The Queen v. Chan Kai and Others

CACC000059/1988

Headnote

Sec. 26(1) of the Societies Ordinance, Cap . 151 - interpretation of - whether creates a new offence.

Triad society - whether an unlawful conspiracy - whether acts of a triad are acts in furtherance of a conspiracy.

Corroboration - whether accomplices may corroborate each other.

BETWEEN

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Coram: Hon. Yang, C. J., Hon. Silke, V.-P. & Hon. Duffy, J.

Dates of Hearing: l, 2, 3, 6 & 7 November 1989

Date of Delivery of Judgment: 13 December 1989

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J U D G M E N T

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Hon. Yang, C. J.:

1. Eleven defendants faced trial before O'Connor, J. and a jury on an indictment containing 27 counts.

2. Of those eleven, ten were convicted either after trial or on their own plea upon the first count and of those ten several were convicted again either on their own plea or after trial on a number of other counts.

3. The remaining defendant - D9 - was acquitted on the single count concerning him. D10, Wong Yan who appeals against conviction on the same count as that upon which D9 was acquitted - and the admissible evidence against as precisely the same as that which concerned D9 - had his application for leave granted and his aLppeal allwad in the course of this peal hearing. He was then discharged and we are no longer concerned with him.

4. The counts were all - with the exception of count 18 possession of offensive weapons which concerned D4 Chan Kin-chung - triad related and brought under the provisions of the societies ordinance,Cap. 151 - "the Ordinance."

5. In respect of count 1, the applications of Dl Chan Kai; W7 D2 - Kong Kwai-wing; D7 Chan Man-kwan; D8 Pang Chi-sum; and D11 - Ng Kam-lau - all of whom were represented by Mr. Alderdice - were out of time and leave is necessary. We indicated in the course of the hearing that, if we thought the grounds in respect of that count to have merit, we would grant the leave sought and proceed to determine the several appeals.

6. A further complication is that D1, D2, D7, D8 and D11 pleaded guilty to count 1.

7. Dealing with the defendants individually : D1 pleaded guilty to count 1 and also to count 2 - assisting in the management of an unlawful society on 26th February 1986; to count 3, a similar count but on 25th May 1987; and to count A, being an office bearer in an unlawful society, a 415 white paper Fan.

8. We are concerned with the conviction on count 1 only.

9. D2 pleaded guilty to count 1 and also to the 5th, 6th, 7th, 8th, 9th and 10th counts, all of which alleged assisting in the management of an unlawful society on dates; respectively, in May 1983, March 1983, April 1986, October 1986, and, in April 1987, twice. He also pleaced guilty to count 11, being an office bearer of an unlawful society - a 415 White Paper Fan - and to counts 12 and 13 oath of which alleged possession of triad writings and on 1st and 2nd of April 1987 respectively.

10. We are concerned with the conviction on count 1 only.

11. D3 - Heung Wah-yim - was convicted after trial on count 1, on count 14 - being an office bearer of an unlawful society - a 489 - and on count 15, assisting in the management of an unlawful society. He appeals against conviction on all three counts and is represented by Mr. Litton.

12. D4 - Chan Kin-chung - was convicted after trial on count 1, on count. 16 - being an office bearer of an unlawful society, a 426 Red Pole; on count 17 - possession of triad writings; and on count 18 - possession of offensive weapons. He was represented by Mr. Lok and appeals against conviction an counts 1 and 16 only.

13. D5 -Heung Chin-shing, son of D3 and also represented by Mr. Litton - was found guilty after trial on count 1, on count 19 - claiming to be an office bearer of an unlawful society, 426 Red Pole, and on count 20 - attending a meeting of a triad society. He seeks leave to appeal all those convictions.

14. D6 - Cheung Leung-sing - was convicted after trial on count 1 and on count 21 - assisting in the management of an unlawful society. He is also represented by Mr. Alderdice and seeks leave to appeal against both convictions, the application in respect of count 21 being out of time.

15. D7, an well as his conviction on count 1, was also convicted on his own plea on count 22 - being an office bearer of on unlawful society. 426 Red Pole. His application is in respect of count 1 only.

16. D8 pleaded guilty to count 23 - being an office beares of an unlawful society, 426 Red Pole and to count 24 - possession of triad writings as well as to count 1. He too seeks only to question the conviction on count 1.

17. D11, in addition to count 1, pleaded guilty to count 27 - being an office bearer of an unlawful Society, 426 Red pole Again we are concerned only with the conviction an count 1.

18. There are various applications in respect of sentence with which we are not presently concerned.

19. The evidence relating to blackmail was given by Mr. Fung Tsang-Keung (PW46) who was at all material times manager of a new restaurant in Taipo. On 13th January 1987, a non who called himself. Mau Wong (King of the Cats) came and demanded $3,000 from Mr. Fung, saying, "You know we people of Taipo are of the same family Sun Yee on". At the same time Mau Wong also remarked on the marvellous decoration and musical instruments in the restaurant, and Mr. Fung sensed that a threat to cause damage was being made if protection money was not paid. There was no dispute that a blackmail had been committed on behalf of the Sun Yee On Triad society.

Section 26(1) and Section 35

of the Societies Ordinance , Cap. 151

20. S. 26(1) of the Societies Ordinance provides:

"Where any offence punishable with a fine or imprisonment has been committee, whether or not any person has been convicted in respect thereof, and such offence has been committed or purports to have been committed in the name or on behalf of any society, every office-bearer of such society and every person managing or assisting in the management of such society at the time of the commission of such offence shall be deemed to be guilty of such offend and shall be liable to the punishment prescribed by law therefor, unless he establishes to the satisfaction of the court that the offence was committed without his knowledge and that he had exercised all due diligence to prevent the commission of the offence."

By this sub-section if the jury were satisfied that the blackmail in count 1 had been committed on behalf of Sun Yee On - there being no dispute that that was a triad society, every office bearer of Sun Yee On and every person managing or assisting in the management of that society at the time of the blackmail (i. e., 13th January 1987) shall be deemed to be guilty of "such offence".By Ss.35 of the same Ordinance, except in the case of persons charged under the provision of SS. 19, 20, 24 and 25 and of persons arrested under the provisions of SS. 33 and 34(5), no person shall be charged with an offence under this Ordinance or any rule made thereunder unless the prior consent in writing of the Attorney General has been obtained. No such prior consent had been obtained in respect of count 1.

21. The contention advanced on behalf of all the applicants is that the judge erred in ruling that S. 35 had no application to the blackmail count and therefore that prior written consent of the Attorney General was not required.

22. It was further argued that S. 26(l) created a new statutory offence, to which S. 35 is applicable.

23. The first few words of S. 26(1) are "any offence punishable with a fine or imprisonment". These words imply that the offence is an offence already known to law and not a new offence: certainly not an offence created for the first time under the societies Ordinance.The phrase "suchoffence", used three times in the sub-section, must refer to "any offence". If the phrase "any offence" were intended to be a new statutory offence, the legislature would have  made its intention clear by inserting words such as "where an offence under this sub-section" in some appropriate part of the sub-section.

24. The only offence known to law in the present situation is blackmail. There is no such offence called "blackmail in the name or on behalf Of a society". I see no new offence being created by this sib-section.

25. If this interpretation is correct. then the phrases "any offence" and "such offence" in the present case must mean blackmail, an not an offence distinct and separate from blackmail called blackmail in the name or on behalf if a society. It follows that S. 35 has no application.

Expert Evidence

26. Expert evidence was given by Station Sergeant Cheng (PW47) and Superintendent Taylor (PW1) on the historical background of Sun Yee On, its office bearers, on. Chinese dates and numerals, and on triad rituals and activities generally. In particular, expert evidence was given on a number of exhibits, namely:

(1)    a "promotion" list (Ex. P53);

(2)    a printer's block (Ex. P. 61);

(3)    some red packets to contain money gifts, called "lai-see packets" (Ex. P. 62); and

(4)    a photostat copy of a list of names (Ex. P. 65 )

all found in D3's office;

(5)    a photostat copy of a list of names (Ex. P. 184) found in D6's desk and

(6)    another photostat copy of   largely similar list of names (Ex. P. 184a) found in D6's safe.

(1): On the promotion list (Ex. P. 53) the Station sergeant's evidence was that looking at this exhibit together with the lai-see packets, he was of the view that that exhibit was a recommendation of promotion from ordinary triad member to office bearer. However. if he were to look at this exhibit only, then "I actually don't know what it is - what it means."

(2) and (3): It appears that Ex, P. 61 was the printer's block from which the lai-see packets (Ex. p. 52) ware printed. The Station sergeant gave detailed evidence as to the design printed on the packets, with the Chinese character Heung (the surname of D3 and D5) surrounded by five stylized Chinese characters for On in the form of bats. He camp to the conclusion that these were. the lai-see packets used by D3 Heung Wah-gim as head of the Sun Yee On, and the stylized characters represented the Triad Society. Giving it as his expert opinion, the Sergeant said, "The owner of this lai-see packet is a big dragon head." On the other hand, he could not be certain if Sun Yee On  still retained a Dragon Head at present.

27. The Sergeant then gave his reasons for coming to the conclusions he did.  He said that because these items were found "in the Sun Yee On operation carries out by the polie", he believed that the person who possessed those items was the Dragon Head, i.e. the head of the society. As might be expected, the judge immediately directed the jury to completely ignore this evidence. Then the Sergeant repeated that his belief was based on the fact that these items were found during a police operation, and again the judge directed the jury to ignore the evidence. Then the Sergeant said a lot of Hoklo and Hakka natives had a close connexion with D3. Finally in answer to a question from the judge, the Sergeant said his conclusion would not be affected in any way by his knowledge of where the items  were found, which contradicted the earlier evidence the judge had directed the jury to ignore.

28. Since he started investigating into triad societies in 1958, he had never seen red packets of the type under consideration. But, under cross-examination, he admitted that his conclusions were based on the fact that the red packets had been found in a police raid, that Heung Chin the deceased Dragon Head of Sun Yee On Triad Society was the father of D3, and that D3 was a native of Hoklo, Finally, he admitted to being very puzzled about the red packets as something completely outside his experience of 30 years dealing with triad Matters.

(4), (5) and (6): The lists of names (Exs, PP 65_. 184, 184a) were discussed at great length in the course of expert the lists contained many names, of which it was said that 26 were names of office bearers of Sun Yee On.

29. According to the Station Sergeant, those who keep lists of triad officers would be high ranking officers of the society.

30. The expert evidence was that these were lists of triad office bearers. Curiously. the Station Sergeant again said, "Because frankly speaking, this is an exhibit (Ex, P, 184a) seizer by the Police during a Sun Yee On operation", so he came to the conclusion he did. The judge again directed the jury, in effect, to ignore this evidence In spite of this direction, the Sergeant repeated the same reason for his conclusion, adding that all the names were those of adults; how he came to this extraordinary conclusion he did not explain.

31. Then this witness attempted to explain the dates on the lists but had to admit. "I don't know what the date means". He also conceded, "Well, just judging from these papers, I can't tell what rank they are."- which is not surprising, for a man whose expertise was limited to two books he saw in china (in 1945 or 1946) of records of triad members.

32. Superintendent Taylor  (PW1) started his investigation into the lists with an assumption that they were triad related: "I considered the documents in a certain way, so I considered the list in the - and its possible relationship with triad society", and, "From the start I was looking at it from a certain point of view."

33. The Superintendent dose not read Chinese, but he was, for reasons not explained, able to say the names on the lists. He "appear to be the names of men", and he was unable to find women's names in the lists. He had never seen an alleged or proved list of office bearers of a triad society.

34. On the meaning of the numbers in the lists, he said it was purely a matter of legend . No conclusion could therefore be drawn on the significance of the numbers. He also said that if those lists were triad lists, then he would expect them to be kept by senior office bearers.

35. Neither expert said the lists were lists of office bearers of Sun Yee On.

36. The judge directed the jury that as against D3 and D6, in whose possession the lists were found, the Crown had also to prove that they knew these were Sun Yee On Triad Officers' lists.

37. The lists are of crucial importance to this appeal, containing as they do names of accused which , according to the expert evidence , were recorded there as office bearers in which case these named come directly within the ambit of S. 26(1) of the Societies' Ordinance.

38. The experts' evidence on the promotion list, the printer's block and the lai-see packets, in the light of the Sergeant's own admission , was wrongly admitted. The Sergeant and Superintendent Taylor do not appear to be experts on triad lists , and their evidence on this point too should not have been admitted. There was therefore no evidence to prove that the documentary evidence and the printer's block had a triad connection.

39. Another complaint that might be made against the lists is that as these papers were found on the 1st April 1987, there was nothing to show the persons named therein were office bearers on 13th January 1987 so as to bring them within s. 26. (1).

40. There was a further complaint of the judge's summing up to the jury on the use they might make of the lai-see packets (at page 297 D-J) and of the lists (at page 315 F - K ). In the light of the conclusion that these exhibits had been wrongly admitted, nothing further need be said on this complaint .

Corroboration

41. Mr. Litton for D3 and D5, and Mr. Alderdice for D6, argued that the judge wrongly directed the jury that two accomplices (PW2 and PW4) could give supporting evidence to each other.

42. Both PW2 and PW4 appear on the lists of triad office bearers These two man had been guiltily involved in criminal activities and triad matters.

43. PW2 was an active member of the Sun Yee On triad society. It was said that he was interviewed by D3 with a view to his own promotion within the Society , but with no success. He said he also attended a triad promotion ceremony where D9 and D10 assisted by setting up the altar, tying strings of red cloth around promotees' heads, and giving instructions as to the recruitment of followers. According to the expert evidence of the Station Sergeant, only promotees and office bearers could attend promotion ceremonies.

44. A weak or so after the ceremony , according to PW2's evidence, he and a number of new promotees attended at D3's office and were told by D3 that they , having been promoted, could now adopt followers. D3 told them he was the Dragon Head.

45. PW4 also was a member of Sun Yee On. He told of his interview with D3 about his promotion, during which D3 said he was the top man in Sun Yee On. D3 also told PW4 to go direct to his office if there was any trouble. He and two other promotees each gave D3 a lai-see packet.

46. The two witnesses had both been given immunity from prosecution, conditional upon their giving true evidence for the Crown. The judge warned the jury to look for supporting evidence independent of PW2 and PW4. He also warned the jury of the danger of convicting an accused in the absence of independent supporting evidence.

47. The judge then went on to tell the jury PW2 and PW4 could support each other , and the lists , the printing block and lai-see packets could be independent evidence supporting these two witnesses. On my findings of the expert evidence, these items could not corroborate PW2 and PW4.

48. There was much argument whether PW2 and PW4 were accomplices , and whether one accomplice can corroborate another. In this connexion, there was much debate whether PW2 and PW4 were participants in the different offences with which the accused were charged.

49. Both Mr. Litton and Mr. Alderdice on the one hand and Mr. Lugar-mawson on the other accepted O'Connor , J.'S. dictum that triad society is a conspiracy, and that to allege that a man is a member or officer of a triad society is to allege that he is part of a criminal conspiracy: The Qneen v. Sit Yat-keung(1986) HKLR 434, 438 affirmed in the Court of Appeal in  Attorney General V.Chik Wai-lun (1987) HKLR 41, 43 Both sides accepted that PW2 and PW4 were accomplices: see DPP v. Kilbourne (1973)57 C. A. B. 381, 405; Davies v. DPP (1954) A. C. 378, 400.

50. Whether by the dictum referred to above O'Connor, J, and the Court of Appeal meant that the usual evidential rules relating to conspiracy, particularly the rule on acts and statements in furtherance of a conspiracy , apply to triad societies is open to question. But the fact remains that the learned trial judge directed the jury to look for corroboration of PW2 and PW4's evidence and he told the jury that PW2 and PW4 could corroborate each other. For reasons to be given in Duffy , J.'s Judgment which I had the advantage of reading in draft, I hold that the judge erred in giving the directions that PW2 and PW4 were mutually corroborative.

The Individual Applicants

D1. 2, 7, 8 and 11

51. These five, who pleaded guilty, seek to a appeal against their conviction on Count I only, on the ground that the Attorney-General's prior consent in writing had not been obtained. For reasons already stated, this ground fails. As these are matters raised on behalf of these applicants fit for consideration by this Court, I would allow their applications for leave to appeal against conviction, treat the hearing of their applications as a hearing of their appeals, but dismiss the appeals.

D3

52. The documentary evidence against D3 consists of the lai-see packets, the printer's block, and the lists. We have stated our reasons for not accepting the expert evidence on the natur of these documents.

53. It is important to note that the date specified in Counts 14 and 15 is the 1st April 1987,

54. The oral evidence against D3 consists of the evidence of PW2 and PW4 which is relevant to the charge of being an office bearer. There is also the expert evidence relevant to the charge of assisting in the managemnet ,and that is that by having in his custody the lists of office bearers, D3 must be assisting in the management. As indicated, the expert evidence here cannot be accegted.

55. For the reasons discussed earlier the convictions of D3 cannot stand.

D4

56. It was not disputed that D4 had in his possession two books of triad poems. On the evidence of the Station Sergeant, only office bearers would keep such poems.

57. D4'S name also appears on the lists.

58. Neither the poems nor the lists show which triad society they referred to.

59. There being no evidence to show D4's connexion with any particular tried society, and in the light of our conclusions on the lists S. 26(1) of the Societies Ordinance does not apply.

60. It follows that D4's Conviction on counts 1 and 16 cannot stand.

D5

61. D5 is D3's son.PW17 and PW18 were students, and they gave evidence on count 19 (claiming to be an office bearer ) and count 20 (attending a meeting).

62. PW17 said in evidence chat some time in early 1985 D5 told him he was a 426, an office bearer holding the rank of Double Flower Red Pole of the Sun Yee On triad society , D5 also told of an initiation ceremony in D5's flat on the 26th February 1986 at which D5 assisted, though in an earlier statement, made to the police, he in effect said D5 had left the room at the beginning of the ceremony, returning at the end of the ceremony.

63. PW18 said he was taken by PW17 to see D5 about joining Sun Yee On , and D5 agreed he could join "the company". PW18 also described the same initiation ceremony of Sun Yee On he attended. at which D5 assisted.

64. So there is only PW17's evidence on count 19 and the evidence of both PW17 and PW18 on count 20. On count 19, the judge warned the jury that if they convicted on this count they would be convicting on the unsupported evidence of a suspect witness, which they were entitled to do if they were still sure that PW17 was truthful.

65. The judge made it clear that PW17 and PW18 were accomplices and could not support each other's evidence, and that there was no independent evidence to support these two witnesses.

66. The exports' evidence on initiation ceremony was attacked. In our view, evidence on this issue is well within their competence.

67. Whilst on the evidence of PW17, the jury was entitled to convict D5 on count 19, and on the evidence of PW17 and PW18, they were entitled to convict on count 20, it would nevertheless be unsafe for the jury to do so on the evidence of PW17 and PW18 in the light of the very real possibility that they might have been influenced by the documentary evidence, particularly the lists.

D6

68. D6 seeks to appeal against his conviction of both blackmail (count 1) and assisting in management (count 21). In his summing up, the judge correctly directed the jury that unless they were sure that the lists in question were triad lists of Sun Yee On , and that D6 knew the nature of those lists , they must acquit D6 on count 21.

69. The only evidence against D6 is the lists (Ex , P 184. And P 184a ), in which D6's name appears. The Station Sergeant gave expert evidence that only a high ranking office bearer would have in his possession a list of triad office bearers. There is also the presumption under S. 28 (2)of the Societies Ordinance, that if a person is found to have such a triad list in his possession , then he is presumed to be assisting in the management of that triad society.

70. In my judgment the expert evidence fails to establish that the lists were lists of office bearers of the Sun Yee On triad society. The presumption does not arise. It follows that S. 26 (1) of the same ordinance does not apply .

71. D6 was therefore wrongly convicted on both counts.

D10

72. Since D10 was acquitted of assisting in the management of a triad society, there was nothing to connect him with the Station Sergeant's evidence that only an office bearer was permitted to assist in management. Also in the light of my findings on the lists , the appearance of D10's name on the lists does not carry the matter any further. D10's conviction of count 1 therefore cannot stand, as we so indicated in the course of the hearing.

73. I would allow the applications of D3, 4, 5, 6 and 10, treat the hearing of those applications as hearing of their appeals and allow the appeals. Their convictions are accordingly quashed and their sentences set aside.

Silke, V. -P.:

74. The main thrust of_. these appeals is first, and this peculiar to count 1, that the offence alleged in that count is one which falls within the ambit of section 35 of the Society Ordinance - "the Ordinance" - and because of this the consent of the Attorney General is required before prosecution is initiated. It was submitted that, there being none, the count is a nullity.

75. Second, and this also affects count 1, that the expert evidence as to: one the name lists and their contents - "the lists" - (exhibits 184 and 184(a)), photostatic copies of which were found in the possession of D3 and of D6; two that, which for convenience, can termed "the promotion list", also found in tire possession of D6; three the laisee packets with the styalised bat on some of them and the character "On" on others, together with the printers block from which they were made, and all found in the possession of D3, did not establish that these items were proved items of triad ritual or significance sufficient to establish the charges which it was sought to prove by their use.

76. In consequence, the lists were not evidence which proved that the persons named in them were office bearers of a triad society. In particular, in respect of D3, that the matters found in his possession did not prove him to have been the Dragon Head of the Sun Yee On Triad Society, the "unlawful society" referred to throughout. Its existence is not in dispute.

77. It is submitted that these various items did not, because of the nature and extent of the expert evidence, become evidence so as to prove any of the matters which the Crown was required to prove in order to secure convictions on the counts as laid. Further that, in consequence, they were not matters which could be used as corroborative of any of the evidence given by the "accomplice" witnesses in the course of the trial.

78. On the second main issue, and in particular on the matter of the lists, by the evidential value of which, in my judgment, these appeals stand or fall, I am in complete agreement with the reasoning and the conclusions of my Lord the Chief Justice whose judgment I have had the opportunity of reading in draft. These matters were not, on the evidence emerging from the expert witnesses, Station Sergeant Chang and Superintendent Taylor, proved to be that which it was alleged they were. They could not be used as corroboration.

79. The direction given by the trial judge that they could be so used was therefore in error and, in the circumstances of this case the jury must have been misled. The lists were a major plank in the case for the Crown and they failed to hold up. I do not find myself in a position to say what view the jury might have taken if the lists and the evidence in respect of them had not been before them.

80. As to D5: the trial judge warned the jury that the evidence of PW17 and PW18 - the main witnesses in respect of D5 on counts 19 and 20 were "accomplices" - and uncorroborated, they having given evidence of the same incident. The jury was entitled, bearing in mind the general accomplice warning, to find their evidence true and therefore to convict. It would however be unsafe in all the circumstances of this case - for the lists and all the other nonevidential matters could not out have affected the mind of the jury - to allow those convictions to stand.

81. Two other points arise in connection with the "accomplice" witnesses and their evidence and are a cause for concern. First, the view the trial judge took as to the nature of a triad society, treating it as a criminal conspiracy; second, his direction that the evidence of PW2 could corroborate that of PW4, and vice versa because they were speaking to two different incidents. Both were witnesses on the consideration of whose evidence a warning was properly directed to the jury.

82. As to the first. O'Connor, J. held, and at times in the course of the trial implemented, his firm view that a triad society is a criminal conspiracy. This must have the result that the words or actions of any member of such a society were in furtherance of that conspiracy and that evidence relating to those words or actions could be used against any person charged with a triad offence, treating all such persons as co-conspirators. This despite the fact that conspiracy at common law or otherwise is not charged.

83. His view stems from that which was said in The Queen v. Sit Yat Keung [1986] HKLR 434 - his own decision-and approved by the Court of Appeal in The Attorney General v. Chik Wai Lun [1987] HKLR 41.

84. I would interpolate here that, somewhat to my surprise, both sides in the hearing or these applications adopted the "criminal conspiracy" proposition.

85. In Sit, an appeal from the decision of a magistrate who has convicted the appellant of two charges:(1) being in possession of triad writings and (2) being a member of a triad society, the issues were - and they were resolved against the appellant-first, that on the possession charge the Crown had to prove, as well as a knowing  possession, that the possession was for a criminal purpose; and second, on the membership charge, that the evidence at trial left it unsure as to whether or not the appellant remained a triad member at the trial date - the proposition  "once a triad always a triad" was in contention.

86. The possession of the writings raised the presumption of membership contained in section 28 (1) of the Ordinance. The appellant had made statements to the police admitting membership. A triad expert was called.

87. The material attack in the appeal was that made on tire "doctrine", as O'Connor, J. described it, of "once a triad member, always a triad member". This attack was. somewhat unreal as it had been the appellant's evidence that he was never a member at all. However, O'Connor, J. was_. asked to express a view as to whether a person could cease to be a member of a triad society.

88. He gave consideration to R. v. Leung Hon Cho [1964] HKLR 633 and to R. v. Tam Hon Ho [1967] HKLR 26 and went on at p.438:

"A triad society is an illegal organization. I find it difficult to comprehend how its rules, which are themselves illegal, can have any binding force on a person wishing to untie them. Any such rules are contrary to public policy, and ought not be given validity by the courts. It would be a disreputable system of jurisprudence that bound a person to membership of an illegal organisation from which he wished to part. A triad society is simply a criminal conspiracy that has been given particular statutory recognition.One can retire from a criminal conspiracy, and in my view one can retire from a triad society. In order to do so, what is necessary in law is to cease to adhere to it. What, from an evidential aspect, is necessary, I leave for consideration on another occasion. It might be that_. from a practical aspect, a defendant's mere assertion that he had withdrawn, would not suffice to raise the issue."

89. In Chik Wai Lun, the Court of Appeal was considering an appeal by the Crown, by way of Case Stated, from the decision of a magistrate. The magistrate had ruled that there was no case to answer upon a charge of being a member of a triad society. The evidence at trial was that the respondent, aged 16, had been intercepted by a police constable and had admitted membership of the Fuk Yee Hing Triad Society.

90. The questions posed to the Court were, briefly: does the determination of membership involve a question of law; is a bald admission of membership sufficient evidence of membership; does there have to be evidence, accepting as true the admission made to the police constable, that the respondent was a member at the date set out in the complaint.

91. On the first issue, Mr. Litton, who with Mr. Plowman represented the respondent, had urged that the question was one of mixed fact and law. This proposition did not find favour with the Court and Cons, V. P., in delivering the judgment of the Court, approved at page 43 that passage from Sit which I have set out above. It was held that the matter was a question of fact alone.

92. When the third issue fell for consideration Cons, V. P. again referred to Sit and stated, at page 45, that the doctrine that "once a triad always a triad" could not hold as a matter of law.

93. Chik was concentrating on the questions posed in the case as stated. With respect, it did not, other than by including passage set out above from Sit, further consider the particular aspect of criminal conspiracy.

94. For myself I cannot accept that Chik can be held out to have approved so wide spread a contention; that all triad charges are, as a matter of law, criminal conspiracies thus bringing into play, all those matter of evidence and proof peculiar to conspiracy charges when no such charge is laid. That was never intended nor, with the greatest respect to the trial judge, would I think it to have been right. As a matter of fact and definition, triads are unlawful societies and do involve themselves as a general body in criminal activities whether they be called Sun Yee On - as here - or by any other name. But that is as far as the proposition can be taken or, indeed, as it should go.

95. Whether PW2 and PW4 were accomplices in the sense of participes criminis in the actual charges which faced the applicants affected by their evidence - they were confessed triad office bearers - is a matter of debate. For myself I would be prepared, from the very nature of these witnesses and from the content of their evidence, to find them as witnesses concerning whom an accomplice direction was both desirable and necessary. The trial judge appeared to take the view, though he did not so term them. that they were accomplices and in that I would not be prepared to fault him. But he then went on the direct till jury that, because they gave evidence concerning different incidents - and I think it unnecessary to set out what that evidence was - they could corroborate each other, this contra to the ordinary rule relating to this type of witness. They spoke to the same charges.

96. I am, throughout this judgment, timerous in voicing disagreement on matters of law with so experienced a judge whose knowledge of the authorities is compendious. But I must contain my fears for I view that direction as being wrong for the reasons to be given by Duffy J., whose judgment I have also had an opportunity to read in draft, and with which I agree on this aspect.

97. I would therefore grant leave - and leave out of time in respect of D6 on count 21 - treat the hearing of the applications as the hearing of the applications as the hearing of the appeals and allow the appeals of D3, Heung Wan Yim, on counts 1, 14 and 15: D4, Chan Kin Chung, on counts 1 and 16 D5 , Heung Chin Shing , on counts 1, 19 and 20 and D6 , Cheung Leung Sing, on counts 1 and 21, quash their convictions and set aside their sentences.

98. To come specifically to that which I have referred to until now as count 1.

99. I regret that I am about to muday the waters of guidance which have flowed my Lord's Judgment. I am, with respect, in unfortunate but firm disagreement for, in my judgment, consent is a necessary pre-requisite to a prosecution involving this most unusual section.

100. My Lord has set out section 26 of the Ordinance in full and I do not think it necessary to recite it again but I would make these preliminary points.

101. The section applies to "any offence" punishable with a fine or imprisonemot which covers a wide range of statutory offences. It matters not whether a person has been brought to conviction for "any offence" It applies even if the person committing "any offence" improperly or falsely-"purports" is the expression used-says he is committing it on behalf of any society."Any society" does not restrict the application of the section to an unlawful society, triad of not: by the terms of the definition of society in section 2 of the Ordinance, this could include any club, company, partnership or association or persons, whatever the nature or objects, to which the provisions of the Ordinance applies. I am not unmindful of the items set out in the schedule to the Ordinance which delineates persons who are not subject to it. Nevertheless, the expression "any society"is, in the context, a wide one.

102. The section supplies a defence to prosecution by its use: though how valuable this may be, in the light of the use of the word "and", may well lie for another days work.

103. In both its subsection (2) and its subsection (3) the section clearly envisages a prosecution being brought under it. Its subsection (2) uses the words "liable to be prosecuted under this section": its subsection (3) the words "in any prosecution under subsection (1)".  In addition subsection (3) provides an evidential presumption in aid of any such "prosecution". Further an accused may be prosecuted even if he has not personally taken part in "any offence". A person convicted by use of it faces the same penalty as provided for the "any offence". I view it as a penal section in a penal ordinance.

104. On its face, section 26(1) is one which cries out for the supervision of tine Attorney General evidenced by his granting of, his written consent to a prosecution.

105. The issue is: Does it come within the provisions of the existing section of the existing section of the Ordinance, - section 35- providing for such supervision.

106. This reads:

"Except in the case of persons charged under the provisions of sections 19, 20, 24 and 25 and of persons arrested under the provisions of section 33 and 34 (5) no person small be charged with an offence under this Ordinance or any rule made thereunder unless the prior consent in writing of the Attorney General has been obtained."(Emphasis supplied).

107. The debate has turnef upon on the construction of the words emphasised, it being the contention of the Crown that the offence-"here in any event "-is blackmail and that this is not "an offence under this Ordinance". Section 26 is not an offence section.

108. Of the sections which are exempted from the requirement of consent: Section 19 relates to office bearers and persons managing or assisting in the management of an unlawful society - "unlawful society" is defined by section 18 and its subsection (2) deems every triad society to be an unlawful society -; section 20 relates to membership of an unlawful society or claiming or professing such membership; section 24 relates to persons convicted under either sections 19 or 20 - or section 29(c), that is becoming an office bearer in another society without permission of the Registrar of Societies; section 25 deals with any society the registration, or exemption from registration, of which has been cancelled and with any office bearer of such a society who becomes an office bearer of another society without permission.

109. Sections 33 and 34(5) relate to searches and the resulting arrest of persons at that which appeared to be a meeting of an unlawful society and, further ,with persons who refuse to comply, or who obstruct, a summons by the Registrar, issued to compel the appearance before him of persons able to give information on the activities of unlawful societies.

110. I have set these out in detail, for it will be noted that, of them all, only section 25 relates to "any society", as opposed to an unlawful society.

111. The history of that which is now cap.151 of tae Laws is instructive.

112. It was first enacted as Ordinance No.28 of 1949 Its then section 21 contained the consent provisions and it made use of the same expressions as those emphasised in s. 35. In 1949 only those sections, the equivalent of the present sections 33 and 34(5), were exempted.

113. Ordinance No. 3 of 1952 amended by adding three new offence sections: sections 12, 12A and 12B. All these related to offences in connection with unlawful societies.

There was no amendment to section 21.

114. Next, Ordinance 31 of 1957 amended by adding three further offence sections: sections 12C, 12D and 12E, the present day equivalents of which are sections 24, 25 and, that under direct consideration, section 26. The new s.12E is in precisely the same terms as is the now s. 26. Section 21 was amended by awing to it the new sections 12C and 12D but, it is emphasised, not s.12E.

115. Next, Ordinance 28 of 1961 amended section 21 by adding to it sections 10 and 11- which are the now sections 19 and 20.

116. No other material amendments, other that the general renumbering have since been made. Despite its existence since 1957 section 26 has never before been put to use in these courts until this trial.

117. Ordinarily, an office bearer of "any society" or persons managing or assisting in the management of "any society", simply by holding such office could never be directly charged, by virtue of office , with offences committed on behalf of "any society" that is vicarious criminal liability , without the use of section 26. Were they direct participes criminis then, that would be a different matter-although even then, by virtue of section 26(2) they might well, on the face of it, be threatened with double jeopardy. That particular matter does not , however, lie for decision here.

118. Had the Legislature in 1957, when it enacted the new offence sections 12C and 12D which dealt expressly with unlawful societies and 12E which did not, and when it made two of them exceptions to the requirement for consent, must be taken to have made a considered decision not to include, as exempted from the requirement of consent, section 12E. I recognise that this may be thought, in the light of Mr. Lugar-Mawson's succinct and explicit submissions , to be a form of post hoc propter hoc argument. But I feel myself fortified in that which I have said by the use in subsections (2) and (3) of the then section 12E of the expressions "be prosecuted"and "any prosecution". What could make it clearer that an offence in connection with section 12E is contemplated? How can a person be prosecuted unless he is charged? The Legislature must he taken to have had that in mind.

119. In my judgment, and leaving aside the extraordinary nature of the section itself, the whole scheme of this Ordinance since its origin in 1949 is to ensure that only unlawful socieities, their office bearers or managers, are brought before these courts without the express consent of the Attorney General.

120. I would therefore reject the narrow interpretation sought for by the Crown-and I have not neglected to consider the analogies which Mr. Lugar-Mawson sought to draw with other sections in other Ordinances - and treat the words "offence under this ordinance" as including section 26. I prefer to apply that which I think to be a "fair, large and liberal construction: (s. 19. Interpretation and General Clauses Ordinance Cap.1 ) to that which I view as a penal section.

121. It follows that count 1 in the indictment is a nullity consent being required.

122. That being so the pleas of guilty by D1 , Chan Kai, D2, Kong Kai Wing, D7, Chan Man Kwan, D8, Pang Chi Sum and D11 ,Ng Kam Lau, to count I were of no effect. You cannot plead to that which is a nullity.

123. I would grant their applications for leave out of time , grant them leave to appeal , treat the hearing of the applications as the hearing of the appeals, quash their convictions and set aside their sentences on that count only.

Duffy, J,

124. The learned trial judge referred to PW2 and PW4 and PW17 and PW18 as suspect witnesses. Of all of them he said in his summing up at p.287 .

"They are all criminals and they are witnesses of a type about - I think counsel have mentioned to you, you have to be particularly cautious, because they are the type of witness who may lie easily and with a free conscience,"

And again later he said at p.288 :

"They are persons who would be prepared to put their own interest first. And being themselves apparently members or officers of triad, they are particularly well placed to tell convincing lies about triad matters,"

He then went on to deliver the classic full accomplice warning.

125. PW2 and PW4 gave evidence against D3 in relation to Count 14 which alleged that D3 was an office bearer of the San Yee on triad society, and more specifically a 489 of that society, or its dragon head or leader. Both PW2 and PW4 admitted that they themselves were office bearers of the same triad society. They each testified to a separate occasion when D3 had admitted to them that he was that triad society's leader. The evidence was that a triad society had only one dragon head or leader at any given time.

126. At no stage in his summing up did the learned trial judge use the term accomplice to describe any one of the four suspect wintesses, but clearly he regarded them as such. I think he was right to do so.

127. Mr Litton for D3 submitted that PW2 and PW4 were clearly accomplices in the sense that they were participes criminis, as, being office bearers of the same triad society of which D3 was alleged to be leader, they should be regarded as Co-conspirators, each triad society being nothing more nor less than a criminal conspiracy, and all its members being also members of that conspiracy.

128. He derived his authority for that from a dictum of the learned trial judge in R. v. Sit Yat-keung (1986) HKLR 434, 438 which was quoted with approval in AG v. Chik Wai-lun (1987) HKLR 41, 43. In Sit Yat Keung, O'Connor J was highlighting the absurdity of the proposition that once a person was a triad society member he was always a triad society member by using the analogy of the criminal conspiracy, whose membership, he said, was as transient as its members determined. It is, of course, notorious that members of triad societies commit various criminal offences in the name of these societies, but that is a far cry from ascribing to each triad member the tag of conspirator with all that that involves evidentially. and in terms of culpability,

129. For my part I suggest it would be manifestly wrong to take this conspiracy out of the realms of pure analogy. Such innovations ought to be left within the province of the legislature. Section 26 of the Societies Ordiance deems only office bearers and managers and assistant managers to be guilty of any offence committed in the name of their triad society unless they can establish lack of knowledge and that they had taken steps to prevent the crime. The legislation goes no further than that and certainly does not create a triad conspiracy, nor does it envisage that the rules of evidence, which relate to acts and declarations in furthermore of a conspiracy, should apply to that enactment.

130. Suffice it to say that I do not accept that the status of PW2 and PW4 as accomplices is determined by taking them to be members of any new style triad conspiracy.

131. However it does seem to me that as they are self confessed office bearers of the same triad society of which it is alleged D3 is also an office bearer, they properly fall within the description participes criminis in relation to this very offence even although D3 is further and more specifically alleged to be its leading office bearer.

132. D3 was also charged with Count which relies upon section 26 of the Societies Ordinances Cap.151 and that section makes no distinctions among the triad society hierarchy. I have already referred to it and it deems guilty of any offence committed in the name of a triad society all that society's office bearers and managers and assistant managers. In relation to Count l, a count of blackmail, the jury had to find that D3 fell within one of these categories before they could convict him of blackmail. So far as that count was concerned PW2 and PW4, as office bearers, were clearly participes criminis.

133. Having decided to treat PW2 and PW4 as accomplices and to give the jury the full accomplice warning the learned trial judge then turned his attention to the matter of corroboration, When dealing with the evidence in support of Count 14 he said this:

"Now I am going to tell you what you could consider_. as being independent supporting evidence, and it is a matter for you to decide whether, in fact, you find it to be such supporting evidence as leads you to feel quite happy in accepting the evidence of either of those witnesses. And the first thing is that PW2 and PW4 can give such support to each other."

134. Later when dealing with the 20th count. and the evidence of PW17 and PW18 in relation to that count he said this:

"This count 20, again the evidence on that, of course is the 17th and 18th witnesses of an initiation ceremony. I told you that as regards the 3rd Defendant that PW2 and PW4 could lend support to each other. I see you are nodding your heads. That does not apply to the 17th and 18th witnesses for a legal reason ........ Perhaps I should tell you very simply the reason for that. It's a legal reason, but the reason is, firstly, that the 2nd and 4th defendants (witnesses) were telling about separate incidents, they weren't both talking about the same incident, whereas the 17th and 18th are telling about the same incident, and also the 17th and 18th had been living together in the same flat under protective custody. So that's very simply why the difference is."

135. Clearly the learned trial judge had in mind Lord Simond's third class of accomplice, listed by him in Davies .v. DPP (1954)38 Cr. App. R. 11, 33, when he told the jury that PW2 and PW4 could corroborate each other. With respect it seems to me that there the learned trial judge fell into error because if PW2 and PW4 were accomplices they were of Lord Simond's first class and were what Lord Hailsham in DPP v. Kilbourne (1973) 57 CAR 381 refers to as "fellow accomplices" or participes criminis in the actual offence with which D3 was charged. Furthermore while they did give evidence about separate incidents of D3 admitting to them that he was the Sun Yee On dragon head, they were giving evidence in support of the same charge. Lord Simond's third class deals with the evidence of parties_. to similar, but separate offences committed by the defendant which is admitted to prove system.

136. In Kilbourne, Lord Hailsham clearly distinguishes between the various categories of accomplice witnesses as the following passages from his judgment in Kilbourne demonstrate:

Firstly at p.404:

"The other ground upon which the general proposition may be defended is the bald proposition that one accomplice cannot corroborate another. In support of this proposition were cited Noakes (1832)5 C & P 326 per Littledale J; Gay (1909)2 Cr. App, R. 327; Prater (1959)44 Cr. App, R. 83; [1960] 2 Q.B. 464 per Edmund Davies J, at pp.85 and 465; Baskerville [1916] 2 K.B. at p.664, citing Noakes (supra); and Cratchley (1913)9 Cr. App. R. 232.

I believe these citations have been misunderstood. They all refer to fellow accomplices : see per Lord Diplock in DPP v. Hester (Supra). Obviously where two or more fellow acomplices give evidence against an accused their evidence is equally tainted. The reason why accomplice evidence requires corroboration is the danger of a concocted story designed to throw the blame on the accused. The danger is not less, but may be greater in the case of fellow accomplices. Their joint evidence is not 'independent in the sense required by Baskerville (supra at pp. 91 and 667 of the respective reports), and a jury must be warned not to treat it as a corroboration,"

Then at p.405:

"On the other hand, where the so-called accomplies are of the third class listed by Lord Simonds in Davies v. DPP (1954)38 Cr. App, R. 11 at p.33; [1954] A. C. 378 at p,400 the danger is or may be nugatory. ..... I do not, therefore, believe that there is a general rule that no persons who come within the definition of accomplice may be mutually corroborative. It applied to those in the first and second of Lord Simonds' categories and to many other cases where witnesses are not or may not be accomplices. It does not necessarily apply to all witnesses in the same case who may deserve to be categorised as "accomplice". In particular it does not necessarily apply to accomplices of Lord Simonds' third class, where they give independent evidence of separate incidents, and where the circumstances are such as to exclude the danger of a jointly fabricated story".

Lord Diplock also dealt with the matter in DPP v. Hester [1973] 57 Cr. App. Rep. 212, 246:

"There is no case in the books to support the practice of treating the evidence of one suspect witness as incapable in law of corroborating the evidence of another, except where both suspect witnesses are accomplices in the strict sense of being participes criminis with the accused in the crime with which he is charged."

137. These passages are clear authority for the rule that fellow accomplices cannot corroborate each other. I have neither found nor been referred to any authority to the contrary. As, therefore, I find that PW2 and PW4 fall into the category of fellow accomplices I must conclude that it was a misdirection for the trial judge to tell the jury that PW2 and PW4 could corroborate each other. For that reason alone I would allow the appeal of D3 against his conviction on counts 1 and 14.

138. In other respects I have had the advantage of reading the judgment of my Lord the Chief Justice and for the reasons he gives I would allow the appeals of D3. D4, D5, D6 and D10 and dismiss the appeals of D1, D2, D7, D8 and D11.

Silke, V.-P.:

Sentence (Having heard counsel)

139. We are now concerned with the sentences passed upon the 1st, 2nd, 7th, 8th and 11th defendants and those were respectively the 1st, a total of 4 1/2 years' imprisonment; the 2nd, a total of 4 1/2 years' imprisonment; the 7th, a total of 4 years' imprisonment; the 8th, a total of 4 years' imprisonment and the 11th, a total of 4 1/2 years.

140. The submission of Mr. Alderdice is not that the sentences on the 1st count should be concurrent with sentences passed upon the other counts which concerned the several applicants but that the totality overall is too high. It is said that, in certain cases by making the first sentence consecutive and arriving at the totality to which we have referred, this would have the effect of punishing twice those concerned for being office bearers in a triad society. That is the grounding factor for the 1st count.

141. We have considered the totalities of the sentences passed and we think that the judge erred in making the whole of the sentence on the 1st count consecutive with the sentences imposed on the other counts. The justice of the case, and the public interest, would be served by leaving the quantum of the sentences unaltered, for those sentences as they stand individually are proper sentences but directing that one year of the sentence passed on count 1 be consecutive with the other sentences and one year concurrent. The effect of that would see that the 1st and 2nd defendants would serve 3 1/2 years' imprisonment, and the 7th and 8th defendants 3 years' imprisonment.

142. As to the 11th defendant. He was convicted of two offences: the 1st and 27th count, that latter being similar to counts upon which the 7tn and 8th defendants were also convicted. We do not quite follow why he was given 2 1/2 years on that count while they received 2 yearss. There is nothing on the record which shows why that distinction was made in his particular case.

143. We would therefore order that the sentence on the 27th count of 2 1/2 years be reduced to one of 2 years' imprisonment. We will take the same course in respect of him as we have taken in respect of the others, that is on the 1st count, the sentence of 2 years will run as to 1 year consecutive and 1 year concurrent with that on count 27. This gives a total of 3 years to serve.

144. We would therefore allow the application in respect of leave, treat the hearing as the hearing of the appeal and allow the appeals as indicated.

Representation:

Gary Alderdice, Esq. (D.L.A.) for D1, D2, D7, D8 & D11 (on conviction and sentence).

Henry Litton, Esq., Q.C. & Jimmy Wong, Esq. (Ford, Kwan & Co.) for D3 & D5

Lawrence Lok, Esq. (So & Karbhari) for D4

Gary Alderdice, Esq. (Lee & Chow) for D6

Cheng Huan, Esq., Q.C. & Lawrence Lok, Esq. (Raymond M.K. Wu & Co.) for D10

G.J. Lugar-Mawson, Esq. for Crown/Respondent.