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The Queen v Chan San-man

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date24 January 1989
Year1989
Judgement NumberDCCC568/1988
Subject MatterCriminal Case
CourtDistrict Court (Hong Kong)
DCCC000568/1988 THE QUEEN v. CHAN SAN-MAN

DCCC000568/1988

H E A D N O T E

Societies Ordinance - sections 20(2) and 28 - possession of writings "of or relating to" a Triad Society - whether an invitation to a party addressed to a Triad Society is a writing of or relating to a Triad Society - knowledge (Sit Yat-keung [ 1986] HKLR 434 followed).

IN THE DISTRICT COURT OF HONG KONG

CRIMINAL JURISDICTION

CASE NO. 568 OF 1988

___________________

The Queen

against

Chan San-man

_________________

Coram: His Honour Judge Downey

Date of judgment: 24th January 1989

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REASONS FOR VERDICT

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1. On the above date, I recorded verdicts of not guilty in respect of three charges preferred against the defendant for offences against the Societies Ordinance (Cap. 151). At the time, I gave short reasons for doing so, and undertook to state fuller reasons in writing in deference to the helpful submissions of counsel on a difficult question of statutory construction

2. The three charges resulted from the execution of a search warrant at the defendant's home on the 1st March 1988, when police officers seized eight invitation cards in the customary form of Chinese characters printed in gold on red glossy paper. The invitation cards related to Spring Festival banquets held on the 3rd April 1983 and the 10th April 1985. On each occasion the host was the Kwong Hung Athletic Association, and. the invitations were apparently issued by Kwong Hung Athletic Association Co. Ltd., a company registered under the Companies Ordinance. The names of the invitees were written in black ink in the spaces provided on all but two of the cards. These two (Exhibit P5) were left blank. Of the remainder, one was addressed to "Fuk Yee Hing" (Exhibit P2); another was addressed to "Fuk Yee Hing Company" (Exhibit P6); and a third was addressed to "Kam Nga Chan" (Exhibit P1), which is or was the defendant's nickname. It is the Crown's contention that, by having exhibits P2 and P6 in his custody, the defendant was guilty of an offence against section 20(2) of Cap. 151, since Fuk Yee Hing is a well-known and active Triad Society. That is the substance of the 1st charge. The Crown further contends that the defendant, on the same day, assisted in the management, alternatively was a member, of the same Triad Society (the 2nd and 3rd charges); and it relies entirely on the presumptions contained in section 28 of Cap. 151.

3. On behalf of the Crown, Miss Crabtree accepted that everything depended upon proof of the defendant's guilt on the 1st charge. Strictly speaking, there is a distinction between the offence created by section 20(2) and the presumptions contained in section 28 of the Ordinance. The latter only arise if any writings are found in the possession of any person; whereas the former is committed if any person is found in possession of or has the custody or control of any writing. Nothing turns on these distinctions in the present case, because there is ample evidence that the defendant had more than one invitation card in his possession and custody on the day in question. The exhibits were found at his home, where he has resided since 1967. They were admittedly found in parts of the flat accessible to his wife and children. But, the names of the invitees on the various invitation cards bear no resemblance to those of the defendant's wife or children.

4. The real issue in the case is whether either or both of the invitation cards (ExhibitsP2 and P6) fall within the meaning of a "writing .... of or relating to" the Fuk Yee Hing Triad Society. Miss Crabtree contended that, in the absence of any statutory definition of "writing", that word should be given its ordinary or literal meaning. In that sense, the invitation cards are clearly writings. They relate to a Triad Society simply because they were addressed to "Fuk Yee Hing", a notorious Triad Society active in Hong Kong. Her answer to suggestions that the word "writing" should receive a narrower construction was to fall back on the terms of section 19 of the Interpretation and General Clauses Ordinance (Cap. 1), which appears to enjoin the courts to adopt a very broad and liberal interpretation to every Ordinance. In my view, section 19 of Cap. 1 does no more than remind a court that it should construe a statute so as to give effect to the intention of the legislature. (of. Smith v. Mc Arthur [1904] A.C. 389 at 398) In a particular case, it may require the court to depart from the literal meaning in favour of a restricted meaning, or one which is more extensive.

5. Mr. Chang Huan submitted that the invitation cards were incapable of being writings within the meaning of the enactment because the sender was an "exempted society" and because the word ''writing" fell to be construed in accordance with the eiusdem generis rule of statutory interpretation. With respect, the first point only arises if the invitation cards can only be regarded as writings of or relating to the sender. That would be the case with regard to Exhibit P5. But, once the name of the invitee is added, and the card has left the custody of the sender, I consider that it is capable of being a writing of or relating to the addressee. For the purposes of section 20(2) of Cap. 151, it is, in my view irrelevant that the sender is an ''exempted society" if the card is, in fact, sent to a Triad Society.

6. In support of his second point, Mr. Cheng Huan contended that the writing had to originate with a Triad Society or establish a connexion with a Triad Society; and not merely an invitation to a party. I must confess that I am attracted by the argument that section 20(2) of Cap. 151 should be limited to the kind of criminal or unlawful activities normally associated with Triad Societies, and not be extended to writings relating to otherwise open and lawful events or transactions. Otherwise, bodies like public utility companies holding copies of letters threatening society, which is, or is deemed to be, a Triad Society (cf. s. 18(3) of Cap. 151), with discontinuance of its services, might find themselves exposed to the law enforcement procedures and offences created by Cap. 151. I think that these examples, and other hypothetical situations involving obviously innocent third parties, can be avoided without stigmatising the statutory provisions as absurd. But, I cannot conceal a feeling of disquiet at the apparent breadth of sections 20(2) and 28 regarding possession or custody of writings in the absence of any general defence of lawful or reasonable excuse, or the requirement of obtaining the prior consent of the Attorney General to any prosecution. The latter device is usually inserted info an enactment. which casts its net extremely widely, in order to avoid absurd or oppressive action by law enforcement officers. Yet, this safeguard has limited application to the Societies Ordinance, despite the fact that it is not confined to Triad or other illegal societies. (see section 35 of Cap. 151). Even reputable firms of solicitors may get entangled in the meshes of the Ordinance. Of, Johnson, Stokes and Master v. Boucher (HCA No. 7056/1986; 14 October 1988).

7. Conscious, as I am, of the need to impose some restraint upon the potentially wide meaning of "writing" in the present context, I am not persuaded that it can be achieved by resort to the...

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