KWAN LAM v. THE QUEEN

CACC000339/1974

 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 339 OF 1974

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BETWEEN
	KWAN LAM	Appellant
	and
	THE QUEEN	Respondent

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Coram: Pickering, J.

Date of Judgment: 31st May, 1974.

 

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JUDGMNET

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1. On 25th September last this appellant was found guilty of being a member of a triad society and was bound over for twelve months in the sum of $500. On 21st April this year, whilst his bond was still extant, he was observed in the street talking to five other men. A police patrol, becoming suspicious of the six, approached them and took them to the police station for enquiries. At the police station the appellant admitted that he was a member of a triad society whereupon he was again charged with that offence and, upon his plea of guilty, was sentenced to nine months imprisonment. He appeals against that sentence.

2. It is well known that there is no escape from membership of a triad society, no method of resigning, and the appellant's culpability in respect of his membership was no greater on 21st April 1974 than it had been when he was bound over for the same offence on 25th September 1973. His only crime was to be seen in the street "chatting furtively", whatever that may mean, with five other men. Membership of a triad society is a stigma which attaches to him permanently and theoretically it would be possible to charge him every day with this offence. In the absence of any evidence of triad activities when, if those activities were in themselves incapable of supporting other charges, it might have been appropriate to charge him again with membership of a triad society. But in the present circumstances it was wholly inept to bring that charge again.

3. The appellant should never have been charged with the present offence, the more so whilst his bond was still extant, nor having been charged, should he have been sentenced to nine months imprisonment for a state of affairs over which he had no control and in respect of which he had previously been bound over. The appropriate method of dealing with this appellant was to grant him to an absolute discharge without recording any conviction so that this offence should not appear upon his record.

4. According to his statement of findings the learned magistrate appears to have been influenced by the fact that the appellant had two previous convictions for violence "and much violent crime is now being perpetrated by persons who are triad members". There is at least a suggestion here that the appellant was being sentenced either for his past record or for general activities of triad members in respect of which there was no evidence concerning the appellant himself.

5. In the circumstances the sentence of nine months imprisonment is set aside and substituted by an absolute discharge, although it is to be regretted that the appellant has already served five weeks of his sentence. I direct that no conviction be recorded.

 

Representation:

Howell of Gunston & Chow for appellant

Stevenson, C.C., for respondent.