HKSAR v. Chan Woon Ting

HCMA 591/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 591 OF 2004

(ON APPEAL FROM STCC 1720/2003)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 16 November 2004

Date of Judgment: 16 November 2004

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J U D G M E N T

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1.This is an appeal against conviction.  The Appellant was convicted in the Magistrate Court of two charges of acting as a member of a triad society.  She was sentenced to a total of 100 hours community service.

2.The main prosecution witness was a police undercover officer who managed to infiltrate a 14K triad society.  He testified to the events in Charges 4 and 6.

3.In relation to the 1^st Charge, there was a meeting on 8 January where a revenge attack was being planned.  The undercover officer’s observation was that the Appellant was present at the time although she did not speak during the meeting.  Subsequently, arrangement was made to meet at an appointed place. The undercover officer noticed that of the people who had gathered at the appointed place, the Appellant was also present.  Again, at this meeting, the Appellant did not speak.

4.The Appellant’s evidence was that she is aged 14 and she had a clear record and she said that she was present at that time because she was with her boyfriend who was at the meeting.  She said she was watching television and playing games on her mobile phone and did not pay attention to what was being said.

5.In fact, the undercover officer confirmed that at that time, she was indeed watching television and did play games on her mobile telephone.  She said that subsequently she had gone near the appointed place because she went to the basketball court to chat with her friends.  She was not there because she was answering the call of the triad leader.

6.The learned Magistrate did not believe the Appellant and decided that the Appellant was present because she was with the group and she had turned up subsequently at the appointed place because she was an active participant in the triad activity. 

7.In relation to the 2^nd Charge, i.e. Charge 6, this happened on 21 February 2002, where a meeting was held to arrange a settlement talk with a rival group.  There were boys and girls including the Appellant, present at this meeting and subsequently the Appellant left with two other girls. 

8.The problem arises here because the learned Magistrate in his statement of findings had this to say:  “The evidence also showed all ten boys and girls left the premises together to go to the settlement talk, and on approaching the Hang Shan Kiosk, the Appellant and two other girls left the boys to go up a building to act as lookouts”.  The Appellant’s evidence about this meeting was that she was only invited by two of the Defendants to go to the flat for a chat in the early hours of the morning of that 21 February.  She did not know what the boys were doing and that later she had gone home.

9.The learned Magistrate did not believe her and found as a fact that she was with the rest of the group to make preparation for a settlement talk and that she did go along with the two other girls be to the building to act as lookouts for the boys.  In those circumstances, convicted her of the 2^nd Charge too.

10.Mr Oderberg, who represents the Appellant, had submitted grounds of the appeal on the Appellant’s behalf and the main ground is that the learned Magistrate was wrong in making a finding of fact that the Appellant on the 2^nd Charge had gone up the building to act as a lookout for the boys because there was no evidence to support this.  Miss Sin, very fairly, has agreed with Mr Oderberg on this.  There is no evidence to support this finding because the prosecution relied on the evidence of the undercover officer and nowhere in the undercover officer’s evidence can it be seen that he was suggesting that the Appellant was acting as a lookout on 21 February. 

11.Miss Sin very correctly pointed out that the Magistrate seems to have relied on the words allegedly said by one of the Defendants, Tse, to everyone present to infer that the girls under the lead of Tse were playing the role of lookout.  There was in fact no evidence from PW1, the undercover officer as to how the other girls responded to Tse’s words or whether these other girls, including the Appellant, did follow what Tse was suggesting.  So, Miss Sin very properly concluded that the learned Magistrate was not justified to regard that there was evidence of the Appellant acting as a lookout and so she does not seek to support the conviction in relation to Charge 6.  I totally agree with both Mr Oderberg and Miss Sin. 

12.The next question that I have to address is whether the learned Magistrate had also allowed this error in Charge 6 to affect his conclusion on the 4^th Charge.  Mr Oderberg has also correctly pointed out that the learned Magistrate had not mentioned that he had considered these charges separately although admittedly they are a month apart.

13.I do appreciate the fact that the learned Magistrate is a very experienced Magistrate.  The Court of Appeal had said on many occasions that Magistrates do not have to write every matter that they had considered down and very often when an experienced Magistrate is hearing the trial, the court may consider that he is so experienced that he would not have omitted to do certain basic things.  One of those things would be to consider these charges separately.

14.But having said that what concerns me is that the error the learned Magistrate made in Charge 6, is an error on the facts, it goes directly to the credibility of the Appellant.  I am concerned that nowhere in the statement of findings does the learned Magistrate indicate that he had not allowed his findings in Charge 6 to affect his ultimate findings in relation to Charge 4.

15.In a case like this where everything hinges on the credibility of one prosecution witness as against the Appellant, the court is left with a lurking doubt as to whether the learned Magistrate had indeed not  been affected by his findings in Charge 6.

16.So, in those circumstances, I feel that the doubt should be resolved in favour of the Appellant in this case.  In the circumstances, the appeal against conviction is therefore allowed, the conviction is quashed and the sentence is set aside.

17.I have allowed the appeal against conviction and Mr Oderberg on behalf of the Appellant had applied for costs both in the trial and on appeal.  Miss Sin objected to costs on the ground that the conduct of the Appellant at the time of the offences can be considered as giving the police the notion that she was an active participant in the offences. 

18.I am conscious of the fact that in considering costs:

The court had to consider the conduct of the Appellant in the investigation stage whether it had caused the investigating authorities.  In this case, the police to consider that the case against her may be stronger than otherwise might be the case.

19.I am informed very helpfully by Miss Sin that the statements made by the Appellant was in the form of mixed statements in which she, as Mr Oderberg pointed out, said, she could not remember the first incident.  She answered all the questions that the police made to her and she denied that she was participating in any triad activities.

20.In the case like this, considering the fact that she is aged 14 at the time of the offence, and she had answered the questions of the police by denying that she had conceited the offences and when she was giving evidence in court, she gave similar evidence.

21.Therefore, in those circumstances, I considered that the Appellant is entitled to her costs in the trial and also on appeal.  It is to be taxed if not agreed.

Miss Mary Sin, SADPP of the Department of Justice, for the Respondent

Mr Keith J Oderberg, instructed by Messrs Ong Hean Cheng & Co., for the Appellant