The Queen v. Lam Shing Kin

HCMA000908/1986

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 908 of 1986

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BETWEEN

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Coram: Hon. Barnes, J. in Court

Date of hearing: l0th October, 1986

Date of oral judgment: l0th October, 1986

Date of handing down reasons: 20th October, 1986

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JUDGMENT

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1. The appellant pleaded not guilty in the magistrate's court to two charges alleging offences contrary to the Societies Ordinance. The first charge alleged an offence of being an office bearer of a triad society contrary to section 19 and the second of using intimidation to induce membership of a triad society contrary to section 22.

2. He was convicted on both but he now appeals against conviction and sentence in respect of the first charge only.

3. The appellant has filed seven grounds of appeal against the conviction but it is now necessary to refer to the second ground only.

That ground was:

"The Learned Magistrate erred in accepting that the admissions contained in Exh. P1 were sufficient admissions upon which to found a conviction under Section 19 of the Societies Ordinance, Chapter 151 of the Laws of Hong Kong.”

4. In Exhibit P1, a cautioned statement, the appellant said "I admit I am 426 of Wo Shing Wo. However, I have never done anything unlawful. I have been holding a decent job all along."

5. Part of the evidence for the prosecution was given by a Detective Police Constable. He said that he was, in effect, a witness qualified to give expert testimony concerning 'triads'. He said that 'a 426 Red Pole' meant an office bearer in a triad society holding or performing the role of 'fighter'. The appellant, who was unrepresented at the hearing in the magistrate's court, cross-examined that witness as follows:

The defendant gave the following evidence: "Concerning the first charge, I never attended any ceremony to become a 426 and according to the triad expert I could not become a 426 without that.". The remainder of his evidence was directed to the allegations in the second charge. He also called two witnesses to give evidence on his behalf and their evidence too was directed to the allegations in the second charge.

6. The appellant had challenged the admissibility of Exhibit P1 on the basis that it was an admission involuntarily made as the result of an inducement. The learned magistrate rejected the appellant's evidence regarding the inducement and found that the admission had been voluntarily made.

7. At the conclusion of the evidence the two primary questions to be asked by the magistrate were: (1) Did the appellant admit that he was an office bearer? and (2) If so, was that true?

8. In his statement of findings the learned magistrate said that he accepted the evidence of the 'triad expert' and then went on to say "I did not find the appellant or DW2 or (sic) to be honest and convincing witnesses and I found the evidence of DW3 to be of no assistance. I was satisfied beyond all reasonable doubt that the appellant was guilty on charge A .......".

9. Having accepted the evidence of the 'triad expert' the learned magistrate could not have convicted the appellant in view of the 'defence' foreshadowed by the defendant in his cross-examination and explicitly referred to by him in his evidence-in-chief until he was satisfied beyond a reasonable doubt that when the appellant said in Exhibit P1 "I am a 426.", he meant not simply that he was a person who believed he was 'a 426' because someone had told him that he was but that he was saying that he was 'a 426' because he had gone through a ceremony during which he was promoted to that office. Having before him Exhibit P1 the learned magistrate had to ask himself: (1) Did the appellant say "I admit I am a 426.", and (2) If so, was that a true statement of fact? The learned magistrate's statement of findings does not disclose that he adverted to the necessity to ask himself those questions before reaching his verdict. The answer to the first question is obvious because it was common ground that the appellant had made the statement. The second question however did need to be asked and answered. As the learned magistrate's findings do not indicate that he did ask himself this vital question, one cannot be sure that this verdict was arrived at in a safe and satisfactory way.

10. The appeal must therefore be allowed. The conviction is quashed and the sentence set aside.

Representation:

Mr. Peter Lavac for the Crown.

Miss Munira Moosdeen (So & Karbhari) for the appellant.