Yu Fung Hi and Another

CACC000710/1995

IN THE COURT OF APPEAL

1995, No.710
(Criminal)

-------------------

Coram: Nazareth, V.-P., Bokhary & Liu, JJ.A. in court

Date of Hearing: 29 March 1996

Date of Judgment: 10 April 1996

----------------------

J U D G M E N T

-----------------------

Liu, J.A.:

1. After midnight on 25 October 1994, an altercation broke out in a Tsimshatsui bar between the appellants' group and a group of which Mr Lam Man Choi was a member. The quarrel continued on the pavement outside the bar before each group finally left on its own way.

2. At about 5 o'clock in the morning, a motor cycle with a pillion passenger drove up to about 20 feet from the shop premises of Mr Lam in Tung Tau Estate. The pillion passenger threw a petrol bomb which landed on the ground outside the shop. The 2nd appellant was the driver and the 1st appellant was the pillion passenger. His Honour Judge Britton found that it was a mission of revenge. Only a small fire was caused by the petrol bomb which was not fully ignited and there was no damage done to the shop premises, nor harm to any person. The judge concluded that the petrol concoction was not proved to be an explosive substance.

3. At the trial, both appellants elected not to give or call evidence. In his statement to the police, the 1st applicant claimed that his intention in the throwing of the petrol bomb was only to "scare" the group of Mr Lam and that he "did not intend to harm anyone and did not mean to set fire on the shop". The petrol bomb was not lobbed high enough and it hit the rear door of a taxi parked outside the shop and fell onto the ground.

4. In this appeal, the appellants seek to challenge their convictions of attempted arson on a question of law. They also seek leave to appeal against their respective sentences on the attempted arson charge. The 1st appellant also appeals against his conviction of being a member of a triad society, again on a question of law.

5. The charge of attempted arson against both appellants is set out below:

"Statement of Offence

Attempted arson, contrary to s. 60(1) and (3) Crimes Ordinance, Cap. 200 and s. 101B Criminal Procedure Ordinance, Cap. 221.

Particulars of Offence

(1st appellant) and (2nd appellant), on the 25th day of October, 1994, without lawful excuse, attempted to damage by fire No. 71, Ground Floor, Block 23, Tung Tau Estate, Wong Tai Sin, Kowloon, in Hong Kong, the property of the Government of Hong Kong intending to damage such property or being reckless as to whether such property would be damaged."

6. The particulars of offence followed closely s. 60(1) and (3) of the Crimes Ordinance. It is complained that the judge made no findings of any specific intent on the part of both appellants, but directed himself that "whatever their specific intentions were, they were reckless as to whether fire damaged to the shop would occur". On their behalf, it is submitted by Mr Dykes that in an attempted arson, the mental element required to prove the offence is not recklessness as to the consequence of a deliberate act, but the intention to cause the results in the charge, namely damage to the Government Estate shop premises by fire. The judge must have been led astray by the given particulars of arson in the attempt charge. The requirement to prove the specific criminal intent in an attempt to commit an offence is well entrenched at common law. See R. v. Mohan [1976] QB1; R. v. Pearman (1984) 80 Crim. A.R. 259. R. v. Millard & Vernon [1987] Crim. L.R. 393 is the leading decision. The legal basis on which counsel advances this contention is impregnable. For easy guidance, perhaps, attention should be drawn to the paragraph in the Re-issue Vol. 2 of Archbold Criminal Pleading, Evidence & Practice 1996 p. 591, marginal reference 23 - 7b:

"Attempts

Mere recklessness as to whether criminal damage is caused, as opposed to an intent to cause such damage, is insufficient where the charge is attempting to cause damage: R. v. Millard and Vernon [1987] Crim. L.R. 393, C.A."

7. The judge clearly misdirected himself on intent for attempted arson and we quash the convictions of both appellants and set aside their sentences.

8. We turn next to the charge of being a member of a triad society, namely, the Wo Shing Wo Triad Society against the 1st appellant. The 1st appellant admitted that he joined the Wo Shing Wo without having undergone any ceremony or paid any fee. His statement to the police was as follows:

"Q11: You mentioned Ah Leung before, was he the same person? What is his name? What is your relationship with him?

A11: The Ah Leung whom I have talked about is the same person named Wong Ki-leung. He is my brother.

Q12: What kind of brother? Is he a natural brother of yours?

A12: No, he is not a kin to me but he is a 'Wong Chi' (yellow paper) brother of mine. We are all belonging to Shing Wo.

Q13: What is Shing Wo?

A13: Triad Society."

"I renounced my membership in the past. However, I joined the Shing Wo"

Later more questions and answers were asked and given:

"Q1: What is the name of the triad society you belonged to?

A1: Shing Wo i.e. Wo Shing Wo.

Q2: Who accepted you to join the society?

A2: My elder brother named 'La Cha Mou' accepted me to join.

Q3: How did you join 'Wo Shing Wo' Triad Society?

A3: Friends introduced me to 'La Cha Mou' who said that he belong to 'Shing Wo' and asked me whether I followed him. I thought that 'La Cha Mou' has many followers and is powerful. I thought that it would be glorious to associate with them and thus I followed him.

Q4: Where did you join the society to follow your big brother i.e. protector?

A4: Wing Wa Restaurant at Hoi Tan Street, Sham Shui Po.

Q5: Any ceremony to join the society?

A5: No ceremony was done nor has pocket money been given. I was considered having joined the society after a mere verbal promise was made.

Q6: Did you learn any triad poem or hand sign?

A6: No.

Q7: At what interval did you meet since you had joined the society. If it was not a regular, when was the last meeting?

A7: It was not regular. Sometimes we met two or three times a month and sometimes had tea and a chat once a month. The last time was in the middle of last month.

Q8: When did you join "Wo Shing Wo" Triad Society?

A8: August this year.

Q9: Were you introduced to staff or famous members of your triad society?

A9: No.

Q10: You said that you renounced your membership. What is the meaning of that?

A10: In 1980, I followed 'Sau Nga Piu' of 'King Yi', Tung Tau Estate. In the same year, I renounced and withdrew from the triad society. Form then on, I have not associated with the gang of 'King Yi'.

9. A triad expert Detective Sergeant Ma gave the following evidence:

"Wo Shing Wo is an active triad society in Hong Kong. Shing Wo is the same meaning as Wo Shing Wo. Some members are required for initiation ceremony. A verbal agreement between 2 people will suffice. Pocket money will sometimes be given to Dai Lo. Dai Lo is elder brother i.e. a protector 'Ah Kung' is protector of elder brothers. Yellow paper brothers are 2 people burning yellow paper for purpose of praying. It is a triad term. To have a yellow paper brother is to have a sworn brother. On its own it is not a triad term but members of triad society refer to each other as a yellow paper brother. It is possible to renounce from triad society - Government renunciation programme was abolished about 4 years ago. Member can also approach elder brother to renounce. If Dai Lo willing to release he can do so. It is possible to renounce one society to join another. Common in Hong Kong. King Yi is active triad society in Hong Kong. Wo Shing Wo is larger society. Hanging the blue lantern means member has not gone through initiation ceremony - just by agreement. Yellow paper brother can mean either simply becoming sworn brothers without triad membership. Also used by triad members. Paying of lai see is payment of formal initiation ceremony."

10. We have been referred to AG v. Chik Wai-lun [1987] HKLR 41 and R. v. Chan Yiu Tong [1994] 2 HKC 539. Much play is made of "a bald admission" in the sense that this is a bare statement such as "I am a member of such a such society" and no more. In AG v. Chik Wai Lun, supra at p.45 B/C, in delivering the judgment of the Court of Appeal, Sir Derek Cons acknowledged the possibility of a bald admission being regarded as sufficient evidence for a conviction of triad membership. In both local decisions cited to us, no new law was sought to be established. In particular, in the decisions, the judgment of Lord Widgery CJ in Bird v. Adams [1972] Crim LR 174, which was cited with approval by the English Court of Appeal in R. v. Chatwood [1980] 1 AER 467 at p. 470 a-g, was not departed from. Lord Widgery said (in the transcript):

"Now when the case was heard before the magistrates, at the conclusion of the prosecution case, which really consisted of nothing more than the evidence of the police officer to which I have referred, there was a submission of no case to answer, and the basis of the submission was this, that although the appellant had admitted possession of what he thought to be LSD, there was no independent proof that the drug was in fact LSD, and that it might have been some innocuous substance sold to the appellant under a fraudulent description, and so it was submitted that there was no case to answer because the vital element of the prosecution case, namely that the drug was a prohibited drug, had not been established by an admission of the appellant who himself could not know whether that which he carried was or was not the genuine drug. Now the justices rejected that suggestion; at least they were not influenced by it. They held there was a case to answer and on the case proceeding the appellant gave no evidence and he was duly convicted. Counsel before us today returns to the original submission in the case and says that the justices should have upheld the submission of no case because the admission of the appellant in the circumstances of this case was of no evidential value at all. Now it is clear from the authorities which have been put before us that there are many instances where an admission made by an accused person on a matter of law in respect of which he is not an expert is really no admission at all. There are bigamy cases where a man has admitted a ceremony of marriage in circumstances in which he could not possibly have known whether in truth he had been married or not because he was no expert on the marriage ceremonial appropriate in the particular place. It is quite clear that there are cases of that kind where the person making the admission lacks the necessary background knowledge to be able to make the admission at all. Again we have been referred to Comptroller of Customs v. Western Lectric Co. Ltd. [1965] 3 All ER 599, [1966] AC 367, where a man made an admission in regard to the country of origin of certain goods when he had no idea at all where the goods had come from. Again it was held that this admission was worthless because it was an admission of a fact as to which he had no knowledge at all, and in respect of which no valid admission can be made. Counsel submitted that the present case is a like case with that, but in my judgment this is not so. If a man admits possession of a substance which he says is a dangerous drug, if he admits it in circumstances like the present where he also admits that he has been peddling the drug, it is of course possible that the item in question was not a specific drug at all but the admission in those circumstances is not an admission of some fact about which the admitter knows nothing. This is the kind of case in which the appellant had certainly sufficient knowledge of the circumstances of his conduct to make his admission at least prima facie evidence of its truth and that was all that was required at the stage of the proceedings at which the submission to the justices was made."

11. A confession as to triad membership should simply be approached on the usual evidentiary basis. The position can be illustrated by the examples given by Lord Widgery: when an admission involves a matter of law such as in bigamy cases, an admission by a person who is not an expert and has no necessary background knowledge of divorce matters "is really no admission at all" No valid admission of a fact such as country origin of goods could be made by a person who has "no knowledge at all" as to where the goods have come from. But if a man admits possession of a substance as a dangerous drug and if the circumstances such as peddling the drug were part of the admission to lend weight to it, that admission would not be "an admission of some fact about which the admitter knows nothing". This kind of admission could be accepted as prima facie evidence of the truth of its contents. It must not be assumed that the examples given by Lord Widgery are exhaustive. Some confessions may be inherently suspect, unreliable or even untrue. Some are patent lies. A confession may be based on matters of fact including inferences drawn from primary facts or of belief or of hearsay. See AG v. Chik Wai-lun supra. p. 43I to p. 44B. It is sheer common sense that "the weight to be attached to an admission will depend upon the circumstances of the defendant or perhaps the circumstances in which it came to be made (p. 45B)". In fact, it will all depend on the relevant circumstances. Each confession would have to be judged on its own and in the circumstances in which it was given.

12. In this case, the 1st appellant was not speaking of matters of which he had no knowledge. Whether or not he was a member of Wo Shing Wo was a question of fact. He had joined another triad society before Wo Shing Wo. His prior experience of joining and abandoning another triad affiliation would not go towards proving his likely comprehension of the practices and rites in Wo Shing Wo, but it points to his not being wholly ignorant of triad activities nor, in the position of, in the words of Lord Widgery, "an admitter (who) knows nothing" about the fact in his admission. He was the yellow paper brother of his protector. In Wo Shing Wo, he had attended a number of meetings the last of which was in the middle of the month before he was arrested. In conjunction with the general evidence given by Detective Sergeant Ma on that triad society, its rites, initiation procedure with or without ceremony etc., it is our view that it was open to the judge to rely on the 1st appellant's admission and convict him on it.

13. We therefore dismiss the 1st appellant's appeal against conviction.

Representation:

Mr P Cantrill SCC, Crown Prosecutor for the respondent

Mr P Dykes (instructed by the Director of Legal Aid) for the appellants