HKSAR v. CHAN KIN KWOK & POON CHI YUNG HCMA235/2007

S’s words:

For this case, the reason why the appeal against conviction being dismissed is not so interesting.

For act of foolish, the Court would be free to impose a more lenient sentence.

Without threat or oppression, 6 months’ imprisonment as starting point is appropriate.

With aggravating fact being a police officer, a higher starting point of 8 months (9 months originally but 1 month was discounted) is appropriate.

In other words, if element of threat or oppression is present, 12 months’ imprisonment starting point should be expected.

--- quote from judgment ---

Both appellants were convicted after trial at Shatin Magistracy of separate offences of professing to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151. Each was sentenced to 12 months’ imprisonment. The 1st appellant appeals both his conviction and sentence. The 2nd appellant appeals his sentence only. ... and the 1st appellant’s appeal against conviction is dismissed.

Both appellants appeal their sentence of 12 months’ imprisonment as being manifestly excessive. I agree. That is a sentence commensurate with the claim being made in circumstances of threat or oppression. Here the circumstances of both claims were relatively more benign. The claims were made by both the 1st and the 2nd appellants in a social setting amongst other persons who were apparently either themselves triads or associates of triads.

The claims were made not to threaten or coerce but to identify the purported status of the claimant. Both the 1st and the 2nd appellants, it is apparent, made their claims during casual and even friendly conversation with persons they no doubt regarded as associates or at least as like minded individuals.

A claim of triad membership can involve various and sometimes subtle degrees of culpability. For that reason it has long been recognised there are no “tariffs” involved in sentencing. Culpability can range, at one end of the scale from the foolish, for example, a plainly unthreatening claim of membership made on the spur of the moment during an argument : see HKSAR v. Khan Umer, HCMA932/2001, to the terrifying where, for example, an individual may be forced to give up his property or livelihood in response to a threat accompanying the claim to membership : see HKSAR v. Hung Shing Chung & Anor, HCMA790/2005. There are a multitude of circumstances where claims may be made falling between those extremes.

In my view an appropriate starting point of sentence for the 1st appellant would have been six months’ imprisonment. The aggravating factor of the 1st appellant’s membership of the Hong Kong Police Force enhances the starting point of sentence to nine months’ imprisonment. I appreciate the 1st appellant has lost a 21-year pension as a result of this offence and that, together with his years of service in the police force as a person of apparent unblemished record, allows him a one month discount from the starting point. Accordingly the sentence of 12 months’ imprisonment imposed by the magistrate is set aside and substituted with a sentence of eight months’ imprisonment.

I take into account the 2nd appellant has recently suffered from bowel cancer and that it is at risk of recurring. But I do not regard the past illness of the appellant to be a material mitigating factor. He is currently clear of cancer. There is no other mitigation. Accordingly the magistrate’s sentence of 12 months’ imprisonment is set aside and substituted with a sentence of six months’ imprisonment.