HKSAR v. Mak Chi Hung

HCMA001139/2000

HCMA 1139/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1139 OF 2000

(On appeal from TMCC 1001 of 1992)

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Coram: Hon Lugar-Mawson J in Court

Date of Hearing: 18 January 2001

Date of Judgment: 9 February 2001

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J U D G M E N T

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1. The appellant, MAK Chi-hung, was convicted on 4 October 2000 after trial by Mr. Ian Thomas, then Acting Principal Magistrate sitting at Tuen Mun Magistracy, of an offence of being an office-bearer of an unlawful society, contrary to s. 19 of the Societies Ordinance. He was sentenced to two years' imprisonment.

2. The appellant now appeals against his conviction alleging, essentially, that there was insufficient evidence to convict and/or that Mr. Thomas failed to consider the defence case. He does not appeal his sentence.

3. The prosecution case relied mainly on the appellant's admission in his cautioned statement, which was a mixed statement, and the evidence of a triad expert.

4. The appellant neither gave nor called evidence on his behalf in the general issue and relied on the exculpatory part of the cautioned statement for his defence. That being that he had remained a 49 member, as he had not gone through a promotion ceremony, which he believed, was necessary to make him an office-bearer. His admission of being an office-bearer amounted to no more than a bald admission. And, in the alternative it would appear, that he had ceased to be an office-bearer by reason of having no involvement in anything unlawful after his marriage.

5. Mr. Thomas found that no formal ceremony was required within a Triad society to promote a person to a rank that qualified him as an office-bearer. That the appellant had made a full admission that he was an office-bearer - a '426' of the Sun Yee On triad society - and that he, himself, did not consider the lack of a promotion ceremony a bar to his promotion to that rank. That his admissions were not mere bare admissions and that he still regarded himself as an office-bearer of the Sun Yee On triad society.

6. Mr. Thomas came to his conclusions after consideration of the evidence before him. He took into account that in his cautioned statement the appellant said that he had been told of his promotion to the rank of 426 by his big brother in the Sun Yee On, albeit that he had not gone through promotion ceremony. According to the triad society expert no formal promotion ceremony is required nowadays for advancement to a higher rank. The appellant had also said that after being told of his promotion his big brother gave him a Sun Yee On number - 'On Tsz 228'. According to the expert, in the Sun Yee On 3-digit numbers are assigned to office-bearers and 5-digit numbers to ordinary members. The appellant had also said that everyone of his brothers recognised that he was a 426 and that he acted as an office-bearer by recruiting some 10 to 20 new members in that capacity. Mr. Thomas took the appellant's claim that he had done nothing unlawful for a long time as not being an indication that he had ceased to be a member of Sun Yee On, or that he had ceased to an office-bearer.

7. To my mind the evidence in support of the conviction was cogent and more than sufficient. The appellant's complaint that Mr. Thomas failed to consider his defence or the exculpatory parts of his cautioned statement is not borne out by the contents of the appeal bundle, in fact the contrary is the case.

8. A point was taken in argument that as in his oral reasons for conviction Mr. Thomas had said:

"... the fact that the defendant had distanced himself from the triad society after his marriage is by no means an indication that he had ceased to be a member of the triad society or that he had ceased to regard himself as being an office-bearer."

showed that he failed to deal with the status of member and office-bearer separately. It was argued that by using the conjunctive "or" Mr. Thomas had confused the fact that ceasing to adhere to a triad society as a member and as an office-bearer are two separate issues and give rise to separate and distinct offences. And that he may have unwittingly convicted the appellant of being an office-bearer of an unlawful society using evidence sufficient only to convict him of the lesser charge of being a member. It was accepted that there would be no complaint had he used the conjunctive "and".

9. This is a sophistical argument; in the first place there is nothing on the record which shows that Mr Thomas was confused between the status of members and office-bearers of a triad society. It is clear from both his written and oral findings that the issue he considered was whether the appellant still regarded himself as an office-bearer. In the second place it is no part of an appellate court's function to determine an appeal because it finds fault with a judge or magistrate's writing style, or errors in his grammar. The words of Lord Alverstone C J, in delivering the judgment of a full Court of Criminal Appeal in R. v. Stoddart (1909) 2 Cr. App. R. 217, although directed at alleged misdirections in a summing up are as equally apposite to a magistrate's reasons. His lordship said, at page 246:

"This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed ...This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice."

10. There is nothing in Mr. Thomas's statement of findings to indicate that his approach to the evidence or the case was in any way wrong. I am satisfied that his conviction of the appellant on the charge is unassailable on appeal and therefore the appellant's appeal against his conviction is dismissed.

Representation:

Ms Mary Sin, SADPP of the Department of Justice, for the Respondent

Mr David Boyton, instructed by Messrs Krishnan & Tsang, for the Appellant