Kwan Wai Kei v. The Queen
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CACC000768/1980
----------------- Coram: Liu, J. Date of Judgment: 16th October, 1980 ----------------- JUDGMENT ----------------- 1. Leave has been granted to the appellant to appeal out of time against conviction in respect to B charge which is, professing to be a member of triad society. 2. On enquiries being made by a police officer, the appellant revealed that he was a member of the 14K Triad Society. Subsequently, he disclosed in his cautioned statement to the police that he joined the triad society under duress. 3. Miss Toa appeared on behalf of the appellant only in respect to the appeal against conviction in the B charge. 4. The court was referred to one single authority, which is as well binding as compelling, so much so that the Crown offered no opposition. That is the case of CHENG Chung-wai v. The Queen (1), the judgment of which was delivered by the Court of Appeal on the 24th July, this year. The facts in the case of CHENG Chung-wai were substantially the same as those in the present appeal. The accused was charged with professing to be an office-bearer of a triad society. In similar circumstances, upon enquiry by police officers, disclosure was made by the appellant in the case before the Court of Appeal that he was a member of an unlawful society, treated for the purposes of the proceedings before the Court of Appeal as a triad society. Likewise, the appellant in the case before the Court of Appeal, gave identical information in his cautioned statement to the police. In a judgment delivered by Addison J., it was held that apart from actus reas in the form of an utterance, the requisite mens rea should go beyond the mere conscious utterance of an accused person of his standing in a triad society to the police. The conclusion reached by the Court of Appeal was that the utterer must intend to cause or at least foresee the probability of causing some impact or reaction on the part of person addressed. 5. This is an obvious case in which on the facts admitted before the learned magistrate, the appellant could not have been convicted, and in fact this was expressly pointed out by the learned magistrate in his Statement of Findings subsequently recorded. 6. It remains for me to allow the appeal against conviction in respect of the B charge. 7. That conviction must therefore be quashed and the sentence be set aside. Judgment of the court on the appellant's appeal against sentence in respect to A charge 8. On July 26th this year, together with another Chinese male you reported to the Queen Elizabeth Hospital Casualty Ward. You requested treatment for chop wounds. You told the police that you both had earlier been attacked by ten persons. On the 1st August, you changed your version to that after drinking beer outside a shop in Pak Tin Upper Estate, you received knife wounds. In effect, you told the police one story and changed it to another thereafter. You admitted to the police that you had told them an untrue story when you approached Queen Elizabeth Hospital for treatment. 9. You pleaded guilty to the charge of wasting police time. That was duly taken into consideration by the learned magistrate. You were convicted on the 10th December, last year on two counts of police robbery and you were sentenced to a Detention Centre. The learned magistrate sent for a Training Centre Report. Your background had carefully been gone into by the Intake Officer who concluded at the end of his Report: "Considering the case as a whole, I am still of the opinion that a period of disciplinary training coupled with a long period of supervision would be of benefit to him." Acting on that information together with your family background and personal circumstances, you were sent by the learned magistrate to be detained in a Training Centre. The sentence was neither wrong in principle nor in any way excessive. Nothing in what you have told me this afternoon has any substance. 10. Consequently, your appeal against sentence in respect to the A charge must be dismissed. Counsel on your behalf appealed against conviction in respect of the B charge. That appeal has been successful. Your appearance in your appeal against sentence in respect to the A charge has not caused any substantial waste of time as you would have been required to attend court for your appeal against sentence in respect of the B charge. For that reason, I do not consider ordering your sentence to run from to-day. Your appeal against sentence under the A charge is dismissed.
Representation: Ms. Esther Toa instructed by Director of Legal Aid for appellant. (Conviction of B charge only). Appellant in person. (Sentences of A and B charges). Ms. Crebbin, counsel for the Crown/respondent. (1) Criminal Appeal No. 380 of 1980 |