HKSAR v. WONG FUK TAK AND OTHERS

CACC000249A/1999

CACC 249/1999

HEADNOTE

Criminal law - procedure - memory refreshing documents - witness permitted to refresh memory - reading from diary when testifying in witness box - acceptable practice in cases of complexity to avoid mistake and confusion.

Criminal law - section 20(2) Societies Ordinance, Cap. 151 - acting as a member of a triad society - procuring others to act as members of a triad society sufficient basis for conviction under section 20(2).

Criminal law - unfounded allegations made against trial judge - no place in grounds of appeal without sufficient foundation.

Sentence - sections 19(2), 20(2), 22(2) Societies Ordinance, Cap. 151.

 

CACC 249/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 249 OF 1999

(ON APPEAL FROM DCCC 1095-1099 OF 1998)

 

BETWEEN
	HKSAR	Respondent
	AND
	D1 WONG FUK TAK	Applicants
	D2 TING YUK YUEN
	D3 YIU YAU PIK
	D4 YAU LAI MAN
	D5 FUNG SAI LUNG
	D6 NG SUN KUEN
	D7 CHEUNG KAM SHING
	D8 YIP KWOK FOR
	D9 YIU YAU FAI
	D10 CHAN KIN MING
	D15 CHENG KIN KEUNG
	D16 TANG CHEUK WAI
	D17 WONG WAI MAN
	D18 WONG YUN KWAI
	D19 KON KWOK CHEUNG
	D20 HO KIN LEUNG

_____________________

Coram: Hon. Stuart-Moore VP, Mayo VP and Woo JA

Date of Hearing: 14 and 15 March 2000

Date of Judgment: 11 April 2000

 

_______________

J U D G M E N T

_______________

 

Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 16 April 1999, the sixteen Applicants (D1 to D10 and D15 to D20) were convicted in the District Court following a twelve-day trial before Judge Line on a variety of offences relating to their connections with the Wo Hop To triad society. D1 to D4, D7 to D10 and D15 to D18 now seek leave to appeal against conviction and sentence while D5, D19 and D20 seek leave to appeal against sentence only. D6 did not seek to pursue his applications for leave to appeal against conviction and sentence and accordingly they are dismissed.

2. The background is complicated only insofar as the charge sheet contained 29 charges, some in the alternative to others, against 23 defendants who were convicted of at least one offence. The remaining seven convicted defendants have not sought leave to appeal. Three other defendants were acquitted.

3. For a period of about six months, the Wo Hop To triad society was infiltrated by an undercover police officer who called himself "Andy" (PW1). He was accepted as a member in about January 1998 and acted as such until June 1998. Although ten other prosecution witnesses were called, the prosecution's case was, effectively, wholly dependent on PW1's evidence. When giving his evidence in the trial, he was permitted to refresh his memory from his daily diary of events. If the evidence given by PW1 was believed, the prosecution contended and the defence conceded that the charges were plainly made out.

4. The central issue in the trial, bearing in mind that all the charges were denied, related to PW1's credibility. The defence case was broadly presented on the footing that PW1 had not made an accurate record of all the events he purported to have noted and, in some instances, that the activities he had alleged never took place at all. Only three of the defendants who are applying for leave to appeal against conviction gave evidence, namely D3, D17 and D18. In addition, several other defence witnesses were called.

5. The charges faced by the defendants related to eight separate incidents which the judge broadly categorised in this way:

Category	Event	Date	Charges
A	Introduction	10.1.98	1 to 5
B	President Game Centre	12.1.98	5 to 11
C	Aberdeen 1	11.2.98	12
D	Neway	13.5.98	13 to 15
E	Top One	17.5.98	16 to 18
F	Big Echo	21.5.98	19 to 23
G	Ricacorp	23.5.98	24 to 26
H	Aberdeen 2	23.6.98	27 to 29

6. We are indebted to Mr Peter Chapman, appearing on behalf of the Respondent, for his most helpful analysis of the evidence given at trial. We propose largely to adopt it, in outlining the case against the defendants which the judge found to have been established.

The Prosecution's Case

7. The eight incidents which gave rise to the charges were covered by the amended consolidated charge sheet in chronological order. Dealing with the broad picture which emerged from the evidence given by PW1, the judge said:

"Whether or not any particular defendant be guilty, the introductory matters labelled A show the informal joining. The matters at B, E and F show the troops using violence to avenge slights to their own members: other young men ending up chopped and beaten in games centres and karaokes. The matters C, G and H show older men seeking to use the troops to punish those who have offended in the competitive field of property agency and to deter the competition in the shady business, running men to the pleasures on Ling Ding Island."

Charges 1-5 (Category "A")

8. Turning next to the way in which the judge approached each of the "categories" to which the evidence related, charges 1-5 in category "A" reflected the events at about the time of PW1's introduction to Wo Hop To. The charges were as follows:

"1st Charge (against 1st accused only)
Statement of Offence

Claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak, on the 11th day of January, 1998, at 'Hang Fook Lau Seafood Restaurant', No. 421, Queen's Road West, in Hong Kong, claimed to be a member of a triad society, namely, the Wo Hop To Triad Society.

2nd Charge (against 2nd accused only)
Statement of Offence

Claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Ting Yuk-yuen, on the 11th day of January, 1998, at 'Hang Fook Lau Seafood Restaurant', No. 421, Queen's Road West, in Hong Kong, claimed to be a member of a triad society, namely, the Wo Hop To Triad Society.

3rd Charge (against 1st accused only)
Statement of Offence

Inviting others to be a member of a triad society, contrary to section 22(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak, on the 11th day of January, 1998, at 'Hang Fook Lau Seafood Restaurant', No. 421, Queen's Road West, in Hong Kong, invited Kwok Shing-pui to become a member of a triad society, namely, the Wo Hop To Triad Society.

4th Charge (against 2nd accused only)
Statement of Offence

Inviting others to be a member of a triad society, contrary to section 22(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Ting Yuk-yuen, on the 11th day of January, 1998, at 'Hang Fook Lau Seafood Restaurant', No. 421, Queen's Road West, in Hong Kong, invited Kwok Shing-pui to become a member of a triad society, namely, the Wo Hop To Triad Society.

5th Charge (against 8th accused only)
Statement of Offence

Claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

YIP Kwok-for, on the 12th day of January, 1998, at Tsing Yi 'Mass Transit Railway' construction site, in Hong Kong, claimed to be a member of a triad society, namely, the Wo Hop To Triad Society."

9. As to these charges, the judge said:

"Mr Cosgrove conceded that if PW1 was found to be speaking truthfully and accurately about these first five charges then guilt would follow. There was no defence evidence touching directly on these matters. I was sure that PW1 was honest and accurate and that there was no room for mistake, so convictions inevitably followed."

Charges 6-11 (Category "B")

10. Charges 6 to 11, relating to the category "B" events at the President Game Centre were in these terms:

"6th Charge (against 1st, 2nd, 3rd, 4th,
7th, 8th,14th, 15th and 16th accused)
Statement of Offence

Wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212.

Particulars of Offence

Wong Fuk-tak, Ting Yuk-yuen, Yiu Yau-pik, Yau Lai-man, Cheung Kam-shing, YIP Kwok-for, Ching Wai-tung, Cheng Kin-keung and Tang Cheuk-wai, on the 12th day of January, 1998, at 'President Game Centre', No. 513, Jaffe Road, Wanchai, in Hong Kong, unlawfully and maliciously wounded TSANG Chi-kin with intent to do him grievous bodily harm.

7th Charge (against 1st, 2nd, 3rd, 4th,
7th, 8th, l4th. l5th and l6th accused)
Statement of Offence

Wounding with intent, contrary to section l7(a) of the Offences against the Person Ordinance, Cap. 212.

Particulars of Offence

Wong Fuk-tak, Ting Yuk-yuen, Yiu Yau-pik, Yau Lai-man, Cheung Kam-shing, Yip Kwok-for, Ching Wai-tung, Cheng Kin-keung and Tang Cheuk-wai, on the 12th day of January, 1998, at 'President Game Centre, No. 513, Jaffe Road, Wanchai, in Hong Kong, unlawfully and maliciously wounded Liu Wai-shun with intent to do him grievous bodily harm.

8th Charge (against 1st, 2nd, 3rd, 4th,
7th, 8th, 14th, 15th and 16th accused)
Statement of Offence

Wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212.

Particulars of Offence

Wong Fuk-tak, Ting Yuk-yuen, Yiu Yau-pik, Yau Lai-man, Cheung Kam-shing, YIP Kwok-for, Ching Wai-tung, Cheng Kin-keung and Tang Cheuk-wai, on the 12th day of January, 1998, at 'President Game Centre', No. 513, Jaffe Road, Wanchai, in Hong Kong, unlawfully and maliciously wounded Kwok Kin-wai with intent to do him grievous bodily harm.

9th Charge (against 1st, 2nd, 3rd, 4th,
7th, 8th, 14th, l5th and 16th accused)
Statement of Offence

Wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212.

Particulars of Offence

Wong Fuk-tak, Ting Yuk-yuen, Yiu Yau-pik, Yau Lai-man, Cheung Kam-shing, YIP Kwok-for, Ching Wai-tung, Cheng Kin-keung and Tang Cheuk-wai, on the 12th day of January, 1998, at 'President Game Centre', No. 513, Jaffe Road, Wanchai, in Hong Kong, unlawfully and maliciously wounded Yeung Wan-tung with intent to do him grievous bodily harm.

10th Charge (against 1st and 3rd accused)
Statement of Offence

Assisting in the management of a triad society, contrary to section 19(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak and Yiu Yau-pik, on the 12th day of January, 1998, in Hong Kong, assisted in the management of a triad society, namely, the Wo Hop to Triad Society.

11th Charge (against 1st and 3rd accused)
(Alternative to 10th charge)
Statement of Offence

Acting as a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak and Yiu Yau-pik, on the 12th day of January, 1998, in Hong Kong, acted as members of a triad society, namely, the Wo Hop To Triad Society."

11. As to these charges, the judge said:

"It was common ground that a group entered this games centre and attacked the four youths named in the 4 wounding charges; that each of them was wounded; that the group was armed with knives and water pipes. There was no defence evidence dealing with the matters leading up to the woundings and the woundings themselves .... I trusted the accuracy of PW1 when he said that he saw D4 and D15 go into the centre with a group .... I was sure that PW1 was right when he said that he could identify D8 was running out of the games centre shortly thereafter with the group. D2, D7 and D14 were present outside the centre when the attack took place. They were there as part of the general plan as was D16 who was with PW1. Those outside were ready and available to do whatever became necessary. There was good evidence implicating D1 .... D3 counselled that the attackers should go to Ling Ding .... I convicted D4 and D8 and D15 of these woundings on the basis of their direct participation in the attack.... I convicted D1, D2, D7, D14 and D16 as secondary parties."

Charge 12 (Category "C")

12. The twelfth charge relating to "Aberdeen 1" in category "C" was in these terms:

"12th Charge (against 1st, 12th and
13th accused)
Statement of Offence

Acting as a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak, Lam Chi-shing and Li Yuk-chui, on the 11th day of February, 1998, at Aberdeen, in Hong Kong, acted as members of a triad society, namely, the Wo Hop To Triad Society."

13. The judge again found no room for mistake about this charge because he believed PW1's testimony. He continued by saying:

"It followed that there was sufficient evidence to convict D1 of acting as a member of a triad society as he was clearly acting as such in his direction of PW1."

Charges 13-15 (Category "D")

14. Charges 13 to 15 related to the Neway Karaoke events in category "D". Charge 14 was in these terms:

"14th Charge (against 1st, 2nd, 6th, 8th,
14th,15th, 16th and 21st accused)
(alternative to 13th Charge)
Statement of Offence

Acting as a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak, Ting Yuk-yuen, NG Sun-kuen, YIP Kwok-for, Ching Wai-tung, Cheng Kin-keung, Tang Cheuk-wai and Chan Hi-tzi, on the 13th day of May, 1998, outside Western Wholesale Food Market, Fung Mut Road, Western, in Hong Kong, together with other persons not in custody, acted as members of a triad society, namely, the Wo Hop To Triad Society.

In regard to these charges, the judge said:

"It arose out of triads socialising. Two different elements of the Wo Hop To were present in the karaoke. There was trouble between individuals of different elements which spread to a conflict between the two sides. The more senior members present were at pains to stop the violence and patch matters up. There was a meeting afterwards at which authority was exercised to prevent internal strife. .... Charges 13 and 14 alleged attending a triad meeting and acting as a member of a triad society respectively. The prosecution did not seek conviction on both. .... I thus convicted those present of charge 14. The offence was of equal gravity to charge 13 and conviction there avoided the difficult task of deciding when a meeting of triads becomes a meeting of a triad society, which is a distinction easy to state but less easy to apply."

15. As no convictions were recorded against any of the applicants in relation to charges 13 and 15 and it is therefore unnecessary to deal with their terms.

Charges 16-18 (Category "E")

16. Charges 16 to 18 in category "E" related to events at Top One Karaoke. These charges alleged:

"16th Charge (against 2nd, 4th, 8th,
14th, 15th, 20th, 22nd,
24th and 25th accused)
Statement of Offence

Acting as a member of a triad society, contrary to section 20(2) of the Societies Ordinance. Cap. 151.

Particulars of Offence

Ting Yuk-yuen, Yau Lai-man, Yip Kwok-for, Ching Wai-tung, Cheng Kin-keung, Ho Kin-leung, Wong Ching-hong, Ko Ka-yip, and Leung Wai-lun, on the 17th day of May, 1998, at Causeway Bay Plaza I, No. 489, Hennessy Road, Wanchai, in Hong Kong, together with other persons not in custody, acted as members of a triad society, namely, the Wo Hop To Triad Society.

17th Charge (against 1st accused only)
Statement of Offence

Assisting in the management of a triad society, contrary to section 19(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak, on the 17th day of May, 1998, at Shing Hong Store, Shop 29A, Ground Floor, Nos. 271-285, Des Voeux Road West, Western, in Hong Kong, assisted in the management of a triad society, namely, the Wo Hop To Triad Society.

18th Charge (against 1st accused only)
(alternative to 17th Charge)
Statement of Offence

Acting as a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak, on the 17th day of May, 1998, at Shing Hong Store, Shop 29A, Ground Floor, Nos. 271-285, Des Voeux Road West, Western, in Hong Kong, acted as a member of a triad society, namely, the Wo Hop To Triad Society."

17. The judge said, in relation to these charges:

"These was a classic instance of the troops being called out to use violence as someone entitled to their protection was being allegedly harassed .... There was no evidence from the defence to contradict PW1 .... D1 attended the group after they had returned to Western. His conduct was directed to looking after PW1 .... I judged that .... one of his roles as a member at his level was to look after his recruit, PW1. Whilst it can be said that this assists in promoting the ends of the society it seemed to me to be stretching things to say that he was assisting in the management of the society. Hence my verdicts of guilty on charge 18 and not guilty on charge 17."

Charges 19-23 (Category "F")

18. Charges 19-23 in category "F" related to events at Big Echo Karaoke and were in these terms:

"19th Charge (against 1st accused only)
Statement of Offence

Wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212.

Particulars of Offence

Wong Fuk-tak, on the 21st day of May, 1998, at 'Big Echo Club Karaoke Box', Causeway Bay Plaza II, No. 463, Lockhart Road, Wanchai, in Hong Kong, together with other persons not in custody, unlawfully and maliciously wounded Chan Wing.

20th Charge (against 1st accused only)
Statement of Offence

Wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212.

Particulars of Offence

Wong Fuk-tak, on the 21st day of May, 1998, at 'Big Echo Club Karaoke Box', Causeway Bay Plaza II, No. 463, Lockhart Road, Wanchai, in Hong Kong, together with other persons not in custody, unlawfully and maliciously wounded Yu Kar-shan.

21st Charge (against 1st, 2nd and 3rd accused)
Statement of Offence

Assisting in the management of a triad society, contrary to section 19(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak, TingYuk-yuen and Yiu Yau-pik, on the 21st day of May, 1998, at Wanchai, in Hong Kong, assisted in the management of a triad society, namely, the Wo Hop To Triad Society.

22nd Charge (against 1st, 2nd and 3rd accused)
Statement of Offence

Acting as a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak, TingYuk-yuen and Yiu Yau-pik, on the 21st day of May, 1998, at Wanchai, in Hong Kong, acted as members of a triad society, namely, the Wo Hop To Triad Society.

23rd Charge (against 4th, 5th and 6th accused)
Statement of Offence

Acting as a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Yau Lai-man, Fung Sai-lung and Ng Sun-kuen, on the 21st day of May, 1998, at Wanchai, in Hong Kong, together with other persons not in custody, acted as members of a triad society, namely, the Wo Hop To Triad Society."

19. Regarding these charges, the judge said:

"This was an incident similar in kind to that at Top One. Written admitted facts established that the victims named in charges 19 and 20 were wounded at the material time and place in the course of an attack by a group, one member of which was holding a bicycle chain like object in his hand .... I was sure of D1's guilt on the two wounding charges. I accepted PW1's evidence as to what went on. His was the only evidence for me to consider. .... The picture he painted revealed without doubt the nature of the call out and it followed that those in attendance pursuant to the call must be guilty, in the absence of explanation or contradiction, of acting as members of the Wo Hop To. It was thus that I convicted D4, D5 and D6 on the 23rd charge. .... I also convicted D2 of acting as a member on charge 22 .... PW1's evidence did reveal both D1 and D3 to be managing this outing. They both gave orders and exercised control over others. The outing was a typical piece of triad society business. .... Accordingly I was sure that both had assisted in the management of the Wo Hop To in this incident and returned verdicts of guilty in respect of them on charge 21. I returned no verdict in respect of the lesser charge in the circumstances."

Charges 24-26 (Category "G")

20. Charges 25 and 26 concerned Ricacorp in category "G". These charges were in the following terms:

"25th Charge (against 1st, 3rd, 17th,
18th and 19th accused)
Statement of Offence

Assisting in the management of a triad society, contrary to section 19(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak, Yiu Yau-pik, Wong Wai-man, Wong Yun-kwai and Kon Kwok-cheung, on the 23rd day of May, 1998, in Hong Kong, assisted in the management of a triad society, namely, the Wo Hop To Triad Society.

26th Charge (against 1st, 3rd, 17th,
18th and 19th accused)
(alternative to 25th Charge)
Statement of Offence

Acting as a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak, Yiu Yau-pik, Wong Wai-man, Wong Yun-kwai and Kon Kwok-cheung, on the 23rd day of May, 1998, in Hong Kong, acted as members of a triad society, namely, the Wo Hop To Triad Society."

21. In relation to these offences, the judge said:

"As regards the facts of this incident I accepted the evidence of PW1 and rejected that of D3, D17 and D18 for the reasons I have already given. .... D1, D3, D17, D18 and D19 were all charged with assisting in the management and acting in the alternative. .... D17 was the customer. He wanted triad force. He intentionally procured the others to act as members of a triad society and I was sure that the group who went to Shatin were so acting. He was thus guilty himself of acting as a member on the usual principles. It was much more difficult to find guilt on his part as a secondary party to another's assisting in the management. I was not minded to dwell on the academic dimensions of the problems raised in this regard as the charge of acting adequately met the justice of D17's case. Hence my verdicts. .... The evidence revealed D18 playing a knowing role .... The evidence clearly established acting as a member .... There was insufficient evidence to convict D3 and D19 of assisting but ample to convict them of acting. .... There was evidence that D1 called the group together and directed it to Shatin .... I was not sure that he was assisting in the management but I was sure that he was acting as a member of the Wo Hop To."

22. As no conviction was recorded on charge 24, there is no need to deal with its terms.

Charges 27-29 (Category "H")

23. Charges 27 to 29 in category "H" related to the so-called Aberdeen 2 events and were in these terms:

"27th Charge (against 7th to 12th accused)
Statement of Offence

Acting as a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Cheung Kam-shing, Yip Kwok-for, Yiu Yau-fai, Chan Kin-ming, Li Po-tai and Lam Chi-shing, on the 23rd day of June, 1998, at the Promenade, Aberdeen Praya Road, Aberdeen, in Hong Kong, together with other persons not in custody, acted as members of a triad society, namely, the Wo Hop To Triad Society.

28th Charge (against 1st, 3rd and 13th accused)
Statement of Offence

Assisting in the management of a triad society, contrary to section 19(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak, Yiu Yau-pik and Li Yuk-chui, on the 23rd day of June, 1998, at the Promenade, Aberdeen Praya Road, Aberdeen, in Hong Kong, assisted in the management of a triad society, namely, the Wo Hop To Triad Society.

29th Charge (against 1st, 3rd and 13th accused)
(alternative to 28th Charge)
Statement of Offence

Acting as a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

Particulars of Offence

Wong Fuk-tak, Yiu Yau-pik and Li Yuk-chui, on the 23rd day of June, 1998, at the Promenade, Aberdeen Praya Road, Aberdeen, in Hong Kong, acted as members of a triad society, namely, the Wo Hop To Triad Society."

24. The judge, in dealing with these charges, said:

"Who turned out on the 23rd of June was not in dispute: they can be seen on the video. I found that they turned out for the reason stated by PW1 in his evidence and I rejected the defence claim to innocent waiting for the ferry for the reasons I have already given. .... The guilt of D7, D8, D9, D10 and D11 on charge 27 inevitably followed as they were acting as members of the Wo Hop To. .... Charge 28 alleged assisting in the management.... I found no case against D13 in this regard. On reflection I think that there might have been a case but the matter is academic as I would have convicted at the end of the day on the alternative charge of acting as a member for the same reasons as I have expressed in the case of D17: namely that it is the appropriate and realistic charge where a man wants to employ triad force. .... I thus convicted D13 as a secondary party. .... There was ample evidence of D3 acting as a member. The final question was whether D1 was an assistant manager or an actor. .... The picture emerged of him controlling the situation. I was thus sure that the evidence established that he was assisting in the management of his society and I accordingly convicted him of charge 28 and returned no verdict on charge 29 in respect of him."

25. Mr Chapman submitted that the passages taken from the Reasons for Verdict which have been quoted demonstrate that the judge found no room for mistake on PW1's part, having found him to be an honest and accurate witness. Furthermore, he submitted that these extracts show a balanced and comprehensive approach to the issues which had to be decided. The judge exercised a similarly careful approach to the defence case. In particular, the judge distinguished between those convicted as principals in the crimes and those who were convicted as secondary parties. Some of the charges were laid in the alternative, and clear reasons were provided for convicting on one alternative charge rather than the other.

26. In the course of the trial, the judge found no case to answer in relation to D12, D23 and D26, and these three defendants were then discharged. Additionally, there were rulings of no case to answer in respect of D3 on charges 6 to 9, 25 and 28 and in respect of D1 and D15 on charge 15.

Grounds of Appeal

27. There are a number of grounds of appeal which are raised in these proceedings.

A. Reading evidence from diary to refresh memory

28. Mr. Cosgrove, on behalf D1, D2, D4, D6, D8, D15 and 16, raises a single ground of appeal in which he submits that the judge erred when he permitted PW1 to read his evidence from a diary or diaries prepared by him during the course of the investigation. In this ground, he is joined by Mr Delaney on behalf of D3 and D9, and Mr Boyton on behalf of D18.

29. On any view, the diary was crucially important to PW1 when giving his evidence. He had been able to recall events without it when dealing with what occurred between 10 to 12 January 1998 but, when PW1 turned to what happened on 20 January 1998, he had requested the judge to allow him to refer to his diary. This led to an objection taken by the defence on grounds that are not easily defined.

30. Mr Cosgrove appears to have begun by objecting on the ground that the notes relating to 20 January 1998 did not satisfy the requirement that they were contemporaneous although he almost immediately withdrew that suggestion. He did, however, go on to articulate a further ground of objection which has been renewed before us. Mr Cosgrove submitted that the judge was wrong to have permitted PW1 to read from the diaries because this exercise effectively deprived the judge of the opportunity to assess the witness' credibility. He also took issue with the judge's finding that PW1 "displayed a conspicuous grasp of the material and a good independent memory". He questioned whether that could be right when the witness merely read from his diaries. Mr Cosgrove also relied, in a second limb to his attack on the judge's decision to permit the witness to rely on his diary, on a passage from R v Da Silva (1990) 90 Cr. App. R. 233 where Stuart-Smith LJ said at 237:

"What must be avoided is a witness simply reading his statement when he has no real recollection of events: but that can be avoided by removing the statement from him once he has read it to refresh his memory."

31. Adopting this passage, Mr Cosgrove submitted that this was a correct statement of the law and procedure which had not been followed in the present case.

32. Dealing firstly with PW1's credibility, it is apparent that the trial judge, who saw and heard this witness giving evidence for six and a half days, was able to give a detailed assessment of him, not merely as a reader of notes from a book but more generally, when concluding that he was a highly impressive witness. Judge Line said this about PW1:

"Having heard the whole of the evidence I judged this witness to be one of the very best quality. He had an obvious intelligence. He was diligent and careful. He demonstrated an ease with the material which showed a direct link between his testimony and the events being recalled.... He impressed me as someone to be trusted and relied upon. When he made an occasional mistake he acknowledged it and put it right or explained it. Cross examination of PW1 revealed no damage or unease. He was not a witness with a cause.... The idea that the whole case was an invention by PW1 was quite unrealistic and the unchallenged evidence of the various attacks and gatherings supported PW1's account.... The way in which PW1's evidence unfolded, following the way in which he had recorded the matters in his diary, had the distinct ring of truth to my ear. I judged there to be no exaggeration or attempt to flesh out the case: the view one received of the events remained the view of one junior participant. His was a pure observation and reportage.... It was argued that the diary contained too much detail to be an accurate record. The diary itself was not exhibited .... I found the quality of the entries to be consistent with accuracy. Of course PW1 did not pretend to recapture every detail of what was said and done and I well remembered that the creation of the record involved selection by him.... I judged that the extra daily effort of recording what had gone on each day was well within his capabilities.... I believed him when he said that he limited himself to one beer a night but that he deliberately gave the impression on occasions of having consumed more.... In summary I say that I found PW1 to be a witness upon whom I could rely without hesitation. He was a witness of the highest quality. There was every reason for him to tell the truth as accurately as he could and I was sure that he did so."

33. The evidence of PW1 did not stand alone in all respects. Important supporting evidence came in the form of 3 video tapes which confirmed a number of the events related by PW1. PW6, together with other victims of some of the violence, also provided support in a number of ways for the account given by PW1.

34. By way of illustration, the judge had this to say about PW6 and the impact of his evidence on the credibility of PW1:

"The dispute that D17 had with the man from Ricacorp, PW6, could not be denied. A picture of it appeared in newspaper. It is exhibit 12. The diary contained conversation relating to the dispute. The defence case was that these conversations never took place. If the defence case was to be countenanced then it meant that PW1 had met D17 on 23 May for an innocent purpose; that he decided for reasons of his own deliberately to convert that to a criminal purpose; that he happened to find out before writing his diary that D17 had been in dispute with the man from Ricacorp and decided to incorporate this into his fictitious account as the explanation for the crime and that the man from Ricacorp (PW6) just happened to be at Shatin on that day, fleeing on hearing of the arrival of the group. I had no doubt that a jury would dismiss that as fanciful and I did too."

35. We are left in no doubt that the judge properly tested PW1's credibility and that there is no foundation for what Mr Cosgrove has submitted.

36. Turning next to the extensive use by PW1 of his diary when giving evidence, the judge in his Reasons for Verdict had this to say:

"The undercover police officer was PW1. He went by the name of Andy. He kept a daily diary. The diary recorded the events giving rise to these charges. It was the prosecution case that the diary contained honest and accurate entries which PW1 could vouch for in his evidence. In the main it was the defence case that in the circumstances he would not have been able to record the events accurately and that he had filled the gaps with unjustified inference and invention to make his mission a seeming success. Where there was no realistic room for the suggestion of filling the gaps, it was the defence case that the matter in question simply did not occur. .... The case turned entirely on the evidence of PW1. The facts to be found depended upon his honesty and accuracy. Without his evidence no charge could be proved. .... I allowed PW1 to use his diary to refresh his memory in the witness box. I was sure in relation to each entry to which the witness referred that the events were still fresh enough in his memory to justify the course and comply with the requirement of contemporaneity. I also allowed the witness to have the diary open in front of him when he was giving his evidence so that he could read from it as he wished. I overruled an objection which was made on the basis that the memory refreshing rule only permitted a witness to look at a record and that he must then put the record aside before answering a question. What mattered in this case was the quality of the record: was it honest, was it accurate. The capacity of the witness to memorise what was in his diary (or his witness statement made up from the diary) merely diverted attention from the real issues. Of course it was the oral testimony of the witness that was the evidence and not the diary, but given the extent of the case, both as to time and volume, it was inevitable and sensible that PW1 would rely on the diary. I would add in this regard that the witness displayed a conspicuous grasp of the material and a good independent memory of it. An attack in cross examination, along the lines of why rely on the diary if you know what happened, met with the sensible response that it ensured accuracy where accuracy was important and that this was a case that contained sufficient detail that a man with a good memory could get mixed up in the absence of a contemporaneous record."

37. In this passage, the judge had encapsulated, if we may respectfully say so, a full grasp of the considerations to be borne in mind when approaching the commonly encountered situation, in cases of factual complexity, where witnesses request to refer to and even read from notes made at or shortly after the time of the incident to which they refer. Surveillance evidence which has been logged into a book, recording daily events as they unfold, provides another modern example where witnesses will routinely need to refresh their memories by reading from their log of events to avoid giving mistaken and confusing evidence. Time and again, the courts have emphasised the importance of not turning the exercise of obtaining testimony given by witnesses from the witness box into a test of memory. The jury, or a judge sitting alone, are primarily concerned with the truthfulness and accuracy of witnesses and it borders on the absurd to suggest that when a record is available from which the witness can refresh his memory as to complicated events he cannot also be permitted to read directly and extensively from it.

38. The submission made by Mr Cosgrove in which he relied on what was said in Da Silva (above) as to the proper procedure to adopt where a witness is "simply reading his statement when he has no real recollection of events" is to be distinguished from the present case. In Da Silva, the witness had sought leave, after he had started to testify, to refresh his memory from a statement he had made 27 days after the event. The trial judge had adjourned proceedings to allow the witness to read his statement. The English Court of Appeal did not think that the trial judge in that case had treated the statement as one which was contemporaneous. The court went on to say at page 237:

"Moreover, if the statement had been treated as contemporaneous, the witness would have been allowed to refresh his memory in the witness box and refer to it if need be."

39. Returning to the present case, PW1 was not a witness who had no real recollection of events. Far from it, he was merely anxious to avoid falling into error. This emerges clearly from a passage in PW1's cross-examination at page 108K of the transcript which is as follows:

"Q: And you had the statements, you refreshed your memory, you read those statements before coming into court?

A: Yes.

Q: So why did you need the diary, why couldn't you have just told the court what happened the same way as you remembered it, as it happened at the time?

A: Because the case tried in the magistracy was only about one single incident. The persons involved in that case are not as many as this time. And because today the dates, the number of people involved in this trial are quite near and therefore I do not want to do anything unfavourable to the defendants so I would like to refer to the most accurate and contemporaneous record, that's my diary.

Q: So it's purely to show fairness to the defendants that you wanted to use your diary.

A: Well, it's one of the factors but actually I sometimes did get mixed up about the dates, the time and the persons involved so I want to tell the court what exactly happened."

40. Finally, in regard to this aspect, reference was made to Da Silva, as we were helpfully reminded by Mr Chapman, in South Ribble Magistrates, ex parte Cochrane (1996) 2 Cr. App. R. 544 at 549G where Henry LJ said:

"I think one has to bear in mind also the observations of Sachs LJ in Richardson (1971) 55 Cr. App. R. 244: 'The courts, however, must take care not to deprive themselves by new artificial rules of practice of the best chances of learning the truth. The courts are under no compulsion unnecessarily to follow the lure of the rules of logic in order to produce results on a matter of practice which are unreasonable and would hinder the course of justice.' ..... I deal with the first and fundamental submission, namely that Da Silva was laying down a principle of law, governing in all cases the situation where a witness in the witness box asked leave to refresh his memory from a non-contemporaneous document. (emphasis added) ...."

41. At page 552F, the judgment continued:

"It is contended before us that Da Silva is such a bindingrule of law. I disagree. Da Silva, as I read it, does not take away the judge's genuine, strong discretion. .... Modern appellate practice recognises more and more that the trial judge has the best opportunity of getting these discretionary decisions right. We can safely rely on the trial judge to follow the twin lodestars of the requirements of fairness and the requirements of justice. Where, as here, there is a strong discretion, the appellate courts will give a generous margin of appreciation to the trial judge in his exercise of that discretion."

42. Before concluding with the matters raised under this ground, Mr Delaney has sought to resurrect the issue concerning the contemporaneity of PW1's diary notes even though Mr Cosgrove had ultimately abandoned this point during the trial and has not seen fit to raise it on behalf of the applicants represented by him.

43. In considering Mr Delaney's submission as to whether PW1's diary contained notes which were sufficiently contemporaneous to justify him being permitted to refresh his memory from them in the witness box, we again express our gratitude to counsel for the Respondent for their most helpful schedule of PW1's evidence showing the times of recording events compared to the times of the events themselves. This has not been faulted or criticised by Mr Delaney. It is quite unnecessary to set out the schedule in the judgment as it demonstrates beyond question that the notes were recorded at the first available opportunity and whilst the events would have been fresh in PW1's memory. In the particularly difficult circumstances under which PW1 was working, the time delay for notes to be written was generally in the order of 3 to 12 hours. The judge did not make a blanket ruling as to the contemporaneity of all the notes in a single ruling. He very properly required that this test should be satisfied as to each day's events, as and when PW1 turned to a fresh event in his notes.

44. There is nothing in the point as to contemporaneity and we are not surprised that no other counsel sought to adopt it. In its entirety, this ground fails.

B. Unfair and Unbalanced Reasons for Verdict

45. Mr Delaney, on behalf of D3 and D9, advanced four grounds relating to what he alleged was an unfair and unbalanced summary of the Reasons for Verdict.

46. In his first ground, he submitted that:

"The Trial Judge has demonstrated throughout the Reasons For Verdict that he was not prepared to accept any evidence from whatever source or any submission by any Counsel on behalf of any accused, which in any way would cast doubt on the veracity, accuracy or reliability of the testimony of PW1 the main witness for the Prosecution. There is a total absence of fairness and balance in the Reasons For Verdict.

Particulars:

i.	)
ii.	) (Dealt with under Ground A)
iii.	)

iv. The finding that PW1 limited himself to one beer a night. Bundle p42.

v. PW1's errors if established by Counsel are characterized as mere slips. Bundle p42.

vi. The prosecution's case relies wholly on PW1. The Trial Judge's summary of him makes any evaluation of the defendants' case in so far as it was at odds with PW1 a redundant and self-fulfilling and self-justifying exercise. Bundle p43.

vii. The defendants' evidence/case in respect of all the charges is all considered (and rejected) together. Bundle p43 - p49. Because of the rejection of the defendants' case DW1 is thereby found to be a liar before any evaluation of his evidence. Such evaluation as follows is directed solely at supporting the original finding that he is a liar. Bundle p44 - 45.

viii. The adverse findings against DW1 based in part on the lateness of being contacted by the defendants are based on strained, irrational and arbitrary inferences.

ix. The dismissal of D3's account concerning the President Games Centre and the Big Echo Karaoke is effected by weighing one witness against the other. It is inevitable that D3 is to be rejected for the reasons above started. Bundle p45.

x. The Trial Judge's adverse findings against D13 are not based solely on his own evidence but also on the predetermined rejection of D3's evidence.

xi. DW2 is dismissed upon vague notions relating to apparent shortcomings in 'moral sensitivity'.

xii. DW5 is not to be trusted because she is found to be helping old friends and thereby is partisan."

47. Counsel developed his argument by drawing a comparison between the glowing terms in which the judge had described PW1 and the criticisms he made about some of the defendants and their witnesses. Mr Delaney submitted that this was, in itself, indicative of bias.

48. He argued that the test of asking a disinterested bystander whether he thought the defendants had received a fair trial would inevitably result in a negative answer.

49. We do not agree. While it is true that the judge did see fit to express himself in fairly forthright terms, by which we mean to indicate no criticism, it cannot possibly be said that there was any indication of bias, either conscious or unconscious. Undoubtedly, the judge formed a most favourable impression of PW1. At one point, the judge found it necessary to warn himself about the danger of not being sufficiently critical of the evidence given by PW1. He said:

"Cross examination of PW1 revealed no damage or unease. He was not a witness with a cause, but one who considered each question on its merits and did his best to answer it accurately and honestly.

I like to think that I kept well in mind the fact that evidence from a source such as this can have a seductive quality in the sense that one may be reluctant to believe ill of a brave man or give him too much credit for his commendable attributes."

50. If it was his impression that PW1 was an excellent witness we can see no reason why the judge should not have said so and, indeed, there is every reason for him to have done so.

51. As to the criticisms made by the judge of some of the defence witnesses, it is plain that the judge was not impressed by them. The criticisms were not excessive and, more importantly, they were reasoned. In weighing and analysing the evidence in the manner carried out by the judge, he was doing his duty in determining whether the charges had been proved to the required standard.

52. Later in this judgment we shall have something to say about unfounded and irresponsible allegations of the kind contained in some of Mr Delaney's grounds. Suffice to say, the allegations made by Mr Delaney are unjustified and should never have been made.

53. In a second ground advanced by Mr Delaney he alleged that:

"The Trial Judge has commenced his findings under the heading, the Charges, p49 with an exposé of 'general application.' What follows is a mixture of that which may be described as judicial notice of triad activity, personal judicial experience, understanding of authorities. In the absence of any expert evidence, such comment is conspicuous for its incomplete accuracy, questionable relevance coming as a preliminary comment and moreover being tailored to the facts to be determined."

54. Dealing shortly with this ground, the case was concerned with triad activities to which the prosecution sought to connect the defendants. PW1 gave evidence of how he managed to get into the Wo Hop To triad society and his evidence was not seriously challenged as to this. Evidently, he was not required to participate in any elaborate ritual in contrast to what, in years gone by, might have involved a ceremony of initiation into the society. The judge was fully justified in making his introductory observations. They were important also to the judge's consideration of whether the ingredients in some of the charges had been properly established. There is no merit in this ground.

55. In his third ground Mr Delaney submitted that:

"There is no sufficient evidence that the 3rd Applicant acted as a triad upon the findings of the Trial Judge. In chronological sequence the conviction is the first in time, i.e. 12th January 1999. The Trial Judge has found that there was no evidence of the 3rd Applicant's presence until after the woundings. Bundle p5l. That the Applicant, hitherto an unknown individual in time context, counselled that the attackers should go to Ling Ding after the event, is not the actus reus of a person acting as a triad anymore than a misguided parent proffering the same advice."

56. We have to say that D3's participation amounted to rather more than Mr Delaney suggested. Mr Chapman drew our attention to various passages of the transcript relating to PW1's evidence. It placed D3 at the For Cheng Hot Pot Restaurant with other members of the triad society having a conversation concerning the activities in question. It also indicated that he was in a position of some authority as he was indicating what required to be done. All of this culminated, in a passage at page 19 of the transcript, which was as follows:

"Then D8 said, 'So fucking exciting, like shooting a movie.' Then I said, 'So it was very exciting?' D8 said, 'One of them was chopped from the head by one of the youngsters of Curly Man, I wonder has he fucking died or not?' Then D3 said, he said to WONG Kei-fu, 'Fu Gor, then tomorrow arrange the person involved and that youngster to go to Ling Ding to hide.' D3 further said, 'It's better to have that one being caught by the police and tell everything out.'"

57. Although the last sentence in this extract from the evidence is ambiguous, the meaning which appears to emerge is that D3 was giving advice that the miscreants should depart for Ling Ding and that one reason for doing so would be to avoid a youngster being caught by the police and giving information away.

58. Mr Delaney correctly referred to what must be proved before someone can be convicted of acting as a member of a triad society under section 20(2) of the Societies Ordinance and with reference also to HKSAR v Lo Ka-wai HCMA 235/1998 (unreported) and R v Chan Ka-ngan HCMA 1470/1996 (unreported). On the evidence before the judge, there was sufficient evidence for D3 to have been found guilty for the reason he gave.

59. The fourth ground, relating to D9, was that:

"There is no sufficient evidence on the finding of the Trial Judge that the Applicant (D9) was present either intending to act as a triad or having any knowledge that any one else was so doing. The findings made amount to nothing more than mere presence of the Applicant."

60. This ground relates to charge 27. The evidence established, if PW1's evidence was accepted by the judge, that D9 was with a group of people who were engaged in activities which can only be characterised as being triad-related. The judge did accept PW1's evidence and, in doing so, rejected a suggestion of innocent presence at the ferry. Adopting the tests referred to in the previous ground, there was sufficient evidence to support D9's conviction.

61. None of the grounds advanced on behalf of D3 and D9 have led us to believe that their convictions were in any way unsafe or unsatisfactory.

C. Homemade grounds of D7 and D10

62. D7 and D10 were unrepresented. D7 simply claimed in his homemade grounds that he had not taken part in any fight and that the evidence against him was insufficient to support a conviction. D10 complained that the verdict was unfair and that his legal representative failed to put forward "an appropriate defence". He did not particularise in what manner his counsel had failed in his duties, although with the advantage of having been represented by Mr Cosgrove in the trial, it is apparent that D9's interests were well looked after.

63. There is nothing in the applications of D7 or D10 which causes us to think that these convictions are in any way unsafe or unsatisfactory.

D. Judge's interpretation that D17 had acted as a member of a triad society

64. Mr McCoy, SC, on behalf of D17, began his application by understandably dissociating himself from all the submissions made on behalf of all other defendants insofar as they might be seen to overlap with the position of D17. He also conceded that his submission could be viewed as having little or no merit to them on a factual basis, because of the judge's findings of D17's undoubted and prime involvement in charge 26. It was his contention, however, that D17's conviction was based upon an incorrect premise in law and he submitted that the judge had wrongly interpreted the offence, insofar as D17 alone was concerned, of acting as a member of a triad society to include the conduct of D17 in procuring other people to act as triad members. The act of procuring someone else to act as a triad member does not, Mr McCoy submitted, make the procurer himself, one who is acting as a triad member.

65. Section 20(2) of the Societies Ordinance provides as follows:

"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 purpose 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 ...."

66. In deciding that the offence in charge 26 had been made out against D17, repeating a passage cited earlier, the judge said:

"D17 was the customer. He wanted triad force. He intentionally procured the others to act as members of the triad society and I was sure that the group who went to Shatin were so acting. He was thus guilty himself of acting as a member on the usual principles. It was much more difficult to find guilt on his part as a secondary party to another's assisting in the management. I was not minded to dwell on the academic dimensions of the problems raised in this regard as the charge of acting adequately met the justice of D17's case. Hence my verdicts."

67. Mr McCoy contended that as D17 had been charged with acting (himself) as a triad member and not with procuring others to do so, it was necessary to look at whether section 20(2) of the Societies Ordinance permitted those who simply aid and abet, counsel or procure such an offence could be charged, as D17 was, as principals. In support of his contention that they cannot be so charged, he drew to our attention a number of authorities. He relied in particular on what Lord Parker CJ at 14E-I said in Carmichael and Sons (Worcester) Ltd v Cottle (1971) RTR 11, which was a case in which the owners of a vehicle with bald tyres were charged with "using" the vehicle that was driven by a person to whom they had hired it:

"Mr Barnes for the prosecution .... says that, in this case, unlike MacLeod v Penman, 1962 SC(J) 31 and Windle v Dunning & Son Ltd [1968] 1 All ER 46, there is room as it were for the application of the general principle in relation to aiders and abettors. He says here that, on the facts found by the justices, it is permissible to treat the defendants as accessories before the fact. It may be, and I find it unnecessary to decide it, that the answer to that is that, when the words used are 'using or causing or permitting', there is no room for the application of the principle in regard to aiders and abettors. The statute in other words itself provides the alternatives, and if a person is to be charged as an aider and abettor or an accessory, he should be so charged, and under these provisions should be specifically charged with causing or permitting the user.

I do not desire to come to any conclusion on that matter whatsoever because, as it seems to me, if the prosecution are going to rely on somebody being an accessory before the fact, the matter must at least be raised and pursued on that basis before the justices. Quite clearly the defendant in such a case must know the case he has to meet, and evidence will have to be given in regard to knowledge, actual or constructive, and the like. In the absence of the matter being raised one is immediately faced with the findings of the justices here which were not directed to this point because it had not been raised."

68. It is readily apparent that the legal position with regard to a person using a motor vehicle with bald tyres, as opposed to someone causing or permitting it to be used on the roads in such a condition, where the statute specifically provides for these alternatives, is very different to that which relates to offences brought under section 20(2) of the Societies Ordinance. We consider that Carmichael's case bears no relation to the present circumstances and is, for these purposes, an irrelevance.

69. Mr McCoy next referred us to the High Court of Australia's decision in Giorgianni v R (1985) 156 CLR 473, where Mason J at page 491 dealt with circumstances where the common doctrine of secondary participation is excluded:

"In Mallan v Lee (1949) 80 C.L.R. 198 at p. 216, Dixon J observed that 'the application of sections dealing with aiding and abetting may be excluded by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created'. A similar approach must be taken to apply to the exclusion of the doctrine of secondary participation at common law. It may, therefore, be inapplicable to a person of a class whom the substantive offence is designed to protect. .... It may also be inapplicable where the substantive offence itself involves some element of secondary participation."

70. On the other hand, Mason J also observed at page 492:

".... a person may be convicted on the basis of aiding, abetting, counselling or procuring the commission or a statutory offence although the statute creating the offence deals only with the liability of the principal offender. .... So it has been settled at common law at least since R v Potts (1818) Russ. & Ry. 353 [168 E.R. 841]. This is also the case even where the offence is such a nature that the person could not have committed it as a principal offender ....

.... It follows that the applicant, although charged as a matter of procedure with the substantive offence, was liable to conviction on the basis of having aided, abetted counselled or procured the commission of the misdemeanour of culpable driving by Renshaw."

71. As an extension to what was said by Mason J in Giorgianni and by way of example of what was being said in that case, Mr McCoy also drew our attention to McAteer v Lester (1962) NZLR 485, where Henry J held that it was impossible to apply section 194 of the Licensing Act 1908 to an accessory. This section provided that "every person found on licensed premises at any time when such premises are required .... to be closed is liable to ..... unless he satisfies the court that .... (he has a lawful purpose for being present)."

72. In construing this section, Henry J said:

"The plan of the section is to create an offence upon proof of certain primary facts against the person found on licensed premises at certain times unless he can satisfy the Court that he has a lawful purpose for being present. These words, so it seems to me, refer peculiarly to the person found and to his trial. At his trial proof of the primary facts is sufficient to establish guilt unless he can prove other facts. There is in effect upon a limited proof of facts a legal but rebuttable presumption that his presence is unlawful unless he can show otherwise. That is the course of the trial and the manner in which the offence itself has been defined. It is, in my view, impossible to apply the section to an accessory against whom it is essential that the offence of the principal must be proved. The primary facts upon which the presumption of guilt of the principal party arises can be established without difficulty but the language thereafter is intractable when applied to an accessory. The Legislature did not, so it seems to me, intend to place upon the principal party the burden of proving the exception in the trial of an accessory and the Legislature has not placed any such burden on any person other than the person found on the premises."

73. We have been unable to find anything in section 20(2) of the Societies Ordinance which, either by express provision or by necessary implication, excludes the application of the common law doctrine of secondary participation. Furthermore, D17 is clearly not amongst a "class of persons", as it was expressed in Giorgianni, "whom the substantive offence is designed to protect". Mr McCoy's arguments were not strengthened by that case or by McAteer, neither of which appear to have any application to the case presently before us.

74. PW1's evidence against D17 was extremely clear. D17's participation in the Ricacorp incident was central to the whole scheme of things. He was, as Mr McCoy accepted, the organiser of that ugly episode because it was D17 who summoned the triad troops to Shatin and later to Taipo in order to avenge his grudge against PW6 who he intended should be beaten up. D17's account that he was innocent and that he was not connected to triad activities was rejected.

75. D17 was fully aware of the nature of the case against him as a procurer of the troops or what is sometimes referred to as the "whistle-blower". He had ample opportunity to defend himself against this very precise allegation. Not only did he testify, but he called DW1 to support his story.

76. In the end, Mr McCoy was reduced to arguing that a person who incites another to impersonate a police officer, who then does what he has been incited to do, does not make the inciter a police impersonator. By analogy, he argued, a person who is a non-triad member who brings in the "troops" and asks others, who may well have been non-triad members, to act as members of a triad society does not render himself guilty of acting as a triad society member.

77. In relation to this argument, firstly it is of course quite unnecessary to prove actual membership of a triad society so far as offences of acting as a member of a triad society are concerned. (See: R v Wong Sik-ning, (1997) 1 HKC 34; R v Chan Ka-ngan, HCMA 1470/96 and HKSAR v Wong Sing-chi and Others, CACC 245/99).

78. Secondly, D1, D3, D18 and D19 were all convicted as principal offenders in charge 26. The common law doctrine relating to secondary participation has been incorporated into section 89 of the Criminal Procedure Ordinance, Cap. 221 which provides that:

"Any person who aids, abets, counsels or procures the commission by another person of any offence shall be guilty of the like offence."

79. D17 had summoned the troops to beat up PW6 with whom, it was common ground, he had been in dispute and he went with the other defendants charged with this offence to Shatin and then to Taipo looking for PW6. His actions and his intent clearly established his guilt. It was pure good fortune for PW6 that he could not be found. D17 then told the others who were involved to postpone the operation for two or three days.

80. It is plain to us that the judge properly convicted D17 on this charge. He did so on the basis that D17 had procured others to commit the offence of acting as triad members. We regard this as a permissible, but unduly complicated, basis for recording the conviction. D17 in our judgment was, by acting in the way he did, himself acting as a member of a triad society by procuring others to so act. On either basis, however, the conviction was amply justified and this ground must fail.

E. Approach to D18's Case

81. Mr Boyton, on behalf of D18, raised a number of grounds. He alleged that the judge was wrong to have compared evidence given on behalf of the prosecution with evidence called by the defence. Mr Boyton went on to contend that, in effect, the judge treated PW1 as a witness of truth because of his status as a police officer and took into account "irrelevant considerations" when evaluating PW1's evidence. He also submitted that "the judge erred in law in that he started on the premise and/or assumed that every defendant who gives evidence in a criminal trial is guilty and/or will never tell the truth". He continued by suggesting that "the judge erred in law in that he reversed the burden of proof onto the defendant, to prove his innocence".

82. There is, we can say immediately, not the slightest substance in any of these allegations.

83. In order not to dignify these grounds with a lengthy discussion of them, we need only say that, on the material before us, it is apparent that the judge not only manifested sound common sense and firm managerial skills in confining, with fairness throughout, a potentially lengthy case to barely longer than a fortnight, but he also took time to consider with care the prosecution and defence evidence separately. He did not conduct a balancing exercise. A few examples, for which again we are grateful to Mr Chapman for having isolated them from the numerous pages in the Reasons for Verdict, illustrate the point:

"My rejection of the defence case meant that DW1 must have been lying .... I did not forget the evidence of D18 .... He struck me as a man going through the motions without a belief in his case .... The burden of what DW4 could say was that he paid no special attention to the drinking of PW1 but that he was like the rest. Given that the evidence of PW1 was that he pretended to be drunk and that the whole point of his behaviour was not to stand out but to be one of the crowd, this evidence raised no doubt in my mind as to the veracity of PW1 or his sobriety. DW5 went further and claimed to have seen PW1 drunk; that he had vomited through drink; that he did not drink soft drinks. I did not trust this witness."

84. None of the other points made by Mr Boyton are worthy of our consideration. They were devoid of all merit.

Unfounded complaints against the judge

85. We would suggest that a proper basis should be established before wild and unfounded allegations are made of the kind Mr Boyton has made against the judge in his grounds of complaint. He was joined to some extent by Mr Delaney, who came perilously close when making his oral submissions to this court on Ground A and in some of his grounds in Ground B, to alleging deliberate and conscious bias on the part of the judge. However, he denied that this was his suggestion.

86. Stripping the groundless assertions made by both counsel of their emotive language which, we may add, has no place in perfected grounds of appeal, the grounds they advanced were of no weight whatever. It was irresponsible to have proffered them to the court as having a sufficient foundation for this court to grant leave upon them.

87. Broad allegations against a judge of the kind we have listened to from both these counsel cannot assist anyone.

88. In fairness to Mr Cosgrove and Mr McCoy, neither of them, it goes almost without saying, adopted in any shape or form any of the arguments put forward by Mr Boyton and Mr Delaney.

Conviction applications - conclusion

89. For the reasons we have given, all the applications relating to conviction are dismissed.

Sentence

90. Turning now to the applications relating to sentence, the broad factual background has been sufficiently described in the judgment relating to the applications for leave to appeal against conviction. The judge set out all of the sentences imposed against the respective defendants in a schedule attached to his Reasons for Sentence.

91. Before dealing with the defendants individually, the judge gave a short summary of the approach he proposed to adopt towards sentence. Understandably, he considered the most serious offences with which he had to deal were those charged under section 17(a) of the Offences Against the Person Ordinance relating to the incident which occurred at the President Game Centre. For these offences, he adopted a starting point of 4 1/2 years for those directly involved and 31/2 years for those indirectly involved. In passing sentence, he described these offences as part of :

"..... a vicious attack with knives and pipes on outnumbered, unarmed and unsuspecting sixteen year olds. They sustained significant injuries and some have permanent functional disabilities, albeit of a minor degree. For the principals involved here I take a starting point of four and a half years' imprisonment. For those involved in a secondary, supporting capacity I take a starting point of three and a half years. I justify that distinction here as those outside in support were distanced from the violence and it is right that those whose went in to bring it about should suffer greater punishment."

92. On any view, this was a very serious wounding case and no criticism whatever can be made of the approach adopted by the judge. Similarly, the starting point of 2 years' imprisonment for the Big Echo Club incident where D1 was convicted of an offence contrary to section 19 of the Offences Against the Person Ordinance, cannot validly be criticised.

93. Turning next to the offences contrary to the Societies Ordinance, it is necessary to look firstly at the general approach adopted by the judge. He addressed the defendants at some length before passing sentence. In doing so, he pinpointed the evils which the sentencing exercise in relation to the triad-related offences was primarily aimed to punish. The judge said:-

"You all shared one thing in common by your association with the Wo Hop To and your conviction in this court: a willingness and an agreement to use violence.

The nature of that violence was on occasion wicked. It typically took the form of an attack where the victims were taken unawares and were outnumbered. Weapons were often used against the unarmed. These were the actions of cowards.

This triad society, like others, recruits the young who will do the bidding of more senior members without question. Whether it be for a sense of belonging, the security protection brings, the satisfaction of being able to exercise the power of the group and harm others or the excitement that attacking others can engender, those who are recruited and obey the call out know that they contribute to the exercise of unlawful force. The price of the selfish purpose is the fear and the hurt of others against whom they can have no personal animosity.

This is a mischief that no civilised society will tolerate. The public will expect no mercy and I am minded to show none.

The successful use of your triad violence involved numbers. Those of you who wielded the choppers could do so because of the backup. Those of you who turned out and backed up were only too well aware of that. None of you cared about the harm you caused. The nature of the society in which you all acted as members was such that it was a matter for boasting that sixteen year olds had been left hacked like meat by your knives after one of your attacks. The photographs tell the story.

The obedience required by the triad society meant that when you acted as members of it by combining together ready and willing to use force there was always the potential for real harm. You would do what you were told to do and no one can judge violence to a nicety. Even though the intended victim may not be found or the opposition not turn up, the conduct was grave notwithstanding no blood was spilt. The criminality inherent in the enterprise was there though chance had happily limited its effect.

It is bad enough that the young will put aside human decency and restraint when they associate with your society, but amongst you there are men in their twenties and thirties who joined them in turning out as troops on occasion. There are some here who recruited and led the troops and assisted in the management of the society. They inevitably will have a heavy price to pay.

Finally there are the so-called respectable business men who, by some connection to this society, sought to use its capacity for violence for their own ends. Those who hire organised triad violence must know that such conduct cannot be tolerated and has no excuse.

All of you deliberately embraced the Wo Hop To in your different ways knowing its characteristics. They are characteristics that attack a well ordered and decent society. You must expect this court to do its utmost in ridding us of the menace you pose.

You all fall to be dealt with for acting as members of the Wo Hop To. The circumstances which gave rise to the proof of such acting varied considerably. It is tempting to relate the severity of the sentence for acting as a member too closely with the gravity of that conduct which gave rise to that proof. What has to be kept in mind is that the substance of the offence was your acting as a member of this triad society at this time. I have no doubt that you all knew that the nature of the society was as I have just described. It is thus the nature of this particular part of this particular triad society at this particular time, as well as the nature of the specific job you were called upon to do, that has to be reflected in your sentences for acting as members.

As a result, it may well be that the sentences I pass for acting as a member of a triad society are longer than in the usual case, but this is not the usual case as I have evidence from the trial which well informs me of the nature of this section of the Wo Hop To.

Some of you are going to prison for a long time. I have kept an eye on the totality in each such case to ensure that it is justified by conduct and is not just the result of the mathematics of sentencing. Those of you with such long sentences have committed multiple crimes. There is no settled tariff in your cases. I have to fit your crimes into the general scheme of sentencing in the District Court. I consider what you have done is more serious than that done by the lift robber or the domestic burglar.

With these matters in mind, where the acting as a member arises in relation to answering a call the purpose of which embraced force or the threat of force I have taken a starting point of two years' imprisonment. In the cases where the acting has arisen after some event, such as the Neway matter, I have taken lower starting points as will appear when I deal with individual sentences."

94. In these passages, the judge put the defendants on notice of his intention to depart from the lower sentences which are sometimes imposed for offences of the kind reflected in the present charges. Generally speaking, in a number of cases he imposed two years' imprisonment for offences of acting as a member of a triad society, contrary to section 20(2), eighteen months for offences of inviting others to be members of a triad society, contrary to section 22(2) and four years' imprisonment for the section 19(2) offence of assisting in the management of a triad society.

95. The judge was, in other words, seeking to differentiate between those in a supervisory, or dominant, role and those who could properly be characterised as "foot soldiers" or those who obeyed orders which were given to them.

96. There has been no case which has come before this court in which specific guidelines have been laid down as to the lengths of sentence which it is appropriate to pass for triad-related offences of the kind we are presently considering. Such offences vary considerably as to their gravity and duration and we do not consider guidelines as such to be appropriate. We have, however, had a number of recent judgments of this court drawn to our attention where lower sentences to those passed by Judge Line, imposed by other judges in the District Court, were not criticised. Counsel on behalf of the defendants, all of whom have sought leave to appeal against sentence, suggest that the terms imposed in this case were manifestly excessive when compared to the "going rate" to be found in other cases of a similar nature.

97. In HKSAR v Yeung Chi-keung and Wong Kam-keung, CACC 96/1998 (unreported), both applicants had acted as members of a triad society. Wong was convicted after trial of three offences and Yeung of five offences. Both were sentenced to a total of two years' imprisonment, the trial judge having selected fifteen months' imprisonment as an appropriate starting point for each offence which he discounted to twelve months to take into account the previous good character of both applicants. The court accepted that on all the occasions offences were committed, no violence was occasioned. In giving the court's judgment, Liu JA said:

".... it is not to be forgotten that a show of force might, and not infrequently did, lead to disagreement with skirmishes of various degrees to follow. It is also true that the protection extended to the establishments were not forced upon their operators but that is not the real point. The point is protection by triad societies, and common sense tells us that it is a service which no self-respecting establishment would welcome. Whether or not violence would ensue is, in most cases, unpredictable. Blowing the whistle for the congregation of a triad group to stand against the presence of a rival gang is, itself, a serious menace to tranquility. These activities are likely to stir up an inexonerable spiral of triad transgressions. The applicants, both members of a triad society, 'blew the whistle' on different occasions for summoning followers to stage a meaningful presence at entertainment establishments. Acting as a triad member in the course of baring the teeth of the underworld is no small crime. Disturbances in the Wan Chai night scene are best left in the hands of law enforcement agencies. In these circumstances, this court does not regard the starting point adopted by the judge as inappropriate."

98. In a more recent case of this kind, in which judgment was given almost four months after Judge Line passed sentence in the present case, HKSAR v Wong Sing-chi and Others, CACC 245/1999 (unreported), Leong JA giving judgment on behalf of the court, found "nothing improper" about the sentences, totalling eighteen months, imposed on D4 who had four previous convictions. D4 had been found guilty of two offences of acting as a triad member. In the course of the judgment at page 11, Leong JA said:

"We agree that a case of the present nature is no small crime and it is a case where punishment sufficient to deter such triad activities should be imposed. The Judge's adoption of 15 months for a defendant acting in the role of an officer and 9 months for a defendant in the role of a soldier were sentence starting points which we have no reason to disturb."

99. Later in the same judgment, Leong JA dealt with the position of triad society members who have taken a more active part. In the case of D8, he was dealing with an offence under section 22(2) and, at page 13, he said:

"On the first ground, inviting a person to join a triad society is a serious crime and this may be seen from the maximum punishment laid down in s.22(2) of the Societies Ordinance, Cap. 151, the maximum penalty being $250,000 fine and 5 years' imprisonment. It was more than for an offence under s.20(2) of the same ordinance. As the Judge said, these offences are prevalent in night clubs etc. and it should be deterred. In AG v. Lee Chi-man [1980] HKLR 483 at 489 and 490, it was held that even for claiming or professing to be a member of a triad society under s.20(2) which carries a lower maximum sentence of $100,000 fine and 3 years' imprisonment on first conviction, a custodial sentence may be imposed on a first offender and that a sentence of 12 months' imprisonment is not inappropriate. In another case To Luen-shun [1995] 1 HKCLR 318 at 325 and 326 cited by Mr. Tolliday-Wright for D8, it was held that deterrent sentence was justified for an offence under s.20 even for a first offender.

It would appear that where the nature of the crime is serious, the fact that a person has been hitherto of good character does not mean that no custodial sentence should be imposed if the circumstances merit a custodial sentence.

We do not see it inappropriate in anyway for the Judge in this case to have imposed a custodial sentence and set the starting point for charge 6 at 18 months' imprisonment."

100. There is a further case to which we were referred from which some light is shed on this aspect of sentencing. In Attorney General v Cheung Yeung-kwan, (1992) 2 HKCLR 169, it was predictably held that being an office-bearer was more serious than being a triad member and that two years' imprisonment for someone in the former category would be merited after trial.

101. Counsel for the defendants complained that a "going rate" of about fifteen months for "foot soldiers" and about two years for those involved in the management of a triad society was too heavily exceeded by the judge in the present case and that his reasons for taking the course he adopted do not justify the additional tariffs he imposed.

102. Before turning to the individual roles played by each of the applicants, it needs to be remembered that the judge had been unusually privileged to have heard what amounted to the inside story of the workings of this particular triad group. The trial, extending over twelve days, had provided him with a mass of information and material on which to assess the proper sentences.

103. It is, of course, also true that members of triad societies generally behave in a thoroughly antisocial manner, whether observed from the outside, as generally happens, or from the inside as well as the outside as provided by the evidence in the present case. The judge was in a unique position to assess the proper levels of sentence bearing in mind that for offences brought under sections 19(2) (assisting in the management of a triad society), 20(2) (acting as a member of a triad society) and 22(2) (inviting another to become a member of a triad society), the maximum sentences which can be imposed are fifteen years, three years (on first conviction) and five years respectively.

104. With this general background as to sentence, we can turn to the individual sentences imposed.

105. When passing sentence on D1, the judge said:

"Dl: You are twenty three years of age and are currently serving eight months' imprisonment following conviction in respect of the part of this operation that was dealt with in the magistracy. Your part in the President Game Centre woundings was greater than those of the support troops outside: you helped in the organisation of the enterprise. I thus take four years' imprisonment as the right sentence for you on charges 6 - 9. At the Aberdeen pier and the Big Echo Karaoke you assisted in the management of the Wo Hop To. As I have explained that is grave conduct which attracts sentences of four years' imprisonment on charges 21 and 28. I will order those sentences to run concurrently to each other. There is no reason why they should not run consecutively to the sentences on the woundings, save that I reach the limit of my jurisdiction at seven years. I thus order that three years of those sentences run consecutively and one year concurrently to the sentences for the woundings. It follows the other sentences must run concurrently as well: they are these, nine months on charge 1, eighteen months on charge 3, nine months on charge 11, two years on charges 12, 19, 20, 26 and six months on 18 and 14. The total is seven years. It will run concurrently to your present sentence, as it would have done if the cases had been heard together."

106. D1 was deeply involved in the activities of this triad society and the judge had reached the limits of his powers by confining the overall sentence to seven years. We have no reason to doubt that some of the sentences imposed for the triad-related offences were far heavier than sometimes imposed in other cases but the judge had been presented with a powerful picture that this triad society, with leaders like D1, was one which meant business. Punishment of D1, and deterrence in respect of others minded to follow in his place, were called for. We are satisfied that D1 was not sentenced to a day too long. Furthermore, in his case, the judge had, in the incidents concerned with charges 1, 11,14 and 18, imposed sentences of nine months or less for acting as a member of a triad society which, for the less serious offences by virtue of their circumstances, was what has been described as about the "usual" sentence.

107. Passing sentence on D2, the judge said:

"D2: You are now twenty one. In respect of the four woundings I pass a sentence of three and a half years' imprisonment. For acting as a member of the Wo Hop To at Top One and the Big Echo, two years' imprisonment on each and six months in respect of Neway all concurrently to each other but consecutively to the sentences for the woundings. For claiming to be a member on charge 2 there will be a concurrent sentence of nine months' imprisonment and for inviting another to be member on the fourth charge eighteen months. These sentences will also run concurrently, making a proper total of five and a half years' imprisonment."

108. What is demonstrated once again, from the sentences passed on D2, is that the judge had not made a blanket increase on the sentences more usually imposed for triad-related offences. He had given careful consideration to the roles played by each defendant before him and, in D2's case, he properly considered that for acting as a triad member in charges 2 and 14 the sentences should be nine and six months respectively whereas, for the more serious offences of this kind reflected in charges 16 and 22, he considered that two years was the appropriate starting point.

109. We cannot say that any of these sentences was manifestly excessive, and the totality was wholly appropriate.

110. Passing sentence on D3, the judge said:

"D3: You are 29 years of age. You attended Training Centre in relation to assault and triad related crimes. I have to deal with you for acting as a member of the Wo Hop To in respect of the Ricacorp and Aberdeen pier incidents, as well as after the President Game Centre woundings. I do draw a distinction between acting before an event and in support of it and acting after the event. In relation to the Big Echo incident I have to sentence you for assisting in the management of the Wo Hop To. This last matter reflects what the evidence disclosed: that you stood above the young men who were the troops and were responsible for ordering them about their triad duties. The maximum sentence for such an offence is imprisonment for fifteen years. Such conduct is rightly regarded as criminal behaviour of a very grave kind. I take into account that your assisting in the management was at a low level, but your position was vital in the orderly production of the young men for the purposes of the triad society. I accordingly take a starting point of four years' imprisonment on charge 21 as I judge that the gravity of the crime in relation to the management of this part of the Wo Hop To calls for nothing less. There is no mitigation. With an eye to totality and duplication I will order the sentences of two years which I pass on charges 26 and 29 and the sentence of nine months on charge 11 to run concurrently to each other but consecutively to the four years on charge 21. The total is thus six years' imprisonment."

111. Again, the judge had carefully assessed D3's role in the scheme of things, as revealed by the evidence. The courts must have regard to the maximum sentences laid down by statute and whilst no doubt there will be cases where four years' imprisonment might be regarded as unduly harsh for assisting in the management of a triad society, this was not one of them. These sentences were heavy but they cannot be criticised as having been manifestly excessive.

112. When passing sentence on D4, the Judge said:

"D4: You are 20 years old. You are currently serving a sentence of eight months' imprisonment following conviction in respect of the part of this operation that was dealt with in the magistracy. I have to sentence you as a principal in the four woundings and for acting as a member of the triad society in relation to the Top One and Big Echo incidents. Your case is similar to that of D8. You have a bad record, including convictions for violence. I judge that the sentence of four and a half years for the woundings to be fully justified in your case. I will pass sentences of two years on charges 16 and 23, but with a view to totality and acknowledging some duplication I have ordered them to be concurrent to one and other. They are separate crimes from the woundings, however, and I order them to run consecutively to the sentences in that respect. The total sentence is thus one of six and a half years. It will run concurrently to your present sentence."

113. No valid criticism of the judge's assessment of D4's role can be made. These were serious offences and the judge was concerned with totality in making the sentences for charges 16 and 23 concurrent which he did not strictly have to do. The resulting overall sentence was a just one.

114. Passing sentence on D5, the judge said:

"D5: You are 27. You served a nine month sentence for being a member of a triad society in early 1998. In a very short time thereafter you were acting as a member of the Wo Hop To in relation to the Big Echo incident. There is nothing to mitigate the proper sentence in your case of two years imprisonment."

115. Whilst D5 was convicted only on charge 23, again the judge had properly assessed the particular circumstances in which D5 stood to be sentenced. The comparatively lenient sentence for a previous triad-related offence of the same kind had plainly had no deterrent effect whatever as this offence was committed within weeks of D5's release from prison.

116. Passing sentence on D7, the judge said:

"D7: You are 19 years old. You are currently in Training Centre following conviction in respect of the part of this operation that was dealt with in the magistracy. I have to deal with you for the four woundings in a secondary capacity and the Aberdeen pier acting. The gravity of the woundings demands your imprisonment and there is no mitigation to reduce the sentence from the three and a half years starting point. The Aberdeen pier incident calls for a term of two years. The live question is how those two terms relate remembering the totality of sentence. Overlapping the two sentences by a year produces a total of four and a half years' imprisonment. I judge that to be merited in the circumstances and it is the course I adopt. You had to be dealt with for only one other matter besides the woundings. The report I had upon you revealed no mitigation: the picture painted was of strong affiliation to your triad friends even whilst on bail pending this trial."

117. Again, the judge demonstrated that he had fully taken into account the relevant circumstances of D7's involvement. The judge effectively gave D7 one year's imprisonment to run consecutively to the three and a half years' he received for wounding, for having acted as a member of a triad society on a totally separate occasion. Again, we have to say that the resulting sentence cannot be described as manifestly excessive.

118. Passing sentence on D8, the judge said:

"D8: You are 19 years old. You were a principal in the President Game Centre woundings and I remember the evidence concerning what you said about it afterwards showing your appreciation of its full extent and your excitement at being involved. You were the one wielding the rubbish bin to strike an unarmed and outnumbered man when you acted as a member in the Top One incident. The report I have on you reveals not a glimmer of remorse or insight.

On charges 6 - 9 inclusive the sentence is four and a half years' imprisonment. There will be sentences of two years' imprisonment on charges 16 and 27 which I order to run concurrently to each other but consecutively to the four and a half years. I take that course with an eye to totality and because there is an element of duplication in the acting charges. In relation to charge 5 (claiming) and charge 14 (acting after Neway) there will be concurrent sentences of six months. The total is thus six and a half years' imprisonment. That is a long sentence for one of your age but I judge it to be justified. You are a young man who has developed a taste for violence."

119. What has already been said about D4 applies equally to D8. The sentences imposed had proper regard to all the circumstances.

120. Passing sentence on D9 and D10, the judge said:

"D9 and D10: You are 25 and 32 years old respectively. You are both old enough to know better. There is no mitigation to be found in your characters. You both turned out for the triad society at the Aberdeen pier. I appreciate that your skills were not called upon, but that was a matter of chance. You acted as members of a triad society prepared to do what was necessary. I judge that in each case a sentence of two years' imprisonment is merited."

121. Both men, as the judge indicated, had previous convictions. They could expect no reduction in sentence. In the circumstances of this case, the sentence of two years' imprisonment for acting as triad members in the Aberdeen 2 incident was justified and we do not find any ground to interfere with it.

122. Passing sentence on D15, as well as D14 who has not sought leave to appeal, the judge said:

"D15 and D14: You are 19 years old and 16 years old respectively and are both currently in Detention Centre in respect of the part of this operation that was dealt with in the magistracy. Neither of you had been in trouble before. I have to deal with you for the four President Games Centre woundings and acting as members of a triad society in relation to the Neway and Top One incidents. In relation to the woundings, I deal with you D15 as a principal and you D14 as a secondary party.

I can see no reason to depart from the four and a half year starting point for you D15 on charges 6-9 or the two years on charge 16. The report on you reveals no significant mitigation. With an eye to the totality I will order that the latter overlap the former by eighteen months and that the six months on charge 14 run concurrently. The total is five years' imprisonment."

123. The judge then dealt with D14 by ordering a period of detention at the Training Centre.

124. D15's sentence in its overall effect was amply justified.

125. Passing sentence on D16, the judge said:

"D16: You are 19 years old. You are currently in Training Centre. I have to deal with you for the four woundings at the President Games Centre and acting as a member in relation to the Neway incident. I can find nothing to mitigate the sentence of three and a half years I find to be called for in respect of your secondary role in the woundings. I appreciate that your Training Centre arises from a conviction in the magistracy in relation to this operation, but the gravity of the woundings demands your imprisonment. Young men who lend themselves to enterprises of this nature must know that they face substantial prison sentences and that they cannot share Training Centre with those guilty of substantially less grave crimes. With an eye to the totality I will make the six-month sentence on charge 14 run concurrently."

126. This sentence cannot be criticised.

127. Passing sentence on D17, the judge said:

"D17 ..... : You have reached the age of 38 without previous criminal convictions. You had a good job in which you had achieved notable success. No need or social pressure has made you the criminal I find you now to be. Ordering up triad violence is calculated criminal conduct of a most repugnant kind. Your character and clear record are mitigation, but in these circumstances justice demands you receive no less a sentence than those you procured to act as members. I have no doubt that two years' imprisonment is the right sentence for you on charge 26. Any credit that flows from the lack of previous conviction is used up by your role as instigator, which justifies an increase in the starting point of like measure to the credit. I have remembered that your fall is a heavy one, and Mr Macrae has said all that can be said on your behalf, but there is no room for leniency when a well off business man orders up triad violence and directs it to a competitor."

128. Again, the judge had weighed all the circumstances. No doubt D17 could have benefited to some extent from his previous good character but what stands him out in relation to the Ricacorp incident is that he was responsible, as the judge stated, for having instigated the whole incident. Mr McCoy accepted that D17 would have deserved to receive a longer sentence, on this account, than the others involved with Ricacorp. His sentence must stand.

129. Passing sentence on D18 and D19, the judge said:

"D18 and D19: You are both mature men who turned up to do violence to the man from Ricacorp in Shatin and so stand convicted of acting as members on charge 26. You both are old enough to have known better. You both have previous convictions, having both served time for an offence involving violence or the threat of violence. There is no mitigation to reduce the sentence from the two years starting point, and that is the sentence I pass upon both of you."

130. As we have said already, the sentence was a perfectly proper one with which we do not consider it appropriate to interfere.

Passing sentence on D20, the judge said:

"D20: You fall in the same category but you are 23 years old. You have a clear record so I will grant you a three-month discount from the starting point of two years. I do that despite the correctional services report revealing a life style of crime and triad association since 1995. It is to be noted that you have declined to sever your relations with your triad friends since being arrested for this offence. The sentence I pass is one of twenty-one months imprisonment. Given the nature of the society in which you acted as a member I can pass no lesser a sentence."

Again, the judge had shown a full appreciation of all the relevant factors. We do not think this sentence can be criticised.

Accordingly, for the reasons we have given, the applications relating to sentence are dismissed.

 

 

 

Representation:

Mr P.S. Chapman, SADPP, Mr Jackson Poon, SGC and Mr Hayson Tse, GC of the Department of Justice for the Respondent.

Mr Peter Cosgrove instructed by Messrs B. Manek & Co. for D1, D2, D4, D6, D8, D15 & D16/Applicants.

Mr Michael Delaney instructed by Messrs B. Manek & Co. for D3 and D9/Applicants.

Mr William Allan instructed by Messrs Gary K.W. Tam & Co. for D5, D19 and D20/Applicants.

Mr G. McCoy, SC & Miss V. Rajwani instructed by Messrs C.Y. Chan & Co. for D17/Applicant.

Mr David Boyton instructed by Messrs John Ip & Co. for D18/Applicant.

D7 and D10/Applicants, appearing in person.