HKSAR v. CHEE YAN FAT

DCCC 782, 858, 875,878 & 995B/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 782, 858, 875,878 & 995B OF 2013

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HKSAR
v
CHEE YAN FAT (D18)

____________

Before: HH Judge Dufton

Date: 28 November 2014

Present: Mr Shaun Kelly, counsel on fiat, for HKSAR
Mr Keith Fung instructed by Francis Kong & Co,
assigned by the Director of Legal Aid, for the defendant

Offence: Claiming to be a member of a triad society
(聲稱是三合會社團的成員)

REASONS FOR SENTENCE

1. Chee Yan Fat you have pleaded guilty to one charge of claiming to be a member of the 14K triad society, contrary to section 20(2) of the Societies Ordinance, Chapter 151.

2. In summary between March and November 2012 PC 7480, whilst acting as an undercover agent to infiltrate active triad groups, began associating with persons belonging to the 14K triadsociety and took part in various triad activities at the direction of a person called She Kwo.

3. In the evening of the 15 November 2012 She Kwo instructed PC 7480 and others, including a girl nicknamed Sze Ngan Mui, to assembleat the G/F of Hung Hsing Building, 484 Nathan Road. On arrival She Kwo explained that he had a dispute with a female called “AhK” over Sze Ngan Mui who was to be detained by Ah K. She Kwo further explained that “Ah K” was supported by a person nicknamed“Ha Lok” and that this support may end in a fight.

4. The group of about seven then went to a flat on the 8/F. You were inside the flat together with seven other persons. You addressedShe Kwo by telling him that your group were also of the 14K triad society and asked She Kwo why he brought so many people with him. You then had a private conversation with She Kwo resulting in the dispute being settled.

5. In passing sentence I have carefully considered everything said on your behalf by Mr Fung together with the content of all the medicalreports and your mitigation letter submitted this morning. In AG v Lee Chi Man [1980] HKLR 483 the court indicated that where a person admits or is proved to have been actively involved in an active society he should, unlessthere is some exceptional circumstance, receive a custodial sentence. Accepting a custodial sentence is almost inevitable Mr Fungasks that I suspend that sentence by reason of your medical condition.

6. I will first consider whether a sentence of imprisonment is appropriate and if so the length of that sentence. Mr Fung has helpfullyreferred the court to a number of cases showing that the range of sentence is between 3-18 months imprisonment.

7. In Lee Chi Man the court held that a sentence of 12 months imprisonment should have been imposed where the defendant pleaded guilty having madea claim to an undercover police officer that he was a member of the Sun Yee On triad society; he was due to be promoted; he had severalboys and girls following him and that in the future he would be able to recruit members in his own name.

8. Lee Chi Man was cited in HKSAR v Hung Shing Chung & another HCMA 790/2005 where the court upheld a sentence of 12 months after trial where the claim was made to intimidate a mini bus driverfrom working.

9. In HKSAR v So Chi Wah & another CACC 358/2004 the appellant claimed to be a member of a triad society when demanding protection money from a hawker of pirated compactdiscs. I was the sentencing judge and imposed a sentence of 9 months imprisonment taking into account that the hawker was not ahard working hawker conducting a lawful business and was also before the court on triad charges. The sentence was not the subjectof appeal and therefore not considered by the Court of Appeal.

10. Mr Fung submits that the present case is only a mere claim made in a social context with no accompanying violence, coercion or othertriad activity whereby a lower sentence is appropriate than the cited cases. In particular Mr Fung relies on the judgment in HKSAR v Lau Chi Hung HCMA 1079/2004 where the court upheld a sentence after trial of 3 months imprisonment where the claim was made when an undercoverpolice officer was introduced to other members of the triad society. In similar circumstances the Court of Appeal in HKSAR v Choy Ka Fai & others CACC195/2009 also held that a 3 month sentence was appropriate.

11. I disagree the claim was made in what can be called a social context. The claim was made in what can only be termed a settlementtalk between different factions of the 14K triad society. She Kwo went to the flat to settle a dispute he had over a girl, takingwith him a group of people as he feared a fight might occur.

12. The facts are closer to those in HKSAR v Chan Kin Kwok & another HCMA 235/2007 a case also cited by Mr Fung and in which I was the trial magistrate. In that case the second appellant took part ina settlement talk in a nightclub. After settlement was reached the second appellant introduced one of his followers to an undercoverpolice officer saying that they were both members of the 14K triad society. On appeal the court finding that some form of businesswas being conducted between persons holding themselves out as members of triad groups held 6 months imprisonment was appropriatethere being no threat or coercion. The claim however was again said in a social setting.

13. Taking into account the claim was made at the time of a settlement talk and was not made in a social setting I am satisfied a startingpoint of 9 months imprisonment is appropriate. Giving you full credit for your plea of guilty reduces the sentence to 6 months imprisonment.

Suspended sentence

14. Clearly you have serious medical problems as a result of which I adjourned sentence for you to receive medical treatment. I fullyunderstand and appreciate your reluctance during the adjournments to seek medical treatment. Consequently no update report was availableand I therefore called for a medical report from the correctional services including whether the correctional services were ableto care for you whilst serving sentence.

15. A sentence will only be suspended where there are exceptional circumstances. In determining whether there are exceptional circumstancesa court will take into account all the relevant circumstances surrounding the offence and the offender. Clearly in appropriate casesserious health problems are capable of being exceptional circumstances (see for example R v Ullah Khan [1994] 15 Cr App R (S) 320; R v Eileen Stevens [2003] 1 Cr App R (S) 32 and R v Stephen Cahill [2009] EWCA Crim 420).

16. Often in considering whether there are exceptional circumstances the offender will be of a clear record or have convictions of aminor nature only. You do not fall into such category. On the contrary you have regularly appeared before the court since 1984and have served numerous prison sentences including eight years for a firearm offence in 1995 and four and a half years for traffickingin drugs in 2005. You were last before the court for possession of drugs in 2009 when you were sent to the DATC.

17. To impose a suspended sentence on such an offender may be said to send the wrong message. Nevertheless the medical reports revealingyou have serious health problems I have considered whether in the circumstances of this case they amount to exceptional circumstancesto suspend the sentence.

18. In considering whether there are exceptional circumstances I have borne in mind that said by the Court of Final Appeal in Yip Kai Foon v HKSAR (2000) 3 HKCFAR 31 that under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing thesentence for crimes of gravity.

19. In R v Bernard [1997] 1 Cr App R (S) 135 the Court of Appeal set out the principles which emerged from previous decisions, namely :

1. A medical condition which might at some unidentified future date affect either life expectancy or the prison authority’s abilityto treat a prisoner satisfactorily might call into operation the Home Secretary’s powers of release by reference to the royal prerogativeof mercy or otherwise but was not a reason for the Court of Appeal to interfere with an otherwise appropriate sentence;

2. The fact that an offender was HIV positive, or had a reduced life expectancy, was not generally a reason which should affect sentence;

3. A serious medical condition, even when it was difficult to treat in prison, would not automatically entitle an offender to a lessersentence than would otherwise be appropriate; and

4. An offender’s serious medical condition might enable a court, as an act of mercy in exceptional circumstances of the particularcase, rather than by virtue of any general principle, to impose a lesser sentence than would otherwise be appropriate.

20. These principles have been regularly referred to and applied in Hong Kong, for example see HKSAR v Tsang Wai Kei CACC 452/2002; HKSAR v Tse Tat Fung CACC 167/2008 and HKSAR v Lkhaijav Bayanmunkh CACC 320/2011.

21. I have carefully considered all the medical reports. The medical report from the Lai Chi Kok Reception Centre says your generalcondition remains stable and that there is no absolute medical contra-indication you cannot serve a sentence of imprisonment.

22. Mr Fung criticises the report as not being helpful. I disagree. Whilst the report could have been more detailed as to how the correctionalservices looked after you during the last two weeks there is nothing to suggest they cannot properly care for you whilst servingsentence. The report shows that on the day you were remanded the 14 November you were sent to the Accident & Emergency Departmentof the Rutonjee Hospital and then referred to the Queen Elizabeth Hospital for further management. The next day you were admittedto the Queen Elizabeth Hospital where you remained until the 18 November.

23. You have also been referred to the Medical Unit of the Kwong Wah Hospital and the Visiting Chest Clinic of Lai Chi Kok ReceptionCentre for follow up appointments. All this shows that whilst in custody you have been receiving proper medical treatment and fromwhich I am satisfied the prison authorities will ensure you continue to receive proper medical treatment while serving sentence. In this regard I also note the prison authorities are able to take care of disabled prisoners as detailed in HKSAR v Cheng Ho Chow CACC 111/2009.

24. Whilst sympathetic I am satisfied there are no exceptional circumstances to suspend the sentence. You are convicted and sentencedto 6 months imprisonment.

(D. J. DUFTON)
DISTRICT JUDGE