Lui Chik-wah v. The Queen

CACC000202/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 202 OF 1975

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Coram: McMullin J. in Court

Date of Judgment: 30th April 1975.

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JUDGMENT

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1. The appellant in this case appeals against his conviction, under Section 20 of the Societies Ordinance, for being a member of the Tung Lun She a Triad Society. The charge refers to Section 20 Paragraph C but it is admitted that is in error for Section 20 Subsection 2 and no point is made on that.

2. The case against him is that he was approached in the street by the police constable who was the only witness for the Crown and who had observed him with some other youths behaving in what he described as a suspicious manner. There does not appear to be any clear evidence as to quite what the nature of his conduct was that caused the suspicions on the part of the police eonstable. But, however that may be, he was approached interrogated and searched. It is said then that in the course of that interrogation he admitted to being or to belonging to the Lo Tung. When he was asked what this meant, it is said that he replied: "Lo Tung means Tung Lun She Triad Society." He was then arrested and was taken to the police station where he was subsequently charged with the present offence. He was cautioned and he made thereafter the statement upon which the prosecution case has principally depended.

3. Although a number of grounds of appeal were put in they may be resolved into two principal complaints. Firstly, it is said that the magistrate should not have admitted in evidence the statement allegedly made by the appellant. Mr. Gunston, who appeared for the appellant in this court, took me through the evidence in some detail to indicate such matters as it appeared to him to indicate that the statement had not been of a voluntary nature. He prefaced this ground by saying that in any event a court should always be reluctant to convict upon a confessional statement when that is the only evidence in the case and is not corroborated from any other source. That I think is a caution which most magistrates or judges do in fact bear in mind. There is no authority, as Mr. Gunston admits for any proposition which would go as wide as saying that a conviction on a confessional statement alone cannot be considered safe. A number of points concerning the police constable's evidence on the voir dire were brought to my attention. It was pointed out that it seemed unlikely that the appellant who, as is admitted, was an unconvicted person with no previous record would have been sufficiently familiar with police procedure to be able, upon being cautioned, to take the pen from the constable and write of his own volition the words "I understand" in the notebook. Undoubtedly that seems unlikely but as Mr. Hanson points out police officers unfortunately do sometimes make such slight embroideries which though not themselves true are immaterial in respect of the truth or falsehood of the general circumstances under which the statement comes to be taken.

4. Then it was said that the effect of the caution (which admittedly was given) was negatived by the fact that the constable, upon the caution being read back to the appellant, asked him whether he wished to write his statement or to give an oral statement. I do not think there is any substance in that objection. Read in its entirety that evidence seems to mean no more than that a caution was administered and that the appellant was given a chance to speak or not to speak and was then asked whether he would make any statement he did wish to make orally or in writing.

5. The point was then made that it was improper, once the statement had been admitted, for cross-examination of the appellant to have included reference to a statement allegedly made subsequently to an inspector. It is clear that such questions were put and that the appellant admitted that he had also made an admission, in similar terms to that contained in the statement put in evidence, when he was before an inspector of police. He added that he did this because that inspector was simply another police officer and he felt he had to make the same admission again. I do not think that it was proper to put this matter to the witness. Mr. Gunston has referred me to the decision of Mr. Justice Blair-Kerr in LAM Tuk-yu Criminal Appeal No. 111 of 1968 (unreported) in which the learned judge, asserting that evidence of this sort should not be admitted by the back door in cross-examination, states that the prosecutor must take care so to frame his questions that no jury could reasonably infer from the form of the questions and their sequence that the accused has made an incriminating statement which has not been proved to be voluntary and admissible. Those words seemed to me to be apposite in the present case. Counsel however does not seek to out that any further because, as he admits, the magistrate does not appear to have placed any reliance upon this admission and did not in fact refer to it. In the upshot, although it is true that there are some matters which might give rise to misgiving in respect of the manner in which the statement was taken, it is clear that the learned magistrate had regard to all the relevant evidence concerning the alleged confession when considering the question of its admissibility at the conclusion of the voir dire proceedings. He made reference, amongst other matters, to the fact that the appellant had introduced an additional complaint against the police officer saying that he had been kicked although this had not been put to the police officer when he was being cross-examined. The magistrate also made reference to the fact that the officer was accused in cross-examination of having offered an inducement to the appellant and this had not been referred to by the appellant when he was giving his evidence on the voir dire. I think the magistrate legitimately resorted to both those matters in deciding the issue. I cannot agree with the contention that in such circumstances a magistrate ought to assume, in the absence of any explanation, that where any extra matter is put in by the accused or where anything is left out of cross-examination of the relevant officer by the accused's legal adviser the omission was most likely the fruit of forgetfulness on the part of the legal adviser or else was part of his preferred tactics in the case. I have come to the conclusion therefore that there is no substance in that ground of appeal.

6. The second main ground however is, as Mr. Hanson concedes, a point of some substance. The appellant was charged with being a member of a named Triad Society and the only evidence concerning that emanates from the appellant himself. Mr. Hanson concedes that in cases such as this it is very frequently if not invariably the practice of the Crown to introduce a witness who is able to speak from special knowledge as to the identity and nature of the society named in the charge or as to any matters of ritual upon which the prosecution may happen to rely as showing that the accused person has become a member of a Triad Society or taken part in Triad Society activities. He points out that there is no definition of a Triad Society in the Ordinance but that an oblique reference is made to the manner in which such a society may be identified in Subsection 3 of Section 18 which reads:

"every society which uses any triad ritual or which adopts or makes use of triad title or nomenclature shall be deemed to be a Triad Society."

Triad ritual is defined in Section 2 as meaning:

"any ritual commonly used by Triad Societies and any ritual closely resembling any such ritual or any part of any such ritual."

The Crown however relies on the fact that the appellant when first approached did mention what purported to be a named Triad Society and this same name was repeated in the course of the statement taken from him at the police station. Mr. Gunston's point is that this statement, while it undoubtedly discloses that the appellant was admitting that he had purported to join what he believed to be a known Triad Society nevertheless spoke in no expert capacity and had merely taken the word of somebody whom he had approached in order to be his protector. I am not disposed to say that it is always necessary to call expert testimony in this matter and it may well be that in certain cases the prosecution can safely rely upon the evidence of the accused himself to show the identity and nature of the society in proving that it is a Triad Society. I think it was especially desirable in the present case that other testimony should have been adduced. The accused is a young boy of apparently blameless character and with no previous record. He prefaces his statement admitting membership by the assertion that he was afraid of being bullied and that he wished to receive Triad Society protection. He goes on to say that he was introduced to a person called CHOW Kau who represented himself as being a member of something known as the Tung Lun She or Lo Tung Triad Society. It is clear from the remainder of the statement that the appellant purported to join that society and thought that he had done so. Certain ritual poetry and acts of a possibly ritual character were described in the course of the statement. So far as these are concerned there is nothing to indicate that those acts or recitations denoted the existence of a Triad Society. Mr. Hanson does not rely upon them in the absence of expert testimony to that effect. I think that is a proper concession but the matter is thus left in a very unsatisfactory state. As Mr. Gunston says the words "Triad Society" are not themselves the title of a Triad Society and the question really is : is there such a society called the Tung Lun She? The appellant was not charged with giving aid or money for the purposes of an unlawful society but with being a member of an identified society which was said to be unlawful. The learned magistrate did not resort to Sec. 39 of the Ordinance to supplement the evidence on this essential point. In the circumstances it was highly desirable that there should have been a witness who could testify as to the significance of the ritual poetry and say whether or not that coupled with the acts described by the appellant were typical triad ritual. In the upshot therefore I take the view that the Crown failed to prove beyond reasonable doubt that what the appellant had done, as admitted by him in his statement, did amount to being a member of a Triad Society notwithstanding that the appellant, if his statement is taken at face value, evidently thought it was such and that he had joined it. For these reasons the appeal must be allowed. The conviction is set aside and the fine will be returned to the appellant.

Representation: