R. v. Tsang Kin Ming

CACC000214/1992

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Coram: Hon Sir Derek Cons, V-P, Fuad, V-P and Kempster, JA

Date of Hearing: 4 September 1992

Date of Judgment: 4 September 1992

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J U D G E M E N T

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Kempster, JA:

1. This is the judgment of the Court.

2. On 29 April last, after trial in the District Court, Tsang Kin-ming was convicted by Her Honour Judge Chua on three counts of wounding with intent at the skating-rink, Riveria Garden, Tsuen Wan on 2 March 1991, and on one charge of triad membership as long ago as 1987. Against those convictions he seeks leave to appeal; contending that the learned judge failed adequately to address the issue of intent, to consider the defence case or properly to exercise her discretion to exclude his cautioned statement. In relation to the triad offence it is argued that there was insufficient evidence to warrant a conviction. The applicant, we add, did not give evidence on the general issue.

3. In her undated Reasons for Verdict the judge referred to a trial within a trial following which she had been satisfied that, on 11 March 1991 and voluntarily, the applicant had given a true statement under caution about the material events and matters. That statement constituted an admission that the plaintiff, with between 10 and 20 others of whom one or two were armed with bats, had been recruited to participate in the joint enterprise of beating up three youths who were members of a rival triad gang. This purpose was achieved; the applicant acting as look-out ready to facilitate the escape of his "brothers". All three victims sustained lacerations while one suffered a fracture of the hand as well.

4. In his cautioned statement the applicant admitted joining the Wo Shing Yee Triad Society in 1987. Apparently his promotion through the ranks had not been rapid as at date of trial he was no more than a "Blue Lantern" which, we understand, is not an exalted office.

5. The suggestion the judge did not advert to the that applicant's state of mind and intent is, in our view, unsustainable in the light of her reference to the prosecution evidence that some of the attackers were armed with what she described as "poles" and to the mention by the applicant, in his statement, of "bats". Further, the judge was under no duty to give additional reasons for admitting a cautioned statement comprising a confession which, she had found, was made voluntarily. As for the fourth charge of triad membership the detail in the cautioned statement was again quite sufficient to warrant a conviction on a charge under s 20(2) of the Societies Ordinance (Cap 151). We exercise our undoubted power, even at this stage, to amend the fourth charge accordingly. This done the application must be dismissed.

Representation:

I.G. Cross, QC and W.S. Cheung (Crown Prosecutor) for the Respondent

Jerome Matthews (inst'd by M/s Tang, Wong & Cheung) for the Applicant