The Queen v. Chan San-man

DCCC000568/1988

H E A D N O T E

Societies Ordinance - sections 20(2) and 28 - possession of writings "of or relating to" a Triad Society - whether an invitation to a party addressed to a Triad Society is a writing of or relating to a Triad Society - knowledge (Sit Yat-keung [ 1986] HKLR 434 followed).

IN THE DISTRICT COURT OF HONG KONG

CRIMINAL JURISDICTION

CASE NO. 568 OF 1988

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Coram: His Honour Judge Downey

Date of judgment: 24th January 1989

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REASONS FOR VERDICT

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1. On the above date, I recorded verdicts of not guilty in respect of three charges preferred against the defendant for offences against the Societies Ordinance (Cap. 151). At the time, I gave short reasons for doing so, and undertook to state fuller reasons in writing in deference to the helpful submissions of counsel on a difficult question of statutory construction

2. The three charges resulted from the execution of a search warrant at the defendant's home on the 1st March 1988, when police officers seized eight invitation cards in the customary form of Chinese characters printed in gold on red glossy paper. The invitation cards related to Spring Festival banquets held on the 3rd April 1983 and the 10th April 1985. On each occasion the host was the Kwong Hung Athletic Association, and. the invitations were apparently issued by Kwong Hung Athletic Association Co. Ltd., a company registered under the Companies Ordinance. The names of the invitees were written in black ink in the spaces provided on all but two of the cards. These two (Exhibit P5) were left blank. Of the remainder, one was addressed to "Fuk Yee Hing" (Exhibit P2); another was addressed to "Fuk Yee Hing Company" (Exhibit P6); and a third was addressed to "Kam Nga Chan" (Exhibit P1), which is or was the defendant's nickname. It is the Crown's contention that, by having exhibits P2 and P6 in his custody, the defendant was guilty of an offence against section 20(2) of Cap. 151, since Fuk Yee Hing is a well-known and active Triad Society. That is the substance of the 1st charge. The Crown further contends that the defendant, on the same day, assisted in the management, alternatively was a member, of the same Triad Society (the 2nd and 3rd charges); and it relies entirely on the presumptions contained in section 28 of Cap. 151.

3. On behalf of the Crown, Miss Crabtree accepted that everything depended upon proof of the defendant's guilt on the 1st charge. Strictly speaking, there is a distinction between the offence created by section 20(2) and the presumptions contained in section 28 of the Ordinance. The latter only arise if any writings are found in the possession of any person; whereas the former is committed if any person is found in possession of or has the custody or control of any writing. Nothing turns on these distinctions in the present case, because there is ample evidence that the defendant had more than one invitation card in his possession and custody on the day in question. The exhibits were found at his home, where he has resided since 1967. They were admittedly found in parts of the flat accessible to his wife and children. But, the names of the invitees on the various invitation cards bear no resemblance to those of the defendant's wife or children.

4. The real issue in the case is whether either or both of the invitation cards (ExhibitsP2 and P6) fall within the meaning of a "writing .... of or relating to" the Fuk Yee Hing Triad Society. Miss Crabtree contended that, in the absence of any statutory definition of "writing", that word should be given its ordinary or literal meaning. In that sense, the invitation cards are clearly writings. They relate to a Triad Society simply because they were addressed to "Fuk Yee Hing", a notorious Triad Society active in Hong Kong. Her answer to suggestions that the word "writing" should receive a narrower construction was to fall back on the terms of section 19 of the Interpretation and General Clauses Ordinance (Cap. 1), which appears to enjoin the courts to adopt a very broad and liberal interpretation to every Ordinance. In my view, section 19 of Cap. 1 does no more than remind a court that it should construe a statute so as to give effect to the intention of the legislature. (of. Smith v. Mc Arthur [1904] A.C. 389 at 398) In a particular case, it may require the court to depart from the literal meaning in favour of a restricted meaning, or one which is more extensive.

5. Mr. Chang Huan submitted that the invitation cards were incapable of being writings within the meaning of the enactment because the sender was an "exempted society" and because the word ''writing" fell to be construed in accordance with the eiusdem generis rule of statutory interpretation. With respect, the first point only arises if the invitation cards can only be regarded as writings of or relating to the sender. That would be the case with regard to Exhibit P5. But, once the name of the invitee is added, and the card has left the custody of the sender, I consider that it is capable of being a writing of or relating to the addressee. For the purposes of section 20(2) of Cap. 151, it is, in my view irrelevant that the sender is an ''exempted society" if the card is, in fact, sent to a Triad Society.

6. In support of his second point, Mr. Cheng Huan contended that the writing had to originate with a Triad Society or establish a connexion with a Triad Society; and not merely an invitation to a party. I must confess that I am attracted by the argument that section 20(2) of Cap. 151 should be limited to the kind of criminal or unlawful activities normally associated with Triad Societies, and not be extended to writings relating to otherwise open and lawful events or transactions. Otherwise, bodies like public utility companies holding copies of letters threatening society, which is, or is deemed to be, a Triad Society (cf. s. 18(3) of Cap. 151), with discontinuance of its services, might find themselves exposed to the law enforcement procedures and offences created by Cap. 151. I think that these examples, and other hypothetical situations involving obviously innocent third parties, can be avoided without stigmatising the statutory provisions as absurd. But, I cannot conceal a feeling of disquiet at the apparent breadth of sections 20(2) and 28 regarding possession or custody of writings in the absence of any general defence of lawful or reasonable excuse, or the requirement of obtaining the prior consent of the Attorney General to any prosecution. The latter device is usually inserted info an enactment. which casts its net extremely widely, in order to avoid absurd or oppressive action by law enforcement officers. Yet, this safeguard has limited application to the Societies Ordinance, despite the fact that it is not confined to Triad or other illegal societies. (see section 35 of Cap. 151). Even reputable firms of solicitors may get entangled in the meshes of the Ordinance. Of, Johnson, Stokes and Master v. Boucher (HCA No. 7056/1986; 14 October 1988).

7. Conscious, as I am, of the need to impose some restraint upon the potentially wide meaning of "writing" in the present context, I am not persuaded that it can be achieved by resort to the eiusdem generis principle of construction. Apart from the question whether such principle is excluded from my consideration by reason of section 2 of Cap. 1, on which there exists a considerable body of local jurisprudence, there is the obvious difficulty of identifying the "genus", which would lead to restricted meaning. Apart from accepting my off-the-cuff suggestion that tine writing should refer to the traditional "paraphernalia" of Triad Societies, such as "triad poems", Mr. Cheng Huna was unable to assist me in this exercise, apart from restating his view that an invitation card from an exempted society was not capable of being a "writing" within section 20(2) of Cap. 151.

8. The eiusdem generis rule is no more than a particular application of the principle of construction noscitur a sogiis : that enacted words must be construed in accordance with their context. Where a general word is coupled with or sandwiched between less general words it takes its colour and content from the surrounding words. Applying this principle, "writing" could be confined to written or printed documents whose nature and content ore indicative of membership of a Triad Society. In my view, the invitation cards in this case would not be in that category of writing. This construction has the obvious advantage of keeping a penal prevision within reasonable limits and avoiding some of the possible absurdities. But, the court has to be satisfied that such is the meaning intended by the legislature.

9. The matter is not free from difficulty, but I have come to the conclusion that membership is not the common denominator which the legislature intended should govern the words in section 20(2) or, indeed, section 28 of Cap. 151. If it were, possession of a document indicative of membership of any society would be prima facie evidence of membership of that society; and section 28(1) would be unnecessary. More to the point, if possession of such a document would be prima facie evidence of membership, either as a result of section 28, or as a matter of practical inference, the offences of possession custody, or control would be wholly unnecessary. The fact that the offences created by section 20(2) are not confined to actual or apparent membership of a Triad Society, but extend to other activities is, in my view, a clear indication that the legislature did not intend "writing" to be confined to documents indicative of membership. The express reference to "lists of members" lends further support to this view. The various rules or principles of statutory interpretation permit courts a certain amount of flexibility when dealing with ambiguous words. But, they do not enable a court to totally ignore words or phrases deliberately chosen by the legislature. So far as the language permits, the court must endeavour to give effect to every word enacted by the legislature.

10. In the case of section 20(2), I consider that the legislature intended to cast a wide net over persons involved in Triad Societies or with their activities; and, I think that it has chosen to do so, inter alia, by making it an offence for any person to have custody of anything in written form which shows any connexion with a Triad Society, however slender it may be. Having custody of a document bearing the name of a Triad Society is, in my view, sufficient if it can be shown that the document is addressed to, or is intended to refer to, the Triad Society in question, or its triad activities. It is not enough that the name of a Triad Society appears on the writing; otherwise every jeweller in Hong Kong and all but their more opulent customers, might be exposed to the risk of imprisonment for up to seven years for keeping receipts, invoices and insurance policies relating to their "14K" gold bracelets, rings, etc! Even so, I realise that my construction of section 20(2) may still catch in the net persons whom the legislature probably did not intend to catch. However, this risk is considerably reduced by the requirement that the Crown must, in my view, prove that the possessor or custodian knows that the writing relates to a Triad Society.

11. Support for the latter proposition can be found in Sit Yat-keung [1986] HKLR 434. It is fair to say that the requirement of knowledge was conceded or assumed in that case, since the appeal turned on an entirely different point. But, the fact that such concession or assumption was not queried, or even reserved for future consideration, by a judge, whose knowledge and experience of the criminal law is notorious and always commands respect, is fairly persuasive authority in favour of the proposition. Indeed, for the purposes of the present case, Miss Crabtree appeared to accept that such knowledge had to be proved by the Crown, at least in a case where it is alleged that the writing was found in the possession of the accused. She queried its requirement in the case of persons accused of mere custody of such writings. She further submitted that there was sufficient evidence that the defendant knew that Exhibits P2 and P6 related to the Fuk Yee Hing Triad Society, because the latter was a notorious Triad society.

12. I cannot accept that knowledge that the writing relates to a Triad Society does not have to be proved by the Crown, whenever it alleges that the defendant merely had custody of such writing. Knowledge is an important ingredient of possession. It may not be essential to the notion of "custody" which appears in many statutes. But, in my view, the offence created by section 20(2) of Cap. 151 is not one of strict liability. The custodian of a writing relating to a Triad society must know that the writing falls within that category. Otherwise, an illiterate messenger, instructed by a covert office-bearer to convey a written message regarding the affairs of a Triad society to another covert office-bearer of a Triad Society would be guilty of an offence, although he is totally ignorant of the nature or purpose of the writing in his custody. I am not prepared to accept that the legislature intended its wide net to be cast over such persons.

13. When I considered the submissions that the defendant had no case to answer in respect of all charges. I posed four questions. The first question was whether there was sufficient evidence that the defendant had Exhibits P2 and P6 in his custody. The second question was whether them was sufficient evidence that these exhibits related to the Fuk Yee Hing Triad Society. The third question was whether the Crown had to prove that the defendant knew that the invitation cards were "writings relating to " a Triad Society. The fourth and final question was whether the Crown had adduced sufficient evidence that the defendant knew that the invitation cards were writings relating to a Triad Society.

14. For the reasons I have already given. I took the view that the first and third questions had to be answered in the affirmative. I was less sure of the answer to the fourth question since there was no direct or obvious circumstantial evidence of the defendant's knowledge. The existence of the Fuk Yee Hing Triad Society may be notorious to lawyers and police officers, but I really am unable to say that it is within the knowledge of the ordinary or average inhabitants of Hong Kong, in the absence of some evidence as to the extent to which it or its activities appear in the media. No evidence was adduced to show that the defendant might know of the Fuk Yee Hing Triad Society because of his occupation or background. But. from the evidence regarding the ages of the defendant's children, I considered that he was of an age or possessed of sufficient maturity to support an inference of the requisite knowledge, bearing in mind the unchallenged evidence that he had numerous invitation cards in his custody, two of which were capable of relating to a notorious Triad Society.

15. To some extent my views on the fourth question were influenced by the answer which 1 felt obliged to give to the second question. If I had felt that I was free to do so, I would have ruled that the evidence adduced in this case was not sufficient to put the defendant to his election whether to answer it by giving or calling evidence or by remaining silent. In short I would have stopped the case there and then and acquitted the defendant. Although the Crown's so-called "expert witness", Detective sergeant 5808 Ng Ming, testified that Fuk Yee Hing is an active Triad Society - a fact admitted by the defence - he also agreed that the three characters could be the name of a person or a company. There was no evidence which positively indicated that Exhibits P2 and P6 were addressed to the Triad society known by that name. Nor was there any evidence which suggested that they more probably referred to that, or any, Triad Society. Putting it at its highest, the evidence was evenly balanced. The invitation cards (Exhibits P2 and P6) were as consistent with invitations addressed to the named Triad Society as with invitations addressed to an individual not known or proved to be a member of a Triad Society.

16. If the offence charged is one which the Crown must prove beyond reasonable doubt, and the evidence is so equiponderant, the Crown has, in my view, failed to adduce sufficient evidence upon which a reasonable tribunal of fact could properly convict the defendant of the offence charged. There must be evidence which, if uncontradicted and believed, would satisfy a reasonable tribunal of the defendant's guilt beyond reasonable doubt. It seems to me that this is what Lawton L.J. meant by the first of his two propositions in Greenfield (1973) 57 Cr. App. Rep. 849 at 857. Yet, in Attorney General's Reference No. 1 of 1987 [1988] / 1 HKLR 375, at 382-3, the Court of Appeal stated that this proposition was wrong and inconsistent with the second proposition. It seems to me, with the utmost respect, that the first proposition of Lawton L.J. has been misunderstood as stating what the trial judge should do if the evidence is "sufficient to go to the jury", whereas it is really giving an example of a situation where the evidence is not sufficient to go to the jury.

17. At the time I gave my ruling on the submission of no case, I considered that I was bound by the view that the first proposition of Lawton L.J. was wrong and ought to be ignored. Having had an opportunity for further and fuller consideration of the reported cases, I incline to the view that the statements to the effect that the first proposition of Lawton L.J. is wrong do not form part of the ratio decidendi of the Attorney General's Reference [1988] HKLR 375, They are no more than obiter dicta. which may also be inconsistent with the views of the Privy Council in Tsang Ping-nam [1981] HKLR 652 at 654G.

18. After my ruling that there was a case to answer, the defendant elected not to give evidence. I was satisfied beyond reasonable doubt that the defendant had exhibits P2 and P6 in his custody on the 1st March 1988, but I was not so satisfied that they were addressed or related to the Fuk Yee Hing Triad Society, or indeed to any association or society. The addition of the word "company" to what could be the name of an individual is not in my view sufficient to indicate a society, since many individuals make such additions to their names when trading as sole proprietors of their businesses. Although, the defendant's possession of so many invitation cards addressed to other persons was extremely suspicious. I did not consider that it enabled me to be satisfied beyond reasonable doubt that he knew or even believed, that Exhibit P2 or P6 was addressed to the Fuk Yee Hing Triad society. The possible inference of knowledge, referred to earlier, is net the only or compelling inference. For these reasons I found the defendant not guilty of each of the three charges.

Representation:

Miss M. Crabtree, Miss K.H. Wong, Crown Counsel for crown.

Mr. Cheng Huan, C.C. and Mr. Jason Pow, counsel instructed by M/S. C.K. Mok & Co. for defendant.