HKSAR v. Lau, Chi Hung

HCMA1079/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. HCMA  1079 OF 2004

(ON APPEAL FROM NKCC 1858 OF 2004)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  22 April 2005

Date of Judgment:  22 April 2005

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J U D G M E N T

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1.The Appellant in this case appeals his conviction for claiming to be a member of a trial society.  The evidence upon which he was convicted arose out of an undercover operation.  An undercover officer,  who was PW1 in the trial below, had instructions to, and successfully did  infiltrate himself into the Wo Hop To triad society and his evidence was that he was introduced to various members of that society by a man called Ah Kai and that on 27 May 2002, Ah Kai took the undercover officer to a cooked food stall and that the Appellant was one of a number of men there present. 

2.The undercover officer said that he was introduced to the Appellant who was introduced under the name of Hung Gor and it is a fact that the Appellant’s name is Lau Chi-hung.  The Appellant said that Hung Gor said to him, “From now on, pay more visits here to have fun.  We are Wo Hop To, just like a family.” 

3.It was not until some 17 months later on 22 November 2003 that the undercover officer picked out this Appellant and said that he was Hung Gor at an identification parade. 

4.The Appellant did not give evidence at the trial below.  The Magistrate found the undercover officer to be a credible witness and acted on his evidence and once it was found he was credible, a conviction was bound to follow because there was no evidence put forward to either contradict or explain the evidence that incriminated him. 

5.The Appellant was represented below, as were other co-accused.  The case was not run on the basis of mistaken identity but, nonetheless, the Magistrate considered the issue of identity and examined the circumstances that led to the identification.  It was the fact that the undercover officer made notes and it is bound to have been the case that the note described the conversation with Hung Gor and the fact was that even though it was 17 months later, he was able to pick out this Appellant and this Appellant’s last name is Hung.  As I say, identity was not the issue; it was what was said and as regards what was said, the job that the undercover officer had to do was to identify those people who made claims to being members of the Wo Hop To.  Without a denial below to challenge the evidence, it was inevitable once the Magistrate found the witness to be a credible witness, that a conviction would follow. 

The Appellant has addressed me at some length today but nothing he has been able to say makes me doubt that the findings the Magistrate came to were incorrect.  Of course, I decide the case on the material that is before me pursuant to the Magistrates Ordinance.  I take into account the submissions made by the Appellant and it is worthy of note that, in his submission to me, he said, “I do not know if I made such a claim.” 

He complains that the undercover officer did not carry a tape-recorder and that no one else audio-taped or videotaped the meeting in question and he says that it is unfair that the operation went on so long after the meeting in question.  The Magistrate had these matters in mind and dealt with them and he accepted the evidence that it would have, in effect, prejudiced the security of the undercover officer to have sought to tape the meeting and that the operation ran on because he was still seeking to collect evidence. 

On the material before me, I have no hesitation in dismissing the appeal against conviction. 

There was no notice of appeal against sentence filed but I have not stopped the Appellant addressing me.  He was sentenced to 3 months’ imprisonment.  He does have previous convictions.  All I need say is that the sentence, to me, is entirely appropriate.  It was a gentle claim made in a social context, but that is reflected in the gentle sentence of 3 months which is at the bottom end of the bracket for claiming to be a member of a triad society.  Triad societies are a continuing menace to our society and claiming to be a member is bound to attract a custodial sentence in circumstances like this. 

Accordingly, the appeal against sentence is dismissed.

Representations:

Ms Vivien Chan, Government Counsel, of the Department of Justice, for the Respondent

2nd Appellant, Lau Chi-hung, in person