Read the full judgment text of CACC 000059/1988 on BabelCite. This Court of Appeal judgment was delivered on 13 December 1989 before Yang, C. J., Silke, V.-P. & Duffy, J..
Criminal law – Triad society – Societies Ordinance (Cap 151), s.26(1) and s.35 – interpretation of s.26(1) – whether creates a new statutory offence requiring the Attorney General's prior written consent – blackmail allegedly committed in the name of the Sun Yee On triad on 13 January 1987 when 'Mau Wong' demanded HK$3,000 protection money from a Taipo restaurant manager – eleven defendants tried on a 27-count indictment – expert evidence on lai-see packets, the printer's block, a promotion list, and name lists found in the offices and desks of D3 and D6 – whether such expert evidence admissible to prove a triad connection – whether a triad society is a criminal conspiracy such that the evidential rules on acts and statements in furtherance of a conspiracy apply when no conspiracy is charged – corroboration – whether two fellow accomplices (PW2 and PW4), both self-confessed Sun Yee On office bearers granted immunity, can corroborate each other on the same charge – D1, D2, D7, D8 and D11 pleaded guilty to count 1; D3, D4, D5 and D6 were convicted after trial; D9 was acquitted and D10 was discharged during the hearing – Held (Yang CJ and Duffy J): s.26(1) does not create a new statutory offence; the words 'any offence' and 'such offence' refer to the underlying offence (blackmail), so the consent requirement of s.35 is not engaged for count 1 – the expert evidence on the lai-see packets, printer's block, promotion list and name lists was wrongly admitted, the experts' opinions resting on the impermissible inference that items seized in a 'Sun Yee On operation' must be connected to Sun Yee On – the lists, seized on 1 April 1987, did not establish office bearership on 13 January 1987 – the trial judge misdirected the jury in directing that PW2 and PW4, as fellow accomplices, could corroborate each other on the same charge (DPP v Kilbourne; DPP v Hester) – the analogy of a triad society to a criminal conspiracy in R v Sit Yat-keung and AG v Chik Wai-lun should not be elevated to import all the evidential rules of conspiracy into triad prosecutions – appeals of D3 (counts 1, 14, 15), D4 (counts 1, 16), D5 (counts 1, 19, 20), D6 (counts 1, 21) and D10 (count 1) allowed; convictions quashed and sentences set aside – appeals of D1, D2, D7, D8 and D11 against conviction dismissed (majority) – Dissent (Silke VP): s.26(1) is a penal section creating a new statutory offence; the legislative history (the 1957 amendment adding s.12E, the equivalent of s.26, without exempting it from the consent requirement of what is now s.35) and the use of 'prosecuted' and 'prosecution' in subsections (2) and (3) of s.26 show that consent is required; count 1 is therefore a nullity and the guilty pleas of D1, D2, D7, D8 and D11 to that count were of no effect – Sentences adjusted on the totality principle: D1 and D2 reduced from 4½ years to 3½ years; D7 and D8 from 4 years to 3 years; D11 from 4½ years to 3 years (with the sentence on count 27 reduced from 2½ to 2 years); in each case one year of the count 1 sentence is to run consecutively and one year concurrently with the sentences on the other counts.
Legal issues: Interpretation of s.26(1) of the Societies Ordinance and application of s.35 · Admissibility and sufficiency of expert evidence on the lai-see packets, printer's block, promotion list and name lists · Whether a triad society is to be treated as a criminal conspiracy for evidential purposes · Whether two fellow accomplices can corroborate each other
Outcome: Appeals of D3, D4, D5, D6 and D10 allowed: their convictions quashed and sentences set aside. Appeals of D1, D2, D7, D8 and D11 against conviction on count 1 dismissed (Yang CJ and Duffy J; Silke VP dissenting), but their sentences adjusted on the totality principle.