Sit Kwok-chiu and Others v. The Queen

CACC000278/1976

Coram: Briggs, C.J.

Date of Judgment: 6th April, 1976.

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JUDGMENT

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1. In this case, ten persons were found guilty of the offence of unlawful assembly contrary to the common law. Three of those ten persons have not appealed. One of the seven appellants before the Court, the fifth appellant YEUNG Shiu-kau, did not appear in court and his appeal was dismissed. I referred the question of his bail to the lower court.

2. The other six appellants were all represented by Mr. Denis Chang. The facts of the case are very simple.

3. On the 4th November, 1975, a telephone call was received at about 3 p.m. at the C.I.D. Office, Wanchai. As the result of that call, a large party of police in plain clothes went to the Mayflower Restaurant in Tonnochy Road, and there they saw some fifteen persons sitting at three tables. Upon the arrival of the police party, some of these people rose to their feet as though they intended to leave the restaurant or to run away. All fifteen persons were arrested but five of them were released almost immediately. The persons in the restaurant were having tea and there was no suggestion that any disturbance was taking place. After the police had identified themselves, a triangular file was discovered in the possession of one of the persons in the restaurant. Later, at the police station, three of the people gave cautioned statements to the police in which they claimed to be members or office bearers of a triad society. Part of the Statement of Findings of the magistrate reads as follows:-

"I reached this conclusion by putting together a number of smaller pieces of evidence, each of which by itself may not have been sufficient to convict all the defendants but, when put together, and read in the light of all the circumstances of the case, including circumstances special to Hong Kong, led to the irresistable conclusions that this was a meeting of a number of persons, ten or so in number, meeting illegally for purposes of discussions arising out of illegal activities, in particular in the control of women. The particular pieces of evidence were the finding of one of the defendants with a triangular file, the making of the telephone call, the circumstances that some of the participants stood up on the arrival of the police, the statements made by some of the accused to the police, and suspicion aroused by the general circumstances of the meeting when considered in the context of known habits in Hong Kong, together with the failure of the accused to give evidence to explain what they were doing at the restaurant."

4. It seems to me that the magistrate made a mistake in suggesting that statements made by one of the accused to the police could be evidence against the other persons who were present in the restaurant and also, I think that the last few words of the portion of his Findings which I have quoted above ignore the rule that a person is entitled to remain silent and that his silence does not mean that he is guilty of an offence.

5. I do not think that this conviction can stand. There is insufficient evidence to prove the common law offence of unlawful assembly. Nowhere is there any evidence that any person was put in fear or that any reasonable person might have been put in fear in the circumstances of the facts as shown in the evidence. It is therefore necessary for me to allow the appeal against conviction of all the appellants on the charge of unlawful assembly and their conviction on that charge is quashed.

6. The third appellant was also found guilty of claiming to be a member of a triad society and the seventh appellant was also convicted of claiming to be and office bearer of a triad society. The evidence of these two charges is contained in two statements made by the appellants. I think that these statements were properly admitted into evidence and their appeals against conviction on these two charges are dismissed.

7. The fourth appellant was also charged with being in possession of an offensive weapon in a public place. He has not appealed against this conviction.

Representation:

D. Chang & J. Necholas (T.S. Tong & Co.) for 1st, 2nd, 3rd and 4th appellants.

D. Chang & J. Necholas (K.Y. Woo & Co.) for 6th and 7th appellants.

Gall for crown.