Tsang Sum Alias Tsang Wing-kau v. The Queen
|
CACC001093/1977
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 16th February,1978 ----------------- JUDGMENT ----------------- Pickering, J.A.: 1. The appellant was found guilty of conspiracy to wound and of being an office bearer of a triad society. We dismissed his appeal against conviction in respect of the first charge and reserved our judgment in respect of conviction upon the second charge. 2. In respect of that charge the only evidence against the appellant was his own cautioned statement to the effect that he was a member of the Chuen Kwan Lok Triad Society in which he had undergone a promotion ceremony to the rank of "red pole". No expert evidence was called to the effect that the Chuen Kwan Lok Society is in fact a triad society nor to the effect that "red pole" is an office bearer of a triad society. Mr. Kwong, for the appellant, conceded that the learned judge was entitled to take judicial notice of the fact that a "red pole" is in fact an office bearing rank of a triad society. 3. The nub of Mr. Kwong's complaint however was that the learned judge, in order to determine whether or not the Chuen Kwan Lok Society was in fact a triad society had recourse to section 39 of the Societies Ordinance, Cap. 151 which reads as follows:
Since the section permitted a "magistrate" to refer, for the purpose of evidence to Stanton and to other published books or articles on the subject of unlawful societies, Mr. Kwong urged, there was no warrant for a district judge to adopt the same procedure. Mr. Kwong drew support for this contention from the reference in the proviso in section 38 of the same Ordinance to a "court or magistrate" and from the definition of a magistrate in the Interpretation and General Clauses Ordinance, Cap. 1. 4. We think that validity must be conceded to this argument and indeed Mr. Griffiths, for the Crown, agreed that section 39 is defective in its failure to mention a judge as well as a magistrate. No doubt that failure had its origins in the date of the enactment which was 1949, that is, at a time when no District Court existed. At that date, no doubt, a charge of being an office bearer of a triad society would not be heard before the Supreme Court with a jury but inevitably go before a magistrate so that section 39, at the time of its enactment, was entirely adequate and the lacuna only came into existence when, in 1953, the District Court was established. 5. Despite this lacuna in section 39 Mr. Griffiths contended that the conviction was proper. He conceded that he was unable to argue that this particular society was notorious so that judicial notice could be taken of the fact that it was in truth a triad society as could be done, for example, in the case of the 14K. The courts were, however, Mr. Griffiths argued, entitled to take judicial notice of the existence and nature of triad societies in the plural and thereafter to inform themselves from authoritative literature on the subject as to whether or not a particular society was a triad society. This, Mr. Griffiths contended, was a procedure open to any judge or magistrate and did not depend upon section 39 of the Societies Ordinance which section was declaratory of the law but incompletely so in that it made specific reference to the ability of a magistrate to refer to these authoritative works but was silent upon the similar ability of a judge. For the proposition that any judge or magistrate, irrespective of section 39 was competent, having taken judicial notice of the existence and nature of triad societies, to inform himself of the nature of a particular society, Mr. Griffiths relied upon the case of McQuaker v. Goddard(1) where Clauson, L.J. quoted with approval an extract from Stephens' Digest of The Law of Evidence, art. 62 in the following terms:
6. We think that this exactly covers the circumstances of the present case and that the learned judge, despite the lack of any reference to a judge in section 39 of the Societies Ordinance, was entitled to do just what he did, that is to consult Morgan's "Triad Societies in Hong Kong" as to the nature of the Chuen group of societies and to refer to Stanton's book to ascertain the status of a "red pole" - though, as we have stated, it was conceded that as to the latter point the judge was entitled to take judicial notice. 7. It appears to us that any judge or magistrate, having taken judicial notice of the existence and nature of triad societies, is entitled to refer to Morgan or Stanton or to a book which came into the possession of the members of this court only on the day before the hearing in this case and which is compiled by the Triad Society Bureau of the Criminal Investigation Department of the Royal Hong Kong Police Force and entitled "Triad or Unlawful Societies operating or known to have operated in Hong Kong" - or indeed to any other authoritative work upon the subject. No doubt in making use of the new publication to which we have referred a judge or magistrate would exercise particular care before deciding that one of the numerous societies tabled therein but with the qualifying note "seldom mentioned by triad elements recently" was in fact a subsisting triad society and would require expert evidence to that effect. 8. For the foregoing reasons the appeal against conviction for being an office bearer of a triad society must be dismissed. 9. We turn to an alternative submission made by Mr. Griffiths which was to the effect that the appellant, by virtue of his status as an office bearer in a triad society, himself constituted an expert so that his cautioned statement could be relied upon as expert evidence to convict him. We say no more of this proposition than that it is one which in our view must be approached with considerable caution. There may exist office bearers so patently knowledgeable as to triad matters in general that they may fairly be said to be experts and so merit conviction upon the basis of their own expert evidence but at the other end of the scale there is the boy who is terrorized into allowing some mumbo-jumbo to be incanted over him and who is then told that he is a member of a triad society whereas in fact he is not. The question is one of degree and each such case will have to be looked at upon its own merits. Representation: J. Kwong (Ng & Yung) for Appellant. P.R. Griffiths for Crown/Respondent (1) (1940) 1 All E.R. 471 at 478 |