R. v. Chan Yiu Tong

HCMA000488/1994

1994,MA No.488

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H E A D N O T E

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BEING A MEMBER OF A TRIAD SOCIETY - SUN YEE ON - NO EXPERT EVIDENCE ADDUCED - NOTHING USEFUL ABOUT SUN YEE ON PUBLISHED IN LEADING LITERATURE OR IN POLICE TRAINING COURSE MATERIALS ON TRIADS - NO JUDICIAL NOTICE CAN BE TAKEN THAT A PERSON CAN "HANG THE BLUE LANTERN" IN SUN YEE ON BY AGREEING TO JOIN THE SOCIETY PER SE, IN PARTICULAR WITHOUT THE PAYMENT OF LAI SEE OR LEARNING THE TITLE POEM - A "BALD ADMISSION" IN A CONFESSION THAT A POEM IS A TITLE POEM OF A TRIAD SOCIETY WITHOUT ANY FURTHER ADMISSION OF FACTS ESTABLISHING THE ACCUSED'S MEMBERSHIP OF THE SOCIETY CANNOT BE ACCEPT AS EVIDENCE OF EXPERT OPINION, THERE BEING NO GROUNDS TO TREAT THE ACCUSED AS AN EXPERT - CONVICTION QUASHED

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.488 OF 1994

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Coram: Hon. J. Chan, J. in Court

Date of hearing: 1st July 1994

Date of delivery of judgment: 1 July 1994

Date of handing down reasons: 15 July 1994

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J U D G M E N T

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1. This is an appeal against a conviction for an offence of being a member of a triad society contrary to section 20(1) of the Societies Ordinance, Cap. 151; and against a sentence of detention at a detention centre passed on 6thApril 1994.

2. The facts leading up to the charges are rather typical of offences of this nature. The Appellant was arrested by the police pursuant to information received. He was then taken to the police station and made a confession under caution. On the strength of the admissions made therein by the Appellant he was charged with the offences of being a member of a triad society and inviting a person to become a member of an unlawful society. The voluntariness of this confession though disputed at the trial was no longer challenged in the appeal. The sole piece of evidence adduced by the prosecution against the Appellant and upon which the conviction is founded is the confession of the Appellant.

3. In her statement of findings, the learned Magistrate relied on the following admissions in the Appellant's confession:

"(1) Some years ago a friend asked the Appellant to join Sun Yee On Triad Society. They had no associations after several meetings. At that time only the Appellant agreed to follow the friend to join Sun Yee On Triad Society.

(2) The nickname of that friend was Fei Chai Hung. The Appellant had not met him for a long time and did not know where he could be found.

(3) No invitation (sic) fee was ever paid by the Appellant or did he take part in any invitation (sic) ceremony.

(4) Fei Chai Hung taught the Appellant a title poem of Sun Yee On.

(5) Fei Chai Hung did not introduce any brother or member of the same gang to the Appellant.

(6) The present position of the Appellant is Blue Lantern."

It was an admitted fact at the trial that Sun Yee On is a triad society. The Appellant's evidence that he had never joined the Sun Yee On and had never followed Fei Chai Hung was rejected by the learned Magistrate.

4. In convicting the Appellant, the learned Magistrate held:

" In reaching my verdict, I had carefully considered the contents of the record interview, as well as the Appellant's evidence. It is settled law that whether a person is a member of a triad society is a matter of fact, not of law. Although the Crown led no evidence to prove 'Blue Lantern' to be a rank in a triad society, I was entitled to take judicial notice that Blue Lanterns were the lowest rank ordinary members who had not gone through any initial entrance ceremony :- Tsang Sum v. R[1978] HKLR 64. I rejected the submission by counsel for the Appellant that a person who merely agreed to join was not the same as a person who actually joined. The Appellant's own admission that his present position was a blue lantern lent support to the fact that not only had he actually joined but he was also aware of his status.

As to whether the Appellant could have ceased to adhere to the triad society had he so joined, there had to be evidence, for instance, as to the lack of association or triad related activities over a lengthy period of time which might show in fact his membership had ceased. What was said in the record of interview concerned only with Appellant's disassociation with Fei Chai Hung and nothing more. I did not find that would amount to ceasing of his membership. Even if I was wrong in finding such and what was recorded was capable to establish Appellant had ceased to adhere, this material in the record of interview was self-serving and was not evidence of the truth. There was nothing from the Appellant's oral testimony in relation to his renunciation of membership.

His admission of his present status as a Blue Lantern also lent support to the fact that he had not ceased to adhere."

5. There are three main grounds of appeal :

(a) That the learned Magistrate was wrong in taking judicial notice that blue lanterns "were the lowest rank ordinary members who had not gone through any initial entrance ceremony";

(b) That the learned Magistrate erred in holding that the poem admitted to by the Appellant in his confession is the title poem of the Sun Yee On in the absence of any expert evidence to that effect;

(c) That the learned Magistrate erred in refusing to accept the "self- serving" assertion of disassociation with Fei Chai Hung as evidence of the truth and as sufficient evidence of disassociation with the Sun Yee On.

6. The learned Magistrate did not indicate in her statement of findings that she had consulted or taken note of any publication, be it established and recognised authoritative literature or otherwise, in making the finding of fact that blue lantern is the lowest ranking ordinary member of Sun Yee On (which had been admitted to be a triad society) who had not gone through any form of initiation ceremony. Nothing useful has been published about Sun Yee On in the leading literature on triads. In "Triad Societies in Hong Kong" by W.P. Morgan, last reprinted in 1989, the only useful reference to "San Yee On" is to "see Yee On" ( "Sun" or "San" meaning "new"). And the reference to Yee On throws no light on what it takes to become a member of the society. Judicial notice may perhaps be taken that in so far as initiation ceremonies are concerned, triad societies can be divided into two main streams; those who adhere strictly to traditional elaborated ceremonies and those who are far more lax in ceremonies Judicial notice may even be taken that for those less conservative triad societies that do not practice strict adherence to traditional elaborated ceremonies, a person may be accepted as a member "hanging the blue lantern" upon payment of a lai see of a specific amount usually of multiples of numbers involving "3", "6" or "9", and learning the title poem of that society for purpose of identification of membership. For those triad societies that had come to prominence and power long ago, as a result of numerous expert evidence having been given on them, it may be said that judicial notice may be taken as to which of the 2 streams of adherence to ceremonies those societies belonged. As Sun Yee On is a triad society that had only come to prominence and power in the last decade or two, little information about this society has found its way into authoritative literature on the subject. The course materials used by the police in their training courses for triad experts also offer little assistance on this issue.

7. There is no information known to the effect that a person can "hang the blue lantern" in Sun Yee On (or any other triad society) simply by agreeing to join the society without more, in particular without the payment of lai see or learning the title poem. It is not known to these courts that an oral agreement to join per se would be sufficient. The Appellant contended in his confession that he had not paid any initiation fee to join the Sun Yee On. He admitted, however, that he was taught a title poem by Fei Chai Hung. Nonetheless, there is no expert evidence nor is there any reference in any known literature that the particular poem recited in his confession was the title poem of Sun Yee On, or was a triad poem at all.

8. The learned Magistrate suggested that reliance can be placed on the Appellant's own admissions in his confession that the poem was the title poem of Sun Yee On and that he had become and was still a blue lantern member of that society at the material time. A bald admission by an accused in a confession that he is a member of a triad society and no more -- i.e. without any further admission of other facts signifying some form of initiation ceremony or act that can be accepted as indicative of enrolment of membership, should be dismissed as hearsay or a mere belief. The same is true with an admission that a poem is a title poem of a particular triad society. This must be so unless it can be established that the accused is himself a triad expert capable of giving such opinion evidence. The Court of Appeal was of the same view in A.G. v. CHIK Wai-lun [1987] HKLR 41. Cons, V.P., observed at p. 45 that "it is possible therefore to envisage circumstances in which a "bald admission" may be regarded as sufficient evidence, although we feel bound to observe that we think they would be unusual and in most cases we would expect proof of other facts to indicate membership, whether by way of admission by the defendant or otherwise". There being no finding or grounds for holding that the Appellant was in any way a triad expert, and bearing in mind the specific denial of paying any initiation lai see and any association with triad activities thereafter, any reliance on his said belief or opinion as contained in his confession by the learned Magistrate in the manner she did would be wrong. Such belief or opinion of the Appellant, that lacks any basis for evidential value, is no substitute for expert evidence on the said issues of fact.

9. Furthermore, according to the confession, the only link the Appellant had with Sun Yee On was through association with Fei Chai Hung. He alleged he had not been involved with any triad activities nor had he associated with any other members of Sun Yee On after he agreed to join the society. Thus, disassociation with Fei Chai Hung, being the only link the Appellant had with Sun Yee On, would effectively be a disassociation with the society. It is incorrect for the learned Magistrate to distinguish between Fei Chai Hung and the society on this issue in the way she did. The learned Magistrate has, therefore, failed to give sufficient regard to the allegation of disassociation with Fei Chai Hung. If proper consideration was given to such an allegation, she ought to have come to the inevitable conclusion that there had been sufficiently lengthy disassociation with Sun Yee On to entitle her to find that the Appellant had abandoned his membership, if he was ever a member (see A.G. v. CHIK Wai-lun supra).

10. I do not accept that the learned Magistrate ever meant to say that such a self-serving allegation is, as a matter of law, incapable of amounting to evidence of the truth. She was simply rejecting the credibility of such an allegation. However, in view of the absence of any evidence to the contrary, and the lack of any challenge on this issue during the cross-examination of the Appellant, it would be wrong for the learned Magistrate to reject the Appellant's allegation of disassociation as contained in his confession, albeit self-serving.

11. For reasons given supra, the Appellant succeeded on all grounds of his appeal. The appeal was, in the event, allowed and the conviction and sentence were accordingly set aside. I have given a very brief oral summary of the reasons at the hearing. I now hand down the written detailed reasons as indicated then.

Representation:

Mr Holmes, Senior Crown Counsel, for Respondent

Mr Eric Kwok, inst'd by M/s Tony Kan & Co., for Appellant