R. v. Yun Kai Hong and Another

CACC000512/1993

IN THE COURT OF APPEAL

1993, No.512
(Criminal)

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Coram: Hon. Power, V.-P., Macdougall, V.-P. & Keith, J.

Date of hearing: 11 November 1994

Date of judgment: 11 November 1994

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicants, who I shall refer to as D1 and D2, were tried with a third defendant and the three defendants in all faced nine charges. They all faced a charge of criminal damage, D1 and D3 faced two charges of criminal intimidation, D1 and D3 faced two charges of lending money at an excessive interest rate and they all faced charges of being a member of the triad society. D1 also faced two charges of common assault.

2. It was the Crown case that PW1 and PW3, two Thai massage girls, had borrowed money from D1 and D3 at excessive interest rates, that they had failed to repay that money and that in consequence of this failure they were twice threatened by D1 and D3 for beating, once on 27th November 1991 and the second time on 4th December 1991 and indeed on that second occasion D1 assaulted both of the girls. It was further the Crown case that on 5th December 1993 all three defendants went to the massage parlour and threw two bottles of thinner into the premises causing damage.

3. In the statements made under caution all three defendants admitted being members of the Wo Shing Tong Triad Society.

4. District Judge Chua found D1 guilty of 6 charges and D2 guilty of both of the charges which he faced. She did so having believed the evidence of the two Thai girls and having admitted and acted upon the cautioned statement of D1 and D2. He sentenced D1 to 23 months and two weeks' imprisonment in all, sentences being consecutive on each of the six offences and she sentenced D2 to 15 months' imprisonment, that being two consecutive sentence of 13 months and two months. D1 and D2, the applicants before us, now asked for leave to appeal against both convictions and sentence.

5. Both advanced the ground that the trial judge failed to deal properly with the alibi of the 3rd defendant who has not appealed and that, had she done so, it must have affected the weight which he could properly have placed upon the statements of D1 and D2.

6. In his notice of alibi the 3rd defendant said that at the time of the commission of the offence of criminal damage he was at the Mongkok Police Station.

7. The trial judge dealt with this alibi in the following way and it is this passage which has been criticized by Mr. Plowman who appears today for the applicants.

"D3 has served a notice of alibi pursuant to S.65D of the Criminal Procedure Ordinance. It is admitted that on the 5th of December 1991 at 05.58 hours D3 made a loss of property report regarding his mobile telephone at the Mongkok Police Station at 142, Prince Edward Road West Kowloon. This seems to me to be an add time to be making a loss of property report. It does show he was up and about at that time of morning. When cross-examined by Mr. Ma PW1 said when she entered the room to go to bed she looked at the clock and it was 5.50 a.m. Shortly thereafter within minutes she heard the glass door being smashed.

PW3 was also questioned as to how she could pinpoint the damage being caused at 5.10 a.m. She said, 'my friend and I know that something would happen that day because of that incident so we kept looking at the clock.' After all the customers had left she and PW1 went to bathe to be ready for bed. She said they always sleep at about the same time. 'When this incident of the glass being broken, ...... I together with my friend and another woman went to pick up the debris. It was at this time that I looked at the clock because I thought that the police would come to take a statement from me because of this incident.' "

At that stage the Court interrupted the evidence asking the following questions:

"Q. When you looked at the clock what time was it on the clock?

A. When we were picking up the debris it was already sometime after 5. When we finished picking up the debris it was sometime between 5.45 and 5.50 a.m."

The judge then went on:

"I am satisfied on this evidence and D3's admission in P12, his cautioned statement that he had taken 'two younger brothers' to throw bottle at the massage parlour that the Crown has proved he committed the said criminal damage offence very shortly before he made his loss report. He is accordingly convicted of charges 1, 4, 5 and 8."

8. The 1st defendant, upon being cautioned in relation of the throwing of the bottles, said: "This job was not pulled by me. Ah Shan pulled the job. At the material time I was outside the door." He was then questioned and the following exchange occurred:

"Q. Why did you throw the bottles into Sun Kam Chi Finger-press Centre?

A. It was because there were two Thai females who failed to repay me their debts. They worked as masseuses in the centre. (We) threw the bottles into centre to scare them.

Q. Was there any fluid inside the bottles when you threw them?

A. There was a little bit of paint-thinner inside."

This was of course a quite express admission of his implication in the offence.

9. It is suggested by Mr. Plowman that there were no findings of fact which would properly grant a rejection of the alibi. This, we are satisfied, is not so. The admission was an admission directly implicating the 1st defendant in the offence. The trial judge clearly had evidence before him which, it is true, place the offence at either 5.50 or 5.10. However, she had said when dealing with the evidence of PW3 that she had an innate ingenuous and truthfulness. The trial judge, we are satisfied, clearly when she said "I am satisfied on this evidence" was saying that she was satisfied that the evidence that the offence occurred at 5.10 was in accord with the admission which had been made by the 3rd defendant:

"Q. You said, 'It was I who brought along with me several "Younger Brothers" to do it.' What is the meaning of that?

A. At that time it was I who brought along with me several "Younger Brothers" to San Kam Chi Sauna and Massage Centre and told the "Younger Brothers" to throw two glass bottles into the premises and then left.

Q. You said 'several Younger Brothers', can you tell their names?

A. One is called YAN Kai-hong, one is called 'Ah Shan', but the other one's name is not known to me. YAN Kai-hong should know it.

Q. You said 'so that they would repay me the money quickly who were 'they' referred to?

A. One was called 'Ah Lai' whilst the other one was called 'An Dim'. Both of them are Thai working in San Kam Chi Sauna and Massage Centre as masseuse. In October, 1991, at 126A Tung Choi Street, 3rd floor, Mong Kok, I did lend five thousand dollars to each of them. However, after paying the interest for a few instalments, (they_ paid no more. Therefore (I) went up to San Kam Chi and dunned them for repayment."

It was this admission of the 3rd defendant to which the judge was entitled to look and upon which she was entitled to rely when coming to her conclusion. She clearly rely upon that admission and upon the evidence that the attack had occurred at 5.10 a.m. as was said in the evidence of PW3. We are conversant of the fact that she made no specific findings. We are satisfied that the judge's findings were specific enough to warrant the conclusion to which she did come. The evidence as to the report of the Mongkok Police Station was, as the Crown contends, no alibi at all. When the trial judge put the evidence as to 5.10 together with the admission in the cautioned statement she could have come to no other conclusion than that to which he did come, that is that the criminal damage which D3 was implicated occurred shortly before the last report. Further we find no weight in the suggestion that the trial judge somehow overlooked the burden of proof. It was also, we consider, not necessary for her to deal specifically with the submissions of counsel as to the rejection of the alibi. There is nothing, we are satisfied, in that ground.

10. The next ground that was argued concerns the admissions made by the two defendants as to triad society membership. In both cases the defendant admitted joining the Wo Shing Wo Triad Society and in paying an initiation fee. In each case, on the basis of that admission, the trial judge convicted. It is argued that the trial judge placed the burden of proof on the defendants in relation to whether or not he remained a member of the triad society. It is necessary when looking at these submissions to look at the actual admissions that were made.

11. The 1st defendant made the following admissions:

"Q. How did Ah Lai and Ah Dim repay their debts after two of them borrowed the money?

A. After the money was lent out, WO So Keung suggested that he and I would share the loans to Thai females equally. He would decide how to collect the debts from the two Thai females. I have only collected a sum of $300.

Q. Why did Wu So Keung share the loans to the Thai females with you? What is your relationships?

A. It was because I and Wu So Keung are cousins. (We) therefore shared the interest from the Thai females' loans.

Q. With reference to the last question, what do you mean by cousins?

A. (We) are brothers of the same rank in the Triad Society.

Q. Why do the two of you address each other by such name?

A. It is because both of us are members of the Wor Shing Tong."

The questions went on later:

"Q. You mentioned that you joined the Wor Shing Tong in the middle of 1990. Did you take part in any initiation ceremonies?

A. No.

Q. Who is your protector?

A. He is called Ah Tai.

Q. What is the full name of Ah Tai and where does he live?

A. I do not know his full name. I do not know his address.

Q. Did you pay any initiation fee when you joined?

A. I paid a sum of $360 to Ah Tai as 'Lai Sei'.

Q. Have you learned any poems or hand signals?

A. No.

Q. Why did you join the Wor Shing Tong Triad Society?

A. Out of curiosity.

Q. Where did you join the said triad society?

A. Inside the Fu Lai Restaurant, Jordan Road.

Q. Have you recruited any other persons to join the Wor Shing Tong Triad Society?

A. No.

Q. Have you asked for any donations under the name of Wo Shing Tong?

A. No.

Q. Were you under any threats or duress when you joined the said society?

A. No."

12. The 2nd defendant made the following admissions:

"Q. Why did you go to Sun Kam Chi Finger Press Centre?

A. My big brother told me to go there to render the assistance.

Q. Do you mean Yan Kai-hong?

A. Yes.

Q. Why do you call Yan Kai-hong your 'big brother'? Can you explain this.

A. He is my protector of Wo Shing Tong.

Q. When did you join the Wo Shing Tong triad society?

A. At the end of the year 90.

Q. Who incited you to join the society at that time?

A. No person incited me, I knew Ah Hong was of Wo Shing Tong therefore I told him to recruit me.

Q. Did you pay any money as the joining fee?

A. I gave $66 to Ah Hong as the Laisee.

Q. Have you used the name of Wo Shing Tong to do anything or to recruit any person?

A. No.

Q. Did any other person join Wo Shing Tong together with you at that time?

A. No.

Q. Did you go through any initiation ceremony at that time?

A. No.

Q. After you joined the society, did any person teach you any poem or gesture?

A. No."

13. It is submitted by Mr. Plowman relying upon the Attorney General v. Chik Wai-lun (1987) HKLR 41, that these admissions constitute no more than beliefs on the part of the two defendants and they are not sufficient to warrant the finding of actual membership of a triad society. Cons V.-P. stated in that case at p.43:

"By a bold admission to 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 this 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."

It is suggested by Mr. Plowman that there is not expert evidence here upon which the judge might have relied and to which she might have related the admissions that were made. he submits that we have in effect no more than a bold admission and that this was not enough to warrant her conclusion that the two defendants were actually members of a triad society.

14. We state at the outset that we are not satisfied that there must always be expert evidence. Given the informality of modern triad induction which Mr. Plowman does not dispute, we cannot see how the evidence of an expert could have taken this matter any further. Here we have admissions of joining, admissions of payment of an induction fee, admissions of a triad protector in each case, admission in the case D1 of the attainment of a rank in the triad society, and admission in the case of D2 of preparedness to take direction to participate in criminal activities, admissions in both case of preparedness to participate in the company of others in criminality of a type normally perpetrated by members of the triad society. There was no withdrawing from any of these admissions by any evidence from either defendants and we are satisfied on their face they are sufficient to allow the judge to have come to the conclusion that she did and that is that each man was a member of the Wo Shing Tong triad society. We, therefore, also reject the second ground of appeal.

15. The Crown has not sought to uphold the convictions in relation to counts 4 and 5. We therefore quash the convictions in relation to counts 4 and 5. The application for leave to appeal is refused in relation to counts 1, 3, 6, 9 and 10. The application for leave to appeal is refused in relation to counts 1 and 7 regards D2.

16. There are also before us applications for leave to appeal against sentence.

17. Mr. Plowman has also adduce an application for leave to appeal against sentence in the case of each of the applicants. The sentences imposed upon the 1st applicant were on the charge of criminal damage - 2 months, on the charge of criminal intimidation - 2 months, on the charge of being a member of a triad society - 13 months, and on each of the common assault charges - 1 week. The 2nd applicant was sentenced to 2 months on the criminal damage charge and to 13 months on the charge of being a member of a triad society. The submission are that the consecutive sentences were wrong insofar as the criminal intimidation and the common assault charges were part and parcel of one transaction and that the 13 months for the membership of a triad society charge was excessive given the authority of The Attorney General v. Lee Chi Man (1980) HKLR 483. In that case it indicated that the appropriate sentence for such a charge would be 12 months but it did go on to note that if evidence of activity is forthcoming a more severe penalty might be called for. We say immediately that we cannot fault the sentence of the trial judge when she imposed 13 months on the charge of being a member of a triad society. As to the suggestion that the consecutive sentences were wrong, we acknowledge that the trial judge might have made the sentences concurrent but when we look at the overall sentence that was imposed, 17½ months as it now in the case of 1st applicant and 15 months in the case of the 2nd applicant, we do not consider that that overall sentence can in any way be criticized. Indeed it was in both cases, we consider, on what might be termed the light side. Therefore the applications for leave to appeal against sentence must be refused.

Representation:

Miss V. Hartstein (Crown Prosecutor) for the Respondent.

Mr. G. Plowman Q.C. & Mr. D. Ma (Messrs. Stephen Smout & Co.) for the Applicants.