Ma Kwok Wai v. The Queen

CACC000644/1980

Coram: Barker, J. in Court

Date of Judgment: 2nd September, 1980

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JUDGMENT

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1. On the 26th June, 1980 the appellant who was legally represented appeared before Mr. E. Lim at the San Po Kong Magistrate's Court and pleaded guilty to a charge of professing to be a Member of a Triad Society contrary to Section 20(2) of the Societies Ordinance Cap.151. On the 

9th July, 1980, after considering the relevant reports, the learned Magistrate ordered that the appellant be sent to a Training Centre. Against that sentence the appellant appealed.

2. The matter came on before me, as an appeal against sentence, on the 15th August, 1980. It was then contended on behalf of the appellant that the Probation Officer's report, which was unfavourable to the appellant, was based on misapprehension and mistakes on the part of the Probation Officer. I therefore adjourned the hearing in order that the Probation Officer could be called to give evidence.

3. The adjourned hearing came on before me on the 1st September, 1980. My attention was drawn to the Court of Appeal decision of Cheng Chung-wai v The Queen, the judgment in which was delivered on the 24th July, 1980. In that case the appellant was charged with professing to be an office bearer of a triad society contrary to Section 19 of Cap. 151. The only evidence against him was that he admitted that he was such an office bearer in response to questions asked by the police. Addison J., who delivered the judgment of the Court said at page 15.

"I am of the opinion that an admission to or confession of being an office-bearer made by a person to a police officer in response to a question asked in that regard does not amount to "professing" within the meaning of that word in section 19 of the Societies Ordinance Cap. 151. Such may afford evidence of that person being an office-bearer, but that is entirely another matter. I know of no case under our law when a truthful confession to a police officer constitutes the actus reus of a crime."

4. In the case before me the only evidence against the appellant was that at the police station he was cautioned and asked if he was a member of a triad society and he said "I understand, I am." In my judgment precisely similar consideration apply to a charge of professing under Section 20(2) of the Ordinance as apply to a charge of professing under Section 19 thereof. Following as I do the reasoning of Cheng Chung-wai's case, I therefore find that the appellant was not guilty of an offence under Section 20(2). I therefore granted leave to appeal against conviction out of time, allowed the appeal and quashed the conviction. I only add that no possible criticism can be made against the learned Magistrate for having accepted the appellant's plea of guilty. He could not, as a matter of chronology, have known of the decision in Cheng Chung-wai.

Representation:

Paul Fok (George Liang & Co.,) for appellant

Miss Beeson for Crown/respondent