HKSAR v. Leung Siu Kei

HCMA000969/2003

HCMA 969/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 969 OF 2003

(ON APPEAL FROM TWCC 1259/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 6 November 2003

Date of Judgment: 6 November 2003

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J U D G M E N T

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1.The Appellant was convicted after trial of one charge of Acting as a member of a triad society, contrary to s. 20(2) of the Societies Ordinance (Cap. 151). In this charge, he was charged together with two others that on 5 February 2002, he had acted as a member of a triad society, namely, the 14K Triad Society.

2.The prosecution called one witness and he was an undercover police officer who had joined the 3rd Defendant's school in Form 3 and his evidence was that on 5 February, another Defendant had spoken to him about some gathering outside the scene of the offence and D1 had said the same to him. After it was said to him, the 3rd Defendant approached. The 3rd Defendant being the Appellant and said to the group the words: "I would also "chui gai" to support shui-mai". And later the PW1, the undercover police officer, then went to the place where they would also meet and upon arrival, he saw about 20 persons there, and one of them was the Appellant.

3.At the scene the Appellant said to the PW1: "Come up again to cause trouble, I will go and tell big brother". Then PW1 saw that D3 then held up his telephone and said: "Come quickly. There is a big "sai ma". Two minutes later, PW1 noticed a male appeared on the scene and then the male approached the other group and spoke to them words: "Which fraction do you belong to, go away" after swearing at them and it was then that the police arrived. The other people left the scene and D2 and D3 remained behind.

4.After the prosecution evidence, the 3rd Defendant who is the Appellant then elected to give evidence and said that he had been in the assembly hall in the school. He had been surprised that he had been asked to join the "chui gai". Though he said that he would only go if he was free, he was afraid of being accused of not having the code of brotherhood. He said he went to the Man Hing Store which was the scene of the offence. As it was part of his daily routine, he did not attend there because of the "chui gai" nor did he participate in it, and he stood there and watched the two assembled groups for about 2-3 minutes and left. DW1, his defence witness, basically supported D3's evidence.

5.It is not in dispute that the words "chui gai", "sai ma" and "shui-mai" are triad language calling for the people in the triad society to assemble and show strength against an opposition group. This was evidence which was before the learned Magistrate.

6.The learned Magistrate having considered the evidence then found that he was satisfied beyond reasonable doubt that the 3rd Defendant, the Appellant, had acted as a triad member of the 14K Triad Society when he joined the group outside the Man Hing Store. The 3rd Defendant, the Appellant, was continuing to act as such a member when he made the telephone call summoning another person to the scene and used a triad term "sai ma" when speaking to that person. And he rejected the Appellant's evidence that he had only arrived at the scene and he did not know there would be an confrontation there, neither did he believe the defence witness.

7.The Appellant is represented by counsel, Mr Boyton, who submitted on his behalf some grounds of appeal. One of Mr Boyton's submissions is that the learned Magistrate had not weighed the evidence of the prosecution and the defence separately but rather he had compared them and then preferred the prosecution evidence and in support of that he referred to the paragraph where the learned Magistrate said the words at p. 46 of the bundle and in the 2nd paragraph on that page, he said that:

" I found that PW1's evidence made such an impression upon me, in relation to his honesty and reliability, that his evidence satisfied me beyond reasonable doubt that D3 and DW1 were lying in what they told the court."

Mr Boyton submitted that these were suggested that the learned Magistrate had therefore compared the evidence of the prosecution against that of the defence and finally preferred the evidence of the prosecution.

8.I do not agree. It is clear from the learned Magistrate's Statement of Findings that he did consider the prosecution evidence in isolation and found that he believed the prosecution's witness evidence as being credible and reliable. It was only after that, that he then considered the Appellant's evidence and also the Appellant's witness's evidence and he found that he did not believe them.

9.The paragraph complained of, appeared after he had indeed reminded himself that he had to look at each Defendant's case separately and that the burden of proof was on the prosecution and that if there any doubt the benefit should go to the Defendant. And he also reminded himself that mere presence in the group is not sufficient. So the learned Magistrate was not comparing the evidence of PW1 against D3 and DW1. He was merely saying that he accepted fully the evidence of PW1 and therefore it does indicate to him that his initial rejection of the defence evidence was correct that he felt that they were lying.

10.Mr Boyton also pointed out, and it is more persuasive, the fact that there is no evidence to say that the 3rd Defendant was acting as a 14K Triad member. It is clear that in the evidence given by PW1, on that day 5 February 2002, there was no mention of 14K. The only occasion when 14K was mentioned was by the 1st Defendant in the trial who claimed to be a member of the 14K Triad Society.

11.Mr Boyton's argument is that the 1st Defendant did not give evidence in the trial. The 1st Defendant's alleged remark about the 14K was on a different occasion because the 1st Defendant was charged with 2 charges which related to occasions different from the charge that the Appellant was facing. So the learned Magistrate should not have used what the 1st Defendant may have said on another occasion in his findings in relation to the Appellant.

12.I accept this argument that the 1st Defendant's remark was an out of court statement and it cannot prove the truth of what was said. The only question remained is whether it is fatal to the conviction of the 1st Defendant. I am grateful to Mr Boyton for pointing out the case of the HKSAR v Wong Sing Chi Crim. App. case No. 245 of 1999. The Court of Appeal in that case was dealing with similar offences as in the present case before me and that there the Defendant had been convicted of acting as a member of a Triad Society. It was submitted in that trial by the respondent's counsel that the prosecution did not have to establish the name of Triad Society on there charges when they are alleging that the Defendant acted as a member of Triad Society. The Court of Appeal accepted that submission and at p. 9 of that report, the Court of Appeal said this:

"The naming of a triad society was unnecessary provided the prosecution could prove that the defendant acted as members of a trial society. If these were otherwise it would make a mockery of the law that where a gathering involving more than one Triad Society, it should become necessary to establish to which of the society each person accused of acting as a member of a triad society was attached."

The judge in that case had convicted the defendant on the charge but had not specifically mentioned the Wo Shing Wo Triad Society in his Reasons for Verdict. It would seem to be apposite to the present case where the learned Magistrate did mention the evidence of D1 that he was 14K.

13.But at the end of the day, is it fatal to his conviction for acting as a member of a Triad Society? Counsel for the Respondent was unable to assist me on this point and it is clear from the Magistrate's findings at p. 52 of the appeal bundle, he specifically found that D1, D3 and D4 had intentionally acted as members of the 14K Triad Society. Furthermore, he said that D1 had given instructions to the crowd in front of Man Hing Store to separate away the 14K Triad Society.

14.In the penultimate paragraph of his Statement of Findings he said this: "I found D3 knew 14K Triad Society was an unlawful organization in Hong Kong" and he was satisfied beyond a reasonable doubt that D3 was intentionally acting as a member of the 14K Triad Society. And so at the end of the day, he decided that the prosecution's case standing on its own two-feet had proved the case beyond a reasonable doubt.

15.So it is clear that in the Magistrate's mind, he found that the 3rd Defendant not only knew 14K Triad Society was unlawful that he was acting as a member of the 14K Triad Society. Unfortunately, that evidence that it was 14K Trial Society came from what allegedly had been said by the 1st Defendant on an occasion when the 3rd Defendant was not present. It would not have been fatal if the learned Magistrate did not specifically say that he was acting as a 14K Triad Society member. If he had only said that he found him to be acting as a Triad Society member at the end of the day, then the conviction would have been sound even though he may have mentioned D1's evidence or words in the course of his findings. But to find that the 1st Defendant was acting as a member of the 14K where there is no admissible evidence to prove that the Defendant was acting as a 14K member, was wrong.

16.So in those circumstances, the appeal is allowed, the conviction is unsafe and unsatisfactory. The Appellant is therefore acquitted and his conviction is quashed.

Representation:

Mr Sharman Lam, SGC, for the Director of Public Prosecutions, for the Respondent

Mr David Boyton, instructed by Messrs S Y Chu & Co., for the Appellant