Kwong Kiu and Others v. The Queen
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CACC001136/1976
----------------- Coram: Briggs, C.J., Huggins, J.A. and McMullin, J. Date of Judgment: 23rd March 1977. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. There is no doubt that there was an affray at the premises of the Metropole Association Entertainment Department in the early hours of 21st June 1976 but the issue on this appeal is, in substance, whether there was sufficient evidence that these five Appellants took an active part in it. (The 2nd Appellant has abandoned his appeal). Other matters were mentioned by the Appellants in their addresses to this court but nothing they have said would justify our quashing the convictions. 2. Tam Cheuk-lap was formerly employed by the Metropole Association Entertainment Department. He subsequently returned to their premises and was not allowed by the cashier to sign chits for goods supplied to him. He considered that he had been made to lose face and, accompanied by the 10th Defendant, he went to complain to the "boss", Lam Yu-loi (alias Shek Sang). Shek Sang's wife, Lau Yiu-ying (alias Ping Che), was present on that occasion and she apologized for the misunderstanding. 3. On the night of the affray Tam Cheuk-lap 's wife ("Lap So") went to the association's premises with the wife of the 10th Defendant ("the little woman"). The latter was pregnant. Ping Che was there and had unfortunately been drinking heavily. A quarrel arose between her and Lap So, which appears to have upset the 10th Defendant's wife. The two visitors reported to their husbands what had occurred and these two men went to the association's premises to make a further complaint. They spoke to the 1st Defendant, who appears to have had some kind of supervisory position in the association. Although the judge reviewed the evidence at length it is not clear from his judgment exactly what he found to have happened, but by the time the affray started there was in the premises a large gathering of the 10th Defendant's associates. They were apparently all members of the same triad society, whilst those who worked in the association belonged to a rival triad society. The evidence suggests that a member of the visiting faction became tired of waiting for the result of the negotiations which the 10th Defendant was conducting and called for a fight. Thereupon the 1st Defendant rallied his men in defence and told any who might go into the kitchen to arm themselves with knives. In the brief affray which ensued several of the visiting faction were cut with knives. 4. The learned judge was satisfied that the 1st Defendant "was very much involved in this affair" and that his suggestion that the fight arose because of an alleged debt was untrue. The judge's conclusion was that the 1st defendant had been engaged in the fight and "went beyond the bounds of self defence". We take that to mean that he accepted that the 1st Defendant's men were attacked by the visitors but that the use of knives was not justified by the nature of their attack. Whilst for my part I am not sure that I would have come to the same conclusion had I been trying the case, we think we are bound by that finding and that the application of the 1st Defendant must therefore be dismissed. 5. The 10th Defendant's case at the trial was that the fight started while he was talking to Shek Sang in a private room and that when he walked out into the sitting room he was immediately pierced by a knife. He said that he did not fight back and there was no evidence to contradict that. Nevertheless the judge did not believe that he was in a private room when the fight broke out, because "it is highly unlikely that the first accused who was in charge in the premises would have had time to instruct the members of his group to get knives from the kitchen to attack the 10th Defendant, to cause the 10th Defendant to be wounded immediately on entering the sitting room". The judge also inferred from the fact that, when subsequently asked by the police why he and the 1st Defendant were fighting, the 10th Defendant did not deny that he had taken part in the fight that he was admitting having taken an active part in the fight, With respect we think that in all the circumstances that was not an inference which could fairly be drawn. As he had been wounded in the fight he could hardly deny that he took any part in the fight and he may well not have been in a condition to think clearly about the possible results of not drawing a nice distinction between a "part" and an "active part". Equally we find the reason given for disbelieving the10th Defendant's evidence as to where he was when the fight started not entirely convincing. It is enough that we have a doubt whether the verdict was safe and we allow this appellant's appeal against conviction on the first charge. The case against him on the charge of claiming to be a member of a triad society depended upon the statement which he made to the police. This Appellant alleged that he was induced to make the statement by actual violence against his person some hours before the statement was made, followed by threats and other inducements immediately before the statement was made. Before us he maintained that his evidence of the actual violence could be supported by production of the records of the police station, which would establish (contrary to the evidence of the officer concerned) that there was an opportunity for such violence because he was taken from the cells with the 8th and 9th Defendants between 0400 and 0415 on 23rd June. It is too late to introduce such evidence at this stage, not less because the Appellant was professionally represented at the trial. The judge was satisfied that the statement was voluntary and it contained a clear confession of membership of the 14K. His application for leave to appeal against conviction on Charge 3 must therefore be dismissed. His application for leave to appeal against his sentence of one day's imprisonment on that charge does not deserve more than passing consideration and must be dismissed. 6. The conviction of the 11th Defendant was based upon his admission that he was a member of the 14K, his presence in the room where the fight commenced, the asserted fact that "he was not truthful about the way the fight started" and the view that "it was highly unlikely that he as an innocent by-stander would have been injured in the way he was if he was not a participant". We find nothing in his statement to the police which indicates how the fight started, unless one infers from what he says that he saw the six or seven men enter the premises at the time they "appeared at the entrance". In our view there is no justification for concluding that he was untruthful and the conviction is really nothing more than an inference of guilt from association. There was strong ground for suspicion but the evidence was insufficient to prove active participation in the affray. We think the appeal of this Appellant must be allowed. 7. The judge found that the presence of the 12th Defendant in the premises was not accidental. He admitted having gone there with the 8th and 9th Defendants and having been there for a considerable period of time before the fight started, although he denied any triad connection and said he was there to play mahjong. That was the only evidence against him and it was, if anything, even weaker than that against the 11th Defendant. It is not without significance that counsel for the Crown at the trial took the view that there was no case for the Appellant to answer. The judge took a different view. Again there was ground for suspicion but no sufficient proof that the Appellant was an active participant in the affray and we think his appeal against conviction must be allowed. 8. The 13th Defendant was in a slightly different position. His statement to the police established that he was an office bearer of the 14K and that he went to the premises "to give them a hand" when he learned that there was "trouble". Of course his story was that he was to give only moral support and not that he had an intention to fight: according to him five or six members of the association staff suddenly attacked his group and, as he had no weapon with which to defend himself, he was cut down. No doubt the circumstances of his going to the premises suggest a likelihood that this Appellant would take an active part in any fight which might occur but, when that has been said, the fact remains that not every victim of a violent assault is necessarily guilty of an affray and we think that there was insufficient evidence to support the conviction. If that view be wrong, then the verdict on Charge 1 was none the less unsafe, and we allow the appeal against conviction on that charge. The conviction on Charge 4 was based entirely upon the 13th Defendant's statement to the police. He alleged that this statement was not voluntary but there is no ground for doubting the conclusion of the judge as to that. As to Charge 5 the Appellant admits possession of a writing relating to the 14K Triad Society - a writing which contained a number of triad poems - but now alleges that it was a copy made from a book in a library and he contends that such is not a writing within the meaning of s.20(2) of the Societies Ordinance. He did not give evidence to this effect in the court below and we think it is too late to raise such a defence on appeal. We dismiss the applications for leave to appeal against conviction on Charges 4 and 5, and the concurrent sentences of one day's imprisonment and nine months' imprisonment are not manifestly excessive. 23rd March 1977. Representation: |