HKSAR v. Ma Ka Kit

HCMA000052/2002

HCMA52/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.52 OF 2002

(ON APPEAL FROM STCC 700181 OF 2001)

-------------------------

-------------------------

Coram: Hon Gall J in Court

Date of Hearing: 26 June 2002

Date of Judgment: 26 June 2002

-------------------------

J U D G M E N T

-------------------------

1.The appellant was convicted on 20 November 2001 of one charge of inviting a person to become a member of a triad society, and was placed on probation. He now appeals that conviction.

2.The first ground of appeal argued there was insufficient evidence to support a finding that there had been an invitation to join a triad society, namely the "Wo Shing Wo" triad society, as set out in the charge.

3.This appellant faced only one charge and was not involved in any other of the charges which were directed at three other accused. The evidence concerning what was said by the appellant to the person named as a victim in the charge, appeared in the transcript in this form :

"Q. What did he say to you?

A. He asked me whether I would transfer my membership.

Q. What do you understand by transfer the membership?

A. That is not to follow the present Big Brother ...... and follow another one."

4.The magistrate, from this words, drew the inference that the appellant had asked the victim to transfer his allegiance from whatever triad society he was presently a member of to the triad society of the appellant which she also inferred to be "Wo Shing Wo". No evidence appears anywhere in the transcript to show the name of the triad society.

5.The second ground of appeal is that the learned magistrate discouraged the defence from questioning the victim as whether the words uttered by the appellant were a joke or were teasing. It is clear that the magistrate did stop that line of questioning as she was of the view that it was a matter for her to decide. Clearly that was a matter for her to decide but to decide upon the facts as revealed by examination and cross-examination. The cross-examination as to this point would have given further light upon the meaning of the words said by the appellant at that time.

6.I am of the view that since this matter relies to decide upon what inference may be drawn from the evidence. The only inference that can be drawn adverse to an accused is one which is the only reasonable inference available upon the facts. I am not wholly satisfied and the inference drawn by the magistrate that this was an invitation to join a triad society, namely the "Wo Shing Wo" triad society has been made out. The appeal is allowed and the sentence is set aside.

Representation:

Mr P.K Madigan, SGC, of Department of Justice, for the Respondent

Mr Bernard Chung, instructed by Director of Legal Aid, for the Appellant