A A
B B
DCCC 395/2023
[2024] HKDC 1618
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 395 OF 2023 E
------------------------------
F F
HKSAR
G G
v
H
KASHIF HUSSAIN (2nd defendant) H
------------------------------
I I
J Before: HH Judge Kathie Cheung J
Date: 27 September 2024
K K
Present: Mr. Duncan C.H. PERCY, Counsel on fiat, for HKSAR
L Mr. William G. ALLAN, instructed by Messrs. Mohnani & L
Associates, for the second defendant
M M
Offence: [4] Acting as members of a triad society (以三合會社團成員
N 身分行事) N
O O
P P
---------------------------------------
Q
REASONS FOR VERDICT Q
---------------------------------------
R R
S S
T T
U U
V V
A A
B B
1. The second defendant of this case was jointly charged with
C the first defendant for one count of acting as members of a triad society, C
contrary to section 20(2) of the Societies Ordinance, Cap. 151 (charge 4).
D D
The second defendant pleaded not guilty to the charge.
E E
Prosecution case
F F
G 2. An undercover operation was conducted between March and G
December 2017. Police officer PC 17841 Cheung Kwun Shing was
H H
deployed as an undercover agent in the operation.
I I
3. Most of the prosecution case, such as the arrest and records of
J J
the video-recorded interviews (VRIs) of the second defendant and the
K evidence of the triad expert, was not challenged. K
L L
4. Officer Cheung was the only witness called to give evidence
M in the trial of the second defendant. M
N N
5. According to Officer Cheung, on 29.7.2017, he met up with
O someone nicknamed “Sai Shing”, who is the first defendant of this case, O
for collection of protection fee. He and Sai Shing followed the same big
P P
brother in a triad society. At about 10pm, he met up Sai Shing and a
Q Pakistani male called “Marco” at a cyber café called J Net in Kwun Tong. Q
About half an hour later, another Pakistani male joined them. Marco
R R
introduced this person as “Carson”. During the meeting there, Sai Shing
S gave them instructions about collecting protection fee at a shop called “Big S
T T
U U
2
V V
A A
B B
Echo i-box store” in Causeway Bay. Then, Sai Shing led them to leave the
C café and went to Causeway Bay. C
D D
6. At Causeway Bay, they met the big brother “Ah Fai” outside
E the building at 38 Yiu Wah Street. Ah Fai then gave them instructions E
about what to do at Big Echo. Then the 4 of them said understood.
F F
G 7. Ah Fai left and the group of 4 then went to Big Echo. Sai G
Shing spoke to the person-in-charge named “Apple”. Sai Shing followed
H H
Ah Fai’s instructions and told Apple in a loud and fierce manner that the
I place would be watched over by “Wan Sun”, she had to call his boss for I
discussion or otherwise she had to bear the consequences. Then Sai Shing
J J
gave a card to Apple. During the incident, Officer Cheung, Marco and
K Carson were standing behind Sai Shing. K
L L
8. Thereafter, they left Big Echo and went to a bar for drinks.
M After about an hour, Marco and Carson left. Subsequently, Officer Cheung M
and Sai Shing also left.
N N
O 9. Officer Cheung confirmed that it was the first time he met O
Carson on 29.7.2017 and he did not see him again thereafter until the
P P
identification parade on 24.1.2018.
Q Q
Defence case
R R
S 10. After the prosecution closed his case, the defence submitted S
no case to answer. After I ruled a case to answer, the second defendant
T T
U U
3
V V
A A
B B
elected not to give evidence nor call defence witnesses. The defence case
C as disclosed from the second defendant’s VRIs is that he had never been to C
Big Echo and he did not know Ah Fai, Sai Shing and Officer Cheung. He
D D
did know a Pakistani male “Marco” who was his schoolmate.
E E
Directions
F F
G 11. Prosecution has the burden to prove the requisite elements of G
the offence beyond reasonable doubt. The second defendant has no burden
H H
of proof.
I I
12. The second defendant elected not to give evidence nor call
J J
witnesses. This is his right. I must not hold this against him. On the other
K hand, it means there is no evidence from the defence to undermine, K
contradict or explain the evidence put before me by the prosecution.
L L
M 13. The second defendant’s reply under caution was admitted as M
evidence. His reply is a mixed statement. I have to consider what he said
N N
under caution. If what he said is or may be true, then I must find him not
O guilty. Even if I reject what he said under caution, I still have to consider O
the prosecution’s evidence and decide if the offence has been proved
P P
beyond reasonable doubt.
Q Q
14. I remind myself that if I am to draw inference, the inference
R R
must be drawn from facts proved and that the inference is the only
S reasonable inference to be drawn from the proved facts. S
T T
U U
4
V V
A A
B B
Analysis of evidence
C C
15. Mr. Percy for the prosecution has filed written closing
D D
submissions. While Mr. Percy did address on the relevant law in the
E closing submissions, he also addressed on the evidence. As the second E
defendant has not given evidence nor called any witnesses and the evidence
F F
of Officer Cheung is straightforward, I consider Mr. Percy’s address on
G evidence could not be of further assistance to me. G
H H
16. As I stated before, most of the prosecution case was not
I challenged. The defence did not challenge what had happened as testified I
by Officer Cheung and that the second defendant was picked out in an
J J
identification parade. The only issues are whether the second defendant
K was the person “Carson” as mentioned by Officer Cheung and, if so, what K
the second defendant had done and whether those acts amounted to acting
L L
as member of a triad society.
M M
17. Mr. Percy maintained there was no issue on identity as the
N N
second defendant had by admitted fact agreed that he was picked out by
O Officer Cheung at an identification parade. However, I agree with Mr. O
Allan that the fact that the second defendant was picked out from an
P P
identification parade does not necessarily mean that he was “Carson” who
Q was present on that occasion. It was clearly stated in R v Turnbull [1977] Q
QB 224 that an honest witness could be mistaken. In a case like this, the
R R
burden is on the prosecution to prove beyond reasonable doubt that Officer
S Cheung’s identification was not mistaken. S
T T
U U
5
V V
A A
B B
18. While the evidence given by Officer Cheung is
C straightforward, there is no evidence from Officer Cheung regarding the C
quality of his observation of Carson. There is no evidence on the lighting,
D D
their distance, whether the view was obstructed, the duration of observation,
E etc. Apart from introducing each other’s name, Officer Cheung did not E
have any conversation with Carson. Officer Cheung also agreed that he
F F
only gave a brief description of Carson in his witness statement. That
G description only consisted of the approximate age and height of Carson, G
that Carson was of fat built and he was believed to be a Pakistani. There
H H
was no mention of Carson’s facial features and his clothes. Although the
I second defendant admitted knowing a Pakistani male called “Marco”, there I
is no evidence in this trial as to whether the Pakistani male Marco
J J
mentioned by Officer Cheung is the same Marco whom the second
K defendant knew. During the undercover operation, Officer Cheung met K
other suspects believed to be Pakistani. Officer Cheung distinguished
L L
Carson from other Pakistani suspects for the fact that Carson was fatter
M than the others. As Officer Cheung had not met Carson before and M
thereafter, the evidence in this case is simply insufficient to establish that
N N
Officer Cheung had sufficient opportunity to observe Carson. In the
O circumstances, there is doubt as to whether Officer Cheung’s identification O
of the second defendant was mistaken.
P P
Q 19. On the assumption that Officer Cheung’s identification was Q
not mistaken, I have to consider what the second defendant had done and
R R
whether his conduct amounted to acting as member of a triad society.
S S
T T
U U
6
V V
A A
B B
20. Regarding what Carson had done, Officer Cheung confirmed
C that he did not see Carson having any direct conversation with any person C
of their group. The only conversation Officer Cheung was aware was
D D
Carson introduced his own name and said understood after Ah Fai had
E given instructions. At Big Echo, Carson only stood behind Sai Shing E
without any action. Later when the group had drinks at a bar, Officer
F F
Cheung did not mention any conversation by Carson. Then, Carson and
G Marco left first. G
H H
21. It is clear from Officer Cheung’s evidence that both Ah Fai
I and Sai Shing spoke in Punti in the incident. Apart from Carson saying I
understood and introducing his own name, there is no evidence as to the
J J
language ability of Carson. There is no evidence whether Carson could
K understand Punti and in particular the terms such as “protection fee”, “tor K
tei” and “Wan Sun” etc. The second defendant in his VRIs stated that he
L L
only spoke in Urdu, Punjabi and English. In the circumstances, even if the
M second defendant was Carson and present at the time of the offence, there M
is no evidence to prove he understood Ah Fai’s instructions and what was
N N
going on thereafter. Mere presence in the group is insufficient and there
O must be some overt act done by the second defendant which a triad does as O
a triad (see HKSAR v Wong Sing Chi and others, CACC 245/1999 at page
P P
9).
Q Q
22. Finally, as pointed out by Mr. Allan, there were discrepancies
R R
between the evidence of Ms Lau Lai Ping, the person-in-charge of Big
S Echo and that of Officer Cheung. Ms Lau’s witness statement was S
admitted into evidence under section 65B of the Criminal Procedure
T T
U U
7
V V
A A
B B
Ordinance. While both Ms Lau and Officer Cheung confirmed there were
C 2 incidents at Big Echo (i.e. on 27.7.2017 and 29.7.2017), Ms Lau’s version C
is that the same group of 6-7 males (including some South Asian(s)) went
D D
to Big Echo on both 2 occasions. Officer Cheung testified that Carson only
E attended Big Echo on 29.7.2017 but not 27.7.2017. While Ms Lau’s E
version is a group of 6-7 males, Officer Cheung’s version is a group of 4
F F
persons. Ms Lau said there was no mention of any triad affiliation and no
G act of coercion or money extortion on 29.7.2017 while Officer Cheung G
testified that Sai Shing mentioned the place would be watched over by
H H
“Wan Sun” on 29.7.2017. There is doubt as to which version is correct.
I I
23. In view of the above, I find the prosecution has not proved
J J
beyond reasonable doubt the charge against the second defendant. I
K therefore find the second defendant not guilty of charge 4. K
L L
M M
N N
O O
P P
Q Q
R R
( Kathie Cheung )
S District Judge S
T T
U U
8
V V
A A
B B
DCCC 395/2023
[2024] HKDC 1618
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 395 OF 2023 E
------------------------------
F F
HKSAR
G G
v
H
KASHIF HUSSAIN (2nd defendant) H
------------------------------
I I
J Before: HH Judge Kathie Cheung J
Date: 27 September 2024
K K
Present: Mr. Duncan C.H. PERCY, Counsel on fiat, for HKSAR
L Mr. William G. ALLAN, instructed by Messrs. Mohnani & L
Associates, for the second defendant
M M
Offence: [4] Acting as members of a triad society (以三合會社團成員
N 身分行事) N
O O
P P
---------------------------------------
Q
REASONS FOR VERDICT Q
---------------------------------------
R R
S S
T T
U U
V V
A A
B B
1. The second defendant of this case was jointly charged with
C the first defendant for one count of acting as members of a triad society, C
contrary to section 20(2) of the Societies Ordinance, Cap. 151 (charge 4).
D D
The second defendant pleaded not guilty to the charge.
E E
Prosecution case
F F
G 2. An undercover operation was conducted between March and G
December 2017. Police officer PC 17841 Cheung Kwun Shing was
H H
deployed as an undercover agent in the operation.
I I
3. Most of the prosecution case, such as the arrest and records of
J J
the video-recorded interviews (VRIs) of the second defendant and the
K evidence of the triad expert, was not challenged. K
L L
4. Officer Cheung was the only witness called to give evidence
M in the trial of the second defendant. M
N N
5. According to Officer Cheung, on 29.7.2017, he met up with
O someone nicknamed “Sai Shing”, who is the first defendant of this case, O
for collection of protection fee. He and Sai Shing followed the same big
P P
brother in a triad society. At about 10pm, he met up Sai Shing and a
Q Pakistani male called “Marco” at a cyber café called J Net in Kwun Tong. Q
About half an hour later, another Pakistani male joined them. Marco
R R
introduced this person as “Carson”. During the meeting there, Sai Shing
S gave them instructions about collecting protection fee at a shop called “Big S
T T
U U
2
V V
A A
B B
Echo i-box store” in Causeway Bay. Then, Sai Shing led them to leave the
C café and went to Causeway Bay. C
D D
6. At Causeway Bay, they met the big brother “Ah Fai” outside
E the building at 38 Yiu Wah Street. Ah Fai then gave them instructions E
about what to do at Big Echo. Then the 4 of them said understood.
F F
G 7. Ah Fai left and the group of 4 then went to Big Echo. Sai G
Shing spoke to the person-in-charge named “Apple”. Sai Shing followed
H H
Ah Fai’s instructions and told Apple in a loud and fierce manner that the
I place would be watched over by “Wan Sun”, she had to call his boss for I
discussion or otherwise she had to bear the consequences. Then Sai Shing
J J
gave a card to Apple. During the incident, Officer Cheung, Marco and
K Carson were standing behind Sai Shing. K
L L
8. Thereafter, they left Big Echo and went to a bar for drinks.
M After about an hour, Marco and Carson left. Subsequently, Officer Cheung M
and Sai Shing also left.
N N
O 9. Officer Cheung confirmed that it was the first time he met O
Carson on 29.7.2017 and he did not see him again thereafter until the
P P
identification parade on 24.1.2018.
Q Q
Defence case
R R
S 10. After the prosecution closed his case, the defence submitted S
no case to answer. After I ruled a case to answer, the second defendant
T T
U U
3
V V
A A
B B
elected not to give evidence nor call defence witnesses. The defence case
C as disclosed from the second defendant’s VRIs is that he had never been to C
Big Echo and he did not know Ah Fai, Sai Shing and Officer Cheung. He
D D
did know a Pakistani male “Marco” who was his schoolmate.
E E
Directions
F F
G 11. Prosecution has the burden to prove the requisite elements of G
the offence beyond reasonable doubt. The second defendant has no burden
H H
of proof.
I I
12. The second defendant elected not to give evidence nor call
J J
witnesses. This is his right. I must not hold this against him. On the other
K hand, it means there is no evidence from the defence to undermine, K
contradict or explain the evidence put before me by the prosecution.
L L
M 13. The second defendant’s reply under caution was admitted as M
evidence. His reply is a mixed statement. I have to consider what he said
N N
under caution. If what he said is or may be true, then I must find him not
O guilty. Even if I reject what he said under caution, I still have to consider O
the prosecution’s evidence and decide if the offence has been proved
P P
beyond reasonable doubt.
Q Q
14. I remind myself that if I am to draw inference, the inference
R R
must be drawn from facts proved and that the inference is the only
S reasonable inference to be drawn from the proved facts. S
T T
U U
4
V V
A A
B B
Analysis of evidence
C C
15. Mr. Percy for the prosecution has filed written closing
D D
submissions. While Mr. Percy did address on the relevant law in the
E closing submissions, he also addressed on the evidence. As the second E
defendant has not given evidence nor called any witnesses and the evidence
F F
of Officer Cheung is straightforward, I consider Mr. Percy’s address on
G evidence could not be of further assistance to me. G
H H
16. As I stated before, most of the prosecution case was not
I challenged. The defence did not challenge what had happened as testified I
by Officer Cheung and that the second defendant was picked out in an
J J
identification parade. The only issues are whether the second defendant
K was the person “Carson” as mentioned by Officer Cheung and, if so, what K
the second defendant had done and whether those acts amounted to acting
L L
as member of a triad society.
M M
17. Mr. Percy maintained there was no issue on identity as the
N N
second defendant had by admitted fact agreed that he was picked out by
O Officer Cheung at an identification parade. However, I agree with Mr. O
Allan that the fact that the second defendant was picked out from an
P P
identification parade does not necessarily mean that he was “Carson” who
Q was present on that occasion. It was clearly stated in R v Turnbull [1977] Q
QB 224 that an honest witness could be mistaken. In a case like this, the
R R
burden is on the prosecution to prove beyond reasonable doubt that Officer
S Cheung’s identification was not mistaken. S
T T
U U
5
V V
A A
B B
18. While the evidence given by Officer Cheung is
C straightforward, there is no evidence from Officer Cheung regarding the C
quality of his observation of Carson. There is no evidence on the lighting,
D D
their distance, whether the view was obstructed, the duration of observation,
E etc. Apart from introducing each other’s name, Officer Cheung did not E
have any conversation with Carson. Officer Cheung also agreed that he
F F
only gave a brief description of Carson in his witness statement. That
G description only consisted of the approximate age and height of Carson, G
that Carson was of fat built and he was believed to be a Pakistani. There
H H
was no mention of Carson’s facial features and his clothes. Although the
I second defendant admitted knowing a Pakistani male called “Marco”, there I
is no evidence in this trial as to whether the Pakistani male Marco
J J
mentioned by Officer Cheung is the same Marco whom the second
K defendant knew. During the undercover operation, Officer Cheung met K
other suspects believed to be Pakistani. Officer Cheung distinguished
L L
Carson from other Pakistani suspects for the fact that Carson was fatter
M than the others. As Officer Cheung had not met Carson before and M
thereafter, the evidence in this case is simply insufficient to establish that
N N
Officer Cheung had sufficient opportunity to observe Carson. In the
O circumstances, there is doubt as to whether Officer Cheung’s identification O
of the second defendant was mistaken.
P P
Q 19. On the assumption that Officer Cheung’s identification was Q
not mistaken, I have to consider what the second defendant had done and
R R
whether his conduct amounted to acting as member of a triad society.
S S
T T
U U
6
V V
A A
B B
20. Regarding what Carson had done, Officer Cheung confirmed
C that he did not see Carson having any direct conversation with any person C
of their group. The only conversation Officer Cheung was aware was
D D
Carson introduced his own name and said understood after Ah Fai had
E given instructions. At Big Echo, Carson only stood behind Sai Shing E
without any action. Later when the group had drinks at a bar, Officer
F F
Cheung did not mention any conversation by Carson. Then, Carson and
G Marco left first. G
H H
21. It is clear from Officer Cheung’s evidence that both Ah Fai
I and Sai Shing spoke in Punti in the incident. Apart from Carson saying I
understood and introducing his own name, there is no evidence as to the
J J
language ability of Carson. There is no evidence whether Carson could
K understand Punti and in particular the terms such as “protection fee”, “tor K
tei” and “Wan Sun” etc. The second defendant in his VRIs stated that he
L L
only spoke in Urdu, Punjabi and English. In the circumstances, even if the
M second defendant was Carson and present at the time of the offence, there M
is no evidence to prove he understood Ah Fai’s instructions and what was
N N
going on thereafter. Mere presence in the group is insufficient and there
O must be some overt act done by the second defendant which a triad does as O
a triad (see HKSAR v Wong Sing Chi and others, CACC 245/1999 at page
P P
9).
Q Q
22. Finally, as pointed out by Mr. Allan, there were discrepancies
R R
between the evidence of Ms Lau Lai Ping, the person-in-charge of Big
S Echo and that of Officer Cheung. Ms Lau’s witness statement was S
admitted into evidence under section 65B of the Criminal Procedure
T T
U U
7
V V
A A
B B
Ordinance. While both Ms Lau and Officer Cheung confirmed there were
C 2 incidents at Big Echo (i.e. on 27.7.2017 and 29.7.2017), Ms Lau’s version C
is that the same group of 6-7 males (including some South Asian(s)) went
D D
to Big Echo on both 2 occasions. Officer Cheung testified that Carson only
E attended Big Echo on 29.7.2017 but not 27.7.2017. While Ms Lau’s E
version is a group of 6-7 males, Officer Cheung’s version is a group of 4
F F
persons. Ms Lau said there was no mention of any triad affiliation and no
G act of coercion or money extortion on 29.7.2017 while Officer Cheung G
testified that Sai Shing mentioned the place would be watched over by
H H
“Wan Sun” on 29.7.2017. There is doubt as to which version is correct.
I I
23. In view of the above, I find the prosecution has not proved
J J
beyond reasonable doubt the charge against the second defendant. I
K therefore find the second defendant not guilty of charge 4. K
L L
M M
N N
O O
P P
Q Q
R R
( Kathie Cheung )
S District Judge S
T T
U U
8
V V