1. What crimes have the young people who had a dispute with Tsz Kit committed?

The person who asked Tsz Kit to pay $500 or else he would be beaten up, commits the offence of criminal intimidation contrary to Section 24(b) of the Crimes Ordinance (Chapter 200).Tsz Kit is threatened with injury to his person. The intention is to make him do an act he is not legally obliged to do which is to pay $500 to remain in the park.

There is also the offence of “claiming to be a member of a triad society” contrary to Section 20(2) of the Societies Ordinance (Chapter 151). The words "we belong to 14K" (a known triad society active in Hong Kong) are clearly a claim of membership of that triad society. Whether the person who spoke those words is a member or not is irrelevant. Claiming membership is the offence.

2. Some young people took out wooden sticks from the brushwood in the park instead of bringing the sticks along with them. Have they committed any crime?

That the sticks were so readily at hand under the bushes indicates they had been stored there by them or at least they knew they were there. However the sticks came to be under the bushes, once the sticks were picked up they were in the possession of the persons who picked them up. The sticks were suitable for causing injury to the person. The park is a public place. Each of the young people who had a wooden stick was therefore in “possession of an offensive weapon in a public place” contrary to Section 33 of the Public Order Ordinance (Chapter 245). Unless there is lawful authority or reasonable excuse to have those weapons with them, Section 33 is satisfied. There is no lawful authority or reasonable excuse for possession of the sticks. They are intended for use to assert their authority to the park and to attack Tsz Kit. There is no defence to Section 33 charges. Each person who was in possession of a wooden stick should be charged under Section 33.

Alternatively they might each be charged with possession of an offensive weapon (a wooden stick) with the intent to use that for an illegal purpose: to assert their authority in the park and to attack Tsz Kit contrary to Section 17 of the Summary Offences Ordinance (Chapter 228).

3. If the young people were only 11 to 12 years old, would they be criminally liable?

According to Section 3 of the Juvenile Offenders Ordinance (Chapter 226), the age at which criminal responsibility begins in Hong Kong is 10 years.

Children between the age of 10 years and 14 years are rebuttably presumed to be incapable of committing crime: the presumption of doli incapax (incapable of evil). This presumption is rebuttable if the prosecution can show not only that the wrongful act was done but that when it was done the child knew that the act was seriously wrong as opposed to being merely naughty. Unless the prosecution proves that the child had what is known as “mischievous discretion” (the consciousness of the wrongfulness of an act and of its consequences) there cannot be a conviction. Whether or not the prosecution can prove this will depend upon the circumstances of each case and each child. The nearer the child is to 14 years of age the easier it is for the prosecution to prove mischievous discretion.

4. If a person is not a triad society member, but falsely claims that he/she is a triad society member, or chants some jargons used in triad society, has he/she violated the law?

It is an offence contrary to Section 20(2) of the Societies Ordinance (Chapter 151) to profess or claim to be a member of a triad society.

The maximum penalty for the offence is, on first conviction, 3 years’ imprisonment and a fine of $1,000,000. On a second or subsequent conviction, the maximum penalty is 7 years’ imprisonment and a fine of $2,500,000.

As the offence under Section 20(2) is professing or claiming membership of a triad society, it is irrelevant that the person professing or claiming membership is not in fact a member.

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