HKSAR (香港特別行政區) v Chan Yuet Ching (22 September 2008)

(22 September 2008)

The Appellant appealed against his conviction after trial in the Magistracy, on two counts of "acting as a member of triad society", contrary to section 20(2) of the Societies Ordinance.

Under section 20(2) of the Societies Ordinance:

"Any person who is or acts as a member of a triad society or professes or claims to be a member of a triad society or attends a meeting of a triad society or who pays money or gives any aid to or for the purposes of the triad society or is found in possession of or has the custody or control of any books, accounts, writing, lists of members, seals, banners or insignia of or relating to any triad society or to any branch of a triad society whether or not such society or branch is established in Hong Kong, shall be guilty of an offence and shall be liable on conviction on indictment."

According to the evidence, in the incident which formed the basis of the first charge, a large group of people including the appellant gathered at a discotheque called "Co Co Duck" on 13 March 2000 and that,

"None of those present drank beer (despite its having been served), played finger-guessing games, or danced, as one might have expected them to do at a discotheque. After some time, a man came in and spoke to the Appellant for about 30 minutes; he then left. Throughout this time, the assembled group had been silent with serious facial expressions. After the man had gone the Appellant spoke to a man at his table and then announced to those assembled, "the matter with Lo Fuk has been settled". The reference to "Lo Fuk" was believed to be a reference to the Fuk Yee Hing Triad Society. After that the group began to engage in drinking, dancing and playing finger-guessing games. The Magistrate found that the Appellant was in control of the persons gathered at the disco and was taking a leadership role in a typical triad show of force following a 'blowing of the whistle'."

The main evidence came from PW1, an 'undercover' police officer who infiltrated the organisation and its 'sub-culture' from July 1999 and June 2000. The appellant challenged the reliability of identification of the appellant on the ground of delay (a period of 7 years).

The appellant also submitted that it was not enough to simply prove that his act had a triad character but also that he knew them to be such and that the prosecution had not prove that.

The Hon Beeson J rejected the arguments and stated that

"On a clear reading of the section all the prosecution needed to prove was that the Appellant was acting in a manner which emulated the actions of a member of a triad society; that he was taking part in the kind of activities of a triad society a member might be required to take part in. Presence alone during such activities would be insufficient. An overt act, or acts, must have been done consciously in circumstances which left no room for doubt."

The judge was also satisfied that the Magistrate took into account all relevant matters when considering he could rely on PW1’s identification.

The following cases were referred to in the judgment:

• HKSAR v. WONG Shing-chi CACC 245/1999
• YIP Lai-ying v. HKSAR, FAMC 80/2005
• HKSAR v. LAM Yan-ming, HCMA 1078/2003