HKSAR v. Wong Keung and Another

[English Translation – 英譯本]

HCMA 176/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 176 OF 2007

(ON APPEAL FROM TWCC NO. 2274 OF 2006)

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BETWEEN

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Before: Hon Nguyen J in Court

Date of Hearing: 9 August 2007

Date of Judgment: 19 September 2007

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JUDGMENT

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1.The 2^nd and 3^rd Appellants were convicted after trial of one count of “inviting another person to become a member of a triad society” and were each sentenced to 9 months’ imprisonment.  They now appeal against conviction.

Prosecution case

2.The prosecution case was that PW1 was an undercover police officer. In November 2002, he was attached to New Territories South Anti-Triad Unit and took part in an operation named “Glass marker”.  He called himself “Little Horse” and, posing as a red public light bus driver in Tsuen Wan, was responsible for collecting intelligence.

3.PW1 came to know a lot of people through this operation.  When the operation was completed, he resumed his identity as a police officer.  A few people were arrested in the course of the operation.  In the identification parade, PW1 identified “Mad Wing”, “Monkey” and “Brother Chu”, who would become the 1^st Defendant (D1), the 2^nd Appellant and the 3^rd Appellant in the present case respectively.  D1 and the 2^nd Appellant were drivers for the same public light bus route as PW1’s.

4.At 3.55 p.m. on 4 December 2004, PW1 was having tea with D1 at a restaurant on Hoi Pa Street, Tsuen Wan.  He asked D1 about his relationship with the 3^rd Appellant.  D1 claimed that the 3^rd Appellant was his young nephew and was very “bright” etc.  Thereafter he talked about the negotiation for driving rights over a new public light bus route at Liberte.  D1 called himself “Mad Wing” and his cousin “Pretty Wing”, and said “We Shing Wo already have 20,000 to 30,000 men in Kowloon and the New Territories alone”.  D1 said “Fat Cheung” was also his young nephew.  PW1 asked, “You mean your relative?”  D1 reacted strongly and answered, “What?  It’s the triad family.  Fat Cheung is also my cousin’s follower, and it was Fat Cheung who first took ‘Small Keung’ to Tsz Wan Shan.  Small Keung follows me, and also Little Robert, Little Fukian and Pork Wing.”

5.At 3 p.m. on 14 December 2004, D1, the 2^nd Appellant and his son accompanied PW1 to one Wing Fat Restaurant at 55 Yen Chow Street.  The four of them waited for the 3^rd Appellant at the restaurant.  The 3^rd Appellant later arrived.  At first he did not know the reason for the gathering.  D1 told the 3^rd Appellant that PW1 had encountered some problems and then asked PW1 to tell the 3^rd Appellant the details of his problems.  After he did so, the 3^rd Appellant answered and asked PW1 for his comments or suggestions.  Later, the 2^nd Appellant and D1 “interrupted” one after the other and requested the 3^rd Appellant to take PW1 as his follower.  The relevant conversation was held in PW1’s presence, that is, they provided a solution to PW1’s problems by inviting him to consider becoming the 3^rd Appellant’s follower.

6.Of course, D1 and the 2^nd Appellant told the 3^rd Appellant that they were mainly asking the 3^rd Appellant to consider taking PW1 as pupil.  However, the 3^rd Appellant did not accede to this request immediately.  Later he asked to which triad society the relevant person (King Shing) belonged.  After knowing the answer and his identity, the 3^rd Appellant picked up his phone and called the relevant person in the others’ presence.  In the course of the conversation, he referred to PW1 as his “brother” and said that the best solution to the problem was to make peace because he was “one’s own”, meaning that he treated PW1 as his own.

7.Thereafter, D1 talked about the joining ceremony/the “old hair” problem and the time of the next meeting.  The 3^rd Appellant taught PW1 how to “reveal the name of the protector”, that is if PW1 was asked by King Shing and his people why he did not “reveal the name of the protector” (i.e. reveal his identity as a triad member) when he was assaulted during the incident, he could explain that his elder brother (i.e. the protector) asked him “not to make trouble”, and in any event, when they attacked others, they also had not revealed their triad identity, etc.

8.At about 7 p.m. on 23 December, PW1, D1 and the 2^nd Appellant went to Nice Capital Hotpot at 1/F Golden Hen Plaza, Mongkok to have dinner with the 3^rd Appellant.  The 3^rd Appellant (Brother Chu) was there with another girl.  After PW1 greeted the 3^rd Appellant and called him “Brother Chu”, he went to the toilet.  When he returned, he heard the 2^nd and 3^rd Appellants talking about matters of Hung Fat Shan.  The 3^rd Appellant asked the 2^nd Appellant if the title poem was “The Fourteen Righteous Spirits are Protecting China” and the 2^nd Appellant replied “yes”.  At the time, the 3^rd Appellant told the others, “We are really Hung Fat Shan.  Hung Fat Shan is a hill with many branches”.  He went on to say that he was one of the branches and further explained how the people bearing the Hung Fat Shan “Number” built up their presence in Hong Kong.  “Hung Fat Shan is related to the Kuomintang”.  The 3^rd Appellant also mentioned “Lawrence”.  He recalled that people of “Lawrence” came to Hong Kong from the Mainland back then and “those brought up in Hong Kong” arranged for them to “settle down” in Shek Kip Mei.  After helping them build up their presence, they turned back to suppress them.  That was why “Number” and “Shing Wo” were “eternal enemies” in those days.  Thereafter, the 2^nd and 3^rd Appellants mainly discussed the operation of the public light bus routes, and they continued to eat until 9.10 p.m. and then left.

9.Under cross-examination, PW1 admitted that on 14 December, he understood that the 3^rd Appellant was a member of the “Wo Shing Wo” triad, but Hung Fat Shan was Number 14.  Therefore, he did not understand why the 3^rd Appellant would claim himself to be a member of “14” when he was a “Shing Wo”.  He thought that what the 3^rd Appellant said was unreasonable.  He knew that the 3^rd Appellant participated in a drama and he had seen the 3^rd Appellant’s face in a poster of that drama (i.e. Exhibit D3(1)).  As for the Hong Kong Public Light Bus Association, he and the defendants had applied to join, but he did not know the results.

Defence case

10.At trial, the Appellants did not give evidence on the special and general issue.  Nor did they call any witness.

Magistrate’s verdict

11.In his Statement of Findings, Magistrate So gave the following verdict on the charge:

“Apparently, as the matter developed, the 3^rd Appellant knew that D1 and the 2^nd Appellant invited PW1 to join his triad.  At this stage it was also clear that he had participated in this act, namely acting together with the others to invite PW1 so that he could get what he wanted and solve his problems.  Of course, there was no mention of any triad group throughout their conversation, but I notice that the contents of the conversation contained a lot of triad language.  Lastly, I do not know which triad group they were inviting PW1 to join, but they had used a lot of triad jargons.  I hold that what PW1 was invited to join was a triad society.

On Charge 4, I hold that the prosecution has proved beyond reasonable doubt each and every element of the offence except for the three characters ‘Wo Shing Wo’ in the particulars of charge.  I convict D1, the 2^nd Appellant and the 3^rd Appellant on Charge 4.”

Grounds of appeal

12.Counsel for the Appellants Mr Tse has advanced several grounds of appeal.  The first ground is that:

“The prosecution did not have evidence to prove beyond reasonable doubt all elements that had to be proved for the charge.”

13.Mr Tse submitted that for this charge, the prosecution had to prove that the society which the Appellants invited PW1 to join was a triad society; by analogy, for a charge of trafficking in dangerous drugs, it had to be proved that the subject drugs were dangerous drugs controlled by the legislation.

14.I have referred to the case of HKSAR v. Sin Chi Yin [1999] 2 HKC 403.  At page 408, the judge stated clearly that:

“A charge under s 20(2) [of the Societies Ordinance, Cap. 151] has the following two elements which must be proved by the prosecution before a defendant can be found guilty and they are:

1.          The entity named in the charge, in this case ‘No. 14 Hung Fat Shan’ is an active triad society in Hong Kong.

2.          The defendant in fact made the claim that he was a member of such.”

15.As regards the elements that have to be proved for this charge, I set out the relevant statutory provisions for ease of reference:

(1)     Section 20(2), the Societies Ordinance, Cap. 151

“Any person who is or acts as a member of a triad society or professes or claims to be a member of a triad society or attends a meeting of a triad society or who pays money or gives any aid to or for the purposes of the triad society or is found in possession of or has the custody or control of any books, accounts, writing, lists of members, seals, banners or insignia of or relating to any triad society or to any branch of a triad society whether or not such society or branch is established in Hong Kong, shall be guilty of an offence and shall be liable on conviction on indictment ...”

(2)     Section 22(2), the Societies Ordinance, Cap. 151

“Any person who incites, induces or invites another person to become a member of or assist in the management of a triad society and any person who uses any violence, threat or intimidation towards any other person in order to induce him to become a member or to assist in the management of a triad society shall be guilty of an offence …”

16.Having compared the wordings of sections 20(2) and 22(2), I hold that in the present case, the offence of which the two Appellants were convicted also relates to triad activities that are prohibited under the Societies Ordinance, in particular the activity of inviting another person to be a member of a triad society.  This is similar to the offence in the above cited case which involved a member of a triad society.  Therefore, in my judgment, the relevant name of the triad society was an element of the offence which the prosecution had to prove.  The prosecution had to prove beyond reasonable doubt that the society in question was a triad society and that the defendants had invited PW1 to join that triad society.

17.On the prosecution evidence, on 4 December D1 claimed that he and “Brother Chu” (the 3^rd Appellant) were both “young nephews” of “Shing Wo”.  At law, this could not be used as evidence against the 3^rd Appellant.  Under cross-examination, PW1 admitted that on 14 December he understood that the 3^rd Appellant was from “Wo Shing Wo” triad society, but Hung Fat Shan was No. 14.  He did not know that the 3^rd Appellant, as a “Shing Wo”, would claim to be a No. 14.

18.Regrettably, in the particulars of charge, the prosecution had alleged that PW1 had been invited to join “Wo Shing Wo”, and on the prosecution evidence, the Magistrate could not rule clearly which triad society PW1 had been invited to join.

19.As the prosecution had failed to prove that the group which PW1 had been invited to join was a triad society, it is unnecessary for me to deal with the issue raised by Mr Tse as to whether the 3^rd Appellant’s acts constituted an invitation at law.

20.For the above reasons, I hold that the prosecution had failed to prove beyond reasonable doubt each and every element of Charge 4 against the 2^nd and 3^rd Appellants.  Therefore, the convictions against the two Appellants are unsafe and unsatisfactory.  The appeal is allowed and the convictions quashed.

Ms Lily Ho, Senior Government Counsel, for the HKSAR.

Mr Bruce Tse, instructed by M K Lam & Co, for the 2^nd and 3^rd Defendants.

Translated by Mr. Edmund Cham, Solicitor.