R. v. MIU KWOK SHING and Others

IN THE COURT OF APPEAL

1995, No. 620
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. I hand down the reasons for dismissing these applications. The applications were dismissed on the hearing by the Court. The reasons I now hand down are the reasons of the majority.

2. On 22 August 1995 after a trial before His Honour Judge Lung in the District Court these applicants were convicted of various offences connected with membership of a triad society.

3. Miu Kwok-shing (D1) was convicted on charge 1 of claiming to be a member of a triad society and charge 2 of inciting another to become a member. He was sentenced to 9 months imprisonment on the 1st charge, 9 months imprisonment on the 2nd charge but 6 months of the 2nd sentence was to run concurrent with the 1st charge, making a total of 12 months.

4. Tang Hing-loi (D2) was convicted on the 4th charge of claiming to be an office bearer in a triad society and on the 5th charge of inciting another to become a member. He was sentenced to 18 months imprisonment on the 4th charge and 12 months imprisonment on the 5th charge but 6 months on the sentence of the 5th charge was ordered to be concurrent, making 2 years in all.

5. Chung Kam-fat (D3) was convicted on the 3rd charge of incitement to rob and on the 7th charge of inciting another to become a member of a triad society. He was sentenced to 3 years imprisonment on the 3rd charge, 9 months imprisonment on the 7th charge but 6 months of the sentence on the 7th charge was ordered to run concurrent, making 3 years and 3 months imprisonment in all.

6. Yeung Ming-tong (D4) was convicted on the 8th charge of claiming to be a member of a triad society and on the 9th charge of criminal intimidation. He was sentenced to 12 months imprisonment on the 8th charge, 9 months imprisonment on the 9th charge but 3 months of the 9th months sentence was ordered to be concurrent, making 18 months imprisonment in all.

The facts

7. The prosecution case depended entirely upon the evidence of a police undercover officer who was the only witness for the Crown. In the course of his duties, he undertook an investigation into triad activities in the operation of the public light bus (PLB) service between Tung Shing Road Aberdeen and Central. The offences took place when the undercover officer was attempting to become a driver on the route and later, after he had become a driver, during his driving of the PLB.

8. Towards the end of May 1993 the undercover officer got to know D1 who was the supervisor of the Aberdeen Maxicab Co Ltd and who drove maxicabs as a relief driver and D3 who was a driver of a PLB on the Tung Shing Road to Central route on the morning shift.

Charge 1 (D1. Claiming to be a member of a triad society)

9. This offence took place on 22 July 1993 when the undercover officer met D1 and D3 for a meal in the course of which D1 said:

"If I have to join Tung Shing Road in order to drive Hop To vehicle, there is no problem because I am a brother of the same group. You are fucking different. You don't have a base nor do you have a face. Who would like you to join?"

"Hop To vehicle" meant a PLB controlled by the Wo Hop To triad society.

Charge 2(D1. Inciting another to become a member of a triad society)

Charge 7 (D3. Inciting another to become a member of a triad society)

10. These offences took place on 29 April 1994 again in a restaurant when D1 asked the undercover officer if he had gone to find a person in order to join the Wo Hop To. When the officer said he had not, D3, who was present, said to the officer:

"If you wanted to join Ching Wah, why not follow my big brother. He's 426."

Charges 4 and 5 (D2. Claiming to be an office bearer in a triad society and inciting another to become a member)

11. Arrangements were then made to meet D2 at another restaurant. It was suggested that he should give D2 $3,600 as "lai-see" and D3 took the officer to a pawn shop to pawn his gold bracelet to raise the money.

12. Later the same day, D1, D3 and the officer met D2. In the course of the evening the officer handed over the "lai-see" which was accepted by D2 who told him that he had joined the Wo Hop To at the age of 17 and he added:

"I'm now 40 something. I am now 426."

"426" is an office bearer.

Charge 3 (D3. Incitement to rob)

13. On 2 May 1994 D1, D3 and the officer were in D1's car. D3 said that he wanted to raise some lawyer's fees but had lost his money. The officer said that he also had lost his money whereupon D3 said:

"Ah Chun, I've thought of a way out. We go out and rob together. Don't the fuck say no, we're brothers."

He added that if the officer said no, he would beat him up. He continued talking, giving more details of how he proposed to look for a "stupid man and rob him".

Charges 8 and 9(D4. Claiming to be a member of a triad society and criminal intimidation)

14. On 8 May 1994 D1 and D3 were in the officer's PLB. D3 told him that another man had accused him of picking up passengers outside the boundary and had taken passengers from Yee Tong vehicles. Later D4 came in a private car which stopped near the officer's PLB and D4 came aboard. He greeted D1 and D2. He then told the officer he was cheeky, adding,

"Do you know that I'm of Yee Tong. You offended my brother whilst driving. What are you going to do about this. I now represent my brothers and we should square out the matter. Either you take out money to settle this matter."

After further conversation, he said:

"If that's the case, then it's not the fuck wrongly identified. As far as this matter is concerned, let's square it out. You take out the money to settle it. Otherwise you'll be beaten up every time you've (sic) seen."

The applications

15. Before the hearing, D1 abandoned his application for leave to appeal against conviction on charge 2 of inciting but applied for leave to appeal against conviction on count 1. The other applicants sought leave to appeal against each of their convictions. At the conclusion of the hearing, we dismissed each application. We now give reasons.

D1's application

16. For D1 Mr Tse submitted - as he did at trial - that when D1 said that he was a brother of the same group, this was ambiguous and that if the judge had properly evaluated all the evidence, D1 may have been saying that he was a close associate or a friend of the Wo Hop To triad society rather than that he himself was a member of it. With respect we were satisfied that this point was no more arguable before this Court than it had been at trial. There was no merit in the submissions and we dismissed them.

D2's application

17. D2 submitted short written grounds of appeal. He did not wish to enlarge upon them. He says that he was good worker without a serious criminal record and the judge misjudged the case because there was no real evidence produced and it was improper of the judge to act upon one witness's testimony.

18. The judge was satisfied that he could rely upon the undercover officer's testimony. There was nothing raised in any of the grounds advanced by D2 which would enable this Court to grant his application and for this reason, it was refused.

D3's application

19. D3 submitted 11 pages of closely typed grounds which we considered. These were an attempt to persuade this Court to retry the case on the evidence. His complaints can be summarised as follows:

(1) That the evidence of the undercover officer was not corroborated yet the judge believed him because he was a police officer.

(2) In great detail he suggests that much more evidence could have been given to support the evidence of the police officer. He suggests many exhibits could have been produced and other witnesses called.

(3) That the Crown failed to prove a motive.

(4) That parts of the evidence of the police officer were incredible or fabricated.

(5) That the applicant never harmed the police officer whereas the police officer victimised him by giving evidence.

20. It is clear from the judge's reasons that he considered the evidence of the undercover officer with care and detachment. It was not necessary for the evidence to be corroborated and it is clear from his reasons that he carefully evaluated the officer's evidence and accepted it. He tried the case on the evidence placed before him. This was his duty. This applicant was represented by counsel and so far as the other matters raised are concerned, he had a full opportunity to advance them at trial. Most were advanced and considered by the judge. D3 chose not to give evidence himself.

21. There was no merit in any of the lengthy grounds put forward. For these reasons, his application was refused.

The 4th applicant

22. Through his counsel, Mr Mumford QC, D4 sought leave to argue grounds which can be summarised as follows:

(1) That the judge erroneously concluded that it was impossible for the police officer to have fabricated the charge against D4 before he considered the evidence of D4 and his witnesses.

(2) That the judge relied upon erroneous grounds for disbelieving D4.

(3) That the judge was wrong in concluding that D4 was evasive when giving evidence.

(4) That the judge was wrong in concluding that D4's witnesses did not assist him and therefore it follows that he did not properly evaluate D4's defence.

(5) Further, that the judge did not properly take into account the absence of supporting evidence for the police officer and the fact that D4 drove a light goods vehicle not a PLB, therefore, was not a "Wo Hop" driver.

23. Our reasons for rejecting these grounds can be dealt with briefly. Of course, the judge could not reject the possibility of the police officer fabricating a case against D4, but a consideration of his reasons as a whole demonstrates that he considered and evaluated the evidence before him in accordance with his duty. Counsel invited the judge to consider the absence of support for the police officer's evidence, but having done so, he rejected the evidence of D4 and accepted that of the police officer. This he was entitled to do.

24. The witness D4 appeared to the judge to be evasive. It is not possible for this Court - which did not see and hear the witness give evidence - to say that he was not evasive simply by an examination of the transcript. As to D4's witnesses, they were not present at the time when the offence took place and could not assist about the words spoken. The judge was satisfied that D4 committed the offence and it is not possible for this Court to re-evaluate that evidence in order to question the judge's findings as invited by counsel.

25. For these reasons D4's application for leave to appeal against his conviction was refused.

The applications on sentences

26. D4 abandoned his application for leave to appeal against his sentences. The others contended that the sentences passed were too severe. In particular D2 complained that he was given 18 months imprisonment on charge 4 for claiming to be an office bearer in a triad society whereas his co-defendant, D1, receives only 12 months for "the same offence". This is a misunderstanding on his part. D1 was convicted on count 1 of claiming to be a member of a triad society not claiming to be an office bearer.

27. We considered each sentence passed by the judge and the totality. None of these sentenced were wrong in principle nor manifestly excessive. There were in fact modest sentences for very serious offences. On these grounds, the applications for leave to appeal against sentences were refused.