Attorney Gereral v. Chung Yeung Kwan

CAAR000001/1992

IN THE COURT OF APPEAL

Application for Review
No. 1 of 1992

HEADNOTE

Respondent was convicted after trial of the offence of being an office bearer of an unlawful society. Sentenced to six months to be concurrent with three months sentence on charge of attending a meeting of a triad society. Application for review by Attorney General. Court held offence of being an office bearer merited a sentence of imprisonment of at least two years.

IN THE COURT OF APPEAL

Application for Review
No. 1 of 1992

-------------------------

Coram: Hon. Power, J.A., Nazareth, J.A. and Wong J.

Date of Hearing: 13 March 1992

Date of Judgment: 13 March 1992

-------------------------

J U D G M E N T

-------------------------

Power, J.A.:

1. This is the judgment of the Court.

2. The respondent in this matter was convicted after trial of the offence of being an office bearer of an unlawful society, the particulars of that charge being that on 20th February 1991, he was an office bearer of an unlawful society, namely a "426" Red Pole of the San Yee On Triad Society. He was also convicted of attending a meeting of a triad society, the particulars of that charge being that on 23rd September 1990, at the Sun Hing Restaurant, Fuk Wing Street, Kowloon, he attended a meeting of the San Yee On Triad Society. He was sentenced to six months on the first charge and three months concurrent on the second charge. He was acquitted of a third charge o?assisting the management of an unlawful society.

3. The facts are set out in the Reasons for Sentence as follows:

"The principal evidence against the accused was a lengthy statement made by him which was admitted as voluntary. In this statesmen the accused indicated that there had been an initiation ceremony held at the restaurant in which he was a shareholder, that the ceremony had been conducted by D2 who was the Incense Master and a higher rank than D1. That he, D1 was a red pole 426 member of the San Yee On, but he had not been present throughout the whole of the ceremony being required to work intermittently in the kitchen of the restaurant.

He admitted he had been to some form of promotion ceremony in 1986 in Kowloon City.

Evidence given by the Triad Expert. indicated that a 426 Red Pole Rank was normally a fighter and that a person of that rank would normally supervise 49 or Blue Lantern members. Such a rank was junior to the rank of Incense Master. It was the latter who normally conducted Initiation Ceremonies.

The Incense Master who conducted this ceremony had already been sentenced to 2 years imprisonment for being an office bearer and in this case pleaded guilty to an offence of attending the meeting. I had sentenced him in these proceedings to a sentence of 6 months imprisonment.

I felt that DI's rank in the society and role in what had taken place was lesser and that he was entitled to be sentenced accordingly. I considered the case of Attorney General v. Lee Chi-man [1980] HKLR 483 and The Queen v. Ho Chun-chau Application for Review No. 17 of 1984.

I felt that an immediate custodial sentence was appropriate, but in view o?the above factors I felt he was entitled to be dealt with more leniently than D2. He had not been convicted of any serious offence since 1981 and had never been subject to an immediate custodial sentence. He had been married since 1982 and had two daughters. His restaurant had been closed shortly before the trial. I felt that the two offences of which he had been convicted were interlinked and could therefore properly run concurrently."

4. The Attorney General now seeks review on the ground that the sentences were manifestly inadequate and wrong in principle.

5. The principal complaint is directed against the sentence of 6 months on the office bearer offence. It is argued by Mr. Coghlan, who appears for the Attorney General, that the offence of being an office bearer is a more serious offence than being a member of the triad society or claiming to be a member. He further argues that deterrent sentences are appropriate in circumstances such as this and suggests that nothing has been advanced which would call for a court to adopt a lenient approach in the sentencing of this offender.

6. The Attorney General, through Mr. Coghlan, submits 3 years as being the appropriate sentence. This submission appears to rest uponThe Queen v. Wai Hin-keung Crim.App. No.133 of 1986. In that case, an offender was sentenced to 3 years for claiming to be an office bearer of a society. It, however, had a particularly aggravating feature in that the facts indicated that that person had been recruiting school children. Mr. Coghlan also referred to The Attorney General v. LEE Chi-man [1980] HKLR 483, in which a person, convicted of the offence of claiming to be a member of the triad society, was sentenced to 12 months.

7. The only other authority in point is The Attorney General v. HO Chun-chau Application for Review No. 17 of 1984, in which suspended sentences of 6 months were imposed on each of three charges of being a member of the triad society attending a meeting of the triad society, and assisting in the management of a triad society.

8. The particular aggravating feature in The Queen v. Wai Hin-keung was not present in the case before us.

9. Mr. Lunn, who appears for the applicant, asks us to bear in mind that the Incense Master, who is a triad officer more senior that a Red Pole, was sentenced to 2 years and suggests that that establishes a bench mark from which we should work down, as, in his submission, did the judge. He also asks us to take into account that the applicant, as shown by the probation report, has been suffering from a serious medical condition.

10. We are satisfied that this was an offence of such gravity that it warranted a sentence of imprisonment in excess of the 6 months that was imposed. We are not cognizant of the full facts that surrounded the sentencing of the Incense Master and we do not consider we can properly regard that sentence as establishing a bench mark. A Red Pole is a more senior triad position than that of an ordinary member and where it is established that the offender held such an office we are satisfied that the offence merits a sentence of imprisonment of at least 2 years. We take into account what we said recently in The Attorney General v. WONG Kwok-wai [1991) 2 HKLR 384, where we indicated that when a sentence is increased by the Court of Appeal at a time close to the end of the original sentence a discount should be given. That clearly applies in the present case as the period of the original sentence is about to expire. We, therefore, order that the sentence of 6 months on the first charge, being an office bearer of an unlawful society, be varied to one of 18 months. The concurrent sentence of 3 months will stand. The applicant is, therefore, sentenced to a total period of imprisonment of 18 months.

Representation:

Mr. C. Coghlan (Crown Prosecutor) for the Applicant.

Mr. Michael Lunn (instructed by Messrs. Anthony Kwan & Co.) for the Respondent.