Attorney General v. Ng Kwok Yuen

Case No.CACC 937/1975

Court

Court of Appeal

Date04 Dec 1975

Judge—

Case Document

100%

CACC000937/1975

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 937 OF 1975

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BETWEEN
	ATTORNEY GENERAL	Appellant
	and
	NG KWOK YUEN	Respondent

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Coram: Mr. Justice Yang, in Court.

Date of Judgment: 4th December, 1975.

The meaning of "claiming" to be a member of a Triad Society.

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JUDGMENT

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1. This is the Attorney-General's appeal by way of case stated against the learned trial magistrate's ruling that the respondent had no case to answer in a charge of claiming to be a member of the 14K Triad Society brought under section 20(2) of the Societies Ordinance (Cap. 151).

2. It appears from the case stated that the learned magistrate, after hearing the prosecution evidence, but without hearing any evidence from the defence, found certain facts proved. This is of course wrong in principle. Be that as it may, the facts found to have been "proved" are:

	(a)	the respondent was arrested with others on the 28th day of July 1975 at Kwun Tong on suspicion of there and then having been jointly in possession of various offensive weapons; and
	(b)	the respondent, on then being asked by the police officer who had arrested him if he belonged to a Triad Society, voluntarily admitted to that police officer "I am a member of 14K. I am willing to have my record cleared".

3. Whilst taking judicial notice that the 14K is a Triad Society, the learned magistrate was of the opinion that the respondent, in admitting to be a member of the 14K in answer to a direct question in the circumstnaces described, did not "claim" to be a member. Under section 20(2), a person commits an offence if he claims or professes to be a member of a Triad Society. However, in the magistrate's view, the offences of "confessing" or "professing" to be a member of a Triad Society, when considered with the sub-section as a whole, are directed at those who openly take the initiative in claiming or professing membership, accordingly the word "claim" should not be given the extended meaning of "admit" in answer to a direct question by a police officer in the circumstances mentioned above.

4. The questions of law posed by the learned magistrate for this Court are-

"	(1)	whether I was right in law in ruling that the respondent had no case to answer on the charge then before me; if I was right, then-
	(2)	whether, on the facts found as hereinbefore recited, there would have been a prima facie case against the respondent if he had been charged under subsection (2) of section 20 of the Societies Ordinance with the offence of either being a member of the "14K" Triad Society or of "professing" to be a member of that Triad Society; if so-
	(3)	whether I should have amended the charge then before me, and otherwise proceeded, pursuant to section 27 of the Magistrates Ordinance (Chapter 227); if so-
	(4)	what should be done in the premises."

5. According to the Shorter Oxford Dictionary the relevant meaning of the word "admit" is "to concede as true", and the word "claim" means "to assert". In the present context "profess" means "to declare openly, announce, affirm; to avow, acknowledge, confess, to make profession of, to lay claim to (some quality, feeling, etc.); often implying insincerity, to pretend". On those definitions, it is clear that the word "admit" has a somewhat narrower meaning than "claim" and "profess", and that the element of spontaneity is not a requisite implied in either of the last two words. Indeed one may well claim or profess to be a member of a Triad Society in answer to a question. If, for example, a person, on being threatened by a thug, inquires whether he is a member of a Triad Society, the answer that he is a member of the 14K quite clearly comes within the wording of section 20(2). Or if a group of young thugs go up to another youth and ask, "Where do you belong? Are you a member of the 14K?" the answer "Indeed I am, we are brothers" surely comes within the purview of the subsection also. The purpose or motive of making such a claim or profession, which may be true or untrue, is immaterial.

6. The more important question, however, is not so much one of semantics but whether section 20(2) is intended to apply to a claim or profession of membership made in response to police inquiry. At first view, a parallel may perhaps be drawn with the offence of misleading the police by giving false information under section 64 of the Police Force Ordinance (Cap. 232): see R. v. Yip Yuk Lun (1961) HKLR 268, 280-281, where Hogan C.J. said, in an obiter dictum, that the general tenor of a similar statutory provision suggests that the principal mischief at which it was directed was the spontaneous tendering of misleading information, and that its use to put pressure on suspected persons, when invited to interview the police, to make statements incriminating themselves was not contemplated. Reading the Societies Ordinance as a whole, it appears that section 20(2) is wide enough to cover a claim or profession of membership, whether made spontaneously or in response to a question, and whether made in the course of police inquiry or in other circumstances. There is nothing in the Ordinance in general or the section in particular which shows an intention on the part of the Legislature that the application of the section should be limited to the extent envisaged by the trial magistrate.

7. The answers to the questions raised are-

	(1)	No.
	(2)	In view of the answer above, this question does not require an answer.
	(3)	For the same reason, this question does not require an answer.
	(4)	Again for the same reason, this question does not require an answer.

8. The appeal is allowed, and the case is remitted to the Magistrates' Court for a new trial.

T.L. Yang

Representation: