Yip Lai Ying v. HKSAR

FAMC No. 80 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 80 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 536 OF 2004)

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Between

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Appeal Committee : Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing : 13 January 2006

Date of Determination : 13 January 2006

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1.The applicant stands convicted of the offence of acting as a member of a triad society, contrary to s.20(2) of the Societies Ordinance, Cap 151.  She now seeks leave to appeal against this conviction under the substantial and grave injustice limb.

2.The applicant was among a group of more than 20 males and females (including D19) who answered to the summons of a triad leader to go to a meeting place where they were to conduct negotiations with another triad group over a dispute and would resort to violence, if necessary.  The purpose of gathering so many people there was to show their strength and to give assistance if need be.  It is not disputed that the applicant was the girlfriend of D19; that she went there with D19 who was apparently recruited by the triad leader and that they remained there until the end.  

3.It is submitted persistently by counsel for the applicant that all that the prosecution could prove and had proved was the applicant’s mere presence at the scene and that is not sufficient to convict her of the offence.  It is argued that the trial magistrate and the judge who dismissed her appeal had failed to consider (a) she did not attend the scene as a member of a triad society, and (b) the circumstances and the capacity in which she appeared and stayed at the scene.

4.It is accepted that the prosecution did not need to prove that the applicant was a triad member or that she attended as a triad member.  The offence is committed by the participation in the activities of a triad.  As described by the Court of Appeal in Wong Sing Chi CACC 245/99 on p.9:

“…a triad would normally go out as a triad in answer to a summons from a triad, and band together with others in order to show strength in a confrontation and any one acting in this way was acting as a member of a triad society.”

In our view, what happened in this case as found by the magistrate was a typical activity of triad members and the purpose of gathering together in large numbers was to show their strength and to provide assistance in case this is necessary.

5.The magistrate did not convict the applicant merely because she was present at the scene or because she was the girlfriend of D19.  It was also proved and accepted by the magistrate that while the applicant was there, she heard what was discussed between the leader and other members of the group; she saw weapons being fetched; she remained there when the opposite group came; she witnessed the discussion between the two groups and she stayed until the two groups broke off.

6.The magistrate’s findings of primary facts were supported by evidence from an undercover police officer which was accepted by the magistrate.  On those findings, he regarded the following inferences as the only reasonable ones.  There was a group of males and females.  This group formed a triad show of strength.  The applicant was part of the group.  She was not there merely as D19’s girlfriend.  She remained in the group knowing that it formed a triad show of strength.  Thus, she knowingly was prepared to and did lend herself to that show of strength.

7.Did the courts below depart from accepted norms in taking that view of the facts and concluding that the applicant had, on those facts, acted as a member of a triad society?  In our view, it is plainly beyond reasonable argument to the contrary that there has been no such departure.

8.Accordingly, leave to appeal is refused.

Mr Alex Ng (instructed by Messrs Cheung, Chan & Chung and assigned by the Legal Aid Department) for the applicant

Mr John Reading, SC and Mr Robert K Y Lee (of the Department of Justice) for the respondent