Chan Kim Hung and Others v. The Queen

CACC000749/1977

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Coram: Trainor, J.

Date of Judgment: 25th August, 1977.

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JUDGMENT

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1. The first two appellants were convicted after trial of being members of a triad society, to which offence the third appellant pleaded guilty. The first appellant was sentenced to 9 months' imprisonment and the second and third appellant were ordered to be detained in a training centre. The first two appellants now appeal against their conviction and all three appeal against sentence.

2. The first appellant was represented by Mr. W. Yeung of Counsel, the second was unrepresented, and Mr. F. Chan of Counsel represented the third appellant.

3. In addition to the usual stereotype grounds of appeal filed by the first and second appellants Mr. Yeung sought, and was granted leave to file extra grounds. In so far as they are applicable I shall consider them as available to both appellants.

4. The grounds of appeal argued by Mr. Yeung can be reduced to three:

5. The first two grounds have their basis in questions that are classical examples of questions that should never be asked and if they are should not be allowed: "Do you say the statement was voluntary?"; and "Expert in matter of triad societies?" which I take to be the learned magistrate's abbreviation of the question: "Are you an expert in the matters of triad societies?" These unfortunate questions were questions which it was the duty of the magistrate to answer, not the witness. The first question was particularly unfortunate in that the prosecuting officer preceded it with a perfectly proper question: "Was there anything in the conversation containing any threat or promise?", but before the witness could answer he added the offending question and the witness then replied, "Yes". That duplicity of questions is typical of what so often occurs to the confusion of witnesses and a trial when the witness answers one question and is later challenged on his evidence on the assumption that he answered the other.

6. As it was conceded by Mr. Duncan, Counsel for the Crown, that if the learned magistrate was wrong in accepting the evidence of the police witness as being that of an expert then there was on acceptable evidence to justify the conviction I propose to deal with that ground of appeal first.

7. The first two appellants were charged with being members of the Luen Ying Sh'e triad society, and when they pleaded not guilty whether Luen Ying Sh'e was a triad society or not was an issue to be decided by the magistrate. A triad society is not defined in the Ordinance but it is provided by s.39 of the Societies Ordinance that a magistrate may refer to certain books and publications for the purpose of evidence. That was not done in the instant case therefore the learned magistrate had to rely on the evidence of an expert to decide the issue. This he purported to do by accepting the police officer's evidence though for some unknown reason when he referred in his Statement of Findings to the evidence of the witness he referred to the evidence of the triad "expert" witness.

8. A witness may express an opinion on an issue before a court if that issue requires special skill or knowledge to resolve it, and the witness possesses special skill or knowledge of the issue. The opinion is not automatically accepted by the Court, but is subject to the same scrutiny by it to satisfy itself that the opinion or conclusion of the expert warrants it being accepted. To ensure this one of the first things the witness has to do is satisfy the Court that he has such special skill or knowledge, as for example when a witness proves an acceptable professional qualification or a lengthy experience of the subject matter. It is not enough for the witness to declare himself an expert; that is for the trial judge to decide. The function of an expert witness was stated by Lord President Cooper in Davie v. Edinburgh Magistrates 1953 S.C. 34 at 40 as follows:

"Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence."

To quote from the head note to a decision of the Full Court, as it then was, in the case of Yim Chor-man and others v. R. 1975 H.K.L.R. 546 (Huggins, Mcmullin & Trainor, JJ.):

Having already subscribed to the expression of that view I would add that a declaration by a witness that he is an expert falls far short of evidence that would enable a judge to decide whether or not the qualifications of witness were adequate.

9. It would be helpful I think to examine the evidence that was objected to. It is in the form of question and answer and opens the examination in cheif of the witness:

There was no other evidence of specialist knowledge or experience of the witness.

10. There is nothing there to suggest that the witness had any qualifications to warrant him giving expert evidence other than his own declaration. Being a police constable is no such qualification; and my proposition to Mr. Yeung that the word "dealing" might be substituted for "expert" in the second question asked of the witness met the immediate riposte that even that could apply to a police officer whose sole function was to effect arrests on instructions. To that one could only reply, "Touche".

11. It was argued by Mr. Duncan that some of the answers of the witness in cross examination by the first appellant indicated expert knowledge. That might indeed be so if one believed that the witness had special knowledge of triad societies, but it would also indicate that he was a charlatan if he had no such special knowledge. It was ex post facto reasoning.

12. It was for the Crown to show the witness had such special knowledge or experience as to enable the Court to consider him an expert. That it failed to do, and therefore the evidence of the so called expert - though indeed he may in fact be an expert - was useless.

13. There was produced in evidence a statement made by the first appellant to part of which Mr. Yeung took exception on the ground that it was not affirmatively proved to have been voluntarily made. As I consider there is also objectionable matter contained in the certified translation I propose to quote the relevant part.

14. The statement starts off with the frequently to be found series of questions and answers followed by the vital question, in this case:

That was followed by the usual caution and then the first appellant made a statement. I do not know if the appellant wrote it or not but the translation reads:

"Sometime in June, 1973, outside No. 99 Temple Street, I (met) a Chinese male who claimed to be Hoi Hing. He said if I had any trouble in the area (I) could speak out his name."

In what is in brackets there is nothing objectionable in the translation but there is in what follows:

"Meanwhile, (he) spoke out Luen Ying Sh'e (triad society). Besides, (he) asked me to give him a red packet which contained 3 dollars sixty cents. (He) passed a 'precious seal' to me (taught me a triad hand sign)".

There are two damning phrases in brackets in that translation: "triad society" after "Luen Ying Sh'e" and "taught me a triad hand sign" after "precious seal". It was quite improper for the certified translator to put his own interpretation on those words, which in themselves meant nothing; but with the translator's gloss they became highly prejudicial.

15. The only part of the evidence of the police witness that was prejudicial to the first appellant was his answer "Yes" to what, I suppose, might be considered enquiry if he was a member of a triad society coupled with "..... he spoke out the name of Luen Ying Sh'e" in the statement. There was nothing acceptable before the Court to prove that "Luen Ying Sh'e" was a triad society or that "precious seal" meant a hand sign of a triad society.

16. The first and second appellants were charged that they were members of a triad society; not that they professed or claimed to be a member; but there are decisions to the effect that it is, at the least, desirable that there should be expert evidence in either case to establish that the alleged society is a triad society unless the magistrate has resort to s.39 of the Societies Ordinance. Section 39 enables a magistrate to have recourse to certain books and pamphlets for evidence as to triad societies and their rituals. McMullin, J. in Lui Chik-wah v. R. 1975, H.K.L.R. 359 at 364 said:

"The learned magistrate did not resort to section 39 of the Ordinance to supplement the evidence on this essential point. (Was there such a triad society as Tung Lun She). In the circumstances it was highly desirable that there should have been a witness who could testify as to the significance of the ritual poetry and say whether or not that coupled with the acts described by the appellant were typical triad rituals. In the upshot therefore, I take the view that the Crown failed to prove beyond reasonable doubt that what the appellant had done, as admitted by him in his statement, did amount to being a member of a Triad Society notwithstanding that the appellant, if his statement is taken at its face value, evidently thought it was such and that he had joined it."

In that case the appellant had been charged with being a member of a triad society.

17. In the case of Leung Chi-ming v. R. 1976 H.K.L.R. 247 the appellant was charged with the offence of claiming to be a member of a triad society. In his judgment Briggs, C.J. at 248 having referred to s.39 of the Ordinance said:

"It may well be that a triad society is so notorious that it is unnecessary to have proof that it exists. But this is not so in the present case."

18. I am not prepared to go so far as to say that a confession of membership of a triad society standing alone will never be sufficient to produce a conviction. It occurs to me for example that an accused in a statement might profess such knowledge as to establish himself an expert and therefore capable of establishing that a society of which he is a member is a triad society. On the other hand it might well be that a person is induced to join a society in the belief that it is a triad society when in fact no society exists, or if it does it is not a triad society albeit an illegal society. Hong Kong being what it is, where so many people are swindled out of their money on all sorts of pretexts and notoriously for their pretended and, indeed, possibly, real protection I can easily visualise persons offering protection on condition that the victim pays money, indulges in a certain amount of mumbo-jumbo and joins a so called triad society. Such a society would not be triad society in the accepted sense but a member might consider himself to be a member of a triad society. A confession of membership of such a society would be a confession to membership of a non-existing triad society and a non-existing crime. It is, I think, unfortunate that the interpretation section of the Societies Ordinance does not include a meaning of "triad society" which would cover some if not all the activities of the historic triad societies and any societies or associations that might pose as such.

19. By reason of what I have just said I consider that, except in rare circumstances, and I am not prepared to expand on that, where a person is charged with being a member of a triad society it must be established by expert evidence or with the assistance of s.39 that the alleged society is a triad society.

20. What I have said above applies to both the first and second defendants although the statement of the second appellant might be considered to be somewhat stronger against him than that of the first appellant was against him.

21. I consider that the evidence of the police officer who declared himself an expert was inadmissible, and as the result of that there was no evidence to establish the guilt of the two appellants. I allow their appeals.

22. I do not consider it necessary to deal with the other points raised by Counsel.

23. As to the third appellant he pleaded guilty to membership of the notorious Wo On Lok triad society and was rightly convicted. There was rather a conflict between the report of a probation officer concerning him and that provided by the Commissioner of Prisons. As the former concluded: "We are most willing to give him supervision of your Worship deems it fit" and earlier referred to the appellant's determination "to turn over a new leaf" I decided, not without hesitation, to allow the appeal to the extent that I impose a sentence of six months' imprisonment suspended for two years.

Representation:

Mr. Wally Yeung (D.L.A.) assigned for 1st appellant.

2nd appellant in person.

Mr. F. Chan (Walter Woo & Co.) for 3rd appellant.

Mr. Duncan, C.C. for Respondent.