Attorney General v. Lee Chi Man
Read the full judgment text of CAAR 5/1980 on BabelCite. This Court of Appeal judgment was delivered on 18 July 1980 before Li, J.A., Power and Barker, J.J..
Criminal law – sentencing – triad society – claiming to be a member of a triad society contrary to s.20(2) of the Societies Ordinance, Cap. 151 – Sun Yee On triad society in Kowloon – respondent claimed membership, followers and imminent promotion – pleaded guilty – magistrate imposed fine of $2,000 relying on 'unofficial but accepted tariff' of non-custodial sentences for first offenders – Attorney General's review application – principles for sentencing triad offenders – whether membership per se or professing/claiming membership is punishable as an offence in itself – whether custodial sentence can be imposed absent proof of specific triad activity – 'unofficial but accepted tariff' for non-custodial sentences disapproved and abandoned – each case to be considered on its own facts – custodial sentence ordinarily required for active members of active triad society – distinction between 'professing' and 'claiming' membership – statements made to undercover agent in mahjong school held to constitute 'claiming' – sentence of fine manifestly inadequate and wrong in principle – double jeopardy practice of Court of Appeal – sentence quashed; fine to be returned; respondent imprisoned for 9 months (reduced from considered appropriate 12 months) with 2 years' police supervision on release.
Legal issues: Appropriate sentencing principles for triad society membership offences · Whether the unofficial non-custodial tariff for first triad offenders should be abandoned · Adequacy of the sentence imposed by the magistrate · Effect of double jeopardy on Court of Appeal sentencing
Outcome: Sentence quashed; custodial sentence imposed on review by Attorney General's application
Cited by 18 cases
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CAAR000005/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) APPLICATION FOR REVIEW NO. 5 OF 1980 -----------------
----------------- Coram: Li, J.A., Power and Barker, J.J. Date of Judgment: 18 July 1980 ----------------- JUDGMENT ----------------- Power, J.: 1. In this matter the Attorney General has applied to the Court of Appeal for the review of the sentence passed on the respondent ordering him to pay a fine of $2,000 upon conviction on a charge that on 31.8.79 he claimed to be a member of a triad society contrary to Section 20(2) of the Societies Ordinance Cap. 151. The appellant pleaded guilty to the charge and agreed to a summary of facts which stated, inter alia,:
2. The respondent in mitigation submitted that he was a steel worker earning $2,500 per month and that his wife was 6 1/2 months pregnant. He pointed out that he had surrendered to the police and made an admission of membership since 1976. The Learned Magistrate imposed a fine of $2,000 in default of imprisonment for six months. In his reasons for sentence the Learned Magistrate said,
3. Mr Lucas, who appeared for the Crown, stated that the Attorney General was gravely concerned by the Learned Magistrate's statement that "the unofficial but accepted tariff in this type of case for first offenders" is a non-custodial sentence. 4. He stated that no issue was taken with the truth of the statement, i.e. in so far as it indicated the existence of such an unofficial tariff. He strongly contended, without conceding that such a tariff was ever appropriate, that it was clearly inappropriate in today's circumstance and sought a ruling from this Court expressing disapproval of the unofficial tariff and indicating that it should be abandoned. He submitted that the existence of the tariff and the circumstances which gave rise to the necessity for a statement from this Court that it should be abandoned could only be understood if one examined the approach of the courts to the sentencing of triad offenders over the past 20 years. Before turning to the attitude of the courts to the sentencing of triad offences it is of assistance to examine the history of the legislation directed against such offences. 5. In 1949 the Societies Ordinance was enacted to provide for the registration of societies and for matters related thereto. It provided in Section 10 that any office-bearer or manager of an unlawful society was liable on summary conviction to a fine of $3,000 and to imprisonment for 3 years. It provided that persons who acted as members or attended meetings of unlawful societies were liable on summary conviction to a fine of $1,000 and to imprisonment for 1 year. 6. In this legislation there was no specific mention of "triad" societies. It provided simply that any society which was not registered or exempted was unlawful. 7. In 1961 the legislature saw fit to amend the Societies Ordinance in order, according to the "Objects and Reasons" given for the amending bill, to "provide a greater measure of control over the activities of societies and office-bearers thereof and in particular over triad societies." For the first time in these amendments the term "triad society" appeared in our legislation. All societies which used any triad ritual were deemed by the amendments to be triad societies and every triad society, whether registered or not, was deemed to be unlawful. 8. The amendments increased the maximum penalties for office-bearers and managers of unlawful societies from a fine of $3,000 and imprisonment for 3 years to a fine of $5,000 and imprisonment for 5 years. 9. The maximum penalties for members and persons attending meetings of unlawful societies, except for the members of triad societies who were dealt with separately remained in the case of a first conviction at a fine of $1,000 and imprisonment for 1 year. In the case of second or subsequent offences the offenders were made liable to a fine of $5,000 and to imprisonment for 5 years. 10. Persons acting as members or attending meetings of a triad society were made liable to, on first conviction, a fine of $2,000 and imprisonment for 3 years and, on second or subsequent conviction, a fine of $5,000 and imprisonment for 7 years. 11. It is clear, having regard to the penalties provided, that the legislature regarded membership of a triad society as a serious offence. 12. In 1964 the legislature again amended the Societies Ordinance so as to provide that persons who professed or claimed to be office-bearers of an unlawful society and persons who professed or claimed to be members of a triad society would be liable to punishment. The "Objects and Reasons" given for the need for the amendments indicated that "there is now indisputable evidence of a growing tendency on the part of members of other kinds of dubious associations (than triad societies), especially juvenile gangs, to hold themselves out as belonging to triad societies by adopting triad titles and claiming triad membership." The seriousness which the legislature attached to this matter is indicated by the fact that they made those professing or claiming to be office-bearers or members liable to the same penalties as office-bearers and members. 13. Mr Lucas referred first to the decision in R. v. Yuen Chau(1) in which an office-bearer of a triad society was sentenced to imprisonment for 12 months to be followed by two years police supervision. On appeal against sentence it was urged on his behalf that he had been forced to join the society and had taken no part in triad activities. Blair-Kerr J. said that he found these assertions difficult to accept given that the appellant had been promoted to be an office-bearer in the society one year after he had joined it. Having given the facts careful consideration the Learned Judge said,
Mr Lucas then referred us to Kam Moon v. The Queen(2) in which three appellants who had been convicted of being office-bearers in triad societies was sentenced to various terms of imprisonment. Hogan C.J. at 623 said,
Mr Lucas was alive to the fact that both of these cases were dealing with offenders convicted of being office-bearers of triad societies. However, he submitted that the principles to be extracted therefrom applied equally to the offences of membership and professing or claiming membership of a triad society. The principles he urged us to accept as being established by these authorities were:
We are satisfied that these principles were established by the above cases and that they are as valid today as they were when propounded. Mr Lucas went on to point out that in Tam Hon Ho v. The Queen(3) Hogan C.J. and Blair-Kerr J. disapproved of dicta in the earlier unreported case of Wong Hon Sang v. Reg. (Criminal Appeal No. 472 of 1966) to the effect that sentences of imprisonment should not be imposed for an offence of being an office-bearer of a triad society unless a Court was satisfied that the accused had been involved in some triad activity reasonably recently or had encouraged such activity. Both Hogan C.J. and Blair-Kerr J. considered that such a principle was unsupportable. Blair-Kerr J. said, at page 57, that:
Again Mr Lucas was alive to the fact that this case was concerned with an office-bearer of a triad society. However, he submitted that the principle to be extracted therefrom applied equally to the offences of membership and professing or claiming membership and submitted that a fourth principle should be added to those set out above, namely:
14. While we have no hesitation in agreeing with this fourth statement of principle we feel that we should add, in the words of Hogan C.J. in Tam Hon Ho's case, at page 35, "that every case must depend on its own particular facts, with the court giving full weight to any mitigating or aggravating factors that may be present". Clearly the facts of some cases, where there is no proof of involvement in triad activities, will be such as to indicate that a custodial sentence is called for e.g. where a mature person joins a society which is active in the area where he lives or works. On the other hand there may well be cases where a custodial sentence is clearly not called for e.g. where the offender is very young. In this regard we consider it appropriate to observe that a court when determining sentence is entitled to look not only at the proved activity, if any, of the offender but also at the proved activity of the society itself. 15. We have indicated above the principles which can be drawn from the decisions of this court up to the year 1967. Mr Lucas in his argument adverted to two matters which might explain how the "unofficial but accepted tariff", which is not in accord with the principles set out above, came to gain acceptance in the years between 1967 and 1977. 16. Firstly, large numbers of persons charged with the offence of membership or claiming membership of a triad society came before the courts as a result of "cleansing operations". In such operations prisoners come forward, while incarcerated at the invitation of the prison authorities, and admit triad membership. These operations throw up offences with regard to which the courts understandably take a lenient view. 17. Secondly, a substantial number of offences were brought before the courts involving young offenders who were charged with professing to be members of a triad society where the only evidence against them was an admission made to a police officer in answer to a specific question directed towards eliciting such information. In many such cases the offenders were very young; they had no record of any kind of criminal activity; there was, generally, no evidence before the magistrate suggesting triad activity on their part and, frequently, there was nothing placed before the magistrate to establish any activity on the part of the triad society itself. The courts, understandably, dealt leniently with these offenders also. 18. Mr Lucas stated that the Attorney General accepted that little culpability attached to such offenders and that since 1977 the only cases brought before the courts, apart from those arising out of "cleansing operations", which still continue, are those which fall within certain guidelines fixed by the Commissioner of Police. Mr Lucas said that since 1977, except with regard to offences arising from "cleansing operations", the Attorney General, unless satisfied that these guidelines have been observed, will not lay a charge. The guidelines are:
Mr Lucas, it must be clearly understood, was not trying to suggest to this Court or, through this Court, to other Courts that all persons hereafter charged with triad offences must be dealt with upon the basis that the circumstances of the offence were serious. He was endeavouring to indicate that the type of charge which, in part at least, gave rise to the "unofficial but accepted tariff" was no longer being brought before the Courts. 19. Whatever be the reason why the unofficial tariff arose we consider that we should now make it clear that there is no accepted tariff with regard to offences of this kind and that each case must be looked at in the light of its own particular facts. Having said this we feel it is proper to indicate that a person charged with being or professing or claiming to be a member of a triad society who admits or is proved to have been actively involved in an active society should, unless there is some exceptional circumstance, receive a custodial sentence. Whether or not custodial sentences are called for in other cases will depend upon all of the circumstances of each case. 20. The respondent, who originally appeared in person, submitted that:
21. On the day appointed for giving judgment Mr Martin Lee Q.C. and Miss Yu appeared and, by leave, made further submissions on behalf of the respondent. 22. Mr Lee initially referred to the unreported decision of the Court of Appeal in Ng Chi Wah v. The Queen(4) in which McMullin J. faced the difficult task of ascertaining the difference between a charge of "claiming" to be a member of a triad society and a charge of "professing" to be a member of a triad society. He was of the view that "claiming proper, would indeed be apt to cover such matters as the use of the triad allegation as a threat to procure advantage while professing, i.e. claiming in the weaker sense, would be apt to cover mere matters of confession in response to questioning". 23. Mr Lee submitted that the offence which the respondent had really committed in the present case was the lesser one of "professing". He relied, when making this submission, upon the fact that the statements were made in answer to questions by an undercover police agent. 24. The present facts, however, are quite dissimilar from the situation where a person under caution confesses membership in a triad society to a police officer in response to questioning. In such circumstances we respectfully agree with McMullin J. that "professing" would be the proper charge. In the present case the statements were made in a billiard saloon to a person whom the appellant believed to be either a triad member or a member of the public, it is not clear which. We are satisfied that, where statements are made in such circumstances, even though they be made in answer to questions, it is quite proper to charge the maker with the offence of claiming to be a member of a triad society. 25. Mr Lee further submitted that the respondent must not be dealt with upon any basis which would impose a greater culpability upon him than that which attached to the commission of the offence charged. To put it more simply: he submitted that as he was only charged with claiming to be a member of a triad society then he must be punished upon the basis that he had done no more than make such a claim. 26. While accepting the correctness of this submission we hasten to point out that it is the facts, admitted or proved, which establish the culpability of the offender. A charge of Claiming to be a member of a triad society can be properly laid in a number of situations. In some cases the facts proved either by the evidence or by admission establish that the offender was a member of a society of some sort and that he claimed that it was a triad society. In other cases there is no evidence or admission to establish that the offender is a member of any society the facts simply establish that he made a claim that he was a member of a triad society. 27. We are satisfied that the admitted facts in the present case establish that the respondent was a member of some sort of society and that he claimed that it was a triad society. It is upon the basis of these facts that the respondent must be punished. There were, moreover, further facts admitted which indicated that the respondent was an active member of the society to which he belonged. These were established by the respondent's admission that when he was asked if he had been promoted in the society he replied "a ceremony will be held for me at the beginning of next year. Now I have several boys and girls following me. They will be put under the name of Chan Leung Ching. In future I will recruit members in my name." 28. In this regard it is to be noted that when mitigating the respondent never suggested either that he had not said the words set out above or that they were untrue. 29. Mr Lee, nevertheless, submits that neither the magistrate nor this Court can act upon the basis that the facts admitted by the respondent to the police agent were true. He suggests that the respondent "might have been bragging" and that when assessing punishment all that any Court could do is act upon the basis that he claimed to have boys and girls following him in the society and that he claimed that he was about to be promoted in it. We find ourselves unable to agree to this submission. Indeed we find some difficulty in comprehending it. The respondent admits that he said to the police agent that he had boys and girls following him in the society and that he was about to be promoted in it. He makes no suggestion that this statement of fact is untrue. In such circumstances we are satisfied that both the Learned Magistrate and this Court are entitled to proceed upon the basis that the facts admitted to the police agent were true. 30. Mr Lee relied upon the mitigating factors already raised by the respondent which are set out as (a), (b), (c) and (d) above and further submitted that:
31. As to (a) Mr Lee submitted correctly, we are satisfied, that we should not give any weight to the suggestion from Mr Lucas that the respondent was being actively sought by the police at the time when he surrendered. We do however note that the admitted facts reveal that in the weeks prior to his surrender the police had carried out raids in several locations arresting members of the triad society in which he claimed membership. 32. We are not sure exactly what the respondent meant when he said, in (b) that he had not participated in triad activities. He may well have meant to indicate that he had not participated in any triad planned offences. There is certainly no evidence to that effect. Be that as it may we accept and act, as did the Learned Magistrate, upon his admissions of involvement in the society to which he belonged and which he claimed was a triad society. The involvement was, of course, that he had boys and girls who were his followers and that he was shortly due to be promoted. 33. We bear (c), (d), (e) and (f) in mind. 34. As to (g) we find no merit in the argument that the respondent should escape having the proper penalty imposed upon him because the Learned Magistrate wrongly felt himself bound by an unofficial tariff. 35. We are satisfied that the sentence imposed was manifestly inadequate and wrong in principle and consider that the facts clearly called for an immediate custodial sentence. We are satisfied that the respondent should have been ordered to be imprisoned for one year and that it should, in addition, have been ordered that he be placed upon release under police supervision for a further period of two years. 36. Must we, as was suggested by Mr Lee, in (h), impose a more lenient sentence than that set out above because of the practice of this Court? i.e. to grant leniency to an accused because of the anguish which he has suffered from being placed twice in jeopardy as to sentence? We are satisfied that we must. 37. We have nevertheless, thought it proper, bearing in mind the need for this Court to give clear and firm guidance as regards punishment to the lower courts, indicated, above, the sentence which we considered should have been imposed by the lower court. 38. The sentence of the lower court is quashed, the fine is to be returned to the respondent. Pursuant to the practice referred to above we order that the respondent be imprisoned for a period of 9 months, not one year, to be followed by police supervision for a period of two years.
Representation: Mr Lucas, A.C.P., and Mr Costen, C.C., for applicant Mr M. Lee, Q.C., and Miss A. Yu, (D.L.A.) for respondent (1) (1964) H.K.L.R. 93 (2) (1964) H.K.L.R. 614 (3) (1967) H.K.L.R. 26 (4) (1977) C.A. 1340 |
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