Chan Chuen v. The Queen

Case No.CACC 313/1978

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000313/1978

IN THE SUPREME COURT

	Criminal Appeal
	1978 No. 313

BETWEEN
	CHAN CHUEN	Appellant
	and
	THE QUEEN	Respondent

Coram: Trainor, J.

Date of Judgment: 26th April,1978,

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JUDGMENT

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1. The appellant on being charged in a Magistrate's Court with being an office bearer of a triad society replied: "I admit", whereupon the facts of the case were outlined to the learned magistrate. The facts as alleged were that some short time prior to the arrest of the appellant a raid was carried out on an establishment in which a number of girls were found. Among them was a girl listed with the police as being a missing person. On interrogation she disclosed that she had recently been initiated into a triad society and that the appellant performed the initiating ceremonies. She described the ritual performed which included drawing blood from a finger and chanting certain ritualistic formulae. When these facts were outlined the appellant denied them.

2. The magistrate proceeded to deal with the case as on a plea of guilty, and was told by the prosecuting officer that the accused had two previous convictions, one in 1958 for being a member of a triad society and another in 1965 for being an office bearer of a triad society.

3. In mitigation the appellant told the court that since his last conviction he had done nothing wrong and that he had nothing to do with drugs or theft and had been continuously employed. The magistrate proceeded to sentence the accused to 15 months' imprisonment. In his reasons for the sentence the magistrate stated that in assessing the penalty that he did he ignored completely the allegation by the prosecution that the appellant had initiated the girl into the triad society. He said, however, that the appellant had received a penalty of four months when previously convicted for being an office bearer of the society, and that he had done nothing to disassociate himself from the society with which he had been involved.

4. The case appeared on appeal against sentence only and the appellant said that he had been a member an office bearer of a triad society many years ago but that since his previous conviction he had had no association with it whatsoever. He said he felt he was bound to plead guilty when charged as he had been an office bearer and, although he did not say it in so many words, he indicated that he was unable to disassociate himself in an effective way from the society. He said that having been an office bearer it would have been dishonest for him to have pleaded not guilty in the Magistrate's Court. It occurred to me that had the appellant told the learned magistrate what he had told me, even after a plea of guilty, the learned magistrate might well have decided to refuse to accept the plea of guilty and substitute one of not guilty. In those circumstances the facts of the case would have been considered, and in particular evidence could have been led as to whether or not the appellant had been responsible for the ritual in the initiating ceremony.

5. I allowed the appellant to enter an appeal against conviction and thereupon quashed the conviction and sent the matter back to the Magistrate's Court for retrial. In doing so I had in mind the case of Kwan Lam and The Queen Criminal Appeal No. 339 of 1974 and Shing Wai Leung and The Queen Criminal Appeal No. 1157 of 1976. In both those cases the appellant had been convicted on a second occasion of being a member of a triad society. In neither case was there evidence of triad activity between the time of the first convictions and the convictions leading to the appeals. Both appeals were heard by Pickering, J., as he then was, and in the latter appeal he cited from his judgment in the former:

	"It is well known that there is no escape from membership of a triad society, no method of resigning, and the appellant's culpability in respect of his membership was no greater on the 21st April 1974 than it had been when he was bound over for the same offence on 25th September 1973. His only crime was to be seen in the street "chatting furtively", whatever that may mean, with five other men. Membership of a triad society is a stigma which attaches to him permanently and theoretically it would be possible to charge him every day with this offence. In the absence of any evidence of triad activities when, if those activities were in themselves incapable of supporting other charges, it might have been appropriate to charge him again with membership of a triad society. But in the present circumstances it was wholly inept to bring that charge again.
	The appellant should never have been charged with the present offence, the more so whilst his bond was still extant, nor having been charged, should he have been sentenced to nine months imprisonment for a state of affairs over which he had no control and in respect of which he had previously been bound over. The appropriate method of dealing with this appellant was to grant him an absolute discharge without recording any conviction so that this offence should not appear upon his record."

6. In the instant case had the appellant been inactive in triad affairs since his previous conviction then on the basis of that decision the penalty of 15 months was excessive, but with great respect is it correct that once a member of a triad society always a member. It occurs to me that it might well be argued that membership of a triad or any society is a two-way matter; that mutuality is a matter that must be taken into consideration. There is no irrevocable con-tract between the parties; on the contrary, there is no contract at all. It may well be that in the view of the members of the triad society the coils of the triad snake will never unfold from a member but that does not mean that the victim is willing to remain there.

7. The two cases to which I have referred were appeals against sentence only and were dealt with as such. That being so the observations of Pickering, J. were obiter. Had the learned magistrate in the court below entered a plea of not guilty he might have found the accused not guilty. Alternatively he might have found the accused guilty but refused to accept the evidence of the initiation. The accused could then have appealed and the High Court could have referred the matter to the Court of Appeal if it thought that to be necessary. In either case argument would be heard.

8. There is the other aspect of the case. I think it is of importance to ascertain if the appellant did or did not conduct an initiation ceremony. If he did that must have a considerable bearing on any penalty imposed.

9. It was for those reasons I made the order I did.

10. In conclusion I would like to add that where an accused pleads guilty but denies some of the facts alleged they ought not arbitrarily be ignored if they would have a substantial bearing on the penalty that might be imposed. Evidence should be heard on that issue.

( J.P. TRAINOR J. )

Representation:

Appellant in person.

Mr. Reid, c.c. for Crown.