Tang, V-P (giving the reasons for decision of the Court):
上訴法庭副庭長鄧國楨頒發上訴法庭判案理由書：

Between August 2007 and June 2008, police constable NG Wai-man (PW4) participated in an undercover operation in which he was mainly to collect intelligence of criminal activities in New Territories North Region.  As a result of the undercover operation, the seven defendants in the present case were respectively charged with one or more than one offence relating to triad societies (namely, contrary to the Societies Ordinance, Cap 151, Laws of Hong Kong).  D2 was further charged with trafficking in a dangerous drug involving 2.49 grammes of cannabis (in herbal form), to which he has pleaded guilty.
由2007年8月至2008年6月，警員吳偉文（控方第四證人）參與臥底行動，主要在新界北總區收集犯罪活動的情報，該臥底行動導致本案7名被告人分別被控一項或多於一項與三合會社團有關（即違反香港法例第151章《社團條例》）的罪名，而第二被告人被加控一項販運危險藥物罪，所涉及的是2.49克大麻（草本形態），第二被告人承認販運危險藥物罪。

All the defendants were convicted after trial by Deputy District Judge Sham and were sentenced to imprisonment for a term ranging from 24 months to 45 months.
案件經區域法院暫委法官沈小民審理後，各被告人被裁定罪名成立，分別被判刑24至45個月不等。

As the undercover operation had lasted for a period of almost 10 months, which is not a short period, and there are as many as 7 defendants involved, the following table showing the respective charges and sentences in relation to each defendant has been prepared by Ms Alice Chan Shook-man, Senior Public Prosecutor, for the sake of convenience:
由於臥底行動持續接近10個月，為期不短，加上有7名被告人之多，高級檢控官陳淑文為方便起見，將有關各被告人的控罪及判刑表列如下：

Leave to appeal against conviction is being sought by D2, D4 and D6, among whom D2 and D4 act in person whereas D6 is represented by Counsel Mr. Kwan Tong-lee.
第二、第四及第六被告人就定罪申請上訴許可，其中第二及第四被告人就定罪親自應訊，而第六被告人則由關唐利大律師代表。

Leave to appeal against sentence is being sought by D2, D4, D5, D6 and D7, among whom D2, D5 and D6 are represented by Counsel Mr. Kwan Tong-lee whereas D4 and D7 by Counsel Mr. Steve Chui.
第二、第四、第五、第六及第七被告人均就判刑提出上訴許可申請，其中第二、第五及第六被告人由關唐利大律師代表；第四及第七被告人則由徐福亮大律師代表。

At the outset of the hearing, D2 and D4 abandon their applications for leave to appeal against conviction.  The applications are therefore dismissed.
在聆訊開始時，第二及第四被告人放棄定罪的上訴許可申請，故申請被撤銷。

After the hearing, D6’s application for leave to appeal against conviction is dismissed by this Court.
經聆訊後，本庭駁回第六被告人的定罪上訴許可申請。

Leave is granted to D2, D4, D5, D6 and D7 to appeal against sentence.  The results are as follows:
至於第二、第四、第五、第六及第七被告人的判刑上訴許可申請則獲接納，結果如下。

For D2, as there is no appeal against sentence in respect of Charge 3 (the offence of trafficking in a dangerous drug), the original sentence of two months’ imprisonment is upheld by this Court; in respect of Charges 4 and 10, the original sentences of two years’ imprisonment for each charge are reduced by this Court to 15 months for each charge; in respect of Charge 8, the original sentence of 15 months’ imprisonment is altered to 3 months’ imprisonment; 4 months in respect of Charge 4 shall run consecutively to the sentences on Charges 3, 8 and 10.  The total term of sentence for D2 is reduced from the original term of 38 months to 24 months.
第二被告人就控罪三（販運危險藥物罪）的兩個月刑期並無提出上訴，故本庭維持原判；至於控罪四及十原本各為兩年監禁的刑期，本庭減為各15個月監禁；控罪八的刑期，則由原本的15個月監禁，改為3個月監禁；控罪四當中的4個月刑期，與控罪三、控罪八和控罪十的刑期分期執行，第二被告人的總刑期由原本的38個月減為24個月。

For D4, in relation to Charges 6, 9 and 14, the original sentences are a term of imprisonment for 2 years and 9 months on each charge, of which 6 months in respect of each of Charge 9 and Charge 14 shall run consecutively, making a total term of sentence of 45 months.  After the hearing of the appeal, it is ordered by this Court that the sentence on Charge 6 be altered to 12 months, that on Charge 9 be altered to 15 months, and that on Charge 14 be altered to 2 years, of which 3 months in respect of Charge 6 and 6 months in respect of Charge 9 shall run consecutively to the sentence on Charge 14.  The total term of sentence for D4 is 33 months.
第四被告人就第六、九及十四項控罪，原本被判各2年9個月監禁，當中控罪九和十四各有6個月刑期分期執行，總刑期為45個月。上訴聆訊後，本庭命令控罪六的刑期，改為12個月、控罪九的刑期改為15個月、控罪十四的刑期改為2年，當中控罪六的3個月刑期和控罪九的其中6個月刑期，與控罪十四的刑期分期執行，第四被告人的總刑期為33個月。

As regards D5, at the conclusion of the trial he pleaded guilty to a charge of claiming to be a member of a triad society (Charge 7) and a charge of acting as a member of a triad society (Charge 13).  D5 was sentenced by the trial judge to 15 months’ imprisonment on Charge 7 and 2 years’ imprisonment on Charge 13, to be reduced by 3 months for each charge because of his plea of guilty.  Further, of the 12 months in respect of Charge 7 and of the 21 months in respect of Charge 13, 6 months were to run consecutively to each other, making a total term of sentence of 27 months.  After the hearing of the appeal, it is ordered by this Court that the original sentence of 12 months on Charge 7 be altered to 3 months, the original sentence of 21 months on Charge 13 be altered to 12 months, and the total term of sentence for D5 be reduced from 27 months to 15 months.
至於第五被告人，他在審訊結束後承認一項聲稱是三合會社團的成員罪（控罪七）及一項以三合會社團成員身分行事罪（控罪十三），原審法官判處第五被告人就控罪七入獄15個月，控罪十三入獄2年，因認罪各項控罪的刑期獲減3個月，另外控罪七的12個月與控罪十三的21個月刑期，各有6個月分期執行，總刑期為27個月。上訴聆訊後本庭命令控罪七的12個月刑期改為3個月，而控罪十三的21個月改為12個月，第五被告人的總刑期由27個月減為15個月。

Furthermore, it is ordered by this Court that in relation to D6, the original sentence of 27 months’ imprisonment on Charge 11 be reduced to 15 months.
另外，本庭命令第六被告人就控罪十一的刑期，由原本的27個月監禁減至15個月。

As regards D7, the original sentence of 24 months on Charge 12 is altered to 9 months.
至於第七被告人第十二項控罪的刑期，則由原本的24個月改為9個月。

As there is no dispute between the parties as to the facts of the various charges, we have adopted the written submission by Ms Alice Chan Shook-man, Senior Public Prosecutor.  An extract is given below:
就有關各項控罪的案情，控辯雙方並無異議，所以本庭採用高級檢控官陳淑文的書面陳詞，並節錄如下：

“Charge 4 – Acting as a member of a triad society (against D2)
「第四項控罪—以三合會成員身分行事（針對第二被告）

On 11 December 2007 at around 8:00 p.m., PW4 was having dinner with D2, nicknamed Ah Mike, and other persons including D7, nicknamed Ah Chuen, in Yuen Long.  During that time, D7 was informed to go to Shing Kee Restaurant at 11 o’clock on the following morning and he said, ‘Fei Wah will “blow the whistle” tomorrow, …… seems to be saying that there will be a settlement talk at a table.’  It was the understanding of PW4 that the purpose of the gathering was to have a settlement talk.  D2 asked PW4 to attend (the gathering) the following day in answer to the summons from Fei Wah who ‘blew the whistle’.
2007年12月11日控方第四證人於晚上8時左右與別號為亞Mike的第二被告及其他人包括別號阿全的第七被告在元朗吃晚飯。期間第七被告被通知要於翌日早上11時到勝記茶餐廳，並說：『飛華聽日『吹雞』，……好似話埋枱講數。』。控方第四證人理解聚會的目的是為了講數。而第二被告要求控方第四證人翌日出席響應飛華的『吹雞』召集。

At around 10:30 a.m. on 12 December, PW4, having met up with D2, arrived at Shing Kee Restaurant.  During that time, PW4 said, ‘Ah Dee, just follow what I do in a moment.  Brother Wah might not have a settlement talk.  Maybe it’s just to collect “Tor Tei”, it’s unknown yet.’  Afterwards, D2 introduced a number of males including Chui Shui Wah, Ah Yiu and Ah Sor to PW4 and told PW4 that they were ‘all belonging to “Number”, and also followers of Fei Wah’.  D2 also told PW4 to sit at a separate table, saying, ‘So that (we) won’t get arrested altogether in case the police make arrest.  If any cops come up in a moment, just say (you are) having breakfast and know nothing at all.’  Later on, Ah Sor received a phone call and came to know that the place of meeting had been changed.  Everybody then dispersed and eventually nothing particular happened that morning.
於12月12日早上10時半左右控方第四證人會合第二被告到達勝記茶餐廳，期間控方第四證人說：『阿Dee，一陣睇我頭，華哥未必講數喎，可能收陀地都未定。』後來被第二被告把多名男子向控方第四證人介紹，包括吹水華，亞耀及亞傻。並告訴控方第四證人他們『都係冧巴嘅，都係跟飛華。』又叫控方第四證人與他分枱坐，說：『有衰唔使一齊衰，一陣有差佬，話食早餐，咩都話唔知。』後來亞傻接到電話知道會面地方改變了，眾人便散去，最終當天早上沒有特別事發生。

PW7, Woman Sergeant WONG Pui-kam, while giving evidence as a triad expert, stated that ‘blowing the whistle’ is a triad jargon, which represents a triad summons to convene an assembly.
控方第七證人女警長黃佩琴以三合會專家身分作供表示『吹雞』為三合會術語，表示三合會傳召集合。

Charge 6 – Acting as a member of a triad society (against D4)
第六項控罪—以三合會身分行事（針對第四被告）

At around 1:15 a.m. on 3 January 2008, PW4 met D4, nicknamed Fei Wah, and another male in Neway Karaoke in Yuen Long.  During that time, D4 said to PW4, ‘Ah Dee, when “the whistle was blown” at Shing Li on the last occasion, you were the first one who arrived there.  (You) also helped out in putting things and did it well.  I know that you can do it.  Ah Mike did mention that to me.  Well, I now promote you by one rank, you are my immediate follower.  If anything happens, just reveal my identity Fei Wah.  Work hard.  Ah Kung knows that (you) can do it.’  Later on, D4 further said to PW4, ‘(You) got to change the mode of address, now call me Ah Dai.’  Afterwards, D4 further introduced another male to PW4, ‘This is Brother Nam, a fellow brother belonging to our “Number”, (he) is a follower of Wah Hei.’
於2008年1月3日凌晨1時15分左右，控方第四證人與別號為飛華的第四被告及另一名男子在元朗Neway Karaoke見面。期間第四被告對控方第四證人說：『亞Dee上次勝利『吹雞』你係第一個到，幫手放嘢又放得幾好，你做到嘢我知嘅，亞Mike有同我講。嗱我而家紮你一輩，你直接跟我，有嘢響我飛華，俾心機，做到嘢亞公知嘅。』期後第四被告又對控方第四證人說：『改口呀，叫我亞大。』後來第四被告又對控方第四證人介紹另一名男子：『呢個南哥，自己冧把兄弟嚟嘅，跟華喜嘅。』

PW7 testified that “Number” is a nickname of 14K Triad Society.  The phrase ‘I promote you by one rank’ means to follow another triad protector.
控方第七證人供稱『冧把』是14K三合會的別稱。『我紮你一輩』是指跟隨另一位三合會保家。

Charges 7 and 8 – Claiming to be a member of a triad society (against D5 and D2)
第七及八項控罪—聲稱三合會成員（分別針對第五及第二被告）

On the evening of 15 January 2008, PW4 and D2 went to Summer Pub in Ping Cheong Path for entertainment.  During that time, D2 introduced D5, nicknamed Ho Wan, to PW4.  Pointing at D5, D2 said, ‘This is Ho Wan, a fellow brother belonging to our “Number”, also a follower of Fei Wah.’  After that, D2 said to D5, ‘This is Ah Dee, he’s been assigned to Fei Wah.’  Then D5 and PW4 shook hands and D5 said, ‘Alright, we are fellow brethrens, let’s have more contacts in future.’
2008年1月15日晚上，控方第四證人與第二被告前往屏昌徑夏日酒吧消遣，期間第二被告把別號為浩雲的第五被告介紹給控方第四證人。第二被告指著第五被告說：『呢個浩雲，大家冧把兄弟嚟嘅，都係跟飛華。』之後第二被告又對第五被告說：『呢個亞Dee，俾咗份飛華。』之後第五被告與控方第四證人握手，第五被告說：『得啦，大家老表，以後多啲聯絡啦。』

Charges 9 to 13 – Acting as a member of a triad society (against D2, D4, D5, D6 and D7)
第九至十三項控罪—以三合會成員身分行事（針對第二，第四，第五，第六及第七被告）

In the small hours of the morning of 16 January 2008, outside Choi Hung Store, PW4 together with D2, D5, D7 and a number of males left Summer Pub and proceeded to Choi Hung Store.  Outside the store, they met D6 and his friends.  As early as 24 October 2007, PW4 had come to know D6, nicknamed Ah Ming, through the introduction by D2.  At that time, D2 and D6 had a quarrel.  A man called Sei Ngan Man joined in the quarrel with D2.  During that time, Sei Ngan Man told D2, ‘Get lost if (you) are going crazy.’  Then D2 said, ‘No need to talk.  Those of “Number”, get ready.’  D7 said, ‘Alright, brothers.’  After that D4 came forward to mediate and said, ‘Ah Mike, don’t make any noise for the time being.  Listen to Big Brother.  Big Brother is in charge.’  D5 said to D4, ‘Ah Dai, frankly speaking, do we “Number” still have a share in this establishment now?’  D4 replied, ‘Yes, of course.’  Sei Ngan Man then said to D4, ‘Brother Wah, you are backing up the juniors.  He humiliates me like this, do (you) treat us Wo Shing Wo as nothing?’  Then D6 said to Sei Ngan Man, ‘Ah Dai, just ignore him, “blow the whistle”.’  Sei Ngan Man then made a phone call, saying, ‘Blow the whistle.  Call up everybody to come over to Choi Hung.’  D4 asked D2 to leave first.  Five minutes later, about 20-odd young men arrived at the scene, some of whom were holding long black torches.  Shortly afterwards, two uniformed police officers arrived and all people dispersed.  The illumination at the scene was sufficient.  PW4 had seen D6 for about half an hour.
2008年1月16日凌晨在彩虹士多外，控方第四證人與第二被告，第五被告，第七被告及多名男子離開夏日酒吧前往彩虹士多。在士多外，遇見第六被告及他的友人。控方第四證人早於2007年10月24日經第二被告介紹，認識叫阿Ming的第六被告。期間第二被告與第六被告發生爭執，而另一名叫四眼文的男子亦加入與第二被告發生爭執，期間四眼文叫第二被告：『發癲就行遠啲。』之後第二被告說：『唔洗講喇，冧把嘅埋位。』而第七被告又說：『得啦，兄弟。』之後第四被告出面調停並說：『亞Mike，唔好嘈住先，聽大佬講，大佬揸莊。』第五被告對第四被告說：『亞大，老老實實，而家間場我哋冧把仲有無份先？』第四被告回答說：『梗係有啦。』四眼文便對第四被告說：『華哥你撐啲細嘅，佢咁嚟落我面，當我和勝和流?』然後第六被告就對四眼文說：『亞大，唔好理佢啦，『吹雞』啦。』四眼文便打電話說：『吹雞呀，拖齊人落彩虹呀。』第四被告要第二被告先離開。五分鐘後大約有二十多名年青男子到場其中有數人拿著黑色長電筒。未幾有兩名軍裝警員到場各人便散去。事發現場光線充足，控方第四證人見到第六被告約半小時。

Charge 14 – Acting as a member of a triad society (against D4)
第十四項控罪—以三合會成員身份行事（針對第四被告）

On 11 April 2008, D4 paid a pre-arranged visit with PW4 and several males to the Chinese Permanent Cemetery in Chai Wan for grave-sweeping.  On the way to the cemetery, D4 indicated to PW4 that they were going to pay respects to Big Nose Dung, the founding master of Number 14, for the purpose that it was hoped that ‘brothers from more branches of water would gather together, and with the gathering of brothers, it can avoid the situation where brothers, when bumping into each other, would not know they are of the same side.’  Around 100-odd people gathered at the cemetery on that day.  They lined up to offer joss sticks and pay respects at a particular grave.  On the stone tablet at the grave was printed with the wording of No. 14, and below a photograph was written ‘The Grave of Ho Kong Dung Esquire’.  Everybody dispersed after the ceremony.”
2008年4月11日，第四被告相約控方第四證人及數名男子前往柴灣華人永遠墳場掃墓。途中第四被告向他表示是前往拜祭14號開山祖師大鼻登，目的是希望『多支水嘅兄弟聚埋，兄弟聚吓免得見了面也不知是自己人。』當日在墳場聚集了約100多人，並列隊向一處墳墓上香拜祭，而墓碑上印有14號字樣，照片下寫著『何公港登之墓』，完事後各人便散去。」

All the charges of the present case involve the breach of Section 20(2) of the Societies Ordinance, Cap. 151, Laws of Hong Kong.  The provision is as follows:
本案有關的控罪均涉及違反香港法例第151章《社團條例》第20(2)條。條例原文如下：

“(2)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 purposes 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 and shall be liable on conviction on indictment- (Amended 36 of 1964 s. 4; 30 of 1988 s. 4)
「(2)任何人如屬三合會社團的成員，或以三合會社團成員身分行事，或自稱或聲稱是三合會社團的成員，或參加三合會社團的集會，或向三合會社團付款或給予援助，或為三合會社團的目的而付款或給予援助，或保管或控制或被發現管有屬於或關於三合會社團或三合會社團任何分支機構的任何簿冊、帳目、字據、成員名單、印章、旗幟或徽章，則不論該社團或該分支機構是否在香港成立，該人亦屬犯罪，一經循公訴程序定罪─ (由1964年第36號第4條修訂；由1988年第30號第4條修訂)

in the case of a first conviction for that offence to a fine of $100,000 and to imprisonment for 3 years; and
(a)如屬首次就該項罪行被定罪，可處罰款$100,000及監禁3年；及

in the case of a second or subsequent conviction for that offence to a fine of $250,000 and to imprisonment for 7 years.”
(b)如屬第二次或其後就該項罪行被定罪，可處罰款$250,000及監禁7年。」

It can be seen from the substance of the Ordinance that Section 20(2) includes a great variety of activities, the gravity of which may vary substantially.
從條例的內容可見，第20(2)條包括多種不同的行動，而該些行動的嚴重性可有甚大的差別。

The offences of the present case can be divided into three categories.
至於本案的各項控罪可分為三大類。

The first category is about the so-called “blowing the whistle”.  “Blowing the whistle” means a member of a triad society summons other members of the triad society to assemble at a certain place in order to make an impressive show of strength.  Offences of this category have been dealt with by courts on numerous occasions, from which two cases may be cited here.
第一類是所謂的「吹雞」。「吹雞」者即由一名三合會成員召集其他三合會成員到某地點聚集，以壯聲勢。法庭曾多次處理這類罪行，其中可舉兩案例。

One: HKSAR v. Yeung Chi Keung and Anor, CACC 96/1998 (4 August 1998, unreported) (before Hon. Chan, CJHC, Mortimer, V-P and Liu, JA in Court).  The defendants of the case blew the whistle at entertainment establishments in Wanchai and Causeway Bay on different occasions and it was “an impressive show of force” with the number of people involved.   The trial judge, District Judge Wright (as he then was), adopted a starting point of 15 months for each of the two cases in which “blowing the whistle” was involved.  For the clear record of the defendants, the sentences were reduced to 12 months (for each offence) to run consecutively, making a total of 24 months.  Liu, JA, had this to say in his judgment:
一、HKSAR v. Yeung Chi Keung and Anor，CACC 96/1998（未經報導，1998年8月4日）（由高院首席法官陳兆愷、馬天敏副庭長和廖子明法官組成），該案的被告人在不同日子於灣仔及銅鑼灣的娛樂場所吹雞，涉及的人數是 “an impressive show of force”。原審區域法院法官韋毅志（當時官階）就吹雞兩案各採納15個月為起點。但因被告人沒有案底而減為12個月，分期執行，共24個月。上訴法庭法官廖子明在其判案書說：

“… In each of the offences, Yeung and Wong blew, so to speak, the whistle to summon followers.  They came and it was an impressive show of force.  At the end of each incident, counsel is quite right that there was no violence but 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.  Taking these occasions as known to the court, personal circumstances and the involvement and activities of these applicants, and also the number of offences of which each was convicted, the sentences passed upon each of the applicants by the Deputy Judge cannot be said to be manifestly excessive.  In totality, the sentence for each is, in the opinion of this court, not out of line.  The respective applications of the applicants therefore stand dismissed.”
“… In each of the offences, Yeung and Wong blew, so to speak, the whistle to summon followers.  They came and it was an impressive show of force.  At the end of each incident, counsel is quite right that there was no violence but 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.  Taking these occasions as known to the court, personal circumstances and the involvement and activities of these applicants, and also the number of offences of which each was convicted, the sentences passed upon each of the applicants by the Deputy Judge cannot be said to be manifestly excessive.  In totality, the sentence for each is, in the opinion of this court, not out of line.  The respective applications of the applicants therefore stand dismissed.”

Two:  HKSAR v. Wong Sing Chi and Ors, CACC 245/1999 (31 August 1999, unreported) (before Hon. Nazareth, V-P, Stuart-Moore, V-P, and Leong, JA in Court).  There was also an undercover police officer in the case which also involved offences related to blowing the whistle.  On one of the occasions, the offence took place at around 10 p.m. at a restaurant where members of two triad societies, namely, 14K Triad Society and Wo Shing Wo Triad Society, blew the whistle for the purpose of “having a settlement talk”.  The location where the offence of the case took place was in Wanchai.  At the time when the whistle was blown, on one side there was a group of about 20 people, whereas on the other side, there was another group of 40-odd.  Having considered the case of Yeung Chi Keung, the Court of Appeal took the view that a starting point of 15 months was appropriate and had this to say:
二、HKSAR v. Wong Sing Chi and Ors，CACC 245/1999（未經報導，1999年8月31日）（由上訴法庭黎守律副庭長，司徒冕副庭長及梁紹中法官組成），該案亦有臥底警員，該案所牽涉的罪行同樣與吹雞有關，其中一次案發時是晚上10時在一酒樓，14K三合會會員與和勝和三合會會員，兩個三合會社團為「講數」而吹雞。該案的案發地點是在灣仔。吹雞時，一方人數約20人，另一方約40多人。上訴庭參考過Yeung Chi Keung一案後，認為15個月為量刑起點屬恰當，並有以下說法：

“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.”
“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.”

In the present case, the trial judge, Deputy District Judge Sham said:
在本案，原審區域法院暫委法官沈小民說：

“26.… I understand that the most desirable situation under our system is that similar sentences are imposed by courts on offenders having more or less the same degree of criminality, in order to avoid unnecessary grievances.  Nevertheless, in the absence of any sentencing guideline laid down by the Court of Appeal, the ultimate question that has to be asked is – is the sentence imposed appropriate, based on the facts of the case and having considered the mitigation of the offender, etc.?”
「26.…本席明白在我們的制度下，最理想的情況就是法庭能對差不多刑責的犯事者作出相近的刑罰，避免出現不必要的不滿，但在沒有上訴庭量刑指引的情況下，最終要問的問題會是—所判的刑罰，基於該案的案情，考慮過犯事者的求情等等之後是否恰當？」

Although there is no sentencing guideline laid down by the Court for this type of offences, a court should still give full weight to the approach on sentencing adopted by other courts, particularly the Court of Appeal, in dealing with cases of the same category.  The trial judge also understood that it is most desirable that similar sentences in terms of severity are imposed by courts on offenders having similar degree of criminality.  He, however, has not provided any satisfactory explanation as to why such an ideal could not be achieved in the present case.
雖然法庭對這類罪行沒有量刑指引，可是法庭亦應重視其他法庭、尤其是上訴法庭，對同類案件在罰則上的處理。原審法官亦明白最理想的是法庭對刑責相約的犯案者判處輕重相約的刑罰，但他沒有提供令人滿意的說法去解釋為何在這案不能達至這理想。

It was pointed out by the trial judge that:
原審法官指出：

“The court always considers triad offences as serious crimes.”
「法庭從來對黑社會的罪行視之為嚴重的。」

This point was also emphasized by the Court of Appeal in Yeung Chi Keung and Wong Sing Chi.  The trial judge, however, did not explain why the sentences in the above two cases were not applicable to the present one.  Of course, sentencing should not be formularized.  Nevertheless, for offences which involve comparable facts in nature and gravity, comparable sentences should be imposed.  This is exactly the most desirable situation referred to by the trial judge, which should not be neglected unless there are otherwise sufficient reasons.
上訴法庭在Yeung Chi Keung及Wong Sing Chi亦強調這點，但原審法官並沒有解釋為何以上兩案的刑期不適用於本案。當然判刑不應公式化，但案情性質和嚴重性相約的罪行應判以相約的刑期，這正是原審法官所說是最理想的情況，如無充份理由是不應忽視。

The circumstances in which the whistle was blown in the present case are not as serious as those in the above two cases.  In the present case, the whistle was blown for the first time on 11 and 12 December 2007, but to no avail.  On the second occasion, it was D6 (a member of Wo Shing Wo) who blew the whistle.  Although D2, D4, D5 and D7 were present at the scene, they did not blow the whistle.  Meanwhile, D4 even asked D2 to leave the scene.  From this, we can see no reasons sufficient for imposing a sentence higher than 15 months for the role of “officer” and 9 months for the role of “soldier” as mentioned in the above two cases.  There is not much difference between the circumstances of D6 and those of the defendants in the above two cases.  Therefore, in the opinion of this Court, the sentences imposed by the trial judge on these defendants are manifestly excessive.
本案吹雞的情況，不比上述兩案嚴重。本案第一次吹雞是2007年12月11及12日，但沒有成事；至於第二次，吹雞的是第六被告人（和勝和成員），而第二、第四、第五及第七被告人雖然在場，但他們並沒有吹雞，當中第四被告人更叫第二被告人離開現場。由此可見，本庭看不到任何理由足以判處他們比以上兩案例提及“officer”角色的15個月和“soldier”角色的9個月更高的刑期。第六被告人的情況跟上述兩案例的被告人的情況沒有大分別，所以本庭認為原審法官對他們的判刑是明顯過重。

As regards the second category of offence, i.e. claiming to be a member of a triad society (Charge 8 against D2 and Charge 7 against D5), its gravity depends on: in what circumstances does a person claim to be a member of a triad society; and for what purposes is the claim to be a member of a triad society made?  For instance, if a member of a triad society claims to be a member of a triad society to an ordinary member of the public for the purpose of intimidation, thereby causing fear to the member of the public, the gravity of making such a claim is naturally much greater.  The circumstances of the present case, however, are not like this.  The trial judge should make reference to the judgment by Deputy High Court Judge Line (as he then was) in HKSAR v Lau Chi-hung, HCMA 1079/2004 (22 April 2005, unreported).  The case involved an undercover operation by the police.  The appellant of the case said to the undercover officer:
至於第二類罪行，即自稱三合會成員（第二被告人的控罪八和第五被告人的控罪七），其嚴重性要視乎在哪種情況下自稱三合會成員，與及自稱三合會成員的目的是甚麼。例如，一個三合會成員向普通巿民自稱是三合會成員以達到恐嚇目的，令巿民受驚，其嚴重性自然會高很多。但本案情況並非如此，原審法官應參考高等法院暫委法官賴磐德（當時官階）在HKSAR v Lau Chi-hung，HCMA 1079/2004（未經報導，2005年4月22日）的判決，該案涉及警方的臥底行動，該案上訴人對臥底探員說：

“From now on, pay more visits here to have fun.  We are Wo Hop To, just like a family.”
“From now on, pay more visits here to have fun.  We are Wo Hop To, just like a family.”

The appellant of the case was sentenced to 3 months’ imprisonment.  Judge Line said:
該案的上訴人被判3個月監禁。賴法官說：

“…  All I need say is that the sentence, to me, is entirely appropriate.  It was a gentle claim made in a social context, but that is reflected in the gentle sentence of 3 months which is at the bottom end of the bracket for claiming to be a member of a triad society.  Triad societies are a continuing menace to our society and claiming to be a member is bound to attract a custodial sentence in circumstances like this.”
“… All I need say is that the sentence, to me, is entirely appropriate.  It was a gentle claim made in a social context, but that is reflected in the gentle sentence of 3 months which is at the bottom end of the bracket for claiming to be a member of a triad society.  Triad societies are a continuing menace to our society and claiming to be a member is bound to attract a custodial sentence in circumstances like this.”

Given the circumstances of the present case, the respective sentences of 15 months and 12 months imposed by the trial judge on D2 and D5 on the charge of claiming to be a member of a triad society are manifestly excessive.  In the opinion of this Court, a term of 3 months’ imprisonment is sufficient to reflect the gravity of the crime.  The trial judge mentioned about AG v Lee Chi Man [1980] HKLR 483.   The defendant of the case claimed to an undercover police officer:
以本案的情況來說，原審法官就第二及第五被告人自稱三合會成員而分別判監15個月及12個月是明顯過高，本庭認為3個月監禁已足以反映罪案的嚴重性。原審法官提及 AG v Lee Chi Man [1980] HKLR 483一案，該案被告人向臥底警員聲稱：

“… he was a member of Sun Yee On Triad Society, that he was due to be promoted, that he had several boys and girls following him and that he would in future recruit members in his own name.”
“… he was a member of Sun Yee On Triad Society, that he was due to be promoted, that he had several boys and girls following him and that he would in future recruit members in his own name.”

The defendant was fined $2,000.  An appeal was lodged by the Attorney General.  The Court of Appeal took the view that the appropriate sentence should be 1 year’s imprisonment.  As it was an application by the Attorney General for review of the sentence, the sentence was therefore reduced to 9 months.  It was stressed by the Court of Appeal in the case that:
被告人被判罰款$2,000，律政司上訴。上訴法庭認為恰當的刑罰應是1年監禁，但由於那是律政司申請加刑，故將刑罰減至9個月。在該案，上訴法庭強調：

“… each case must be looked at in the light of its own facts.”
“… each case must be looked at in the light of its own facts.”

The factual background of the case was rather unusual.  The case took place against a background where there was a large-scale undercover operation through which a syndicate trafficking in dangerous drugs and a gigantic triad society had been crumbled, as can be seen from the following paragraph of the judgment:
該案案情背景並不尋常，案發背景是一項大型的臥底行動，該行動瓦解了一個販毒集團和一個規模龐大的三合會。由判詞以下一段可見：

“… round the clock raids commenced on several hundred locations in the Kowloon Area resulting in the arrest of a large number of persons who were subsequently charged with various offences relating to their involvement with this society.”
“… round the clock raids commenced on several hundred locations in the Kowloon Area resulting in the arrest of a large number of persons who were subsequently charged with various offences relating to their involvement with this society.”

Although the defendant was not arrested as a direct result of the operation, and surrendered to the police and pleaded guilty instead, it can be seen from the background of the case that it is very much different from that of the present case.
被告人雖然並非在該行動直接被捕，而是自動投案及認罪，但從該案背景可見，該案與本案有很大的分別。

The third category of offence includes the following charge:  D4 of the present case paid a visit to the grave of a triad founder at the Chinese Permanent Cemetery during the Ching Ming Festival in April 2008 (Charge 14 against him: acting as a member of a triad society).  In our view, with more than 100 people visiting a cemetery in broad daylight during the Ching Ming Festival, it might cause fear to other grave-sweepers.  This is particularly so on grave-sweeping occasions where very often there would be children, women and the elderly around.  As such, the circumstances are more serious than “blowing the whistle” in the nighttime (at an entertainment establishment, for instance).  This Court, therefore, is of the view that the starting point should be fixed at 2 years.  The reason why we adopt the starting point of 2 years, not 2 years and several months, is that the maximum penalty for this offence is 3 years’ imprisonment, which should only be adopted in cases of the same kind with the most serious circumstances.
第三類罪行包括以下的控罪：本案的第四被告人，（其控罪十四：以三合會成員身分行事）在2008年4月的清明時節在華人永遠墳場參拜一名三合會發起人的墳墓。本庭認為，在光天化日之下有100多人於清明時節拜山，可能會引起其他掃墓人士的恐慌，尤其是掃墓的場合多有小童和婦孺在場，所以情況比晚上（例如在娛樂場所）吹雞較嚴重，因此本庭認為量刑起點應訂於2年。本庭採取2年，而非2年數個月作為量刑起點的理由，是因為這項控罪的最高刑罰為3年，而最高刑罰應留待同類案件最嚴重的情況時才採用。

Charge 6 against D4 is about his commending PW4 for his ability in dealing with matters: “You are promoted by one rank. You are my immediate follower.”  In view of the maximum penalty for this offence being 3 year’s imprisonment, the original sentence of imprisonment for 2 years and 9 months imposed by the trial judge is indeed excessive.  In the opinion of this Court, the appropriate term should be 12 months.
第四被告人的控罪六是讚賞控方第四證人的辦事能力：「紮你一輩，你直接跟我」。以這項控罪的最高刑期為3年來看，原審法官判處2年9個月監禁實屬過高。本庭認為適當的刑期應為12個月。

Charge 9 is related to an incident in which the whistle was blown at Choi Hung Store on 16 January 2008.  The defendant, as submitted by Counsel Mr. Chui, dealt with the conflict by way of patching up the quarrel and reconciling the parties concerned.  After a party including D6 had blown the whistle, D4 not only did not blow the whistle, but quite the contrary, he even asked D2 Ah Mike to leave the scene.  In the light of such circumstances, the sentence of 2 years and 9 months imposed by the trial judge is far above the appropriate standard.  Hence the sentence on this charge is reduced by this Court to 15 months.
控罪九是有關2008年1月16日在彩虹士多吹雞一事。正如徐大律師所說，當時他是以息事寧人的手段處理衝突，第六被告一方人吹雞，第四被告人不但沒有吹雞，更反叫第二被告人亞Mike離開現場。從這種情況來看，原審法官所判的2年9個月是遠離恰當的標準，所以本庭將這項控罪的刑期減至15個月。

This Court, having taken into account the above-mentioned facts, is of the view that a total term of 33 months can appropriately reflect the gravity of the offences committed by D4.
本庭考慮過上述案情後，認為總刑期33個月已恰當地反映第四被告人所犯的罪行的嚴重性。

As regards D6’s appeal against conviction, the ground of appeal submitted by Counsel Mr. Kwan is that PW4 mistakenly identified D6.  The evidence, however, clearly shows that PW4 had seen D6 on two occasions.  The first occasion was on 24 October 2007, and the second one on 16 January 2008.  In a police identification parade, when PW4 positively identified D6 and another person, PW4 pointed out that these two persons were at the positions of No. 7 and No. 8, but he did not specifically point out who was at No. 7 or No. 8.  During the trial, PW4 agreed to the suggestion by counsel for the Prosecution that the position occupied by D6 was No. 7.  In fact, according to the undisputed evidence, the relevant record of the identification parade shows that at the time D6 was standing at the position of No. 8, while the other person who was positively identified by PW4 was at the position of No. 7.
至於第六被告人就定罪上訴，關大律師的上訴理由是控方第四證人誤認第六被告人。但證據清楚顯示控方第四證人曾兩次見過第六被告人。第一次是2007年10月24日，第二次是2008年1月16日。在警方的列隊認人手續中，控方第四證人認出第六被告人及另一人時，控方第四證人指出該兩名人士的位置是7號及8號，但沒有明確地分別點出兩人中誰是7號或8號。審訊時，控方第四證人認同控方律師所指第六被告人的位置是7號。事實上，根據無爭議的證供，有關認人的紀錄顯示第六被告人當時是站在8號的位置，而控方第四證人認出的另一人的位置是7號。

The trial judge clearly dealt with this in paragraphs 102 to 105 of his Reasons for Verdict.  The relevant evidence, as submitted by the Prosecution, was in fact quite sufficient, which included:
原審法官在裁決理由書第102至105段已作清楚處理。正如控方所說，有關證據其實相當充份。包括：

“(i)PW4 testified that he came to know D6 through the introduction by D2 at Choi Hung Store on 24 October 2007;
「(i)控方第四證人作供說在2007年10月24日，在彩虹士多經第二被告認識第六被告；

The testimony given by D2 in defence regarding this aspect is consistent with that of PW4;
第二被告自辯時此方面證供與控方第四證人吻合；

The illumination at the time was sufficient.  PW4 remained at Choi Hung Store for about 2 hours during which there was sufficient time for him to observe the face of D6 who was then responsible for attending to customers at Choi Hung Store;
當時燈光充足，控方第四證人留在彩虹士多約 2小時，有足夠時間觀察第六被告容貌，而他當時在彩虹士多負責招呼客人；

D2 also mentioned that subsequently, on the evening of 16 January 2008, when D6 was at Choi Hung Store, he and D6 had a quarrel.  The content of their conversation is consistent with the evidence of PW4;
其後在2008年1月16日晚，第二被告也提及 第六被告身處彩虹士多時，並與他發生口角，對話內容與控方第四證人口供一致；

On that evening, D6 was seen to be staying outside Choi Hung Store for about half an hour.  His demeanour was conspicuous.  Further, Cheung Dik-hong was not present at the scene on that evening;
當晚在彩虹士多外見到第六被告約半小時，他 當時言行舉止引人注目，加上張荻康當晚根本不在場；

PW4 positively identified D6 inside Choi Hung Store in the presence of other police officers on the evening of 26 June 2008; and
2008年6月26日晚控方第四證人在其他警員 見證下，在彩虹士多內認出第六被告；及

During the trial, PW4 also positively identified D6 amongst a large number of defendants.”
在審訊中控方第四證人亦從眾多被告中把第六被告認中。」

Further, as regards the details of Charge 11 against D6, i.e. acting as a member of a triad society (14K Triad Society) outside Choi Hung Store, it was pointed out by Counsel Mr. Kwan that as can be seen from the facts of the case, D6 was not a member of 14K Triad Society, and instead he belonged to Wo Shing Wo.  As submitted by the Prosecution, however, the Prosecution is not required to prove to which triad society D6 belonged, and there are sufficient reasons to convict him so long as he did act as a member of a triad society.
另外，就第六被告人的控罪十一的罪行詳情，即在彩虹士多外以三合會成員（14K三合會社團）成員身份行事，關大律師指出，由案情可見，第六被告人亦不是14K三合會會員，而是屬於和勝和。但正如控方所說，控方不需證明第六被告人是屬於哪個三合會的會員，只要他以三合會成員的身份行事便已有充份理由被定罪。

D7 was involved because he had taken part in the incident on 16 January 2008.  Despite his presence at the scene where the whistle was blown, his sentence should be 9 months in the light of his role as a “soldier” in the offence.  Although the sentence imposed on D7 has been reduced to 9 months, the term that he has served already exceeds 9 months.  The hearing of this appeal could have been brought before this Court at the beginning of this year.  It was, however, postponed to 2 June due to some problem with fixing a date in consultation with counsel’s diary.  We suggest that if similar situation arises in future, counsel should explain to his client and, unless there are extraordinary reasons, should consider returning the brief so that the client can be represented by another counsel, in order to avoid any delay to the client’s appeal.
第七被告人因參與2008年1月16日事件，就算他有份在吹雞的場合，以他在罪行中扮演“soldier”的角色，其刑期應為9個月。雖然第七被告人的刑期被減至9個月，但第七被告人已服的刑期已超過9個月，本庭原可於今年年初審理本上訴，但由於大律師的排期問題，延至6月2日才聆訊。本庭建議以後如有同類情形，大律師應向當事人解釋；而且除非有非常特殊理由，大律師應考慮放棄代表該當事人，改由其他大律師代表，以免耽誤當事人的上訴。

Representation:
第二被告人（定罪）：無律師代表，親自應訊。

D2 (re: conviction) in person, present
第二及第五被告人（判刑）：由法律援助署委派李炳剛、區紹恩律師行轉聘關唐利大律師代表。

Kwan Tong-lee, instructed by Au and Associates (assigned by D.L.A.) for D2 and D5 (re: sentence)
第四被告人（定罪）：無律師代表，親自應訊。

D4 (re: conviction) in person, present
第四被告人（判刑）：由法律援助署委派譚潘葉律師行轉聘徐福亮大律師代表。

Steve Chui, instructed by Tam, Pun and Yipp (assigned by D.L.A.) for D4 (re: sentence)
第六被告人（定罪）：由黃馮律師行轉聘關唐利大律師代表。

Kwan Tong-lee, instructed by Wong, Fung and Co. for D6 (re: conviction) and by Wong, Fung and Co. (assigned by D.L.A.) for D6 (re: sentence)
第六被告人（判刑）：由法律援助署委派黃馮律師行轉聘關唐利大律師代表。

Steve Chui, instructed by Tam, Pun and Yipp for D7 (re: sentence out of time)
第七被告人（逾期判刑）：由譚潘葉律師行轉聘徐福亮大律師代表。

Alice Chan Shook-man, Senior Public Prosecutor of the Department of Justice, for the Respondent
答辯人：由律政司高級檢控官陳淑文代表。