Shing Wai-leung v. The Queen

Case No.CACC 1157/1976

Court

Court of Appeal

Date24 Nov 1976

Judge—

Case Document

100%

CACC001157/1976

IN THE SUPREME COURT

	Criminal Appeal
	1976 No. 1157

BETWEEN
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	SHING WAI-LEUNG	Appellant
	and
	THE QUEEN	Respondent

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Coram: Pickering, J.A.

Date of Judgment: 24th November, 1976.

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JUDGMENT

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1. The appellant pleaded guilty to being a member of a Triad Society and was sentenced to detention in a Training Centre. He appeals against that sentence. He is 17 years old.

2. In October, 1974 he was placed on probation for 18 months for (inter alia) membership of a Triad Society. In August, 1975, during the currency of his probation he was convicted of indecent assault on a female when he was bound over. At that time the existing probation order was discharged and for his October, 1974 offences, including membership of a Triad Society, he was sentenced to concurrent terms of imprisonment for 18 months suspended for three years.

3. The circumstances of his present arrest were that the appellant with two other Chinese males were apprehended in 44, Li Tak Street on the 11th June, 1976, and one of the other two had in his possession triad writings.

4. This appellant and his companions were taken to Mongkok Police Station, where the appellant admitted that he was a 49 member of the Dan Yee Triad Society.

5. There is no evidence of any Triad activity on the part of the Appellant.

6. As I have said, the learned magistrate did not activate the suspended sentence of 18 months but sentenced the appellant to detention in a Training Centre.

7. But what has he done to deserve that? His crime appears to consist of the retention of a status of which, in any event, he is powerless to divest himself.

8. In Kwan Lam v. the Queen (Cr. App. 339 of 1974), I said:-

It is well known that there is no escape from membership of a triad society, no method of resigning, and the appellant's culpability in respect of his membership was no greater on 21st April 1974 than it had been when he was bound over for the same offence on 25th September 1973. His only crime was to be seen in the street "chatting furtively", whatever that may mean, with five other men. Membership of a triad society is a stigma which attaches to him permanently and theoretically it would be possible to charge him every day with this offence. In the absence of any evidence of triad activities when, if those activities were in themselves incapable of supporting other charges, it might have been appropriate to charge him again with membership of a triad society. But in the present circumstances it was wholly inept to bring that charge again.

The appellant should never have been charged with the present offence, the more so whilst his bond was still extant, nor having been charged, should he have been sentenced to nine months imprisonment for a state of affairs over which he had no control and in respect of which he had previously been bound over. The appropriate method of dealing with this appellant was to grant him to an absolute discharge without recording any conviction so that this offence should not appear upon his record."

So in the present case the Commissioner of Prisons described the appellant as wild, aggressive and completely without remorse whilst the probation report indicated him to be beyond the control of his parents. But these, in themselves, are not matters justifying detention in a Training Centre.

9. There is one other consideration. When this young appellant, now 17, committed the crime of joining a triad society, he was 12 years old. Had the fact of his joining become known shortly after its occurrence, he would have been dealt with in a juvenile court. There is no evidence of any triad activity in the intervening years. That he should now, by the accident of a natural accretion of years, be sentenced to detention in a Training Centre, for an offence likewise committed at the age of 12, and for which he has in any event already been sentenced, is manifestly excessive.

10. The sentence of detention in a Training Centre is set aside and substituted by an absolute discharge, although it is to be regretted that the appellant has already served 4 weeks of his sentence. I direct that no conviction be recorded.

Representation:

Appellant in person

Gall C.C. for Respondent.