HKSAR v. Chu Kwok Ming and Others
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HCMA 781/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 781 OF 2010 (ON APPEAL FROM KCCC 403 OF 2010) ____________ BETWEEN
____________ Before: Deputy High Court Judge E Toh in Court Date of Hearing: 31 May 2011 Date of Judgment: 7 July 2011 _______________ J U D G M E N T _______________ 1.All four Appellants were convicted after trial of an offence of “Claiming to be a member of a triad society”, contrary to section 20(2) of the Societies Ordinance, Cap. 151, and each was sentenced to 6 months’ imprisonment. All four Appellants appeal against their convictions and the 1st and 3rd Appellants also appeal against their sentences. PROSECUTION CASE 2.The prosecution evidence mainly comes from the evidence of PW1, an undercover police officer. PW1 was involved in an undercover operation to infiltrate certain groups, and after each encounter he would write in an occurrence book kept in a safe house. For the purposes of this appeal, I will only give a brief account of the evidence as a more lengthy account can be seen from the learned Magistrate’s statement of findings. 3.According to PW1 he had met the 1st Appellant on the 26 October 2008 in the Flying Elephant Bar. PW1 was in the bar with the 1st Defendant (D1) and when the 1st Appellant (D2) arrived, he called the 1st Defendant “Dai Lo” (elder brother). The 1st Defendant then said to PW1 in the presence of the 2nd Defendant that the 2nd Defendant and others followed him in Shing Wo. The 2nd Defendant went on to say that there was a “settlement talk” which had involved fighting. Someone from the other group had lifted a chair, and it was “Dai Lo” who kicked the person away. The 2nd Defendant went on to say, “Having been in Shing Wo for such a long time, he is the Dai Lo who I respect most.” 4.PW1 said that Ah Fei (D2) had arrived with another man called “Ah Kui”. On 23 September 2009, PW1 identified the 2nd Defendant as being Ah Fei in an identification parade. PW1 had described Ah Fei as being six feet tall and stocky. PW1 agreed he had mentioned the 2nd Defendant as being “fat” in his occurrence book entry and also had described the 2nd Defendant as being “sturdy”. 5.In the case of the 3rd Defendant (the 2nd Appellant), PW1 said on 24 July 2009, he was in the 80s Style Lounge with the 1st Defendant who introduced the 3rd Defendant to him as “Siu Lung Gor”. At that time the 1st Defendant said he was envious of the 3rd Defendant as the 3rd Defendant had his own bar and boxing centre, and a lot of girls liked him. The 3rd Defendant replied that he had obtained these after hard work. When he was a junior, he worked in the “action team in Lo Sun” and he had to “collect weapons”. Those who had followed him had already been promoted to senior positions and were “Dai Los” themselves. 6.On 21 August 2009, PW1 said he was working in the 80s Style Lounge together with the 4th Defendant (the 3rd Appellant) and they had previously talked of illegal soccer betting. On that day the 4th Defendant pressed PW1 to open an illegal soccer betting account, and PW1 had asked if there would be any problems. The 4th Defendant said:
7.On 7 August 2009, whilst PW1 was in the 80s Style Lounge with the 1st Defendant, the 1st Defendant introduced PW1 to Tommy who was the 5th Defendant (the 4th Appellant) at the trial. The 1st Defendant said in front of the 5th Defendant that he had just been released from prison:
The 5th Defendant said:
8.The prosecution also called as its witness a triad expert, PW2, who said that the Shing Wo referred to is an abbreviation of the Wo Shing Wo triad society, which is an active triad society in Hong Kong, and similarly Lo Sun is an abbreviation of the Sun Yee On, another active triad society, and “Dai Lo” is a triad member responsible for giving protection to his subordinates. When one refers to following a person, it means to pay loyalty to that person as a member of the triad society. “Settlement talk” would be a negotiation within a society or between such societies. The reference to an action group is a group responsible for fighting and carrying out operations such as sabotaging other establishments; and the expression “we’re all fellow Lo Sun” means they are members of the Sun Yee On triad society. 9.The prosecution also produced the occurrence book which had been used by counsel to cross-examine PW1. Also not in dispute was the fact that PW1, during the occasions mentioned above, had drunk alcohol, although PW1 had given evidence that he was not drunk on any of those occasions. THE DEFENCE CASE 10.The 2nd Defendant who is the 1st Appellant is a man of clear record. He gave evidence that he is an air-conditioning technician and had known the 1st Defendant since childhood. He denied ever having joined the Wo Shing Wo triad society. 11.The 2nd Defendant agreed he was present in the Flying Elephant Bar on the evening of 26 October 2008. He had a joint birthday celebration with his friend who is called Ah Fei. The 2nd Defendant agreed that he was introduced to PW1 by the 1st Defendant. The 2nd Defendant said there was Ah Fei present and also a man called Ah Kui. PW1, when he made his identification of the 2nd Defendant 11 months later, had failed to identify this man called Ah Kui. 12.The 5th Defendant (the 4th Appellant) also elected to give evidence. He said that he had been present in the VIP room on 7 August 2009 and did meet the 1st Defendant. He had arrived at about 2:45 am and been introduced to the 3rd Defendant and also PW1 as Tommy. The 1st Defendant said he was a friend since childhood and the 1st Defendant told PW1 that he, the 5th Defendant, had done something wrong with guns and knives. PW1 said, “That is marvelous.” The 5th Defendant said he retorted with the words: “If it’s so marvelous, why am I employed to sell vegetables?” He said a lot of drink was taken and there was an exchange of telephone numbers. PW1 left first and he was very drunk. There was no conversation about triad membership. 13.The 5th Defendant also said he met with PW1 on 24 August 2009, and that PW1 was trying to set him up by saying that he wanted to go to rob and asked the 5th Defendant if he knew of a way to obtain weapons. The 5th Defendant told him he did not. 14.It was the case of all the defendants that they had not uttered the words alleged by PW1, and that PW1 had taken a lot of alcohol during the time when he alleged the words were said and cannot be relied upon to be accurate or reliable. Furthermore, it is the defence case also for all the defendants that the words which each of them had uttered did not imply a current membership of the triad society. MAGISTRATE’S FINDINGS 15.The learned Magistrate, having considered the submissions made on behalf of each defendant and the evidence of all the witnesses, came to the conclusion that PW1 was a credible and reliable witness. He also found that the discrepancies in his description of the 1st Appellant as being “stocky” or “sturdy” or “fat” were of a trivial nature and did not affect PW1’s credibility or reliability. He also found that the mistake made by PW1 in the occurrence book, where he had put down a wrong character for “watch” and made a mistake when he put down the Roman figures for the times, were not of such a material nature as to affect PW1’s credibility or reliability. 16.The learned Magistrate, having further considered the evidence of the defence witnesses, came to the conclusion that they were not worthy of belief, and at the end of the day, convicted all the appellants of the charges. APPEAL AGAINST CONVICTION The 1st Appellant 17.Mr Chan on behalf of the 1st Appellant submitted that the learned Magistrate had erred, in ruling that the identification of the 1st Appellant by PW1 was proved beyond reasonable doubt, since the learned Magistrate had confused the evidence on the material discrepancies of the 1st Appellant’s physical characteristics and failed to address properly the weakness in the evidence over identification, thereby rendering the conviction of the 2nd charge unsafe and unsatisfactory. 18.Mr Chan basically complains that PW1 had described the 1st Appellant as being “quite stocky”, then admitted that in his occurrence book he described the 1st Appellant as being “fat”. When asked in re-examination, PW1 said he meant that the 1st Appellant was “sturdy”. Mr Chan pointed out that the learned Magistrate had wrongly recorded in his statement of findings that PW1 had said in the occurrence book that the 1st Appellant was “stocky” and gave evidence that he was “fat”. Mr Chan argued that the learned Magistrate was factually incorrect, and this therefore renders the learned Magistrate’s findings against the 1st Appellant, taken together with his having failed to properly warn himself on the identification evidence, renders the conviction of the 1st Appellant unsafe and unsatisfactory. 19.I do not find that the descriptions used by PW1 to describe the physical appearance of the 1st Appellant to be of so material as to render the learned Magistrate’s findings unsafe. As the learned Magistrate said, PW1 was describing a “large man”. 20.It is also clear from a reading of the learned Magistrate’s statement of findings that the learned Magistrate was well aware of the Turnbull directions and had decided that this was not an identification made under difficult circumstances or a fleeting glimpse, but one of recognition. The evidence disclosed that PW1 had spent several hours with the 1st Appellant after they had been introduced and had therefore plenty of opportunity to get himself familiar with the facial features and characteristics of the 1st Appellant. 21.As for the fact that PW1 was drinking alcohol that evening which may have affected his recollection of the events and his identification of the 1st Appellant, the learned Magistrate was well aware of the defence case, and as Ms Lau had pointed out at page 103 of the Appeal Bundle, the learned Magistrate had correctly identified the issues raised by the defence including that of PW1’s drinking that night. The learned Magistrate clearly had it in mind when he considered the reliability of PW1’s evidence. I therefore cannot see that there can be any complaint of the learned Magistrate ignoring this issue. 22.The learned Magistrate was also well aware of the fact that PW1 had failed to pick out Ah Kui at the identification parade, but at the end of the day he decided that all these did not detract from the accuracy of the identification PW1 made of the 1st Appellant. 23.Mr Chan further complained that the learned Magistrate had erred in ruling that this was a case of recognition and had also failed to give himself a proper and adequate direction on recognition according to the Turnbull guidelines, thus rendering his identification evidence unsafe and unsatisfactory. 24.Upon reading the learned Magistrate’s statement of findings, it is clear that the learned Magistrate, though he found PW1 to be reliable and credible witness, did ask himself as far as the 2nd accused was concerned, whether PW1 could have been mistaken in his recognition of him (the 1st Appellant). 25.I agree with the submission of Ms Lau that it is not necessary for a professional magistrate or judge to expressly remind himself and enunciate the law if from a reading of his statement of findings, it is clear that the learned Magistrate had the law in mind. In this case it was clear that the learned Magistrate did have the Turnbull guidelines in his mind on each occasion when he was analysing the evidence of PW1 as to his identification of each appellant and also considered the possibility of a truthful witness being mistaken. I therefore do not find any merit in ground 2. 26.It is submitted by Mr Chan that the learned Magistrate erred in ruling that the words of the 1st Appellant is referring to a continuing membership. The learned Magistrate, after having considered the evidence of PW1 as to what the 1st Appellant had said, said this:
27.It is clear that the learned Magistrate, after considering the submission of the defence that if the 1st Appellant was merely referring to a historical association, found that the words uttered by the 1st Appellant, though it referred to an event in the past where the 1st Defendant had helped him during a fight to avoid physical injuries, nevertheless they were words which supported the fact that the 1st Appellant was still in a continuing membership of the triad society and had a continuing respect for the 1st Defendant. 28.As Ms Lau pointed out in the case of AG v Chik Wai-lun [1987] HKLR 41 at page 45, sub- paragraph 14:
29.As Ms Lau submitted there is no evidence in the present case indicating that the 1st Appellant had ceased to belong to the triad society, and the evidence shows that the 1st Appellant, on that evening, had attended the gathering consisting of the the 1st Defendant, whom he addressed as “Dai Lo” which was, as the triad expert said, a triad member responsible for giving protection to the subordinates. 30.Hence I do not find any grounds to interfere with the conviction of the 1st Appellant. The appeal against conviction is dismissed. The 2nd Appellant 31.As for the 2nd Appellant’s appeal which has been mistakenly referred to by Mr Cheng as “the 3rd” Applicant, Mr Cheng has complained first of all that the learned Magistrate was wrong to conclude that the words spoken by the 2nd Appellant: “implies a continuing involvement with the triad society” and that those words were capable of more than one interpretation. 32.Upon a reading of the words attributed to the 2nd Appellant, it was clear that he was relating to PW1 that his success was due to his hard work when he was a junior in the action team in Lo Sun. He has now become a senior person as he has had many followers and some of those had been promoted to senior positions in the organisation “being Dai Los”. 33.I totally agree with the learned Magistrate that the words were spoken by the 2nd Appellant, and the only reasonable inference was that the words implied a continuing involvement. As the learned Magistrate had noted, there is no evidence of a renunciation of such triad membership, and the words do indicate a continuing involvement. 34.Mr Cheng’s second complaint is similar to his first which I have already dealt with. I therefore find that there are no grounds in the case of the 2nd Appellant to disturb the findings of the learned Magistrate. So the appeal of the 2nd Appellant against conviction is dismissed. The 3rd Appellant (D4 in the case) 35.The 3rd Appellant was unrepresented in the appeal, and he submitted that PW1’s credibility was not to be relied upon because if he was speaking the truth, why had PW1 not charged him for illegal betting. 36.There is in fact a simple answer to that because the operation in which PW1 was involved in was to uncover triad activity, and its aim was not to charge the 3rd Appellant with illegal betting. As the 3rd Appellant was unrepresented I did consider the evidence of PW1 against him as to the words he said. It is clear from the 3rd Appellant’s words that he was a continuing member of Lo Sun, as he said very clearly to PW1 “as colleagues working in the 80s Style Lounge, you are in Lo Sun” and he told PW1 not to be afraid. I therefore find that there is no merit whatsoever in the appeal against conviction. The appeal is dismissed. The 4th Appellant 37.Miss So, on behalf of the 4th Appellant, first complained that the learned Magistrate had failed to sufficiently consider:
38.Miss So pointed out that PW1 had admitted that he had wrongly written the character for money (錢) instead of “watch” (錶), and he had written “0200” hours instead of “0250” hours and “0058” hours instead of “0258” hours. Miss So contended that these mistakes were made because PW1 was affected by alcohol at the time, and therefore his recollection of the events concerning the 4th Appellant cannot be relied upon. 39.As Ms Lau pointed out, a look at the full context of the entry in which the three mistakes had been made would make it clear that these were writing mistakes and the reader would not have been misled by such mistakes. The learned Magistrate also considered these mistakes and found that these were of such a trivial nature that it did not affect PW1’s credibility and reliability. 40.The defence also alleged that in the same occurrence book entry there was a mistake made by PW1 for the time “0235” hours. In effect, PW1 said it was not a mistake but that the way he had written the strokes, one could be mistaken that it was “0255” and not “0235” hours. 41.Again I do not find that these mistakes are of such materiality that it would affect the credibility of PW1, nor would it indicate that PW1 was under the influence of alcohol. As I have pointed out to Miss So, these are mistakes which can occur in any situation when a person is making a long record of what had happened on that evening. 42.Miss So also complained that PW1 was not clear about whether he had asked the 4th Appellant for his telephone number and whether he had written the same in the occurrence book. 43.As Ms Lau had very clearly pointed out in the transcript, PW1 was not unsure at all. He said that he did not ask the 4th Appellant for his telephone number. In fact the 4th Appellant’s telephone number was supplied to him by the 1st Defendant. Having read the questions and answers made by PW1, I have to agree with Ms Lau that PW1 was not inconsistent on the subject. 44.Tied to the 1st ground it is submitted by Miss So that the learned Magistrate had failed to evaluate the inherent improbabilities of the evidence of PW1 and wrongly ruled that he is an accurate and reliable witness. 45.Again Miss So complained that as a result of the mistakes which were made in the occurrence book which she had already pointed out, and the fact that PW1 had agreed that he had been drinking, the learned Magistrate should have properly considered the fact that PW1 was under the influence of alcohol and therefore would have been unable to have a clear and reliable recollection of earlier events when he wrote in his occurrence book. 46.As the learned Magistrate had pointed out when considering the submission by defence counsel, the learned Magistrate was aware that because it was a social occasion PW1 had to drink alcohol with the others in order not to blow his cover. Having assessed the evidence of PW1, he found PW1’s evidence to be truthful, reliable and credible, and that he was not the worse for wear as alleged by the defence. PW1 himself pointed out, his usual practice during that period was to avoid drinking too much. There is no evidence to show that PW1 was drunk or so affected by alcohol that he was unable to have a clear recollection of the event. The learned Magistrate had made a thorough assessment of all the evidence, and I therefore find no merit in this ground of appeal. 47.Miss So complained that the learned Magistrate had failed to consider that PW1 was biased against the 4th Appellant because he had been told that the 4th Appellant had been in prison for 5 to 6 years. As Ms Lau pointed out there is no evidence to show if at all PW1 was indeed biased against the 4th Appellant nor could Miss So point out any evidence that would support her contention. This ground of appeal also fails. 48.Finally, Miss So submitted that the learned Magistrate had erred in finding that the words uttered by the 4th Appellant clearly illustrated his continuing membership of a triad society. 49.Again upon reading the words said by PW1 that the 4th Appellant uttered and what was said by the 1st Defendant in the presence of the 4th Appellant which is not denied by the 4th Appellant, it is clear that the 4th Appellant was a continuing member of the triad society, and there was no evidence to show that the 4th Appellant had ceased to adhere to the triad society. 50.Miss So also submitted that the learned Magistrate had failed to consider the evidence of PW1 against the 4th Appellant independently and sufficiently. 51.All I need to say on this point is to refer to page 110 of the Appeal Bundle in his Statement of Findings at paragraph 2:
52.I therefore find no merit whatsoever in this appeal and so the appeal against conviction of the 4th Appellant is dismissed. APPEAL AGAINST SENTENCE The 1st Appellant 53.The 1st Appellant was sentenced to 6 months’ imprisonment after the conviction. Mr Chan complained that the learned Magistrate was wrong when he took into account that the 1st Appellant had been a member of a triad society for a long period and was involved in violent conduct in the past. Therefore, the learned Magistrate’s sentence of 6 months principle was manifestly excessive and wrong in principle. 54.The learned Magistrate in considering sentence had taken into account that the words said by each appellant was said on a social occasion, and there was no evidence of any current unlawful activity. However, the learned Magistrate was entirely correct in saying that the suppression of unlawful societies is a serious matter in Hong Kong, and it has been a long-term problem. And that the court recognising this have always said that even for persons of clear record, if they are convicted of the present offence, terms of immediate imprisonment are normally given. 55.In the case of the 1st Appellant the learned Magistrate properly considered that on the evidence the 1st Appellant himself said he had been in Shing Wo “for such a long time”. He had himself disclosed that in the past there was violent conduct, and the 1st Defendant had saved him from physical injuries. The learned Magistrate did take into account the background of the 1st Appellant, his stable job and the report of the probation officer before sentencing the 1st Appellant to 6 months’ imprisonment. 56.Taking into account the fact that the 1st Appellant himself said he had been a member of the Wo Shing Wo for a long time, and despite his stable family and work opportunity, he was still a continuing member. I do not consider that 6 months’ imprisonment is manifestly excessive. It is a severe sentence but it does not achieve the standard of being manifestly excessive. So the 1st Appellant’s appeal against sentence is dismissed. The 3rd Appellant 57.The 3rd Appellant submitted that since the age of 18 to the present he had never committed any other criminal offences, and that he had to work to support his family. His family consists of his two elder brothers and his parents, so the 3rd Appellant submitted that the sentence of 6 months’ imprisonment was manifestly excessive. 58.The learned Magistrate, prior to sentencing, had obtained a background report on the 3rd Appellant. The learned Magistrate considered the background of the 3rd Appellant together with the fact that he had a clear record, together with the fact that the 3rd Defendant had told PW1 not to be afraid because working in the 80s Style Lounge, they are members of Lo Sun, meaning that he was a continuing member of the Sun Yee On triad society. As in the case of the 1st Appellant, although the 6 months’ imprisonment is high, I do not consider it to be manifestly excessive. So the appeal is dismissed.
Ms Lau Siu Yee Virginia, SPP of Department of Justice, for the Respondent Mr Kenneth P C Chan, instructed by Messrs Wong, Kwan & Co, for the 1st Appellant Mr Francis M B Cheng, instructed by Ivan Tang & Co, for the 2nd Appellant The 3rd Appellant, in person, present Miss Rita K Y So, instructed by Messrs Wong & Co, for the 4th Appellant | ||||||||||||||||||||