HKSAR v. Chan Ka Fai and Another

DCCC3/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 3 OF 2013

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RESONS FOR SENTENCE

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1.D1 was convicted after trial this morning of the offence of “claiming to be an officer-bearer of a triad society”, namely, a staff member of the Sun Yee On Triad Society, (Charge 1).

2.D2 was convicted on his own plea of another charge of “claiming to be a member of a triad society”, namely, the Sun Yee On Triad Society, (Charge 2).

Facts

3.The principal evidence against both defendants was the recollection of PW1, PC 8367, Lam Hin-ho, a young police officer of the OCTB, who at the material time, was an undercover agent.

4.On the day in question, PW1 went to Why Club at the Minden Avenue for fun as part of his duty with a view to collect information and evidence of criminal activities of a triad society. 

5.Later at around 3:07 am at the entrance on the ground floor outside the club which was located at the basement, PW1 witnessed two groups of people, each comprised of 10 or more persons swearing at and confronting each other. He knew people of one group which included both defendants and some others but not the people of the other group.

6.At that time, there was heated disputes and arguments between the two groups of people.  In the course of the argument, PW1 was able to hear some of the exchanges between the people of the two groups.  In particular, he heard firstly that D2 was claiming that both groups of people were of “Lo Sun” and therefore the Sun Yee On triad society. 

7.In relation to D1, PW1 later also heard that D1 had introduced himself as Ka Fai to a person of the opposing group and further claimed that he was a staff member of Sun Yee On who overlooked the establishment.

8.According to PW3, the trial expert, Sergeant 49287, Sun Yee On is a triad society active in Hong Kong and “staff member” is a general or common term for a triad official or an “office-bearer” as opposed to a mere or ordinary member of a triad society. 

9.D1 did not specify however what his exact rank was.  He only mentioned in general that he was a staff member of Sun Yee On Triad Society.

Background of the defendants

10.D1 is 38 years old.  He is married with two young children.  He has been operating Why Club and other restaurant establishments for the last 7 years in Tsim Sha Tsui. 

11.In the past, he had some minor records of “unlawful gambling” and “criminal damage” for which he was only fined.  His last conviction was in 2001 when he was sentenced to 80 hours of community service order for two driving offences of “drink driving” and also “dangerous driving”.

12.In mitigation, Mr Egan reminded the court that D1 is not charged with being an office-bearer of the Sun Yee On.  He submitted that a closer examination of the event on that night will reveal that it was more like a case that in the heat of the argument, D1 just foolishly uttered the words described by PW1 with a view to disperse the unruly mob on the other side and to protect his own business establishment.

13.Mr Egan submitted that the present conviction would have a severe impact on D1 and he would be forced to be driven out of his business operations, and to that extent, it was already a severe punishment.  D1 is convicted after trial and therefore could not be said to be remorseful, but at the same time, Mr Egan still urged the court to be as lenient as possible and to approach the matter on a lower scale of the criminality in light of his mitigation.

14.D2 is 39 years old.  He is not married but he has been cohabitating with a girlfriend for the last 10 years and they already have a 7 years old son.

15.D2 has appeared in the court in four different occasions in the past between 1995 and 2005.  The first three offences were all simple possession of drug offences for which he was only given a fine and/or a suspended sentence. His last conviction was also in relation to “driving whilst disqualified” and “driving a vehicle without a third party insurance”.  For those offences, he was sentenced to 4 months’ imprisonment suspended for 12 months.

16.Before the conviction, he was a security personnel or a bouncer by occupation earning a monthly income of $15,000 a month.

17.Mr Cheng in his mitigation for D2 reminded the court that the defendant is very remorseful and fully co-operated with the police.  D2 had pleaded guilty and saved the court’s time.  He also pointed out that in Charge 2 what D2 had said and done was not to escalate the situation but rather with a view to disperse the opposing group.

18.Mr Cheng submitted that the claiming of D2 to be a member of Sun Yee On Triad Society was not done in relation to any personal gain or extortion from the others.  To that extent, and like Mr Egan, he submitted that the criminality involved in this charge is less than the usual cases. 

Sentencing consideration

19.Triad related offence is always a serious offence because it is a menace to the society and the offence of “claiming to be an office-bearer” is naturally more serious than “claiming to be a member of a triad society”. 

20.In both Charge 1 and Charge 2, I accept what both counsels have submitted that it was not a case where, for example, it was done with a view to “blow the whistle”, viz, summon for assistance.  Rather it was done during a confrontation situation where the group of D1 and D2 was facing the opposing group and the utterance by both D1 and D2 was clearly with a view to disperse the other group rather than to escalate the situation of the confrontation.

21.In Charge 1, based on my finding and the reasons for verdict, I am satisfied that D1 is actually a staff member of the triad society although I am clearly of recognizance of the fact that he is only charged with “claiming” to be an office-bearer.  I said this because I find that there is no reason for D1 to utter those words to another group of triads if he is not really an office-bearer of the Sun Yee On triad society.

22.However, having said that, I do bear in mind what Mr Egan had said and I shall only pass a sentence on the basis that he was “claiming” as an office-bearer.

23.In a Chinese judgment HKSAR v Choy Ka Fai, CACC195/2009 (unreported), a case concerning “claiming to be a member of a triad society”, the Court of Appeal in dealing with a case which involved “blowing whistle” or summon for assistance had referred itself to an earlier case of HKSAR v Yeung Chi Keung and Anor, CACC96/1998 (unreported) and said that the appropriate starting point for an offence of this type of offence is said to be 15 months’ imprisonment.

24.Therefore, in my judgment, in Charge 2, because of the lower criminality involved, I decided to adopt a lower starting point to properly reflect the gravity of the matter.  I decided to only use 12 months as a starting point and after giving the usual one-third discount on account of his plea, D2 is sentenced to 8 months’ imprisonment for Charge 2.

25.For Charge 1, as it is a more serious offence of “claiming”, the starting point of this offence is expected to be higher.  In Attorney General v Cheung Yeung Kwan, [1992] 2 HKCLR 169, the Court of Appeal had said that the offence of being an office-bearer of a triad society was more serious than that of being a member of a triad society and would usually merit 2 years’ imprisonment.

26.Since in this case, the offence is only one of “claiming” as opposed to “being”, and also because of the lesser criminality involved in this case, I decided therefore to impose a sentence of 18 months’ imprisonment for Charge 1 and D1 is sentenced accordingly.