R. v. WONG SIK MING

1996, No. MA 1074

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H E A D N O T E

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MAGISTRATE'S APPEAL - ATTENDING A TRIAD SOCIETY MEETING - MEANING. SECTION 20(2) SOCIETIES ORDINANCE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.1074 OF 1996

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J U D G M E N T

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1. This is an appeal from the Western Magistrate Mr Dufton. There was a young police officer, who, when he was in the training school, was selected to undertake rather dangerous work in Hong Kong. This was a secret mission to infiltrate unlawful organizations. He graduated from the training school and he became a hawker and set up a stall in Tsimshatsui. No doubt because of his training and the work that he was then doing, he was able to join the Sun Yee On Triad Society in February 1993 and became, to all intents and purposes, a triad.

2. He had a reporting officer who was a Chief Inspector called Li Kin Fai and he kept a note book on him to note down what he saw, what he heard and what was going on with the Sun Yee On. He would then go down to Chief Inspector Li and write out his notes which were then kept at the Chief Inspector's home, because, he would be in danger if the book was discovered upon him. As I said, he must have been a very brave man to be able to pass himself off and be accepted as an active triad.

3. It must be understood that in these secret societies - which still unfortunately play a part in Hong Kong life - unless a triad himself will give evidence against others, infiltration is one of the methods by which the police can obtain evidence of what is going on.

4. The appellant was ultimately charged with two charges : both under s.20(2) Societies Ordinance Cap.151 which was attending the meeting of a triad society, and secondly professing to be an office bearer of a triad society. The factual evidence came solely from the undercover police officer. He described the meeting in the early hours of the morning in Tsimshatsui when a group of triads had gone from the City One Karaoke and had arrived at a bar which was called the Chek Lap Kok Bar. There was a group there. One of the triads was in fact the protector of the bar. At about 5:40 in the morning another group of triads came into the Bar, there were something like ten of them there. The group went outside and some conversation occurred :

"Appellant : Who is Ah Kwai, my lo biu had already revealed the protectors identity, that is Yiu Hing and he still asked somebody to surround him.

Ah Tung : There is no problem the other side said there is no problem also. and if they do not explain it tonight there would be problem.

Appellant : I am an office bearer of Sun Yee On.

Ah Tung : I am an office bearer for 10 odd years. Do you regard the things I discuss with others are nothing. The followers of the other person were also fucked by me.

Appellant : This is not reasonable. Without the presence of Yiu Hing you regard the 'Chi Sui are nothing."

5. Now there is no doubt at all that what was being discussed there were triad matters, in the sense of a dispute or potential dispute between persons in the same triad society. I confess I do not know what goes on in these societies, but it may be that for these sort of people, dispute like this are relatively common - as to who does what and whether someone has sufficient protection or not.

6. The charges then arise, both from the same sub-section which reads as follows :

"Any person who is or acts as a member of a triad society or professes or claims to be member of triad society or attends a meeting of a triad society etc. shall be guilty of an offence."

7. Charge A was concerned with attending a meeting of a triad society, although in fact the charge was called "attending a triad meeting".

8. Now, I have no doubt in my mind that this was a triad meeting in the sense that there was triads talking together. The Ordinance has a definition of "Society" which means "any club, company, partnership or association of persons" and a triad society, would be, for example, the Sun Yee On. So if you claim or profess to be a member of a triad society, that is an offence and the Crown submits that the words "I am an office bearer of Sun Yee On" means that the appellant was a member of a triad society. So what one has to find, in my judgment is something which is capable of being a meeting of the Sun Yee On Society not Sun Yee On triads.

9. Generally speaking, these are questions of fact - whether something is a meeting or not is a question of fact. The expert said "In my opinion it was a triad meeting." The reasons he gave for that conclusion was as follows : "The purpose they attend the meeting was to settle a dispute that happened earlier on. The purpose was to show the power of their triad society." Whilst I respect the expert's views, an expert is not permitted to take from the magistrate, the responsibility function which is to decide himself whether something is or is not a meeting of a triad society. Whilst I accept that there is no necessity in this day and age to have formality about a meeting of a triad society, it would be unusual, in my judgment, for a triad society to have a meeting on a street. I am not saying it could never happen, but as far as the facts of this particular case is concerned, I am of the view that this clearly was a meeting of triads to discuss triad matters, but I have considerable doubt as to whether it was a meeting of a triad society. At any rate, this is a criminal case. The burden of proof is on the Crown to prove so that the magistrate was sure that this was a meeting of a triad society as such.

10. Mr Plowman Q.C. postulated a number of solicitors meeting together who had some problems, for example with conveyancing. They might meet and discuss what was going on. They are all members of the Law Society, but I do not think that could ever be classified as a meeting of the Law Society. I do not think triads require the same formality as a professional body would, but in my judgment, I think there is a doubt in this case as to whether this was capable of being a meeting of a triad society. The magistrate may have been misled by the charge which was called "attending a triad meeting". Further, by s.21(1) a distinction is drawn between a "meeting of an unlawful society" and "members of an unlawful society".

11. For those reasons, I would allow the appeal on Charge A.

12. As far as Charge B is concerned, there was clear evidence that this man claimed to be an office bearer of Sun Yee On. I have examined the evidence, I have taken into account the matter that Mr Plowman has urged upon me, namely that one does not know when these notes were actually made because the police officer's statement corresponded precisely with his notes, and also that he had been taking some drink. In my judgment, the magistrate's approach was perfectly correct. It is unnecessary for magistrates to deal with every single point that is put to them in submissions. He said that he had carefully considered all the evidence and submissions. He said "I was satisfied so that I was sure that PW1, was a witness of truth and that full weight could be attached to his evidence".

13. In my judgment, he correctly took into account all the matters that were placed before him. I do not consider it necessary for magistrates to put in detail their method of resolution of every particular submission which is made.

14. The appellant did not give evidence. The only evidence, therefore, the magistrate had to act upon was the evidence that this appellant had claimed to be an officer bearer of Sun Yee On. In my judgment, there is no ground for flawing the conviction on the second charge. I have looked at it in detail and I can find nothing which can be said to be unsafe or unsatisfactory. The conviction is upheld and the sentence of 12 months' imprisonment passed concurrent stands and the appellant will have to be returned to prison.