HKSAR v. Yeung Chi Keung and Another

CACC000096/1998

CACC 96/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 96 OF 1998

(ON APPEAL FROM DISTRICT COURT CASE NO. 1042 OF 1997)

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Coram: Hon Chan, CJHC, Mortimer, V-P & Liu, JA in Court

Date of Hearing: 4 August 1998

Date of Judgment: 4 August 1998

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J U D G M E N T

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Liu, J.A.:

1. There are two applicants, one legally represented, the other not. Mr Wong has the advantage of being represented by counsel. Mr Yeung acts in person. The charges against them are of an identical nature. Both of them acted on different occasions as a member of a triad society, namely, the Sun Yee On triad society.

2. On 15 January 1998, Deputy Judge Wright convicted Wong of three offences and Yeung of five, three of which are offences of acting as a member of a triad society, committed on the same occasions as those on which the charges in the convicted offences of Wong arose. They were both sentenced on 27 January 1998 to a total term of imprisonment of two years. Wong was sentenced to 12 months on each of his three convictions, half of the sentences in the latter two convictions were ordered to run consecutively to his first sentence. The total term he has to serve is two years. Yeung was likewise sentenced to one year on each of his convicted five offences, three months of the sentences of the subsequent four offences were ordered to run consecutively to the sentence of his first convicted offence. For his two additional offences, he had to go to prison for the same term of two years. Shortly stated, both applicants received one year for each of their offences. Half of Wong's subsequent sentences were consecutive to his first sentence. One-quarter of Yeung's subsequent sentences were consecutive to his first sentence. They are each serving their total 2-year term.

3. In all the offences, they stood charged with acting as a member of a triad society. Wong was charged with having so acted as a member of a triad society on 21 June 1997, 1 July 1997 and 6 July 1997 (5th, 6th and 7th Charges). Yeung was involved on these three occasions and on two other occasions (1st and 2nd Charges). He was also found to be and have, on these occasions, acted as a member of a triad society. Having found Wong and Yeung guilty of three offences and five offences respectively, the judge sentenced them accordingly. Both applicants feel aggrieved and they apply for leave to appeal against sentence.

4. On 3 May 1997, Yeung summoned others to go to the outside of Mandarin Palace Nightclub in Wanchai (1st Charge). On 4 May 1997, Yeung summoned others to California Red Karaoke in Causeway Bay (2nd Charge). On 21 June 1997, Wong summoned others including Yeung to Karatheque Music Box Karaoke in Wanchai. On arrival, "Big Brother Kam", Wong instructed them to disperse (5th Charge). On 1 July 1997, Yeung summoned others to Balsar Nightclub in Wanchai. Wong later arrived (6th Charge). On 6 July 1997, Yeung summoned others to New Tonnochy Nightclub in Wanchai to support Wong (7th Charge). In the underworld parlance, this was to blow the whistle.

5. On behalf of Wong, Mr Marash SC submits that he is a young man of 34. For about seven years in the past, he worked in a bank up to 1989. Thereafter, he had constant but perhaps more colourful employment in a seafood restaurant and a Macau casino. He had a clear record. There was no violence on any of the occasions, giving rise to the charges against him. On all these occasions, it was just a show of force with a number of followers he or Yeung had summoned. Counsel further submits that this is not the sort of activities which should attract sentences of 12 months, culminating in a total term of two years. Both the sentence and totality are said to be out of line for these applicants. It is urged upon this court that the sentences passed upon the applicants are all manifestly excessive and the overall sentence breaches the totality principle. Hence, this court is invited to reduce the sentence of Wong.

6. Yeung makes his own representation. He says he is remorseful and has caused misery to his family. His father committed suicide out of shame for his arrest and involvement. In any case, Yeung maintains that his sentences should not have been ordered to run, in part, consecutively and that he should be discharged by this court, he having served a period of some six months, so as to enable him to turn over a new leaf.

7. On behalf of Wong, counsel further directs this court's attention to a great variety of offences in S. 20(2) of the Societies Ordinance, Chapter 151. Counsel argues that the activities of Wong in the three charges of which he was convicted were very low down in a wide range of offences contained in that sub-section. Counsel, therefore, submits that in no way should the activities of Wong draw, in totality, a penalty of as much as two years.

8. For his first conviction under S. 20(2) of the Societies Ordinance, an offender is liable to be fined $100,000 and imprisoned for three years. In case of a second or subsequent conviction, he may be fined $250,000 and sent to prison for seven years.

9. In the circumstances before him, the Deputy Judge adopted a starting point of 15 months. For the clear record of both applicants, he allowed a discount of 3 months. Therefore, the Deputy Judge arrived at what he regarded as the appropriate punishment of a year for each offence. He gave due consideration and weight to the number of offences in each case, and in the manner I have specified, the Deputy Judge arrived at a term of imprisonment of two years for Wong and two years for Yeung.

10. Yeung is 25. In each of the offences, Yeung and Wong blew, so to speak, the whistle to summon followers. They came and it was an impressive show of force. At the end of each incident, counsel is quite right that there was no violence but it is not to be forgotten that a show of force might, and not infrequently did, lead to disagreement with skirmishes of various degrees to follow. It is also true that the protection extended to the establishments were not forced upon their operators but that is not the real point. The point is protection by triad societies, and common sense tells us that it is a service which no self-respecting establishment would welcome. Whether or not violence would ensue is, in most cases, unpredictable. Blowing the whistle for the congregation of a triad group to stand against the presence of a rival gang is, itself, a serious menace to tranquility. These activities are likely to stir up an inexonerable spiral of triad transgressions. The applicants, both members of a triad society, "blew the whistle" on different occasions for summoning followers to stage a meaningful presence at entertainment establishments. Acting as a triad member in the course of baring the teeth of the underworld is no small crime. Disturbances in the Wan Chai night scene are best left in the hands of law enforcement agencies. In these circumstances, this court does not regard the starting point adopted by the judge as inappropriate. Taking these occasions as known to the court, personal circumstances and the involvement and activities of these applicants, and also the number of offences of which each was convicted, the sentences passed upon each of the applicants by the Deputy Judge cannot be said to be manifestly excessive. In totality, the sentence for each is, in the opinion of this court, not out of line. The respective applications of the applicants therefore stand dismissed.

Representation:

Mr Albert Wong, SADPP of DPP for Respondent.

YEUNG Chi-keung (D3) in person.

Mr Danish Marash SC inst'd by M/S Josip Ma for Mr WONG Kam-cheung (D4).