R. v. Chan Ka Ngan

HCMA001470/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1470 of 1996

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Coram: Hon Gall, J. in Court

Date of hearing: 28 February 1996

Date of judgment: 28 February 1996

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J U D G M E N T

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1. The appellant was convicted on 18th October 1996 of attending a meeting of a triad society. On the charge sheet which he faced was a second charge which was alternative to the first charge and was that of acting as a member of a triad society.

2. The facts alleged by the Crown was that the principal witness was a man named Lo of whom the courts have heard much. I do however dismiss from my mind any knowledge that I might have of any other cases relating to this particular witness. His evidence on this occasion was that, either jointly or separately, various members of the Sun Yee On Triad Society met at the Nam Fung Restaurant which is in Hart Avenue, Tsimshatsui. There, a member of the Sun Yee On Triad Society named Johnny was punished for an infringement of the rules of the triad society.

3. One of the principle issues that the magistrate had to decide was whether the meeting outside Nam Fung Restaurant was a meeting of a triad society. It certainly was a meeting of triad members and it certainly was a meeting relating to triad matters. I am referred to the case of R. v. Wong Sik Ming MA 1074 of 1996 where Sears J. said :

"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."

That comment as to the matters which took place in that case is apposite to the evidence in this case. He went on to say later :

"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."

4. In the case before me, the magistrate had the benefit of the evidence of a triad expert. He gave evidence that what occurred outside the Nam Fung Restaurant was a disciplinary matter and it may have been open to the magistrate to find that since the triad society was acting in a disciplinary capacity, it was a meeting of a triad society. However, the learned magistrate had these to say about the expert witness :

"PW2 was a triad expert. I did not find him a very helpful witness. He seemed to concentrate on what I would describe as an academic approach to whether or not this was a triad meeting - by looking at it in terms of whether one of the formal rules of the society had been broken. I will explain my own approach later."

I take it from that passage that the learned magistrate relied little upon the testimony but adopted his own approach towards a determination as to whether this meeting was a triad meeting. The magistrate went on further to say this later in his statement of findings :

"On the facts I had no difficulty in deciding that these were member of a triad society who gathered together to sort out a problem between members of different streams of the society. Ad hoc as this gathering was, informal as it was, this was still a meeting of members of the Sun Yee On to deal with problems of the Sun Yee On. The fact that they were low level problems does not in my view detract from that.

Although the appellant was merely present outside the Nam Fung Restaurant he was clearly part of the meeting at that time and clearly, looking at all the evidence, knew that it was about triad business."

5. My view of the magistrate's finding is that he determined that the meeting which took place was a meeting of triads but not that it was a meeting of a triad society. The two are not necessarily the same and I have, as had Sears J., considerable doubt that this was a meeting of a triad society, or that the magistrate found that it was so. The appeal against conviction in respect of the charge which the appellant was convicted must be allowed.

6. I must now go on to consider the alternative charge on the charge sheet. I am empowered by s.119(1)g of the Magistrate Ordinance that if I consider that the magistrate must have been satisfied of facts which prove the appellant guilty of another offence, substitute for the conviction recorded by the magistrate a conviction of that other offence and pass such sentence in substitution for the sentence passed by the magistrate as may be warranted in law for that other offence. The other offence which I must consider is that of acting as a member of a triad society.

7. There was evidence that the appellant was a member of the triad society. The first prosecution witness, albeit an informant for the police and an actual policeman who was undercover in the Sun Yee On Triad Society, was that as a member of the Sun Yee On, he could say that the appellant was a fellow member. Secondly, he gave evidence by way of background of other activities in respect to the Sun Yee On Triad Society which had involved the appellant. In particular, he said that in the early hours of 13th July 1994 which was some two months earlier than the matter which is before me, he had been told by another triad member that the appellant was his newly recruited young boy. The appellant was present at that meeting in a position to hear what was said and answered the allegation with a smile.

8. On the night in question, there was evidence accepted by the magistrate, that all the persons present outside Nam Fung Restaurant and who then went on to a karaoke bar, and then further to another restaurant were members of a triad society, and indeed were members of the Sun Yee On Triad Society.

9. The matters dealt with outside the Nam Fung Restaurant were matters relating to the discipline of the triad society and the content of the evidence such as to indicate that no matters were dealt with other than matters of the Sun Yee On Triad Society.

10. Mr Macrae urged me to take a narrow approach of the word "act" or "acted" in the sense of acting as a member of a triad society and urged upon me that mere presence as a triad member would not be sufficient to fulfill the definition of "acting as a member of a triad society at that meeting". Even adopting a narrow approach, to attend a meeting as a member of a triad society when triad matters were not only discussed but disciplinary measures were meted out and to stand present at those discussions and present in one's capacity as a member at the punishment meted out was, in my view, sufficient, if the magistrate found it proved, to fulfill the definition of "acting as a member of a triad society". The magistrate found that he was present, he found that he was a triad member and in the last words of his findings said :

"I was also satisfied that by turning up at this meeting he was acting as a triad member."

When the magistrate made that finding, he must have meant turning up at this meeting in the sense that I have set out above - as a member of a triad society, at a meeting which not only was organized to discuss but did discuss and did carry out disciplinary measures on a fellow member.

11. I am satisfied that I can be sure that the magistrate was satisfied that the facts prove the appellant guilty of the offence of acting as a member of the Sun Yee On Triad Society. I have a discretion, notwithstanding that, as to whether or not I convict the appellant of that offence. I am satisfied that I ought to exercise that discretion in favour of convicting the appellant and he is convicted of the alternative offence of acting as a member of the Sun Yee On Triad Society.

Representation:

Mr Y.M. Liu, S.C.C., for Crown

Mr Andrew Macrae, inst'd by D.L.A., for Appellant