THE QUEEN v. HO CHUN-CHAU

IN THE COURT OF APPEAL

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JUDGMENT

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McMullin, V.-P. :

1. This is an application by the Attorney General for review of sentence. The respondent, HO Chun-chau, was convicted by a Magistrate of three offences under the Societies Ordinance. Under Section 20 sub section 2, he was convicted of (a) being a member of the Chuk Luen Society and (b) of attending a meeting of that society. The third charge, was taken under Section 19 and the respondent was convicted of assisting in the management of the society.

2. Although these sections provide penalties for trial of such offences upon indictment, the Magistrate had power to deal with them by virtue of the provisions of Section 92 of the Magistrates Ordinance under which he is also given power to impose penalties not exceeding two years imprisonment and $10,000 by way of fine.

3. In passing it is to be noted that although under Sections 19 and 20, a defendant tried upon indictment is liable to greater custodial penalties, i.e. five years under Section 19 and three years for first offence under Section 20 sub-section 2, the power to fine is restricted to $5,000 and $2,000 respectively. This is a curious disparity and may well be a matter for the attention of the Legislature.

4. The respondent was arrested at about 1:30 a.m. on the 13th June together with a number of other persons in the course of police investigations into a matter not directly concerned with the present charges.

5. While in custody at Happy Valley Police Station between 3 a.m. and 5:20 a.m. on that morning, he made three statements under caution which, together with the oral testimony of a police sergeant - accepted by the court as an expert in triad matters - form the substance of the case against him on the present charges. These statements were challenged by the defence at the trial and were admitted after the usual enquiry as to their voluntariness. The respondent did not give evidence either on the trial of that issue or on the case generally.

6. In convicting the Magistrate relied in addition upon portions of the contents of an article or treatise in typescript which purports to describe in some detail the nature and constitution of the Chuk Luen Bong Triad Society and its relationship to Triad Societies in Hong Kong. This was never formally produced in evidence and its origin remains obscure. It appears to have been prepared by some person within the Royal Hong Kong Police Force, the name of that force appears above the title on the outer cover. No point has been taken as to whether this was a "publication" within the meaning of Section 39 of the Societies Ordinance Cap. 151 and Mr. Sanguinetti, who appears for the respondent was content to refer to certain parts of its contents in support of his argument.

7. The trial concluded on the 15th October and judgment was reserved to the 18th October. Following conviction there appears on the record a note of what seems to have been a very brief plea in mitigation and the Magistrate then proceeded to sentence as follows:

"Considering the stated aims of the Chuk Luen Society and the defendant's relatively good record to date I sentence the defendant as follows:

 

All charges treated as one for purposes of sentencing - Fined $2,000. Sentenced to 6 months' imprisonment suspended for 2 years."

Subsequently the respondent appealed against the conviction and this appeal was dismissed on the 28th December. Thereafter the Attorney applied for review. That was in January 1985. By that time it appears that the Magistrate himself had altered his opinion of his sentence and had come to the view that the suspension of the sentence had been not justified.

8. Upon the review, Mr. Jackson for the Attorney asks us to say that the sentences were, firstly, wrong in principle; secondly, manifestly inadequate in that immediate custodial sentences were required in the circumstances as found by the Magistrate.

9. As to the first of these propositions, Mr. Sanguinetti concedes that it was wrong in principle to impose a global sentence in this way. That is clearly the case and separate sentences ought to have been imposed for each offence. Both Counsel interpret the Magistrate's intention as being to impose fines totalling $2,000 and sentences of six months' imprisonment on each count concurrent, suspended for two years.

10. This court is satisfied that the largely uncontested evidence at the trial, amplified to some extent by what Mr. Sanguinetti has put before us in the course of filling out the very inadequate mitigation urged before the Magistrate, shows that the situation was as follows: the Chuk Luen Bong is a triad society with its headquarters-in Tai Wan. It has in recent years succeeded in establishing itself in Hong Kong but would not appear to have come to the attention of the Authorities much before 1984.

11. The respondent, in 1982, became friendly with a man called MAK Siu Ming. Subsequently he came to know that Mak was an important official of this society. Because of the latter's support for the respondent's interest in football and other, sporting activities the respondent was persuaded to join the Chuk Luen Bong.

12. He underwent a typical initiation ceremony about 18 months prior to his arrest performing certain rituals and reciting certain prescribed poems in the presence of MAK Siu Ming.

13. Thereafter he was principally instrumental in setting up the Cheeran United Sports Association Ltd. which was incorporated on the 27th January, 1984 and he subsequently encouraged members of his own family to give support to this organisation.

14. In his statements there are references also to the Chuk Luen Sports Association and the Chuk Luen Sports Club in which the respondent professed to have had an interest for the purpose of promoting sporting activities. The Magistrate rightly found that these were all either alternative personalities of the Chuk Luen Triad Society or else were themselves unlawful societies grouped under the Chuk Luen Triad Society.

15. In March 1984 the respondent assisted in the arranging of a large dinner party of the Kwok Dao Restaurant, North Point. He sent out a large number of invitations. Those attending the dinner, which took place on the 29th March, included the respondent himself and a number of persons who were members and officials of other triad societies in Hong Kong. The triad expert, Sergeant Chiang Ka Wing, explained that this was in the nature of a formal inauguration of the Chuk Luen Bong in Hong Kong and that the sending of invitations to other triad elements was intended to ensure their approval of the setting up of the Chuk Luen in Hong Kong.

16. In his third statement the respondent alleges that he was taken by surprise and was not pleased when he received the invitations from Mak for distribution, but because they came from Mak he felt that he could do nothing about it. In the same statement he admits discussing with Mak alternative initiation ceremonies for new members for the future and he himself selected on oath which purportedly enjoined those taking it to abstain from involvement in politics, dealing in dangerous drugs, theft or looting. Mr. Sanguinetti enlists this as mitigating in some measure the nature of the applicant's triad -involvement.

17. We are satisfied however, that all of this is quite sufficient to establish that the respondent was a fully initiated and cognizant member of this organization, although admittedly not an office bearer therein.

18. It is conceded that he has not been involved in any substantive crime pursuant to his triad affiliation. Nevertheless, we accept Mr. Jackson's contention, supported by several authorities, that membership on its own, and apart from proof of any additional unlawful activity will usually justify a custodial sentence; see Attorney General v. Lee Chi Man^(l) on which Counsel most strongly relies. It is to be noted, however, that in delivering the judgment of the court of Power, J. (at page 489) while stating that a custodial sentence will usually be required, does not say that the sentence should be an immediate custodial sentence. Nor do we seek to fetter the discretion of the sentencing judge by any statement of principle going further than that.

19. The evil wrought by such societies has long been recognized both by the Legislature and the Courts. In 1961 the Ordinance was amended (as Power, J. notes at pg. 485 in the above report) to make specific reference for the first time to triad societies. Section 9(2) as it then stood, (Section 18(2) of the Ordinance in its present form) provides that such a society, whether registered or not, will be deemed to bean unlawful society. The long held view of the courts of the danger to public order inherent in the existence of such societies is eloquently expressed by Sir Michael Hogan the Chief Justice in Kam Moon v. The Queen⁽²⁾ .

20. In the present case, of course, we are not concerned solely with membership and there is - it must be remembered - in addition the graver offence of giving active support and assistance which takes the matter beyond considerations of mere passive membership.

21. We have given to regard to the many points made by Mr. Sanguinetti in a lengthy and thorough address in support of the respondent's case. We accept that the respondent's previous conviction for a minor offence, a considerable time ago, may rightly be disregarded; nor do we consider his previous connection with a triad society to which he was introduced by his father - principally it would seem for his own physical protection - at the age of twelve years to be relevant to any greater extent than as showing that he had early come to a knowledge of the existence of such forces.

22. There is, however, one factor out of the many urged upon us which we think must be given considerable weight. Although the confessional statements were challenged, the nature of the allegations against the police and the manner in which the police witnesses were cross-examined, coupled with the fact that the respondent did not support the objection by giving evidence, gives colour to the impression that the challenge was not of a very enthusiastic character. The statements were admitted as voluntary statements. Moreover, in a case of this kind, it would not be too surprising to find that the defendant was not overanxious to give the appearance of ready co-operation with the police.

23. There is no doubt that these statements contain a good deal of factual information of a fairly detailed and circumstantial kind which could have been of considerable use to the police in pursuing their investigation of a comparatively new and unknown organization. In this connection it should be mentioned, for what it is worth, that one of the copies supplied to the court of the police report on the Chuk Luen Bong is date-stamped 29th September, 1984, several months, that is to say, after the respondent had given his confessional statements.

24. When this point was specifically stressed by the court to Mr. Jackson in the course of his reply, he was unable to say to what extent the respondent's information had been made use of but he very fairly expressed his belief that it must have been of considerable assistance to the police.

25. There has lately been considerable publicity directed to the continuing menace of triad societies in Hong Kong and while we are in respectful agreement with what was said in Lee Chi Man ⁽¹⁾ of the need to impose custodial sentences even for membership, there is also a great public interest to be served in encouraging the disclosure of information which will facilitate the police in the vital task of discovering, containing, and it is to be hoped, eventually suppressing these subversive groups.

26. We accept that the proper approach of the court should, when considering sentence, be to have regard to the intention of the Legislature as indicated in the penalties provided and to measure the case before it against the kind of case capable of attracting the maximum penalty.

27. In this regard Mr. Jackson conceded, rightly we think, that in a case tried summarily, a Magistrate should consider sentence in the light of the powers provided to him under Section 92 of Cap. 227 rather than in relation to the maxima set out in Sections l9 and 20 of the Societies Ordinance itself.

28. Grave as these offences are we cannot say that the degree of the respondent's participation in this illegal activity has been shown to be one of the gravest possible kind.

29. In The Queen v. Lau Chiu Tak⁽³⁾ , Huggins, J.A. delivering the decision of a bench of five judges, said as follows:

"It follows from what we have just said that the test of manifest inadequacy is no different from the test of manifest excessiveness and that the same test must be applied whether the case happens to be an appeal brought by the appellant or a review at the instance of the Attorney General. Nevertheless, we emphasize that this court will be much more easily persuaded that a sentence is manifestly excessive than that it is manifestly inadequate - not because the test is different but because there is a presumption in favorem libertatis which the Crown has to overcome: see Reg. v. Bitter (1981) 27 S.A.S.R. 183, 185. The power of review was conferred to correct errors in exceptional cases and the court will be jealous to prevent encroachment on the discretion of judges and magistrates to impose a lenient sentence as they may think appropriate, provided that the sentence is one which in all the circumstances could reasonably be passed."

30. In the end and notwithstanding the Magistrate's own change of heart we are not persuaded that his first view was in error and, though not without some hesitation, have come to the conclusion that the penalties which the Magistrate sought to impose were not manifestly inadequate and that we are entitled to interfere only to the extent of setting right what was clearly mistaken in the order of the lower court.

31. The application is allowed to the extent that for the order of the Magistrate we substitute the following order. In respect of each of the three charges, the applicant is sentenced to 6 months' imprisonment, the sentences to run concurrently and to be suspended for two years. We impose fines of $600 on the (a) and (b) charges and $800 on the (c) charge.

(1)    (1980) H.K.L.R. 483

(2)    (1964) H.K.L.R. 623 at page

(3)    Application for Review 5 of 1983