The Queen v. Sit Yat Keung

HCMA000783/1985

HEADNOTE

Triad society membership - a person may cease to be a member of a triad society.

Mens rea - knowledge - 'forgotten knowledge'.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO.783 OF 1985

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BETWEEN

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Coram: O'Connor, J.

Dates of Hearing: 3 and 16 October 1985

Date of Judgment: 25 October 1985

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JUDGMENT

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The appellant was convicted on 27th October 1984 of

after a trial in which he was defended by counsel.

1. On 27th October 1984 a party of police searched the appellant's premises. In a drawer they found three books of triad poems. The appellant, who had the key to the drawer in his pocket, admitted to the police that they were his. He was asked what they were and he replied 'Triad poems'. He said he himself had written two of them but it was in the past. He was asked whether he was a member of a triad society and who did he follow. He said he was a '49' of the Wo Hop To, and gave the name of who he followed, and said that it was in the past.

2. He was brought to the police station, where a number of statements were taken under caution, some were written in his own hand. In those statements he admitted the books were his and that he had joined the Wo Hop To in September 1979 when he was at school. He said it was in the past and that he took no part in illegal activities. No issue was taken as to the admissibility of what the appellant said at the scene, or as to the contents of the statements made at the police station, nor were the officers cross-examined so as to suggest an issue of admissibility. Indeed in the course of submitting no case to answer, counsel referred to the 'unchallenged statements'. The appellant gave evidence in the course of which he alleged, in chief, that the officer had told him to say he joined the society and he made other allegations that the officer had told him what to write. The learned magistrate, not surprisingly, rejected the appellant's allegations. He expressly found the statements to have been made voluntarily.

3. It is convenient to first consider the appeal in relation to the charge of possession of triad writings. It is common case, on the appeal, that for a conviction of this charge, the prosecution must prove that there was conscious possession by the appellant of triad writings, and that he was aware that they were 'of or relating to' a triad society. The magistrate found these ingredients proved. On the evidence he was entitled to so find. He found the writings were in the appellant's conscious possession, and that they related to triad societies. He also found that the appellant 'knew full well their nature and import'. Counsel for the appellant contends that there is a further ingredient necessary, a form of ulterior intent, that it is necessary to prove that the possession was for a criminal purpose. Counsel poses the problem of an academic who has possession for research purpose, or as raw materials of a book he was writing. The Ordinance makes possession an offence. It does not provide for innocent possession by virtue of the escape clause, 'without lawful authority or reasonable excuse'. I find that no ulterior purpose is required. The academic would be committing the offence. I can however visualize there being cases where a person in possession, and with the requisite knowledge, would be in what could be described as innocent possession, and not be guilty. Such a case would be where possession was for the purpose of enforcing, or advancing the interests of the law, for example possession by an investigating police officer. I find it difficult to visualize 'innocent possession', other than for the purposes of enforcing or advancing the interests of the law. It is unnecessary and inadvisable, for me to attempt to define the limits of innocent possession. In this case possession was not innocent.

4. Another ground of appeal argued on this charge was that the writings had been put in the drawer by the appellant, who had forgotten about them, and therefore it could not be found that at the charge date he had a conscious possession of them. The first difficulty that this ground meets is that there was no evidence that he had forgotten about them. He did not say he had forgotten about them. The evidence did not point to him having forgotten about them, to the contrary it pointed to the writings being in a drawer currently in use.

5. If an issue, as to his having forgotten about the writings, had surfaced on the evidence, it would be appropriate to consider whether one could be in possession of an article which one has forgotten about. I consider one could be. The remarks about 'forgotten knowledge' in R. v. Bello (1978) 67 Cr. App. R. 255 are for consideration in such a situation.

6. I dismiss the appeal against conviction on the first charge.

7. The possession by the appellant of the triad writings, raised the presumption, by virtue of section 28(1) of the Ordinance, that he was a member, at the date of possession, of the triad society. Additionally there were the statements made by the appellant to police officers, in which he admitted membership. The prosecution also called a police officer who gave evidence, as an expert on triad societies.

8. One of the grounds of appeal was that the expertise of the witness was not established. The witness gave evidence of his experience as a police officer dealing with triad cases, and of having given evidence a number of times as a triad expert. His expertise was not queried at the trial. The magistrate was quite entitled to accept him as an expert witness. A further ground of appeal taken in respect of this witness, is that his evidence was contradictory and unsatisfactory. There is substance in that. The evidence of the witness is unclear on a number of matters relating to triad societies, their rules and organisation. It seems, from reading the record, that may in part be due to unsteadiness in expression on the part of the witness, and an unfortunate choice of language which is perhaps somewhat due to interpretation. For example he used the expression 'temporary member' in relation to triad societies. From the remainder of his evidence it is clear that he meant something more akin to probationary membership or ordinary membership. Efforts ought to have been made at the trial, if necessary by the magistrate himself, to set the evidence in as clear and coherent a form as possible. The magistrate placed reliance on the evidence of this witness on a number of matters where I consider it was unsafe to do so. However, in the final analysis it matters not, because there remained the appellant's admissions, and the statutory presumption of membership which, having regard to the more securely based findings of fact, was unrebutted.

9. Another ground of appeal was that the appellant's own statements as to becoming a triad member, were not in themselves sufficient evidence on which to find that he actually became a member. An admission made by a defendant as to existence of a fact adverse to him, is, subject to the voluntariness rule, admissible in evidence against him. It does not however follow that the admission is in itself sufficient evidence to prove that fact. The proper weight, if any, which may be given to an admission will depend upon the facts of the particular case. In this case there was a statutory presumption operating against the appellant, and the magistrate had found the statements voluntary. In the circumstances he was quite entitled to give weight to the admissions of the appellant, and to find on an overall view of the evidence, that the appellant's membership of the society was established.

10. The remaining, and most interesting, ground of appeal was an attack on the doctrine "once a triad member, always a triad member". The attack was mounted on the basis that the accepted doctrine was misconceived, and that on the evidence in the case one could not be sure that appellant remained a member at the trial date. Unfortunately, in the light of the magistrate's findings of fact, the basis for the attack is not to be found in the evidence. The initial difficulty is that the appellant's own evidence to the magistrate, was not to the effect that he had ceased to be a triad member, but that he had never been one. Of course in theory, and often in practice one can run inconsistent defences. However there is an air of unreality to putting forward that the evidence indicates one has ceased, of one's own accord, to be a member of a society, when one's actual evidence is that one never aas a member.

11. However that may be the learned magistrate, justifiably in my view, concluded that the appellant had not become an inactive triad member who had forgotten about the triad writings, or who kept them as curiosities. The learned magistrate made this very clear in his remarks about the appellant's statements to the police, page 15 of his findings.

12. It is clear that the magistrate was of the opinion that 'once a triad member, always a triad member'. In the light of his well founded findings of fact, that opinion did not affect his decision. So this ground fails. However I have been asked to express a view as to whether one can cease to be a member of a triad society. With some hesitation, knowing my view is obiter, I consider the matter. I do so more readily as I understand that the views already judicially expressed by judges, are also all obiter.

13. In R. v. Leung Hon Cho [1964] HKLR 633 the Chief Justice Sir Michael Hogan said :-

"One of the difficulties in these matters, however, is that, according to what appears to be the generally accepted view of triad rituals, once a man becomes a member of such a society he will have very great difficulty in ridding himself of this incubus, which may place on his shoulders a continuing burden - a liability to criminal prosecution. It has been suggested that possibly one way - indeed it may be the only way - of getting rid of this incubus is to contact the police and to give the police such information and such an assistance in regard to the society as will not only disclose the informer's own position in it, but may assist in breaking up the society and thus leaving to its disintegration."

14. In R. v. Tam Hon Ho [1967] HKLR 26 the Full Court were concerned with an appeal against sentence on a plea of guilty to being an office bearer of a triad society. They were not therefore concerned directly with whether one could cease to be a triad member or triad officer. However they did appear to accept the view expressed in R. v. Leung Hon Cho. Frequently expert witnesses give evidence that once one becomes a member of a triad society, one is a member for life and cannot cease membership. This view is based upon the rules of the triad societies. In a booklet issued by the Royal Hong Kong Police Force 'Triad Societies Hong Kong 1974', it is stated that triad members can retire.

15. A triad society is an illegal organization. I find it difficult to comprehend how its rules, which are themselves illegal, can have any binding force on a person wishing to untie them. Any such rules are contrary to public policy, and ought not be given validity by the courts. It would be a disreputable system of jurisprudence that bound a person to membership of an illegal organisation from which he wished to part. A triad society is simply a criminal conspiracy that has been given particular statutory recognition. One can retire from a criminal conspiracy, and in my view one can retire from a triad society. In order to do so, what is necessary in law is to cease to adhere to it. What, from an evidential aspect, is necessary, I leave for consideration on another occasion. It might be that from a practical aspect, a defendant's more assertion that he had withdrawn, would not suffice to raise the issue. As regards withdrawal from complicity in crime generally see Glawille William's 'Textbook of Criminal Law' 2nd Edition, section 15.14 at page 363, and Gillies "Law of Criminal Complicity", chapter 8.

Representation:

Miss Linda Siddall instructed by Lee and Chow, for the appellant,

Mr. H. Macleod, Crown Counsel, for the respondent.