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HCMA000124/1985
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
Magistracy Criminal Appeal No. 124 of 1985
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BETWEEN
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THE ATTORNEY GENERAL |
Appellant |
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AND
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HO WAI CHUEN |
Respondent |
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Coram: Hon. Barnes, J. in Court
Date of hearing: 14 February 1985
Date of written judgment: 27 February 1985
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JUDGMENT
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1. This is an appeal by the Attorney General by way of case stated. The facts upon which the case is based and the questions of law arising therefrom are as follows:
" At the Magistrates Court on the 21st day of November 1984, an information preferred on behalf of the Attorney General against HO Wai-chuen was heard and determined.
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The information read as follows:-
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HO Wai-chuen you are charged that on the 27th day of September 1984 in Hong Kong you were a member of Wo Shing Wo triad society an unlawful society, contrary to section 20(1) of the Societies Ordinance, Chapter 151, laws of Hong Kong.
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The defendant entered a plea of not guilty. By consent the caution statement was admitted into evidence and produced to the court as exhibit "P1". For the purposes of the charge at hand, the only parts of that statement that could be considered as inculpatory were passages in which the defendant said :-
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I followed triad 'Tai Lo' called Hung Chai who has now been serving a prison term at Sha Tsui Prison."
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Though I am a member of the Wo Shing Wo Triad Society, I only follow Hung Chai, hanginga blue lantern. Sometime in March this year at Hei Man Nin Restaurant, Tsuen Wan, I treated Hung Chai to have tea on which I spent $18 tone character deleted). He told me that in case I was hit by other people, I could drop his name."
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I am myself a Member of the Wo Shing Wo. I did not take part in any activities. After I admitted that, we can talk to each other easier."
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The prosecution indicated that apart from the admissions (above) contained in the caution statement exhibit "P1”, the only other evidence that it proposed to call to prove the guilt of the defendant was the evidence of a triad expert.
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I indicated that in the absence of any evidence in the caution statement that the defendant had gone through any form of intitiation ceremony that the caution statement contained insufficient detail upon which to found a conviction for membership of a Triad Society and accordingly I stopped the trial and dismissed the charge.
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The questions of law arising on the above statement for the opinion of this court are:-
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(a) |
Was I in error in ruling that, on the admissions contained in exhibit "P1" aforesaid there were insufficient admissions of detail upon which to ever found a charge of membership of a triad society?
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(b) |
Was I in error in making such a ruling before I had heard any evidence from the triad expert or the significance of all or any of these admissions contained in exhibit "P1"?
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(c) |
Should I have first heard the evidence-of the expert witness and delayed until thereafter my ruling on the question of whether or not the Crown evidence disclosed a case to answer?
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(d) |
It now being firmly established by the Court of Appeal in Hong Kong that an admission of being a triad, or a member of a triad society, either oral or written, made to a Police Officer with the knowledge that he is a Police Officer, is insufficient as a matter of law to ever constitute "claiming" or "professing" membership of a triad society, is such an admission, as a matter of law, nevertheless capable of constituting sufficient evidence of actual membership of such society upon which to justify a conviction of that latter offence?'' |
2. The decision referred to in question (d) is Shing Hing-sang v. R.(1) The judgment of the Court of Appeal in that case was delivered by the learned Chief Justice. In the course of that judgment he said (at p.4):-
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In R. v. Ng Chi-wah (2), the defendant was charged with being a member of a triad society. This charge was altered by the magistrate to one of claiming to be a member of a triad society. The only evidence against the defendant was a confession of membership of a triad society, contained in a cautioned statement made to a police officer. Although this court decided that a mere admission of membership did not amount, in law, to 'claiming', it expressed the view (obiter) that on the evidence the defendant could properly have been convicted of 'professing' to be a member.
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In R. v. Chug Chum-wai(3), another division of this court, when considering a case in which the facts were very similar to those in Ng Chi-wah, decided that a confession of triad membership made by a defendant under caution to a police officer could not, in law, amount to 'professing' membership, because such admission under caution could not, itself, constitute the actus reus of a crime - though of course it could amount to evidence of membership simpliciter.
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We agree.....that a confession after caution to a police officer cannot itself constitute 'professing'......" |
3. Thus, the point made in Shim Hing-sang was really that the Societies Ordinance did not make it an offence to provide the police with admissible evidence of the commission of an offence under that Ordinance. By way of addendum, however, the court also made it clear that admissible evidence of an admission of membership of a triad society could amount to evidence of such membership.
4. The expert evidence which the prosecution proposed to call was relevant (at least where the charge alleges an offence against section 20(1)) to the question of whether or not the society of which the defendant admitted to be a member was in fact an unlawful society within the meaning of the Ordinance.
5. The answer to each question must, therefore, be "Yes".
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( E.C. Barnes )
Judge of the High Court |
(1) [1983] H.K.L.R. 1
(2) [1978] H.K.L.R. 101
(3) [1980] H.K.L.R. 593
Representation:
Mr. Cross, Crown Counsel for the Attorney General
Mr. Lawrence Leung (Howell, Lo & Wong) for the Respondent
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