The Queen v. Wong Kwok-kin (D4) and Others

CACC000461/1985

Headnote

For comments on the relative nature of Detention Centre and Training Centre Orders see the appeal against sentence (page 6).

BETWEEN

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

Date of hearing: 4 April 1986

Date of delivery of judgment: 23 April 1986

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JUDGMENT

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

1. Wong Kwok Kin, whom for convenience we shall refer to as the 4th Defendant, was convicted by Mr. H.F. Boa, sitting as a Deputy Judge of the District Court, on two charges of blackmail, one of assisting in the management of an unlawful society and one of being a member of a triad society. He is now aged 15 and was sentenced on each charge to be detained in a training centre. Earlier he obtained leave from this Court to appeal out of time against both convictions and sentences. He has been represented throughout by Mr. Lawrence Lok.

2. Three others, So Kwok Kwong, Lau Kwok On and Yim Fai, whom we shall refer to respectively as the 5th, 6th and 7th Defendants, were convicted on the first charge of blackmail and fined. They apply for leave to appeal against their convictions. They are of similar ages to the 4th Defendant. They have not been represented before us but have filed grounds of appeal drafted by counsel and they rely upon his written submissions which have been handed in.

3. The blackmail charges depended exclusively upon the evidence of another boy, one Tsang Chi Man. He said, that in late November 1984 the 4th Defendant, together with a group of others including the 5th, 6th and 7th Defendants, approached him after school one day with the suggestion that he join their triad society, the Kwong Luen Shing. In view of their numbers he dared not to refuse, although he wished to, and temporized by asking for time to think. Shortly afterwards the 4th Defendant telephoned Tsang Chi Man, and on being told that he (Tsang Chi Man) did not wish to join the society arranged a meeting in a playground that afternoon "to sort the matter out". The 4thh Defendant did not keep the appointment, but the 5th, 6th and 7th Defendants and two others did put in an appearance. They assaulted Tsang Chi Man and, on his continued refusal to join their society, said that he would have to pay money in order to avoid being further beaten. A sum of $150 was mentioned. Sometime later, said to be in about January 1985, the 4th Defendant inquired from Tsang Chi Man if the $150 were ready but, on finding that it was not, accepted $30 on account.

4. On or about the 1st February the 4th Defendant and another boy again intercepted Tsang Chi Man after school. (Initially Tsang Chi Man said that the 5th Defendant was party to this incident but later appeared to retract the allegation.) The 4th Defendant demanded money, complained that the $20 then paid was too little and with the other boy took Tsang Chi Man to a flat in Tsuen Wan. There Tsang Chi Man found a person who was later charged as the 1st Defendant, together with many others. The 1st Defendant, after some talk with the 4th Defendant, threatened Tsang Chi Man that unless money were given quickly he would be in trouble, and set as a deadline for payment the 17th March. Tsang Chi Man was then released.

5. After that incident several boys that Tsang Chi Man knew as members of the Kwong Luen Shing, including the 4th, 5th, 6th and 7th Defendants, reminded him many times to hurry up in paying the money, so much so that just before the deadline arrived Tsang Chi Man reported to the police. The Defendants, inter alias, were arrested.

6. The first blackmail charge - against all four Defendants - was laid in respect of the incident in the playground; the second - against 1st, 4th and 5th Defendants, in respect of that of 1st February. In addition all four Defendants  were charged with inducing Tsang Chi Man to become a member of an unlawful society. However on that last charge they were acquitted.

7. In his Reasons for Verdict the Judge said of Tsang Chi Man -

"This young witness gave evidence at considerable length and showed signs - understandable perhaps ofstrain and confusion throughout his testimony. I had the impression that while he was undoubtedly afraid to be in the witness box. the overall colour of his evidence was such that he favoured for reasons known to himself - some of the accused and was positive in his condemnation of others. He became very confused towards the end and the question of whether and at what point he joined the society was never resolved to my satisfaction. The inducement evidence therefore was not of the calibre that would justify a conviction and accordingly D4 - D7 inclusive are acquitted on that charge.

But TSANG Chi-man was not a wholly unreliable witness and his evidence as to the blackmail charges -. 12 and 13 - had a clear ring of authenticity to it. I accept that it was the continuing pressure for payment that eventually drove him to report the. matter He appeared to change his mind about the role of D5 on 1/2/85 but I read nothing sinister into that and am satisfied that his evidence on these matters was essentially truthful and reliable, and that there was concerted and sustained intimidation of and attack upon him."

8. The whole situation would obviously have been absurd if at the time of the first approach Tsang Chi Man was already a member of the Kwong Luen Shing. Yet that was the evidence of another boy, Cheung Wing Keung, an admitted member of the same society, who gave evidence for the Crown. He said that Tsang Chi Man had told him in February 1984 that he (Tsang Chi Man) was a member and that he had joined in October. That can only have meant October 1983. There was also some documentary evidence introduced by yet another boy, who put himself forward as an officer of the society, but it was hearsay to such an extent that no reliance could possibly have been placed upon it. Tsang Chi Man denied having made any such admission to Cheung Wing Keung or to having become a member of the society at any time.

9. On behalf of all four Defendants it is suggested that the reference by the Judge to the fact that the "question of whether and at what point he joined the society was never resolved to my satisfaction" indicates an inconsistency of thought, in that the doubts he held as to Tsang Chi Man's credibility in this respect must, had the Judge properly directed himself, have inevitably led to doubts as to Tsang Chi Man's credibility as to the blackmail.

10. It is not easy to understand why the Judge put it the way he did, unless perhaps he was misled into thinking that Tsang Chi Man had faltered and had joined at one stage by reason of one question in cross examination, namely; "in November the 4th Defendant had persuaded you to join the Kwong Luen Shing?". The Judge may have taken the ensuing affirmative answer as an admission that the persuasion had been successful.

11. Be that as it may, if Tsang Chi Man were in fact a member of the society his whole story must have been a careful and deliberate concoction of lies Very clearly the Judge did not accept that, and there was no evidence otherwise to suggest it. In order to succeed in a prosecution for inducing a person to join an unlawful society it is necessary to establish three things: an inducement of some kind, which is intended to have and does have any effect upon the person at whom it is aimed, and a joining by that person of the society. In using the particular words that he did we are satisfied that the Judge was intending to do no more than, in the context alone of that particular charge, to make absolutely clear that he was not satisfied beyond reasonable doubt as to the third.

12. It is then suggested that the evidence of Tsang Chi Man was so unsatisfactory that no judge would have been entitled to rely upon even any part of it. We do not think, upon a perusal of his evidence, that that suggestion can be maintained, nor a further suggestion that there was insufficient evidence to connect the 4th Defendant with the incident in the playground. His arrangement of the meeting and his own subsequent demand for the amount of money that bad been then demanded were ample indications of his participation in a joint venture.

13. Finally in respect of the first blackmail charge it is complained that the Judge gave inadequate consideration to another part of the evidence of Cheung Wing Keung which appeared to give a different date to the incident in the playground and to exonerate the 5th, 6th and 7th Defendants from participation. This evidence was in stark contradiction to the evidence of Tsang Chi Man and must inevitably have been rejected by the Judge if he accepted on this point, as he so clearly did, the evidence of the latter. Cheung Wing Keung was referred to in their closing addresses by both counsel for the Defendants, and although the Judge has not made express mention of his evidence in his Reasons for Verdict, we see no reason to think that it was overlooked.

14. We turn then to the 4th Defendant's convictions for membership and management. In this respect it is conceded that the Kwong Luen Shing is a triad society. It is said simply that the evidence was not sufficient to connect the 4th Defendant therewith.

15. As to membership of the society there can be no argument. The evidence to which we have already referred was ample indication of membership. The evidence in relation to management came to a large extent from Lai Ka Wing, the boy who put himself forward as an officer of the society. He described his initiation into what he understood to be the Kwong Luen Shing by the 1st Defendant and said that thereafter he considered himself to be a member. He added that the society met regularly about once a week, usually in Maxim's Restaurant in Tsuen Wan, and the regular attenders included the 4th Defendant. He referred specifically to one occasion there in October 1984 when he was elected Treasurer and the 4th Defendant was elected Chairman. A Vice-Chairman and a Liaison Officer were elected at the same time. This he said was the first time that officers had been elected and he was not aware of the duties cast upon the Chairman.

16. We are asked to find that there was nothing in that evidence to connect these weekly meetings with the Kwong Luen Shing Triad Society. With respect we cannot so find. Most of the meetings may have consisted, as Lai Ka Wing said, of little more than idle chatter, but in the absence of any evidence to the contrary the only inference to be drawn from the rest of the evidence of Lai Ka Wing is that a branch of the society had been set up. Similarly in the absence of evidence to the contrary, the Chairman must be presumed to have had some responsibility for the management of the branch.

17. It is argued that the Judge below did not rely on the evidence of Lai Ka Wing to convict the 4th Defendant and that without it there was not enough evidence to sustain the charge. What the Judge said was this -

"        Equally I am satisfied that his (i.e. 4th Defendant's) overall 'presence' in so many of the situations leading up to initiation, his association with D1 and his role as a link between an organizer for D1 and so many of the novices gave him the role of assisting in the management of that unlawful society. The 3rd accused pleaded guilty to that charge and was convicted accordingly. I convict D4 also on that but find that the evidence against D2 is altogether too nebulous and thin to support a conviction. LAI Ka-wing was not at his most reliable in that area of his evidence and D2 is acquitted .......... "

18. There was evidence of three occasions when the 4th Defendant was present in a situation leading to an initiation into the society, and if the evidence as to what had happened on those occasions had stood alone there might have been some force in the argument. However we do not read the words of the Judge as excluding the evidence of Lai Ka Wing completely. He merely took the view that it was not sufficient in itself to warrant the conviction of the 2nd Defendant, who was said to have been the Liaison Officer. But in the case of the 4th Defendant it was additionally supported by the evidence to which we have just referred.

19. For these reasons the appeal of the 4th Defendant against his four convictions and the applications of the 5th, 6th and 7th Defendants for leave to appeal against their convictions are dismissed.

20. The appeal against sentence by the 4th Defendant was on the basis that a Training Centre Order was too severe as it calls for a minimum period of 6 months in the centre and a maximum of 3 years, the actual period being at the discretion of the Commissioner of Correctional Services. A Detention Centre Order on the other hand, for an offender under 21 years, is 1 to 6 months detention and for that reason no doubt a Training Centre Order is regarded by offenders, and their families, as more severe,

21. In our view however, once the Court has decided that an offence committed by a young person can be punished by a sentence short of imprisonment the question to be decided is what alternative is best suited for the rehabilitation of the offender. There will be many factors to be considered, one of course being the nature of the offence of which the Defendant was convicted. Others will be found in his background. Here clearly the Defendant has no real training in any trade. His family has been unable to give him the dicipline he requires. The blackmail and Triad Society offences, although unpleasant, were not in the most serious category and if the background of the Defendant had been different a Detention Centre Order, the "short sharp shock", may have been what was required. Here clearly it was not and the sentence was perfectly correct.

22. A Training Centre Order is not to be considered in preference to a Detention Centre Order merely because the period of detention will be longer, as it needs to be from the nature of the treatment to be given during the detention. The two types of centre provide different forms of treatment each designed for the particular needs of the individual offender. The triviality or seriousness of the offence, as we indicated earlier, is a factor to be taken into account, but it cannot be conclusive.

23. In Attorney-General v. Chan Ka-shu⁽¹⁾, a youth of 18 had been convicted of conspiracy to kidnap and sentenced to be detained in a Detention Centre. The Attorney applied for a review of that sentence and this Court substituted detention in a Training Centre. The reason given was that the Court regarded "the Detention Centre Order as being altogether too lenient in the circumstances". It would seem however, from such details as appeared earlier in the judgment, that the background factors indicated the longer rather than the shorter form of rehabilitation and we take these to be included, as well as the nature of the offence, in what the Court referred to as "the circumstances". We do not think that by the use of the word "lenient" the Court was intending to give support to any principle of the kind on which the Appellant now seeks to rely.

24. For these reasons the appeal against sentence is also dismissed.

(1)    Application for Review No. 4 of 1984, unreported 20th June 1984

Representation:

Lawrence Lok (M/s So & Karbhari) for 4th Defendant/Applicant

5th, 6th & 7th Defendants/Applicants appear in person

Kelvin Egan, Crown Counsel for Respondent/D.P.P.