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Taming the Triads: Organised Crime Offences in PR China, Hong Kong, and Macau（3） |
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Taming the Triads: Organised Crime Offences in PR China, Hong Kong, and Macau（3）
Membership in an unlawful society
Section 20(1) criminalises membership in unlawful societies as well as persons who act as members, who attend meetings of these societies, or who deliberately give money or other aid to these societies. Persons recruiting members or seeking contributions and other support for unlawful societies and triads are criminalised separately in ss 22 and 23 Societies Ordinance.
(1) Save as is provided in subsection (2), any person who is or acts as a member of an unlawful society or attends a meeting of an unlawful society or who pays money or gives any aid to or for the purposes of an unlawful society shall be guilty of an offence and shall be liable on conviction on indictment-
(a) in the case of a first conviction for that offence to a fine of $20,000 and to imprisonment for 12 months; and
(b) in the case of a second or subsequent conviction for that offence to a fine of $50,000 and to imprisonment for 2 years.
Subsection (2) provides an aggravated offence for members and other supporters of triad societies.
(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-
(a) in the case of a first conviction for that offence to a fine of $100,000 and to imprisonment for 3 years; and
(b) in the case of a second or subsequent conviction for that offence to a fine of $250,000 and to imprisonment for 7 years.
The offence in s 20 is aimed a criminalising mere membership in any unlawful society or triad. There is no additional requirement that an accused under this section also need to engage in the criminal activities of the society; these activities may be taken into account to raise the sentence: Kam Moon et al v R [1964] 614 at 623-624 per Hogan CJ.
Membership is not further defined in the Ordinance and it remains unclear just how formal a person has to be accepted into the group to be considered a member. Liability is extended to cover informal associations with the group such as persons "acting as members" and persons giving aid or money to the organisation. This also includes persons attending meetings of unlawful societies and s 28(3) establishes a rebuttable presumption that any person found in a place used for triad meetings is considered to have been attending meetings.
For cases involving unlawful societies, subsection (1) provides a penalty of HKD20,000 or one year imprisonment for first offenders and imprisonment for 2 years or a fine of HKD50,000 for second or subsequent convictions. Higher penalties apply if triad societies are involved: HKD100,000 or three years imprisonment for first offenders; HKD250,000 or seven years imprisonment on second and subsequent convictions. Persons convicted for the offence under s 20 may also be barred from becoming an office bearer in any (legitimate) society for up to five years, s 24 Societies Ordinance.
In determining the severity of the penalty for any offence under ss 19- 23 the court or magistrate has to consider whether or not the accused has discontinued her or his membership of the triad society. There have been extensive debates about the question if and how membership in a triad society ends. Many cases have relied on the traditional notion that triad membership is permanent, while more modern interpretations suggest that members can terminate their membership. [FN104] Some triad members have deliberately made admissions to the police in order to break their oath and thus trying to break their connection to the society. [FN105]
A triad renunciation scheme was established temporarily in 1988 to allow non-active members to formally renounce their membership. [FN106] The Societies Ordinance set out a process that involves a formal application to the Renunciation Tribunal, ss 26A-26N.
Claiming or professing to be a triad member
The offence in s 20(2) also extends to persons "claiming to be members" of triads. It is not uncommon for some individuals to claim or otherwise pretend to be a triad member without actually participating in any group. [FN107] The purpose of this offence is "the condemnation and prevention of overt and positive claims made to members of the public with the intention of obtaining an advantage by the person who utters such a claim by intimidating the person to whom the claim is made": Ng Chi-Wah v R [1978] HKLR 101 at 103.
The offence in s 20(2) and a similar provision in section 19(2) have caused considerable controversy in a number of judicial decisions. In summary, the case law seems to suggest that a charge of "being a member" prevails as the more serious charge over "claiming to be a member". Prosecutorial practice has been to lay charges of claiming only if there is insufficient evidence to support a charge of being a member. As claiming does not require proof of actual membership, the courts have developed high thresholds for convictions. In particular, mere admissions to police, [FN108] wrongful beliefs by the accused that he/she is a member, [FN109] or the use of triad language alone do not suffice to establish liability though this may be used as supporting evidence. [FN110] The claim or profession must be accompanied by a specific state of mind. In Cheng Chung-Wai v R [1980] HKLR 593 it has been argued that:
"the utterer must intend to cause or at least foresee the probability of causing some impact or reaction on the part of the person addressed. Such would arise if the utterer intended or hoped the addressee would be intimidated in some way or caused him to act to his detriment or sought some advantage."
A very peculiar case arose in 2007 which involved the Hong Kong-based designer retailer G.O.D. In September 2007 the company released t-shirts for sale that bore a Chinese emblem related to the 14K triad. On 1 November 2007, Hong Kong Police searched the premises of G.O.D. and arrested 18 people for producing and selling triad-related merchandise in violation of the Societies Ordinance. [FN111]
Liability under s 20(2) is also extended to criminalise bookkeepers, accountants, and persons who "have custody or control of any [ ... ] lists of members, seals, banners or insignia of or relating to any triad society or to any branch of a triad society". In R v Sit Yat Keung [1986] HKLR 434 it was held that it is necessary to show that the accused was in conscious possession of any of the items listed, that these items relate to triad societies, and that the accused knows "full well their nature and import". It is not necessary to show that the accused possessed the items for a criminal purpose. Under s 28(s) any person found in possession of these items is presumed to be a triad member.
Allowing premises to be used by unlawful societies
Section 21 Societies Ordinance contains a special offence for owners and occupiers who knowingly provide meeting space for unlawful societies and triads or who otherwise allow these groups to use such a space. As with all other offences, higher penalties apply if triad societies are involved and also if the accused is facing a second or subsequent conviction.
(1) Save as is proved in subsection (2), any person who knowingly allows a meeting of an unlawful society, or of members of an unlawful society, to be held in any house, building or place belonging to or occupied by him, or over which he has control, shall be guilty of an offence and shall be liable on conviction on indictment in the case of a first conviction for that offence, to a fine of $50,000 and to imprisonment for 12 months and in the case of a second or subsequent conviction for that offence, to a fine of $100,000 and to imprisonment for 2 years.
(2) Any person who knowingly allows a meeting of a triad society, or of members of a triad society, to be held in any house, building or place belonging to or occupied by him, or over which he has control, shall be guilty of an offence and shall be liable on conviction on indictment in the case of a first conviction for that offence, to a fine of $100,000 and to imprisonment for 3 years and in the case of a second or subsequent conviction for that offence, to a fine of $200,000 and to imprisonment for 5 years.
Recruiting for unlawful societies
In order to dismantle criminal organisations and reduce their membership base, the Societies Ordinance contains a separate offence for persons recruiting members for unlawful societies. Under s 22(1),
"any person who incites, induces or invites another person to become a member of or assist in the management of an unlawful society and any person who uses any violence, threat or intimidation towards any other person in order to induce him to become a member or to assist in the management of an unlawful society shall be guilty of an offence and shall be liable on conviction on indictment to a fine of $50,000 and to imprisonment for 2 years."
Section 22(2) contains an aggravated offence if the recruitment is made on behalf of a triad society:
"(2) Any person who incites, induces or invites another person to become a member of or assist in the management of a triad society and any person who uses any violence, threat or intimidation towards any other person in order to induce him to become a member or to assist in the management of a triad society shall be guilty of an offence and shall be liable on conviction on indictment to a fine of $250,000 and to imprisonment for 5 years."
Collecting funds or seeking other support for unlawful societies
The offence in s 23 Societies Ordinance is designed for persons collecting funds or seeking other forms of support for unlawful societies and triads. Subsection (1) provides a penalty of HKD50,000 or two years imprisonment if the support is sought for unlawful societies. Higher penalties of up to five years imprisonment of a fine of HKD250,000 apply to cases involving triad societies.
"(1) Save as is provided in subsection (2), any person who procures or attempts to procure from any other person any subscription or aid for the purposes of an unlawful society shall be guilty of an offence and shall be liable on conviction on indictment to a fine of $50,000 and to imprisonment for 2 years.
(2) Any person who procures or attempts to procure from any other person any subscription or aid for the purposes of a triad society shall be guilty of an offence and shall be liable on conviction on indictment to a fine of $250,000 and to imprisonment for 5 years."
2.4 Remarks
Hong Kong maintains a very complex and sophisticated system to control associations in its territory, prohibit criminal organisations, and punish the activities of their members. In comparison to most other organised crime laws, Hong Kong's legislation is much more established, tracing back over 150 years, and supported by extensive judicial interpretation and academic scholarship.
In many ways, Hong Kong's organised crime offences are local responses to a local problem. The key offences under the Societies Ordinance are specifically designed to prevent associations with triad societies and to suppress their activities. Many of the criteria used to define triads, such a triad initiation rituals and triad language, are unsuited for other criminal organisations. The Societies Ordinance reserves the highest penalties for persons participating in, associating with, or otherwise supporting triads. Other criminal organisations may classify as "unlawful societies" which are the subject of significantly lower sanctions. [FN112]
Official statistics and the extensive case law demonstrate that the offences under the Societies Ordinance are frequently used and that a considerable number of triad members are prosecuted and convicted each year. Some critics have argued that the offences under the Societies Ordinance are used too frequently and that especially during the 1980s these offences were the preferred charge in many prosecutions. [FN113] The presumptions about the existence of triad societies and triad membership in s 28 facilitate the work of police and prosecutors and may contribute to the high number of cases.
In the 1980s and 90s, a great number of cases involved charges of membership in a triad and very many convictions were based on evidence given by so-called police triad experts who simply confirmed the accused's *674 membership. [FN114] This practice further fuelled concerns about the powerful role the Hong Kong Police occupies in relation to triad control and suppression. Critics have pointed to the collusion between police and societies registration authority: the Registrar of Societies and the Commissioner of Police used to be the same person. [FN115] This essentially gave police the authority to ban any association in Hong Kong, though appeals against a refusal of registration are possible, s 12 Societies Ordinance.
Unlike many other jurisdictions, Hong Kong criminalises mere membership in triads and other unlawful societies and also extends liability to persons "claiming or professing" to be a member or office-bearer in a triad. This raises concerns about the freedom of association. Moreover, many questions remain about the ways in which to renounce triad membership. In order to avoid the concerns about the membership offence, H Litton suggested "to abandon [the] over-reliance on the amorphous statutory charge of "being a triad member" and instead use charges under ss 22 and 23 Societies Ordinance or lay charges for the actual offences committed. [FN116]
3 Macau SAR
3.1 Context and overview
3.1.1 Organised crime in Macau
In Macau, organised crime has been closely associated with the gambling industry since the Portuguese colonial Government legalised gambling in 1847. Today, Macau has the biggest casino industry in the world, valued at over US$10 billion/year, even surpassing the revenue made by Las Vegas casinos. [FN117] Chinese triads, secret societies, and other criminal organisations have operated in Macau under Portuguese rule and continue to do so following Macau's return to China as a Special Administrative Region (SAR) in 1999. Since the first casino franchise was granted in 1937, several criminal organisations saw the gambling industry as an easy way to launder illicit money, [FN118] including embezzled funds from mainland China. [FN119] In recent years, there have been several reports about Macau's banking and finance sector being used for money laundering and offshore investment of funds from North Korea. [FN120] There have also been frequent allegations about prostitution, loan sharking, extortion, and the collection of protection money from people associated with the casino industry. [FN121] The 14K, Wo On Lok, and the Big Circle Gang (Dai Huen Chai), have been identified as the most important triad societies in Macau, especially in the 1980s and 90s. [FN122]
Further fuelling the influence of organised crime in Macau has been the fact that up until a reform in 2001-2002 the casino industry was highly concentrated. In 1962, the Government decided to grant a monopoly to a single private organisation, STDM, the Sociedade de Turismo e Diversoes de Macau, which had exclusive control of all gambling. Because Macau's economy largely depends on revenue from gambling and associated tourism, the STDM became extremely influential, including in administrative and legislative circles. Allegations of corruption have been widespread and the regulation of the casino industry and its finances remained marginal, partially to attract foreign visitors and compete with other gaming centres in the region and beyond. [FN123] Triad members, too, have allegedly participated in regional elections or have otherwise attempted to influence political processes. [FN124]
3.1.2 Criminal law in Macau
Macau is a Special Administrative Region (SAR) of the People's Republic of China. Macau, the oldest colony in Asia, was under Portuguese rule until it was returned to China on 20 December 1999. This handover was agreed upon in the 1987 Joint Declaration of the Government of the People's Republic of China and the Government of Portugal on the Question of Macau. [FN125] This declaration sets out Macau's status under Chinese rule and Macau's Basic Law, the SARs quasi-constitution. The Joint Declaration creates a "one country, two systems" policy and ensures that Macau maintains a "high degree of autonomy" over all matters except foreign affairs and defence and also stipulates that Macau's laws, including its criminal law, continue operation beyond the 1999 handover. [FN126] In accordance with Macau's Basic Law, China has extended the application of the Convention against Transnational Organised Crime to Macau. [FN127]
Macau's criminal law, including its general principles, are guided by the Penal Code (Macau) (Código Penal [FN128]), which follows the tradition of Continental European criminal codes, especially Portugal's Penal Code. The Penal Code (Macau) of 1995 contains relevant provisions relating to complicity [FN129] and attempts, [FN130] but has no separate offence for conspiracy. The Code does, however, contain a special offence entitled "criminal associations" (associação criminosa) in Article 288. [FN131]
In addition to the Penal Code, Macau has a separate organised crime statute. The Law on Secret Societies was originally introduced on 4 February 1978 by the Legislative Assembly, [FN132] but it was never rigorously enforced. [FN133] Following a wave of violent turf wars between rival triads and political assassinations in the mid-1990s, [FN134] this Law was eventually repealed. It has been substituted on July 30, 1997 with a more comprehensive Organised Crime Law (Lei da Criminalidade Organizada), which continues to apply today. [FN135] The Organised Crime Law 1997 (Macau) is divided into four chapters: (I) penal provisions; (II) criminal procedure; (III) additional matters; and (IV) final and transitional provisions. At the heart of the legislation is the definition of "association or secret society" in Article 1, which is further discussed below. This definition is followed in Article 2 by an offence of directing, promoting or otherwise associating with secret societies/associations. Articles 3 to 13 contain a range of other specific offences relating to organised crime.
It has to be noted that there are, at present, no official English translations of Macau laws; the following analysis is based on unofficial translations of the official Portuguese version of the Código Penal and the Lei da Criminalidade Organizada.
3.2 Criminal Associations, Penal Code (Macau)
Macau's Penal Code contains a specific offence for criminal associations (associação criminosa) in Article 288. The term 'criminal association' has no separate definition in the legislation. Under Article 288(1) it is an offence, punishable by three to 10 years imprisonment, to establish or promote an "organisation or association designed to or engaging in criminal conduct". The same penalty applies under Article 288(2) to persons who supply these organisations with arms, ammunition, or other weapons, or who provide them with a meeting place, or facilitate these groups to recruit new members. Organisers and directors of criminal associations are liable to imprisonment between five and 12 years under Article 288(3).
3.3 Secret society/associations, Organised Crime Law 1997 (Macau)
In addition to the offence in the Penal Code, Macau has a separate Organised Crime Law which contains specific provisions for so-called "associations or secret societies".
3.3.1 Definition of secret society/associations
Article 1 Organised Crime Law 1997 (Macau) defines "associations or secret societies" as organisations constituted for the purpose of obtaining illegal advantages or other benefits. Further, it is required that the "existence of the association is manifested in an accord, agreement or in other ways" aimed at committing one or more of the 21 different crime types set out in Article 1(1)(a) -- (v). Article 1(2) stipulates that in order to prove the existence of a secret society or association it does not matter whether or not: (a) the organisation has a designated seat or meeting place; (b) the members know each other and meet periodically (regularly); (c) the organisation's command, leadership or organisational hierarchy is ad hoc and not ongoing; or (d) the organisation has a written agreement (convention) setting out its constitution, activities, division of duties, and distribution of profits.
In the absence of accurate translations, it is difficult to offer a thorough analysis of the definition in Article 1 and discuss the interpretation of relevant terms. It is, however, possible to make some general observations about the structure and contents of this definition. In particular, it is noteworthy that the general concept of 'associations and secret societies' does not differ greatly from other models of criminal organisations discussed in this article. The definition in Article 1(1) combines a basic structural element with two requirements relating to the purpose and aims of the organisation.
The structural element is, for the most part, limited to the word "constituted" (organização constituída) and the explanations in Article 1(2) which render a number of indicia irrelevant. In particular, there is no requirement that the organisation is formally structured, organised, or incorporated, or that all members know each other (and thus operate as a team). It appears, however, that completely random, informal clusters of people engaging or planning to engage in criminal activities cannot constitute a secret society or association.
The Macau definition does not require proof of the commission of any actual criminal offences. As with many similar definitions elsewhere, the emphasis is on the objectives of the criminal group. It is necessary to show that the organisation seeks to gain illicit profits ("advantages or benefits") through the commission of certain criminal offences. In Macau -- contrary to many other jurisdictions -- the Organised Crime Law 1997 sets out a specific range of criminal offences envisaged by the association. This includes a list of 21 subparas (a) to (v) that contain many offences commonly associated with organised crime, such as, homicide, [FN136] offences against the person, [FN137] abduction and kidnapping, [FN138] rape, [FN139] trafficking in persons, extortion, [FN140] exploitation of the prostitution of others, loan sharking (usury), [FN141] robbery, [FN142] illegal immigration, illegal gambling, trafficking in fauna, artefacts, explosives and firearms, document and credit card fraud, and corruption.
In some ways, the concept of criminal organisations under Macau law reflects the specific organised crime problem of this city state. This is demonstrated, for instance, in the terminology 'secret society' and in some of the offences listed in Article 1(1)(a)-(v) such as loan sharking, extortion, and illegal gambling. On the other hand, the definition is broad enough to capture a great range of criminal organisations. Unlike its predecessor, the Law on Secret Societies 1978, the application of the current law is not limited to Chinese triads or secret societies. In comparison to other definitions, there is also no minimum requirement relating the number of members comprising the organisation.
The scope of application is, however, limited by the types of offences that the organisation aims to carry out. The list in Article 1(1)(a)-(v) is exhaustive and associations seeking to commit offences not included in this list are not covered by the provisions of the Organised Crime Law 1997. While this list contains very many offences typically associated with organised crime, legislating an exhaustive list of offences allows no flexibility to respond to new types of organised crime if and when they arise.
3.3.2 Offences relating to secret societies/associations,
Article 2(1)-(3) Organised Crime Law 1997 (Macau) stipulates a number of offences relating to secret societies/associations. The offences and their penalties differ depending on the level of involvement in/with the criminal group. Article 2(4) and (5) set out a number of aggravations and sentence enhancers.
Funding or promoting a secret society/association, Article 2(1)
Under Article 2(1) it is an offence to establish or promote an association or secret society. The offence is punishable by imprisonment between five and 12 years.
Supporting a secret society/association, Article 2(2)
Paragraph (2) of Article 2 criminalises participation in a secret society/association as well as a range of activities that are carried out in support of these associations. These activities include:
(a) supplying arms, ammunition, or other weapons to members of criminal associations;
(b) providing or collecting funds in order to recruit or entice new members, or promote the organisation;
(c) accounting and bookkeeping for criminal associations, for their members, or for their "ritual ceremonies" (cerimónias rituais);
(d) participating in meetings or ritual ceremonies of the association; and
(e) wearing or using signs and codes of a criminal association.
Offences under Article 2(2) are punishable by imprisonment for five to 12 years.
Directing a secret society/association, Article 2(3)
Article 2(3) provides the most serious offence for persons who "exercise the functions of a director or leader" of a secret/society association, regardless whether or not they use the symbols, codes, or other characteristics of the group. This offence is punishable by eight to 15 years imprisonment.
3.3.3 Specific Offences, Arts 3-13 Organised Crime Law 1997 (Macau)
In addition to the general offences in Article 2, Macau's Organised Crime Law 1997 contains a series of specific offences relating to organised crime. These offences can be committed by individuals, but also by corporate organisations ("collective persons"), Article 14.
The offences under Articles 3 and 4 apply only if they are carried out by secret societies/associations (as defined in Article 1). They include:
• Article 3: extortion and collection of protection money for a secret society/association, punishable by two to ten years imprisonment;
• Article 4: maintaining membership in or other relationships with ("invoking to belong") a secret society or association or "its elements", punishable by imprisonment of one to three years.
The remaining offences in Articles 6 to 13 are commonly associated with organised crime, but these offences do not require proof of a secret society or association. The aim of these offences is to criminalise conduct that may aid the criminal organisation in its operation and to punish offences frequently carried out by criminal associations. These offences include:
• Article 6: using identity documents to obtain illicit benefits, cause a detriment, or enable or obstruct an activity, punishable by one to five years imprisonment;
• Article 7: trafficking in persons, punishable by imprisonment of two to eight years; trafficking in minors aged 14 years or younger is punishable by five to fifteen years imprisonment (Article 7(3));
• Article 8: exploitation of the prostitution of others, punishable by one to three years imprisonment. Prostitution itself is a separate offence under Article 35, punishable by a fine of MOP 5,000.
• Article 9: molestation, exposure, and other illegal conduct in public, punishable by imprisonment of up to one year;
• Article 10: conversion, transfer, or dissemination of illegal goods, punishable (depending on the circumstances, Article 10(1)(a), (b), and (c)) by one to 12 years imprisonment;
• Article 11: Illegal gambling, punishable by imprisonment of one to five years;
• Article 12: Possession of explosives and inflammable substances; and
• Article 13: Obstruction of justice.
The penalties specified in Articles 2, 3, 7, 10(1)(a) and (b) may be accompanied by special penalties set out in Article 18 which include, for instance, prohibitions to exercise public functions, work in public office, contact specific persons, frequent specified places, expulsion from the territory of Macau [FN143] et cetera. If these offences are carried out repeatedly, penalties may be increased by an additional five years, Article 20.
3.4 Observations
In summary, Macau has very comprehensive organised crime legislation including a suite of criminal offences along with specific procedural and enforcement measures. The legislation reflects the specific features and dimensions of traditional, local criminal organisations, but also captures the wider aspects of organised crime.
The Organised Crime Law 1997 in particular contains many interesting elements specifically designed to address the problem of Chinese triads and secret societies. This is reflected in the terminology of this statute, but also in the types of conduct it criminalises. References to "secret societies", "ritual ceremonies", and "signs and codes", for example, target very unique features of Chinese organised crime. Many of the specific offences referred to, such as loan sharking, illegal gambling, extortion, and payment of protection money are aimed at activities local triads and secret societies traditionally engage in.
On the other hand, the scope of Macau's Organised Crime Law 1997 is broad enough to capture a diverse range of criminal organisations. The application of the statute is largely determined by the objectives of the association and thus applies to any "constituted organisation" seeking to gain illicit profit or other benefits from a range of criminal activities.
It is, however, this list of criminal activities set out in Article 1(1)(a)-(v) that also severely restricts the application of the Organised Crime Law. The statute singles out an exhaustive list of crime types and only applies to organisations seeking to engage in one of these offences. The legislator has thus set clear boundaries for the application of the law. A group of youth spraying graffiti on a wall or engaging in some other property damage is thus outside the scope of this statute. On the other hand, any new and emerging crime types engaged in by associations or secret societies will require statutory amendment which may involve a lengthy bureaucratic process and may prevent flexible law enforcement responses.
A second, albeit minor problem stems from the apparent overlap between the offence for criminal associations in Article 288 Penal Code (Macau) and the provisions under the Organised Crime Law 1997. The distinction between criminal associations (Article 288 Penal Code) and associations or secret societies (Article 1 Organised Crime Law 1997) is not fully clear and there is some uncertainty whether or not the two terms are mutually exclusive. It appears that in comparison, secret societies/associations are treated as the more serious, perhaps more dangerous type of criminal organisation as the offences for directing, establishing, promoting, and supporting secret societies/associations attract higher penalties than the same conduct in relation to criminal associations. Moreover, the requirements under the Organised Crime Law 1997 are designed for organisations *682 seeking to engage in specific offences and thus gain benefits, while Article 288 Penal Code applies to groups engaged in or seeking to engage in any type of crime.
4 Conclusion
The analysis in this article has shown that the phenomenon of organised crime is of imminent concern to the governments of China and its Special Administrative Regions Hong Kong and Macau. These jurisdictions have a long history in fighting the activities of criminal organisations, especially Chinese triads and similar forms of secret societies. In comparison to most other countries in the region and elsewhere, China, Hong Kong, and Macau maintain extensive legal regimes to prevent and suppress criminal organisations which are accompanied by complex law enforcement and investigative powers.
Despite comprehensive legislation and many decades of rigorous enforcement, organised crime continues to pose a significant challenge to the criminal justice systems in China, Hong Kong, and Macau. The rapid economic growth in mainland China has acted as a magnet for many criminal organisations that are seeking to benefit from the growing Chinese market. Recent years have seen triad societies resurfacing in China and other criminal organisations have also made an entry into the country, especially in the major financial centres on China's east coast.
Historically, the anti-triad laws in China, Hong Kong, and Macau were local answers to local problems. Over the last 150 years triads have dominated the organised crime "scene" especially in the former colonies Hong Kong and Macau and have also exercised strong influence over many local businesses and corrupt government officials. The triad problem is seen by some as the most pressing crime issue and accordingly the laws in China, Hong Kong, and Macau reserve the highest penalties for triad related activities. The offences relating to secret societies and other triad groups address the unique features of Chinese triads such as initiation rituals, triad insignia, and triad language. The main difficulty with these laws, especially in Hong Kong, is that they are ill suited to capture other forms of criminal organisations. Criminal groups that are not triads may only be liable for less serious offences.
A more flexible approach can be found in Macau and also in Article 25 of China's Penal Code which extends liability for substantive offences to organisers and ringleaders who cannot be caught by existing conspiracy and complicity provisions. This provision applies to any criminal group, not just triads. Another model has been developed in the Convention against *683 Transnational Organised Crime which allows for the criminalisation of "participation in an organised criminal group". The definition of organised criminal group in Article 2(a) of the Convention combines elements relating to the structure of criminal organisations with those relating to the objectives of the group. This definition is wide enough to encompass a great variety of structural models and covers both groups with hierarchical or other elaborate structures and non-hierarchical groups where the role of members of the group is not formally defined. [FN144] At the same time, the definition is limited to formal, developed organisations, thus avoiding criminalisation of informal associations such as youth groups and one-off criminal enterprises. [FN145]
The offence structure in Article 294 Penal Code (China), ss 19-23 Societies Ordinance (Hong Kong), and Article 2(1)-(3) Organised Crime Law (Macau) recognises different levels of involvement in criminal organisations and provides higher penalties for leaders and directors and lesser sanctions for persons who are more distantly associated with the criminal group and its activities. The rationale of offences aiming at the lower and more distant levels of associates and supporters is that these offences may have a strong deterrent effect and may send a signal that any connection with criminal organisations, however minor, will not be tolerated.
Concerns remain over the criminalisation of mere membership in a criminal group as it may infringe on the freedom of the association. [FN146] This concern, however, is not unique to the three jurisdictions reviewed here but has also been expressed in countries with similar organised crime offences such as Canada, and New Zealand. Edward Wise, for instance, noted that:
"In all countries, even in those that do not formally accept the concept, there has been similar internal debate about the desirability and the contours of a crime based on membership in a criminal association. Concern has been expressed about the compatibility of such a crime with the principle of freedom of association, and with traditional principles of criminal law which are supposed to require focusing attention on the concrete specific act of a specific individual at a specific moment in time and on that individual's own personal guilt, not on that of associates. [ ... ] Every system of law has to grapple with the problem of defining the appropriate limits to doing so which derive from a common fund *684 of basic ideas about what is entailed in designating conduct as criminal -- the requirements of an act, of harm, of personal individual culpability." [FN147]
In the medium term it would be desirable to modify the existing offences in China, Hong Kong, and Macau in order to capture criminal organisations that are not of a triad nature and provide the same penalties for different kinds of criminal groups. Moreover, it would be beneficial to harmonise definitions, offences, and penalties between the three jurisdictions to close potential loopholes. In the long term, the offences should be more closely aligned with the Convention against Transnational Organised Crime in order to enable cooperation with other countries and facilitate extradition, judicial and law enforcement cooperation and thus prevent and suppress transnational organised crime more effectively.
[FN104]. H. Litton, "Editorial: So-called 'Triad Experts"', (1986) 16 Hong Kong Law Journal 3, 4-5.
[FN105]. Cheng Chung-Wai v R [1980] HKLR 593, 600.
[FN106]. Jones & Vagg (see n 4 above), p 501.
[FN107]. Cheong (see n 2 above), p 9.
[FN108]. Ng Chi-Wah v R [1978] HKLR 101 at 103; Cheng Chung-Wai v R [1980] HKLR 593.
[FN109]. Cheng Chung-Wai v R [1980] HKLR 593.
[FN110]. Bolton et al (see n 77 above), p 272; Litton (see n 104 above), p 4.
[FN111]. Anita Liam & Clifford Lo, "Top store raided for selling triad t-shirt; sales staff suspected of breaking anti-gang law" (2 Nov 2007) South China Morning Post (Hong Kong) 1; [Editorial], "Time to consider scope of triad law after raid" (2 Nov 2007) South China Morning Post (Hong Kong) 16.
[FN112]. Chen (see n 96 above), p 5.
[FN113]. See also Cheong (see n 2 above), p 9.
[FN114]. Ibid.
[FN115]. Chen (see n 96 above), p 6.
[FN116]. Litton (see n 104 above), p 7.
[FN117]. Mary-Anne Toy, "A bet bigger than Vegas", The Age (Melbourne), 1 Apr 2006.
[FN118]. Angela Veng Mei Leong, "Macau Casinos and Organised Crime", (2004) 74 Journal of Money Laundering 298, 300.
[FN119]. Toy (see n 116 above).
[FN120]. Shiu-Hing (see n 67 above), p 176.
[FN121]. Angela Veng Mei Leong, "The 'Bate-Ficha' Business and Triads in Macau Casinos", (2002) 2 Queensland University of Technology Law & Justice Journal 83, 89-90; Shiu-Hing (see n 67 above), pp 187-188.
[FN122]. Shiu-Hing (see n 67 above), pp 180-182.
[FN123]. Veng Mei Long (see n 120 above), pp 83-84; Veng Mei Leong (see n 117 above), pp 298, 301; Toy (see n 116 above).
[FN124]. Shiu-Hing (see n 67 above), p 189.
[FN125]. Signed at Beijing, 13 Apr 1987, 1498 UNTS 228.
[FN126]. See further Frances Luke, "The Imminent Threat of China's Intervention in Macau's Autonomy", (2000) 15 American University International Law Review 717, 721-725.
[FN127]. Macau SAR, Advise of the Chief Executive No 30/2004 (31 Aug 2004).
[FN128]. No 11 of 1995.
[FN129]. See Arts 20-24 Penal Code (Macau).
[FN130]. See Arts 20-24 Penal Code (Macau).
[FN131]. See Section 3.2 below.
[FN132]. No 5 of 1978.
[FN133]. Veng Mei Leong (see n 117 above), p 301; Sabrina Adamoli et al, Organised Crime around the World (Willow Tree Press, 1998), p 142.
[FN134]. Adamoli et al (see n 132 above), p 141; Luke (see n 125 above), pp 740, 747; Shiu-Hing (see n 67 above), p 182.
[FN135]. No 6 of 1997.
[FN136]. Articles 128-134 Penal Code (Macau).
[FN137]. Articles 137-142 Penal Code (Macau)
[FN138]. Articles 147-149 Penal Code (Macau).
[FN139]. Article 154 Penal Code (Macau).
[FN140]. Article 216 Penal Code (Macau).
[FN141]. Article 219 Penal Code (Macau).
[FN142]. Article 204 Penal Code (Macau).
[FN143]. See also Art 33 Organised Crime Law 1997 (Macau).
[FN144]. Travaux préparatoires, para 4. cf Alexandra Orlova & James Moore, "'Umbrellas' or 'Building Blocks'?: Defining International Terrorism and Transnational Organised Crime in International Law", (2005) 27(2) Houston Journal of International Law 267, 282.
[FN145]. See further Andreas Schloenhardt, "Transnational Organised Crime and International Law: The Palermo Convention", (2005) 29 Criminal Law Journal 350, 350-364.
[FN146]. Article 294(1) Penal Code (China), s 20 Societies Ordinance (Hong Kong).
[FN147]. Edward Wise, "RICO and its Analogues: A Comparative Perspective" (2000) 27 Syracuse Journal of Internal Law & Commerce 303 at 321.
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