R. v. Lai Chun Tong

CACC000333/1995

IN THE COURT OF APPEAL

1995, No. 333
(Criminal)

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Coram: Hon Bokhary, Liu and Mayo, JJ.A. in Court

Date of hearing: 26 September 1995

Date of judgment: 26 September 1995

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J U D G M E N T

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Liu, J.A.:

1. The appellant was found guilty of assisting in the management of a triad society and being a member of the triad society. On each of these two counts, he was sentenced to 18 months' imprisonment. Both sentences were to run concurrently. The prosecution case is that he was an active member of the Sun Yee On Triad Society during the period between July 1992 and October 1993. He was said to have instructed his followers to recruit members from among school students with a view to boost his personal influence and power within the society. In the course of police investigation of these allegations, some other offences committed on 2nd June 1993 came to light. They were offences charging the applicant with claiming to be a member of triad society, assault and robbery. The appellant was brought before a magistrate to face these discovered offences, and he subsequently appeared in the District Court charged with the two offences I have referred to. But his alleged offences of claiming to be member of triad society, common assault and robbery were heard before a magistrate first. The appellant pleaded guilty to claiming to be a member of triad society and common assault. Thereupon the crown offered no evidence on the robbery charge. The appellant was sentenced to six months' detention in a Detention Centre. As I have said, he was also subsequently convicted by the District Judge and accordingly sentenced. He feels aggrieved and he appeals against his conviction. He has abandoned his application for leave to appeal against sentence.

2. Counsel for the applicant focuses on the decision given by HH Judge Jackson in R. v. Lo Wai Keung, [1993] HKDLR p. 47. To sum up as briefly as I can: what was decided by Judge Jackson was that charges preferred on the same series of activities or offences ought not to be severed for trial in different courts, thus causing hardship and prejudice to the offender contrary to or in breach of Article 10 of the Hong Kong Bill of Rights Ordinance. The appellant seeks to take advantage of the principle enunciated in Lo Wai Keung.

3. Mr Watson, counsel for the appellant, refers to the Perfected Grounds of Appeal which, counsel says, encapsulate the applicant's case on appeal. Clearly, the only common denominator in this case was that both groups of offences, the group subsequently tried at the District Court and the one brought before the magistrate were being investigated by the same team of police officers. The latter group of offences came to light during the investigation of the former group. These two groups of offences were not founded on the same facts or, more precisely, on facts having a common factual origin. Guidance may be derived from R. v. Barrell (1979) 69 CAR 250 at pp. 252 - 253, per Shaw L.J. The charges the appellant subsequently faced in the District Court before Deputy Judge Geiser were allegedly committed between July 1992 to October 1993. The offences exposed in the investigation were said to have been committed on 2nd June 1993. These offences in these two groups were of dissimilar nature and committed at different times. The appellant could not have successfully applied for a joint trial even if they had been prosecuted in the same venue. In this case, the Deputy Judge must have realised the fact that the early offences came to light during investigation of the charges that he had to deal with later in time. In fact, he alluded to it. Further, by the time the appellant allegedly committed the offences tried by the Deputy Judge, he could not have been said to be wholly untainted. Whether he had formal criminal record in the police files lost much of its significance.

4. For these reasons, we find no substance in grounds 2, 3, 4 & 5. Ground 1 is a summation of all the complaints set out in those grounds. We agree with the judge that there has been no oppression or unfairness in the circumstances. No prima facie infringement of Article 10 has been shown nor is there sufficient evidence of a prima facie case of actual prejudice. Ground 1 therefore fails with grounds 2, 3, 4 & 5.

5. Turning to ground 6, the complaint is that the cautioned statement of the appellant was taken by the same team of investigators. Counsel has not referred us to the reasons, if given at all, for the rejection of the statements of D2, D3 & D6, which were ruled involuntary and inadmissible by the judge. Counsel are not therefore in a position to attack the Judge's ruling on the reasons, if any, he gave. The same team had taken the statements of the other defendants, which were ruled inadmissible, but the identity of these same investigators cannot of itself be a good ground for challenging the admissibility of this applicant's cautioned statement. That disposes of ground 6.

6. By ground 7, the appellant complains that the Deputy Judge placed reliance on the contents of his admitted statement whereas he held the appellant to be an untruful witness on oath. We do not regard the conclusions of the judge as being inconsistent. They can reasonably be reconciled one with the other. It is also complained that the statement of the appellant was induced by "clear inducement" in the form of a promise made by prosecution to withdraw the robbery charge before the magistrate. Counsel for the appellant has not referred us to the reasons, if any at all, articulated by the Deputy Judge for rejecting that submission. Hence, again, counsel is not in a position to challenge the judge's reasons, if any, for rejecting the allegation of inducement. Counsel can hardly take the matter further. We do not find ground 7 substantiated.

7. No submission has been advanced on ground 8 which raises the question of identification. The Deputy Judge was very conscious of the possible pitfalls in the circumstances in which the appellant was identified as the one instructing persons to recruit members for his triad society. In particular, the Deputy Judge referred to the dim lighting in which the activities were said to have been conducted We find nothing in the reasons for the verdict which can be said to be a breach of the guidelines laid down in Turnbull. Ground 8 also therefore fails.

8. In conclusion, none of the grounds advanced on behalf of the appellant has been substantiated. The appeal therefore stands dismissed and we order accordingly.

Representation:

Mr G Watson (inst'd by Josip Ma & Co for Applicant)

Mr D G Saw, SACP, Crown Prosecutor for Respondent