Ng Chi-wah v. The Queen
Read the full judgment text of CACC 1340/1977 on BabelCite. This Court of Appeal judgment.
1. The appellant was charged with being a member of a triad society contrary to the provisions of section 20(2) of the Societies Ordinance. The evidence led by the prosecution was that of D.P.C. 14631 who said that on the 3rd September, 1977 he stopped four men in Kimberly Road and questioned one of them. This person was the appellant. The police officer said that in answer to questions the appellant admitted that he was a member of the Sun Yee On Triad Society. The appellant was then taken to t
Cited by 1 case
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CACC001340/1977
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----------------- Coram: Briggs, C.J., Pickering, J.A. and McMullin, J. Date of Judgment: 1st March, 1978. ----------------- JUDGMENT ----------------- 1. The appellant was charged with being a member of a triad society contrary to the provisions of section 20(2) of the Societies Ordinance. The evidence led by the prosecution was that of D.P.C. 14631 who said that on the 3rd September, 1977 he stopped four men in Kimberly Road and questioned one of them. This person was the appellant. The police officer said that in answer to questions the appellant admitted that he was a member of the Sun Yee On Triad Society. The appellant was then taken to the Police Station, Tsimshatsui, and cautioned where he made a further statement. At the trial he contested the voluntariness of this statement but after the usual trial of that issue the statement was admitted in evidence. It is to the following effect:-
At the conclusion of the prosecution case the learned magistrate took the view that because there was lacking any evidence relating to a ceremonial initiation into the stated society the charge as it stood was not supported by the evidence and he thereupon amended the charge, as he was entitled to do, substituting for the original charge a charge of claiming to be a member of a triad society contrary to the provisions of sub-section 2 of section 20, The situation was explained to the appellant who elected to remain silent and was thereupon convicted of the offence in the amended charge. He was given a conditional discharge and bound over in the sum of $250 for two years. 2. The appeal was taken by Huggins, J.A. in the first instance and he, considering that a point of general importance was involved, directed, under section 118(1) (d) of the Magistrates Ordinance, that the appeal should be argued before the Court of Appeal. Mr. Downey, for the appellant takes two principal points upon the appeal, firstly he says that the conviction was against the weight of the evidence and, secondly, that the magistrate erred in law in finding the appellant guilty of the offence in the charge as amended since, in his contention, the facts found by the magistrate did not support that charge. It is this latter point which constitutes the point of greatest concern upon this appeal and which occasioned the certificate of the learned Justice of Appeal at first instance. 3. Section 20 of the Societies Ordinance is in the following terms:
4. Mr. Downey points out that the words "professes or claims" in subsection (2) were introduced by an amendment in 1964 and he underlines the fact that no similar amendment was made to the wording of subsection (1). He enlists this distinction, however, only as supporting the contention that where the Legislature, in dealing with the special case of triad societies as distinct from unlawful societies in general (subsection (1)), introduced these new words in relation to such specially harmful societies, these words must be given a close and critical scrutiny and should be restricted in their meaning to what can be said to be the central and clear purpose of the provision. That purpose, he suggests, is the condemnation and prevention of overt and positive claims made to members of the public with the intention of obtaining an advantage by the person who utters such a claim by intimidating the person to whom the claim is made. They should not, he insists, be held wide enough to include such an unspontaneous utterance as an answer by an accused person in custody in a police station to a direct question put to him by a police officer on the subject of membership. To put the matter more succinctly he suggests, particularly in relation to the word "claims", that it partakes of the notion of an assertion rather than an admission. He adds that various anomalies would arise if the words are interpreted to include such admissions. For example, he says that an accused person who pleaded guilty to a charge of being a member of a triad society before a magistrate could later be charged with having claimed to be a member as a separate and distinct offence. Again, a witness who waived his right against self-incrimination might find himself in a similar danger if, in the course of giving evidence, he admitted in answer to a question, that he was a member of a triad society. Mr. Duncan, for the Crown, replies that these are remote and extreme possibilities and should not be held in derogation of the simple everyday meaning of the terms employed. He says that even if it be nominally the case that such admissions might lay open any person to a prosecution for this offence the discretion of the prosecuting authority should be relied upon not to press the legislation to an absurd degree. 5. Yang, J. in Criminal Appeal 937 of 1975 considered this point. It was a case where the Attorney General had appealed by way of case stated against a magistrate's ruling that a respondent had no case to answer on a charge of claiming to be a member of a triad society. The magistrate in that case had taken the view that an admission to a police officer of membership did not constitute a claim to be a member. The learned judge noted the fact that on dictionary definitions the word "admit" appeared to have a narrower ambit than the words "profess" and "claim". He made, however, no distinction between the latter two words and he held, against the contention of counsel for the respondent, that they did not imply necessarily an element of spontaneity. He came to the conclusion that section 20(2) was 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 enquiry or in other circumstances." This decision of Yang, J. was approved by Briggs, C.J. in Leung Chi-ming v. The Queen (1). In the same year, it was approved by Pickering, J. (as he then was) in Ngo Ngan-ting v. The Queen (2). Mr. Downey, however, asks us to say that on the fuller argument now presented we should depart from the decision of Yang, J. and inferentially from the subsequent decisions. 6. It is interesting to note that Pickering, J. in the latter of these two cases, while agreeing with what had been said by Yang, J. added the following (p.150):-
7. One of Mr. Downey's contentions upon the present appeal has been that the confessional statement, taken after caution, cannot be said to support the charge in its amended form since there is in that statement no admission to having made any claim to be a member, the confession being to membership per se, a charge which had been found not proven. This, he says, points up the difficulty of deciding just what evidence is sufficient to support a charge of claiming to be a member if the words are to be read in the wider sense for which the Crown contends. Undoubtedly, membership per se and claiming membership are two distinct offences and are so dealt with by the legislation. Counsel's principal contention, however, is that admission to a police officer under such circumstances as these cannot amount to a claim such as to support a charge in the amended form. 8. In Yip Yuk-lun v. The Queen (3) a case referred to by Yang, J. in the case above cited, Hogan, C.J. was considering an appeal from a magistrate who had convicted a man upon a charge of misleading a police officer, contrary to section 58A(b) Cap. 232. At page 280, he says the following:-
He said (p.281):-
The learned Chief Justice did not purport to decide that question since it did not call for decision on the state of facts before him but pursuing the same line of thought it might be said that Mr. Downey in the present case is correct at least to the extent that the primary purpose of the inclusion of the word "claim" in subsection (2) of section 20 was to strike at such persons as made assertions of membership with the positive intention of attracting advantage to themselves thereby. I think that his case would have been stronger if the word "claims" had appeared alone in that subsection. We have been taken through the many different nuances of meaning attached to the word "claim" in the Shorter Oxford English Dictionary and it will suffice to say that, in general, those definitions lend some colour to the idea that a claim is something of a positive and spontaneous kind, an assertion made of the subject's own volition, although it can by no means be said that such definitions would exclude the idea of a claim being made in answer to a question. On the other hand the meanings given in the dictionary in respect of the word "profess" yield a series of cognate usages which, while overlapping to some extent the meanings ascribed to the word "claim", show nevertheless a significant overall distinction in character as being something less active and positive in nature. The basic relevant difference might fairly be said to reside in the distinction between asserting a fact as against acknowledging it. "Profess" includes the meaning "confess" a term which is not included in cognates of "claim". It would seem, therefore, that the proper conclusion is that the Legislature, which must not be assumed to have included two expressions without a significant intention of differentiating between them, intended by doing so to embrace the notion of claiming in a stronger and in a weaker sense. The stronger sense, i.e. "claiming" proper, would indeed be apt to cover such matters as the use of the triad allegation as a threat to procure advantage while "professing" i.e. claiming in the weaker sense would be apt to cover mere matters of confession in response to questioning. 9. Mr. Downey did not make much of the distinction between the terms but Mr. Duncan was quick to point out that some distinction must be made and he suggested that that distinction was of the kind which has just now been described. He said that perhaps in the present case the proper form of the amended charge should have been to the effect that the appellant had professed to be a member of such a society. We think that is the correct view. If as we think the intention of the Legislature was to cover two distinct broad categories of situation in employing these two terms, and if it is reasonable to suppose that any admission made in answer to a question would come within the intendment of the weaker term we cannot see any good reason for excluding from that category proof by an admission solely because the question has been put by a person in authority. 10. It is conceded by the Crown that the learned magistrate was wrong to found his opinion as to guilt in part upon answers given by the accused in the course of cross-examination upon the voire dire concerning the issue of admissibility. Mr. Duncan concedes that the opinion of the Full Court in Ng Chun-kwan v. The Queen (4) to the effect that matter elicited in cross-examination upon the voire dire should not be used upon the general issue stands at the present time as good law. He maintains, however, that the decision of the magistrate is fully sustainable upon the basis of the other two evidentiary matters upon which the magistrate relied. These are the cautioned statement which was challenged and admitted after enquiry and the verbal admission said to have been made to the arresting officer in the coffee shop. As to the latter, it is said that this is insecure since the note of the evidence - which is in narrative form - discloses in effect only the opinion of the arresting officer that the appellant was admitting membership of a triad society. Mr. Downey adds that we do not know what form the question took nor what the precise nature of the answer to it was. That is a substantial complaint. Where the prosecution seek to rely upon a spontaneous admission of that kind, not taken under caution and formally recorded, we think it would be proper to insist that the exact words of the question put to the accused and his exact reply thereto should be recorded. In circumstances such as these, a zealous police officer might well conclude that the answer given to him was a simple admission to membership when, to less committed ears, what was said might amount to something far less specific and exact. There remains, however, the admission made in the statement after caution. Undoubtedly, in view of what has been said above, the admission there made could amount to a claim in the weaker sense of a confession. We think that Mr. Duncan is right to suggest that the charge should properly have been one of "professing" rather than "claiming". Since the Legislature has put in the hands of prosecutors a legislative provision which can be interpreted as covering two quite distinct kinds of assertion there seemed to be no good reason for not taking the legislative hint and adopting a practice whereby claims of the bolder kind made for advantage to the public should be charged as "claiming" simpliciter while those obtained as the result of questioning in custody, and which are properly admissions, should be charged as "professing". Between these two kinds of assertion there may be a world of difference, in terms of practical culpability. The man who, some years prior to the charge, has somewhat reluctantly acceded to pressure in joining such an association and has thereafter done nothing save give at the most minimal and nominal support is clearly in a very different category from the man who prowls the streets using a name of dread to induce compliance with his wishes. 11. The offence in the present case was clearly an offence of "professing" rather than "claiming". We would hope that in future cases where the circumstances are comparable with those in the present case the charge will be laid as one of "professing". Had this been a case of "claiming" in the stronger sense then, despite the reliance by the magistrate upon matters which he should not have relied upon, we would have acceded to Mr. Duncan's suggestion that we employ the powers given to the appellate court under section 119 of the Magistrate Ordinance. We might then have considered whether the conviction should in any event be sustained on the understanding that the appellant had in a measure succeeded upon the appeal on the point of law. The evidence, however, discloses that this was truly a case of what must henceforth be called "professing". The cautioned statement (the only evidence now subsisting against the appellant) makes it clear that he was himself a victim of brutal conduct which alone impelled him to join the ranks of this society. 12. In the circumstances we think, by a majority that the proper course is to allow the appeal and set aside the sentence.
Representation: B. Downey and D. Tam(D.L.A.) assigned for the Appellant. Duncan for Crown/Respondent. (1) 1976 H.K.L.R. 247 (2) 1976 H.K.L.R. 143 (3) 1961 H.K.L.R. 268 (4) 1974 H.K.L.R. 319
Coram: Briggs, C.J., Pickering, J.A. and McMullin, J. Date of Judgment: 1st March, 1978. ----------------- JUDGMENT ----------------- 13. The appellant was charged with the offence of "being a member" of a triad society contrary to section 20(2) of the Societies Ordinance, Cap.151. At his trial this charge was amended to the offence of "claiming to be a member" of a triad society and he was convicted of the latter charge. 14. A police officer gave evidence to the effect that he questioned the appellant in a certain restaurant and in answer to a question the appellant admitted that he was a member of the Sun Yee On Triad Society. 15. Later, the appellant made a cautioned statement. This was admitted in evidence by the magistrate after a voir dire. According to the police officer, when he cautioned the appellant he told him that he, the police officer, was arresting him because he had reason to believe that he, the appellant, was a member of the Sun Yee On. This must refer to the conversation held in the restaurant previously. The appellant, in answer to the caution, said:-
On these facts, as I have said, the appellant was found guilty of "claiming to be a member of a triad society". He was bound over for two years. 16. The principal ground of appeal is that these facts do not amount to the offence of "claiming to be a member of a triad society." The suggestion is that "claiming" must, in the context of the Societies Ordinance" mean something more than an assertion or statement that one is a member of a triad society. The type of mischief at which the section is aimed at is blackmail or the like. Triad Societies exert a considerable influence and many persons cash in on this. A person may say to someone "I am a triad member", thus putting that person in fear giving extra force to any demand then made. It not mattering of course in that context whether the person making the statement is or is not a triad member. In such a case, so the argument goes, a charge of "claiming to be a triad member" would be proper. But not in a case such as the present, when the statement is made in answer to a question, or where it is induced or invited. 17. The golden rule in the interpretation of statutes is that the words used must be construed in their ordinary grammatical meaning. The ordinary meaning of the word 'claim' is to maintain or assert. If a man states "I am a triad member" he is maintaining or asserting that he is a triad member. If he makes the same statement in answer to a question is he not still maintaining or asserting that he is a member? I think the answer must be in the affirmative. 18. In the case of the Attorney General v. Ng Kwok Yuen (1) Mr. Justice Yang held that this was so. And that case has been followed in two other criminal appeals each decided by a single judge. 19. Mr. Downey, who appeared for the appellant has pointed out the undoubted fact that if a police officer, for example, asks a man "Are you a member of a triad society?" He is, in effect, "inviting" that man to commit a crime. Admissions of all other crimes are admissions that a crime has been committed. The admission itself does not constitute the crime. If the question was "Did you admit to X that you were a member of a triad society?" and the answer was "Yes", then that answer would not be an offence. The offence would have been the previous admission to X. 20. Mr. Downey concedes that if X says to Y "I am a triad member" with the intention that Y shall be put in fear, an offence has been committed. X has claimed to be a triad member. The claim was made spontaneously and not in answer to a question. And it was made with the intent that Y be put in fear, He says there must be proof of some intention or motive to benefit the person making the claim or at the very least spontaneity from which such a motive or intent can be readily inferred. 21. He wishes the court to construe the word "claim" in section 20(2) of the Ordinance as if it was preceded by the word "spontaneous" or some similar expression. But there is no such word or expression in the section. The word must be given its ordinary everyday meaning. It cannot be restricted to a spontaneous claim. 22. Mr. Downey also pointed out that if the facts of the present case constituted the offence of claiming to be a triad member. So would a plea of guilty to such an offence, as would an admission by a witness in court to such a question. That may well be the case but to my mind it does not help the appellant. It is hardly likely that such offences would attract prosecution. 23. A further point was made in favour of the appellant. The appellant gave evidence in the voir dire but did not give evidence on the general issue. The magistrate in his statement of findings referred to part of his evidence when he was being cross-examined in the voir dire. This was wrong. It was not suggested that the prosecution sought to adopt the voir dire as part of their case. 24. However, I think that this can be ignored as being a trivial error. There was ample evidence which, if believed, must inevitably have resulted in a conviction. If this matter had come before this court on indictment it would clearly have been a case for the use of the proviso. I do not think that this is a case where the court should interfere. 25. I would dismiss this appeal.
Representation: Downey and David Yam (D.L.A.) for appellant. Duncan for Crown. (1) Criminal Appeal No. 936 of 1975. |
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