HKSAR v. Lai Chi Man and Another

HCMA000958/2003

HCMA 958/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 958 OF 2003

(ON APPEAL FROM STCC 1013/2002)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 18 November 2003

Date of Judgment: 18 November 2003

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J U D G M E N T

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1.The 1st Appellant who was the 1st Defendant in the Magistrate's Court was convicted after trial of one charge of attending a triad ceremony, and the 5th Defendant who is the 2nd Appellant in this appeal was convicted of one charge of attending a triad ceremony and secondly, being a member of a triad society. Both Appellants appeal against their convictions.

2.The trial was an extremely lengthy one because both Appellants were tried together with 35 other Defendants. The case for the prosecution was that on the day of the offence, when police raided the VIP room of the Sun Fung Seafood Restaurant at about midnight, they found a total of 44 males inside. Subsequently, 37 of these males were tried by the learned Magistrate.

3.Evidence is given by the prosecution witnesses that upon entry to the VIP room, they found an altar had been erected, there were pieces of paper stuck on the wall with Chinese writing on it and the base of the altar were various ritual and worshipping objects, for example, which included joss sticks, incense burner, needles, plates, fruit, a cooked chicken's head.

4.The 1st prosecution witness said that when he entered, he saw a large number of men standing in the room, facing the altar. It was clear from the evidence, as the learned Magistrate found, that it was a chaotic situation. As there was a lot of people in that room, the police was trying to calm the situation and to preserve the state of the altar. Subsequently, the arrested persons were interviewed.

5.The learned Magistrate, when considering the law in these charges, firstly, dealt with the law, in relation to being a member of a triad society. At page 26 of the Statement of Findings, he clearly had properly instructed himself as to what the prosecution has to prove that mere admission of membership is not usually sufficient, the court would normally expect additional proof of facts to indicate membership. However, those facts should be a question of fact and degree for a particular court in a particular case.

6.Secondly, he then dealt with the law on the question of attending a meeting of a triad society. Whether there is such a meeting is a question of fact for the trial court and that the burden is on the prosecution to prove that this is a meeting of a triad society and he properly instructed himself that the prosecution had to establish that the meeting was a meeting of the Wo Shing Wo Triad Society not just a meeting of triad members.

7.Then after properly instructing himself on the law, the learned Magistrate went on to consider the evidence of the prosecution. He found that the prosecution witnesses were reliable and truthful witnesses. There were no significant inconsistencies amongst the witnesses despite lengthy cross-examinations. It was also found in a drawer, a total of over 20 mobile phones with markers on them and this is significant because these mobile telephones were collected from the people in the room and it is also mentioned in the 1st Appellant's cautioned statement that his mobile phone was collected from him but first he had to write his name on the sticker, stick it on the mobile phone and all the mobile phones were collected and put in the drawer.

8.A large part of the trial was taken up on special issue as each of the Appellant in this case had made cautioned statements. In relation to the 1st Appellant in this case, he was also the 1st Defendant in the court below, he had made two statements (PI and PIII), and allegations of assault were made by him and the learned Magistrate conducted the trial of the special issue using the alternative procedure. Subsequently, after the police witnesses had given evidence, the Appellant himself did give evidence and the learned Magistrate was aware that he was a person of clear record. But at the end of the day, the learned Magistrate considered all the evidence and although he noted that there were some breaches of the judge's rules, e.g. the statements were not read over to the Defendant and there was no ending certificate. But given the fact that the Appellant had written the answers himself, he was satisfied that any prejudice that may have been caused was limited.

9.After considering all the evidence, he admitted the statement against the 1st Appellant.

10.In relation to the 5th Defendant, the 2nd Appellant in this case, again, the learned Magistrate knew that he was a person of clear record and after he was arrested, upon being taken back to the police station, several statements were taken from him and the learned Magistrate again, after the trial on the special issue, admitted the first two statements. Finally, the learned Magistrate after hearing all the evidence found that on the evidence before him, he was satisfied that the 1st Appellant was guilty of the charge against him and so was the 2nd Appellant.

11.The 1st Appellant's grounds of appeal as presented by Mr Koo who represents him, complains that the learned Magistrate had erred in finding that in the cautioned statement of the 1st Appellant, had admitted that he was aware that a ceremony of Wo Shing Wo Triad Society would be conducted particularly in relying on answer 40. Mr Koo submits that the answer in question 40 in the 1st Appellant's cautioned statement was ambiguous at most because he says that the question was framed in such a way to ask the Appellant if at the time he knew that it was an initiation ceremony and Wo Shing Wo was put in by the officer in his question. That the learned Magistrate had also erred in finding that the 1st Appellant's uncertainty in his cautioned statement was only limited to whether it was an initiation ceremony because Mr Koo said that it can equally be interpreted as him being unsure about whether it was a Wo Shing Wo ceremony.

12.Furthermore, he submits that the learned Magistrate had failed to give sufficient weight to the declaration of the 1st Appellant that he only, used the words "I guess" or "I only know". The learned Magistrate had also not given sufficient weight, Mr Koo says, to the fact that the 1st Appellant had only gone there that evening to attend the meal. Finally, Mr Koo says that the learned Magistrate had erred in concluding that the 1st Defendant at the material time had the necessary mens rea for the offence.

13.At trial, the learned Magistrate had also the benefit of the evidence of a triad expert and the learned Magistrate accepted the expertise of the triad expert and accepted the expert's opinion that, from the arrangements of the altar, it was clear that a triad initiation ceremony was about to begin. Furthermore, the triad expert gave an explanation of the various paraphernalia that was found by the police on the altar, such as the cooked chicken's head, the representation of the joss sticks and the needles that were found which were to prick the fingers of the new recruits so that the blood can be mixed with a wine which would be drunk by the initiates, making them sworn brothers.

14.There was no question that the learned Magistrate had ample evidence before him to conclude that a triad initiation ceremony was about to begin. The expert was also asked about his opinion as to the discovery of the mobile phones inside the room and he said that the discovery was evidence that the commencement of the ceremony was imminent. The phones were surrendered in order respect the ceremony to prevent phones going off and also to maintain secrecy. So, the learned Magistrate at paragraph 516 of his Statement of Findings said that:

"This presupposed that a number of the persons present would not have been informed, in advance, of the ceremony. The expert opinion was that the ceremony and its rituals were a secret matter for the society."

Thus, it is commonsense that the ceremony of this matter would be kept very secret and would be limited to those on a need to know basis.

15.At paragraph 543 of his Statement of Findings, the learned Magistrate said that he was satisfied that the triad ceremony was about to be conducted in that room, the late time of the evening and the gathering of the phones preceding the ceremony indicated that this was a meeting of a triad society. And that he was satisfied that this was what was envisaged by the audience at a meeting of a triad society. This was not just a meeting of triads, as this was a meeting of the society to carry out ritual obligations and ceremonies of that society. He went on to say, correctly, that this is not a strict liability offence and so the prosecution must establish the element of mens rea, and therefore the element of mens rea must be found in the cautioned statements.

16.It is also now pertinent to mention here, the 5th Defendant's appeal. The 5th Defendant is unrepresented by counsel and he relies on the general grounds in which is in his Notice of Appeal. His general ground being that he considered that the conviction was against the weight of the evidence and therefore unsafe and unsatisfactory.

17.Now, dealing with the 1st Appellant, the learned Magistrate at paragraph 551 said that the statement made by the 1st Appellant, which is P81 shows that he was present at the meeting and he accepted that both statements made by the 1st Appellant as being both truthful and reliable admissions against interest.

18.The learned Magistrate then referred to specifically questions 34 and question 40 in the 1st Appellant's cautioned statement. It is clear from that statement that the 1st Appellant had initially been asked to go along to this restaurant for a meal and it transpired that after the meal, his telephone was taken from him and he had to write on a slip his name in order that there was his identification on the telephone that was taken from him. After that, he said in answer to question 29 that, while he was playing poker, somebody had mentioned that the telephone had to be collected and then somebody moved the tables away to make room at the centre then somebody took out a piece of red paper and put it on the wall, he then said the incense, candles, etc, was set up and then the police came. Then the statement-taker at question 34 then asked the question: "whether he knew what the purpose was of putting up the pieces of red paper on the wall?" His answer was it was for conducting a ceremony.

19.Now I note here that there is no ambiguity about this answer.

20.At question 35: "Do you now what ceremony will be conducted?" And then he said: "Initiation ceremony, I guess." So it is clear from these two answers that I have just mentioned that his doubt was really whether it was an initiation ceremony but it was quite clear that he knew it was a ceremony. And then he was asked what initiation ceremony was to be conducted and he said: "I guess that an initiation ceremony of Wo Shing Wo was to be conducted." Then he was asked what it was? He said that it was Wo Shing Wo triad society.

21.And then at question 40: "When did you come to know that an initiation ceremony of Wo Shing would be conducted inside the VIP room?" Answer: "they put up the red paper, set up the incense and candles, it was only then did I realise that a ceremony would be conducted."

22.At question 41: What is the relationship between you and the Wo Shing Wo Triad Society? He said, "No. I only know that they would conduct a ceremony but I am not exactly hear whether they would conduct an initiation ceremony of Wo Shing Wo.

23.The learned Magistrate in reading this cautioned statement is entitled to conclude that the Appellant was unsure whether it was an initiation ceremony but he knew it was a ceremony and it is also clear that the learned Magistrate is entitled to conclude that the Appellant in his answers knew that it was a ceremony of the Wo Shing Wo Society which he knew was Wo Shing Wo.

24.Mr Koo points out a reasonably arguable ground that the statement was ambiguous and that the learned Magistrate did consider that the statement was full of ambiguity and he pointed this out in the transcript when counsel for the 1st Appellant was making his submissions.

25.Well, it is true that these statements are commonly called mixed statements, it contains both inculpatory and exculpatory parts. The learned Magistrate is entitled to consider and give weight to whatever parts he feels is appropriate especially to the inculpatory parts. That does not mean that he has not considered the exculpatory parts because it is clear that counsel representing the 1st Appellant in the court below did point out the matters of concern to the defence at that time. So the Magistrate was well aware of the alleged ambiguity in the eyes of the defence.

26.But at the end of the day, clearly, there are good evidence upon which the learned Magistrate can be satisfied that the charge was proved. So, I see no valid ground for disturbing the learned Magistrate's conclusion and therefore the appeal in relation to the 1st Appellant is dismissed.

27.In relation to the 2nd Appellant, the convictions were based, for the charge of being a member, on his cautioned statement and it is clear in his cautioned statement, he did admit that he was a member particularly because he said he wanted to protect himself or himself safer.

28.It is clear that the 5th Defendant, that is the 2nd Appellant, did appear at the meeting and that the learned Magistrate also made note of the fact that in his admissions in the cautioned statements, he said that he was called to go to Sun Fung Restaurant because somebody was be promoted and to join this society and that that was his impression. He gave details about what he observed in the VIP room, he made it clear that it was the initiation rites for the Wo Shing Wo Triad Society.

29.Clearly, the learned Magistrate had sufficient evidence before him to convict him both of being a member and also of attending a triad ceremony. So the learned Magistrate's conclusion was that the evidence before him shows more than just mere their evidence of membership and he not only had admitted being a member, he also attended the meeting, knowing that it was for conducting initiation ceremony of the Wo Shing Wo Triad Society, thus the learned Magistrate convicted the 2nd Appellant.

30.I see that there was ample evidence for the learned Magistrate in support of his conclusion and therefore, the appeal against conviction of the 2nd Appellant is also dismissed.

Representation:

Ms June Cheung, GC of Department of Justice, for the Respondent

Mr Ernest C M Koo, instructed by Messrs Peter Mo & Co., for the 1st Appellant

The 2nd Appellant, appearing in person