HKSAR v. Ng Siu Kun

HCMA690/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 690OF 2006

(ON APPEAL FROM KTCC 158 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge Barnes in Court in Court

Date of Hearing : 19 September 2006

Date of Judgment : 19 September 2006

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J U D G M E N T

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1.The appellant was found guilty after trial of “Claiming to be a member of a triad society”, contrary to section 20(2) of the Societies Ordinance, Cap. 151.  He was sentenced to a term of imprisonment for three months.  He now appeals against the conviction.

Prosecution case

2.The prosecution case, in a nutshell, was that the appellant claimed to be of “Yaumatei Shui Fong, follower of Ah Teng” during a meeting on 5 January 2006 when PW1 was asking the appellant for money owed to him.  The brief history of the matter was that the appellant and another man surnamed Kam were responsible for renting out shops for PW1.  The appellant failed to handover the rental collected in December 2005 to PW1 and the above-mentioned meeting was arranged.  PW1 was accompanied by the son of Kam (“PW3”) to the meeting as PW3’s father was also owed money by the appellant.

3.According to PW1, the appellant denied owing money before saying he was of “Yaumatei Shui Fong, follower of Ah Teng”.  The appellant scolded PW3 and punched PW3 on the face.  PW3 hit back and a fight ensued.  PW1 stopped the fight.

4.PW2 said he had an arrangement to go shopping with PW3 and happened to meet up with another man also surnamed Ng.  PW2 knew PW3 was going to collect a debt but he did not go into the restaurant with PW3, rather he and the other one surnamed Ng waited at another restaurant two blocks away.  He received a call from PW3 so he and the other Ng went to meet up with PW3.  After learning from PW3 that the appellant had punched him (i.e. PW3), PW2 stopped the appellant from leaving and was punched by the appellant.  PW2 said the appellant said something about a triad society.  PW2 later agreed under cross-examination that the appellant had not mentioned anything about triad society within his hearing.

5.PW3 gave evidence that the appellant claimed to be of “Shui Fong, Ah Teng” during the meeting.  PW3 also confirmed the punch by the appellant and he then fought with the appellant.  PW1 intervened and separated them.  PW3 then called the Ngs (i.e. PW2 and the other surnamed Ng) to come over, which they did.  PW3, together with the two Ngs, chased the appellant.  The appellant assaulted one of the Ngs (i.e. PW2).

6.PW3 said he did not ask PW2 and the other Ng to accompany him to collect the debt.  He even told the two not to enter the restaurant in which the meeting took place so as not to alarm the appellant.

7.A triad expert, PW4, gave evidence that “Shui Fong” is a triad society active in Hong Kong.  “Yaumatei Shui Fong” means Shui Fong members active in Yaumatei and “follower of Ah Teng” means the big brother he followed was Ah Teng.

8.It should be noted that the appellant was jointly charged with PW3 with an offence of “fighting in a public place”.  PW3 pleaded guilty prior to giving evidence for the prosecution.  The appellant was solely charged with an offence of “common assault” (assaulting PW2).  The appellant pleaded not guilty to both charges and was found guilty after trial.  No appeal lies from these two convictions.

Defence case

9.The appellant agreed that he had business dealings with PW1.  He and PW1 arranged to meet to settle the amount.  The appellant expected PW1 to come alone but he came with PW3.  PW3 interjected during the discussion between the appellant and PW1 and he got into an argument with PW3.  When the appellant tried to leave he was stopped by PW3, who started to hit him.  The appellant did not punch PW3 but raised a chair in self-defence.  After some people intervened, the appellant put the chair down.  He was then chased and pulled by some other persons.  He had a struggle with those people.  At no time did he claim to be a member of a triad society.

Grounds of appeal

10.The appellant is not legally represented.  His main ground of appeal is to attack the findings of the learned magistrate.  He queried the magistrate’s findings of believing PW1 and rejecting his evidence.  He ventured to suggest that it could have been due to the fact that he was charged with fighting in a public place and common assault that the learned magistrate was confused by the evidence and was misled into finding him guilty of claiming to be a member of a triad society.  The appellant also said it was clear that PW1 was the main instigator and, acting in concert with PW2 and PW3, framed him up.  He also pointed at the previous inconsistent statements of PW2 and PW3.

Findings of the learned magistrate

11.The learned magistrate meticulously set out the evidence adduced and the reasons for his findings.  He was aware of the previous criminal convictions of the prosecution witnesses : PW2 for violence, PW3 for possession of dangerous drug, and the other Ng, who was not called to give evidence, for trafficking in a dangerous drug.  He was aware of the discrepancies in PW2’s evidence regarding whether PW2 heard the triad-related utterance.  The learned magistrate found the prosecution witnesses credible.  He found that if PW2 and the other Ng were part of a collection team they would have gone to the restaurant in which the meeting took place to “provide physical muscle”.  He found that the retraction by PW2 (about having heard the appellant mentioned triad matter) was a sign of honesty as PW2 was not prepared to stand-by something he said in-chief to which he was no longer certain as a result of cross-examination.

Judgment

12.An appeal under section 113 of the Magistrates Ordinance, Cap. 227 is by way of rehearing on the evidence before the trial court supplemented by such further evidence at the intermediate appellate court may admit under its statutory power to do so : see Chou Shin Bin v. HKSAR, FACC No.11 of 2004.

13.In my view, it must be acknowledged that a magistrate has the advantage of observing witnesses giving evidence in court, the judge on appeal can only rely on a written transcript.  The credibility and reliability of any particular witness is solely within the assessment of the magistrate.  Where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or that the magistrate has misunderstood, or misquoted, or failed to consider any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory.

14.There is simply no basis to support the appellant’s allegation that the learned magistrate was misled.  The learned magistrate clearly understood the issues involved.  His handling of the evidence was meticulous and fair.  There is nothing to show that the conviction was either unsafe or unsatisfactory.  The appellant’s appeal is dismissed.

Mr Tam Yiu Ho, William, SGC of Department of Justice, for HKSAR

The Appellant, in person