Attorney General v. Chik Wai Lun

HCMA000536/1986

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Headnote

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Membership of a Triad Society is a question of fact, not law.

The weight to be attached to an admission of membership will depend upon the circumstances of the defendant or perhaps the circumstances in which it came to be made.

BETWEEN

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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. At ten past eleven in the evening of the 29th September last year, in Promenade. Park, Tsim Sha Tsui, one Chik Wai Lun, a boy of 16 years of age was intercepted by a patrolling Detective Police Constable. In the exchange of words which followed the boy admitted that he was a member of the Fuk Yee Hing and that his big brother was one "Ah Hung".  Accordingly he was taken to the police station where he authenticated in writing what he had said in the Park and made a further statement which included the answers to a few questions that were then put to him.

2. In the following January he appeared before a Magistrate to answer a complaint of having been, on the date just mentioned, a member of the Fuk Yee Hing Triad Society contrary to Section 20(2) of the Societies Ordinance Cap. 151. There were proved against him the matters we have already set out and in addition a Superintendent Cheng, whom the Magistrate accepted as an expert witness, deposed as to the nature and extent of the Fuk Yee Hing and as to current activities and practices among triad societies in Hong Kong generally. There was no other evidence called, although the Magistrate referred, as he was entitled to by Section 39 of the Ordinance, to a booklet entitled "Triad Societies of Hong Kong 1974".

3. Upon that evidence the Magistrate ruled that the Defendant had no case to answer. Two reasons were given:

(The Magistrate added what in his opinion were the three minimum criteria required by that law to establish membership.)

4. The Crown, being dissatisfied with that decision, appealed by way of case stated to the High Court. The questions raised therein were subsequently reserved to this Court. The first is as follows:-

"Was I correct in holding that the determination of Membership involves a question of law when dealing with the offence of Being a Member of a Triad Society."

5. Mr. Litton, who now appears for the Defendant, does not wish to support the Magistrate's view in its entirety. He submits that the question is one of mixed law and fact, as was suggested by counsel in R. v. Chiu Chun Chuen⁽¹⁾.

6. With respect we are unable to agree. We take as a correct exposition of the basic principle what was said by O'Connor J. in R. v. Sit Yat Keung⁽²⁾ when referring to the doctrine (to which we shall return later) of "once a triad member, always a triad member".

"        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."

7. When considering that aspect in relation to joining a society a magistrate will no doubt take into account the evidence given as to the practices of such societies generally and the practices of the particular society in question. But that does not clothe those practices with the mantle of law. Nor will they necessarily be conclusive of the issue. The magistrate must consider them in the light of the other evidence and then decide, as best he can, in all the circumstances of the case whether he is satisfied that the defendant did in fact join. It is thus ultimately a question of fact, and of fact alone. Our answer to the first question is in the negative.

8. The second question posed in the case stated is this -

"Was I correct in holding that a bald admission by a person that he is a member of a Triad Society cannot on its own be regarded as sufficient evidence of membership."

By a "bald admission" we take to be meant a statement such as "I am a member of such and such a society" and no more, which we assume that the Magistrate would reject as being a matter of mere hearsay or belief. That however was not the position before him, because the statement concluded in the police station contained other admissions which, taken together with the evidence of the Superintendent, would in our view provide at least prima facie evidence of membership.

9. It is not uncommon that a defendant's confession will include matters of fact as well as of belief or of what has been told to him. A court or jury is clearly entitled to draw inferences of further fact from the former, as for example that the goods in question have been stolen: R. v. Hulbert ⁽³⁾, where the defendant admitted purchase from unnamed people in a public house at very low prices. And of course a statement of belief or of what he had been told would be relevant to his state of mind or his honesty. But they may go further. Confessions as to matters not necessarily within the direct knowledge of a defendant have been admitted for example, as to the defendant's own age ⁽⁴⁾, or as to his fatherhood of a child borne to a lady who was not at that time his wife ⁽⁵⁾. Recent examples have been concerned with the nature of drugs and we would refer to a passage from the judgment of Lord Wigery C.J. in Bird v. Adams ⁽⁶⁾, quoted with approval by the Court of Appeal in R. v. Chatwood ⁽⁷⁾,-

"        Now when the case was heard before the magistrates, at the conclusion of the prosecution case, which really consisted of nothing more than the evidence of the police officer to which I have referred, there was a submission of no case to answer, and the basis of the submission was this, that although the appellant had admitted possession of what he thought to be LSD, there was no independent proof that the drug was in fact LSD, and that it might have been some innocuous substance sold to the appellant under a fraudulent description, and so it was submitted that there was no case to answer because the vital element of the prosecution case, namely that the drug was a prohibited drug, had not been established by an admission of the appellant who himself could not know whether that which he carried was or was not the genuine drug. Now the justices rejected that suggestion; at least they were not influenced by it. They held there was a case to answer and on the case proceeding the appellant gave no evidence and he was duly convicted. Counsel before us today returns to the original submission in the case and says that the justices should have upheld the submission of no case because the admission of the appellant in the circumstances of this case was of no evidential value at all. Now it is clear from the authorities which have been put before us that there are many instances where an admission made by an accused person on a matter of law in respect of which he is not an expert is really no admission at all. There are bigamy cases where a man has admitted a ceremony of marriage in circumstances in which he could not possibly have known whether in truth he had been married or not because he was no expert on the marriage ceremonial appropriate in the particular place. It is quite clear that there are cases of that kind where the person making the admission lacks the necessary background knowledge to be able to make the admission at all. Again we have been referred to Comptroller of Customs v. Western Lectric Co. Ltd. [1965] 3 All E.R. 599, [1966] A.C. 367, where a man made an admission in regard to the country of origin of certain goods when he had no idea at all where the goods had come from. Again it was held that this admission was worthless because it was an admission of a fact as to which he had no knowledge at all, and in respect of which no valid admission can be made. Counsel submitted that the present case is a like case with that, but in my judgment this is not so.  If a man admits possession of a substance which he says is a dangerous drug, if he admits it in circumstances like the present where he also admits that he has been peddling the drug, it is of course possible that the item in question was not a specific drug at all but the admission in those circumstances is not an admission of some fact about which the admitter knows nothing. This is the kind of case in which the appellant had certainly sufficient knowledge of the circumstances of his conduct to make his admission at least prima facie evidence of its truth and that was all that was required at the stage of the proceedings at which the submission to the justices was made.

10. Similar examples are to be found in the Australian case of Anglim & Cook v. Thomas ⁽⁸⁾ and the New Zealand case of R. v. Coward ⁽⁹⁾. We do not see these decisions as being inconsistent with the decisions or comments of the Privy Council in R. v. Surujpaul ⁽¹⁰⁾ or the Comptroller of Customs & Excise v. Western Lectric Co. Ltd.⁽¹¹⁾. The weight to be attached to an admission will depend upon the circumstances of the defendant or perhaps the circumstances in which it came to be made. If either of these indicate that no weight should be attached to it whatsoever, it can obviously advance the prosecution no further.

11. To return to the question posed, 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.

12. The third and fourth questions of the case stated depend upon an affirmative answer to the first and we need not concern ourselves with them. The fifth question is -

"Was I right to hold that even if there was evidence that the respondent was at one time a member of a triad society when he was recruited, there was no evidence sufficient to found a case to answer that he was a member on the date alleged in the complaint."

13. The proposition put forward in support of -the position taken by the Magistrate is that where a boy of tender or near tender years has been pressurized into joining a triad society it must be assumed that he has abandoned his membership after one or two years, unless there is evidence of some active membership on his part.

14. With respect we do not think this proposition to be sound. We indicated earlier our agreement with O'Connor J. that the doctrine "once a triad member, always a triad member", cannot hold good as a matter of law. We note also that it may no longer hold good as a matter of practice: Triad Societies of Hong Kong 1974 paragraphs 88/89. Nevertheless we take the view that where a person, even a young boy, has genuinely joined a triad society he may reasonably be presumed to have remained a member unless it appears that he has, as O'Connor J. put it, "ceased to adhere" to it. In deciding that question a Magistrate may well have regard to evidence of lack of association or triad related activity over a lengthy period of time as showing that in fact his membership has so ceased. There was however no such evidence in the present case. The most that the Defendant's statement could indicate was that he had not seen his big brother for a long time. It may be that had the Magistrate allowed the case to continue, further evidence might have enabled him to come to a conclusion in favour of the Defendant, but on the evidence as it stood when the Magistrate brought the case to an end our answer to the fifth question can only be in the negative.

15. In the light of the answers we have just given we would normally have remitted the case to the magistracy for the trial to continue. However counsel has indicated that the Crown do not wish to proceed further and we therefore make no order.

(1)    unreported 1st June 1976, Criminal Appeal 415 of 1976

(2)    unreported 25th October 1985, Magistracy Appeal 783 of 1985

(3)   [1979] 69 Cr. App. Rep. 243

(4)    R. v. Turner [1910] 1 K.B.346

(5)    R. v. Jones [1933]24 C.A. 55

(6)    [1972] Crim.L.R. 174

(7)    [1980] All.E.R. 467at 470

(8)    [1974] V.R. 363 at 370

(9)    [1976] 2 N.Z.L.R. 86

(10)    [1958] 42 Cr. App. R. 266

(11)    [1966] A.C. 367

Representation:

A.S. Hodge, Crown Counsel for the Appellant

Henry Litton, Q.C. and Gary Plowman (D.L.A.) assigned for the Respondent