VII. Triad related offences
A. Claiming to be a member of a triad society
It is an offence to claim or profess membership of a triad society. A claim of membership of a triad society is often made in blackmail and criminal intimidation situations. The question is whether as fact the defendant has by words and/or gestures asserted membership of a triad society active in Hong Kong. This will involve an examination of what was said or done and how it was said or done. Expert evidence may be needed on the context and meaning of words or gestures used. There is no need to prove that the person professing or claiming to be a member of a triad society is in fact a member. Being a member of a triad society is itself an offence under section 20 (2) of the Ordinance.
B. Possession of offensive weapon in public place
Section 33 makes it an offence for any person to have an offensive weapon with them in a public place without lawful authority or reasonable excuse. The objective of this offence is to prevent offensive weapons being brought into public places.
An “offensive weapon” is any article made, or adapted for use, or suitable, for causing injury to the person, or intended by the person having it in their possession or under their control for such use by them or by some other person.
A “public place” is any place to which for the time being the public or any section of the public are entitled or permitted to have access, whether on payment or otherwise.
The emphasis is on the possession of an offensive weapon: there is no need for the weapon to have been used to commit any offence. Whether or not the item in question is an offensive weapon is a question of fact. What is, or is not lawful authority or reasonable excuse depends upon the circumstances of each case and why the defendant had that item in the public place at the particular time. An excuse such as carrying the weapon in case I was attacked is neither lawful authority nor reasonable excuse.
- if under 14 years of age be dealt with in accordance with the provisions of the Juvenile Offenders Ordinance ( Chapter 226 );
- if not less than 14 years of age and under 17 years of age be sentenced either to imprisonment for not more than 3 years, or to a Detention Centre or to a Training Centre or to a Rehabilitation Centre;
- if not less than 17 years of age and under 25 years of age be sentenced either to imprisonment for not more than 3 years or to a Detention Centre or to a Rehabilitation Centre;
- if aged 25 years or more be sentenced to imprisonment for not more than 3 years.
C. Possession of offensive weapon with intent
Under section 17 it is an offence to have possession of any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use the same for any unlawful purpose.
It is a question of fact whether a defendant has possession of any of the specified items. The meaning of offensive weapon is the same in section 17 of the Summary Offences Ordinance ( Chapter 228 ) as in section 33 of the Public Order Ordinance ( Chapter 245 ). Section 17 requires a specific intent to use the item for an unlawful purpose. Possession of a wooden stick intending to use it to attack someone is possession for an unlawful purpose. Whether there is intent to use the item for an unlawful purpose depends upon the circumstances of the particular case. The court will look at the nature of item, the circumstances of possession, what was said or done before, during and after the incident giving rise to the charge when considering whether or not there was intent to use the item for an unlawful purpose.
The maximum penalty under section 17 is a fine of $5,000 or imprisonment for 2 years. The court has a far wider sentencing discretion under section 17 than it has for possession of an offensive weapon in a public place contrary to section 33 of the Public Order Ordinance ( Chapter 245 ).
D. False imprisonment
False imprisonment is an offence contrary to common law.
The victim’s right to leave the place where he or she is must be totally and unlawfully taken away. It is not false imprisonment to stop a person going in a particular direction if they can go in another direction.
Whether or not a person’s right to leave the particular place has been totally and unlawfully taken away is a question of fact in each case. False imprisonment often involves the use of force and confinement within a defined structure but neither of these are requirements. The issue is simply whether the person’s right to leave the place where they are has been totally and unlawfully taken away. False imprisonment is a question of fact. A person taken by a gang to a hillside and kept there because members of the gang surround him/her and prevent him/her leaving is just as much imprisoned as if he or she was locked in a room.
E. Aiding and abetting the commission of an offence
The person who actually commits the criminal offence is referred to as the principal. Other persons who participate in the criminality by aiding and abetting, counselling or procuring the criminality are referred to as secondary parties or accomplices. Secondary parties are guilty of the same offence as the principle who actually commits out the offence.
Aiding is giving help, support or assistance to the principal offender and generally takes place at the scene of the crime. Abet means inciting or encouraging the principal offender and also involves presence when the offence is committed.
Counselling is help given to the principal offender before the offence is committed. It can take the form of advice, information or the supply of equipment which is used in the offence.
Procuring means producing by endeavour, that is causing or bringing about the offence by the principal offender. Procuring involves taking the necessary steps to bring something about. There is no need for encouragement but there must be a causal link between the act of the secondary party and the offence which is committed. An example might be surreptitiously lacing a friend’s soft drink with alcohol knowing the friend will be driving home. If the friend drives home and on the way fails a breath test and is subsequently convicted under section 39A (1) of the Road Traffic Ordinance ( Chapter 374 ) for driving with an alcohol level above the prescribed limit, the person who laced the drink may face a charge of procuring that offence. Lacing the soft drink with alcohol brought about the offence the principal committed.
Mere presence at a crime scene is not enough for liability as accomplice. However if a bystander encourages the principal offender, for example by shouting out to a person who is attacking another person “Hit him again” or “Kick him”, the bystander is no longer simply a bystander but is encouraging the attacker.
The mens rea (guilty mind) for secondary parties is (i) intention to do the act knowing it was capable of assisting or encouraging the commission of the crime, and (ii) knowing the principal will commit a crime of a certain type. The prosecution must prove the intention to do the acts of assistance or encouragement, recklessness as to whether the principal will commit the crime is not sufficient mens rea for a secondary party.