The Queen v. Liu Ping Tim

CACC000155/1986

BTEWEEN

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Coram: Cons, V.-P., Macdougall & Mayo, JJ.

Date of hearing: 9th September, 1986.

Date of delivery of judgment: 9th October, 1986.

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. The Applicant in these proceedings was convicted in the Kowloon District Court on 7 charges. He applied for leave to appeal in respect of them all. A short while ago we rejected his application in respect of the first 6 charges but reserved our decision as to the 7th, that is the conviction for being a member of a triad society contrary to Section 20(2) of the Societies Ordinance Cap. 151. We need only set out what was said by the learned Judge in giving the reasons for his verdict -

"        As to the 8th charge, namely, Membership of a Triad Society, the case for the prosecution was supported (1) by a statement (Exh P2, P2A) made by the accused to the police on 14.11.1985. (The statement was not objected to by the defence and on the evidence I was satisfied it was a voluntary statement) and (2) the evidence of P.W.3, a police officer, who I was satisfied was competent to give expert evidence on Triad Societies and whose evidence I accepted.

On such evidence I was satisfied beyond reasonable doubt that the accused joined the Sun Yee On Society and the said society was and is a Triad Society. I found that his admission in the statement that he joined that Triad Society was true.

In his testimony at the trial, the accused said that he was forced when he was in his teens to join that society and that ever since he has taken no part in its activities. I did not accept that he was forced to join that Triad Society. This was not what he said in his statement Exh P2. Although he contended that he was a dormant member, there was no evidence that he took any step to divest himself of membership of that society.

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I was satisfied beyond reasonable doubt that on the 12.11.1985 the accused was a member of an unlawful society, namely the Sun Yee On Triad Society.  He was convicted as charged on the 8th charge."

2. Counsel has complained of the Judge's comment as to dormant membership, but we do not think his words unjustified in the light of the Defendant's statement to the police. This recounted a formal initiation into the society, qualified only by the suggestion that thereafter he maintained little of no contact with other members.

3. We have considered more anxiously the Judge's comment that "there was no evidence that he took any step to divest himself of membership of that society." This could perhaps imply that the Judge was looking for some express words or some overt act on the part of the Defendant. If that is so it would, with respect, be incorrect. We would refer to the comments of O'Connor J. in R. v. Sit Yat Keung ⁽¹⁾ which in our view correctly express the law -

"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."

4. The suspicion that the Judge might have been looking for something more specific is perhaps reinforced by that part of his reasons which we omitted to quote earlier-

"The decision in the Queen and Sit Yat Keung Mag. App. Case No. 783 of 1985 is not helpful to the accused. On the contrary, it supported the proseuction's contention on the law."

5. The prosecution had contended, according to the Judge's note, "in this case the defence has not raised anything". But that was not so. The Applicant had testified that since joining the society some ten years ago, he had taken no part in its activities. This was supported by the evidence that in the course of committing the other crimes of which he was convicted and in respect of which we dismissed his application for leave to appeal against conviction, he did not assert his membership of a triad society as a means of reinforcing his demands on his victim. Had he considered himself to have retained any affiliation with the triad society we are satisfied that he would almost certainly have disclosed that to him. However he did not. For these reasons we take the view that this is one of those rare instances where it would be unsafe to allow the conviction to stand. The application is therefore allowed, the hearing treated as that of the appeal itself and the appeal allowed. The conviction and sentence on the 8th charge are set aside.

(1)    unreported 25 October 1985 Magistracy Appeal 783 of 1985

Representation:

Gary Plowman (M/s Barry R. Driver & Co.) for Applicant

A.S. Hodge, Crown Counsel for Respondent