Law Ming Tak Alias Law Tak v. The Queen

CACC000266/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 266 OF 1975

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

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

Coram: Li, J.

Date of Judgment: 9th May, 1975

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

JUDGMENT

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

1. The appellant was convicted of the offence under section 22 of the Societies Ordinance, Chapter 151 that he with other persons on the 4th September, 1974 at an unnumbered wooden hut in Tsuen Wan induced LI Chun and WONG Hon-kit to be members of an unlawful society, namely, the 14K Triad Society.

2. The evidence in support of this prosecution and eventual conviction was that sometime on the 2nd September last year the two victims, LI Chun and WONG Hon-kit, were beaten and assaulted by a group of hooligans. Soon after that, one of the appellants co-accused approached the two victims and their friends and suggested that they should be triad members and join the 14K Society so as to avoid future beating and to be assured of an easy life. The two victims succumbed to this temptation. On the 4th September at an appointed time which was arranged with that person, they attended a restaurant in which was the appellant. There were two tables of persons and the appellant was among them. The appellant was introduced to the two victims as the "grandfather" meaning, in triad parlance, that he was the protector of the victims' potential protector. To that remark the appellant made no demur. Later, the two victims were brought to a wooden hut near a hillside where they saw the appellant again. The appellant was preparing various gadgets for this induction ceremony and, indeed, went so far as to teach the victims the hand-signals, passwords and poems of the triad society concerned. In short, the appellant officiated the ceremony and in ducted the two victims to be triad members. Perhaps it is fair for me to observe that there is no evidence whatsoever to connect the appellant with the incident that occurred on the 2nd September. The magistrate has so found. However, the learned magistrate found the appellant guilty on the charge of inducing the two victims to be members solely on the meaning of the word "induce" which, according to the Oxford Dictionary, may include the meaning of "bringing about". In addition, he also found that whatever happened the appellant had aided and abetted the others to induce the two victims to be triad members and sentenced the appellant to imprisonment for one year.

3. The appellant now appeals against conviction as well as sentence and the special grounds of appeal are:

4. There is no dispute as to the findings of facts. Mr. Kwong for the appellant quickly observed that the learned magistrate in his finding has already qualified himself by saying that he found no evidence that the appellant was present during the occurrence of the incidents of the 2nd September, and, to my mind, the learned magistrate has already put that away fron his mind as having no significance or relevance to the events that happened on the 4th September. If he convicted at all, he must have convicted solely on the incidents that occurred on the 4th September and on the meaning of the word "induce". Mr. Kwong for the appellant says that he has applied the wrong meaning of the word "inducing" to this offence. Mr. Stevenson, on the other hand, argues that the object of the Ordinance must be looked into and the sort of mischief that is directed against by the provisions of the Ordinance, and he supports the learned magistrate's finding insofar as the word "induce" is concerned.

5. Section 22 of the Societies Ordinance reads as follows:

"Any person who incites, induces or invites another person to become a member of an unlawful society shall be liable on conviction to a fine of one thousand dollars and imprison-ment for one year."

The word "induce" is not defined in the Ordinance but in the Shorter Oxford Dictionary it has the best meaning:

6. Then it reads: "Obs or blended with 3 ME

It was on this ground that the learned magistrate found that the appellant was guilty of the offence that he brought about the two victims to be triad members by teaching them poems and signals. When one looks at the Ordinance as a whole one will find that the aims and objects of that Ordinance is to provide for registration and control of lawful societies and to direct against unlawful societies. But there are many other sections apart from section 22 in the Ordinance which are directed against unlawful societies. The facts in support of each charge or conviction must fit in with the type of offences directed at by a specific section. When one construes an offence creating provision one must apply the rule of strict constructions. The words "induce", "invite" and "incite" all have a common factor. It must be by some persuasion, influence or stimulation. This is the primary meaning of the word "induce". The third meaning of "bringing about at" in the Shorter Oxford Dictionary is only secondary and is only to be blended when used in Medieval English. When the two victims arrived at the hillside, they were ready, willing and able to be a member of a triad society. What the appellant did was to induct, to officiate in a ceremony. One example will make it quite clear: when a priest officiates the marriage of a young couple, he has taught them the formula of the marriage vow. One can say that the priest has brought about the marriage but it would be a murder of the language, the English language in particular, to say that the priest "induced" the couple to be married. Another example would bring out the meaning of the word "induce" that is intended in section 22: a doctor who has done nothing further, or a midwife who has done nothing further, except to attend a childbirth, helped to bring about the baby to this world. It can hardly be said that the doctor "induced" the birth of the child, or the midwife "induced" the birth of the child. That, again, would be a murder of the English language. Having regard to this, although the facts do point out that the appellant took a very active part in the ceremony of induction and he could be charged under other sections of the Societies Ordinance but he is wrongly charged and wrongly convicted of an offence in section 22 of inducing a person to be a triad member. The inducing took place on the 2nd of September 1974 when the appellant was absent. By the 4th of September the inducement had completed. It can hardly be said that the appellant aided or abetted in the act of inducing.

7. Accordingly, I will have to allow the appeal and quash the conviction and set aside the sentence.

8. Having done that the sentence is academic. However I must make some observations. If I were wrong in quashing the conviction and had the conviction been allowed to stand, I am of the opinion that a maximum sentence of one year would be excessive having regard to the circumstances of the case. One must bear in mind that the appellant took no active part in the persuasion or instigation of these two victims to be triad members. The one who was present when the assault took place on the 2nd September, suggested to the two victims to be members of the triad society, made arrangements for them to be present on the 4th September when they were inducted to be a member and in the words of the learned magistrate, a person who played a major part in the whole incident was awarded a sentence of nine months' imprisonment. The appellant was charged and convicted of the same offence. Although the part the appellant played contained no violence, no instigation, and yet he was awarded a sentence of one year. While I understand the learned magistrate's sentiment that the appellant was an office-bearer of the triad society, I observe that one must award the punishment in accordance with the offence charged. The appellant has not been charged with the offence of being an office-bearer of the society. The evidence showed that the part he took was certainly not greater than that of the one who instigated these members on the 2nd September. Had I allowed the conviction to stand I would have reduced the sentence to one of six months' imprisonment.

Representation:

Mr.J. Kwong(W.K.Poon & Co.) for appellant

Mr.Stevenson (A.G.) for Crown