely untenable. This is particularly the case with regard to the Judge’s central reasoning that it is inherently improbable that the applicant, as the boss of the club and, on his own case, a decent businessman who had recruited 12 to 13 bouncers and had also paid protection money, would take it upon himself to confront and disperse two groups of troublemakers engaged in a heated and hostile dispute without the assistance or involvement of his men who were present, such as the 2^nd defendant. Taking the case as a whole and considering the arguments advanced on both sides, I am not persuaded that the applicant enjoys a reasonable prospect of success in his appeal.

26.  The applicant has in total been incarcerated for more than seven months. Assuming he will receive the usual discount for good behavior in prison, this means he has already served more than half of his sentence. However, having regard to the merits of the appeal, I do not consider it is just to grant bail pending the hearing of the appeal.

27.  The application is therefore refused.