TAM KING HON v. HKSAR

FACC No. 14 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 14 OF 2005 (CRIMINAL)

(ON APPEAL FROM CACC NO. 31 OF 2001)

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J U D G M E N T

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Chief Justice Li:

1.  Trial by jury in the Court of First Instance is an essential and established feature of the criminal justice system in Hong Kong.  Article 86 of the Basic Law provides that the principle of trial by jury previously practised in Hong Kong shall be maintained.

2.  In a jury trial, members of the jury are of course the sole judges of fact.  Each juror swears or affirms that “I will give a true verdict in this case according to the evidence.”  This appeal raises the important question of the appropriate directions for a judge to give to a jury on their decision making process, that is, how they should go about deliberating as a jury.

The convictions

3.  On 28 December 2000, after a jury trial before Nguyen J, the appellant was convicted of three counts of trafficking in heroin.  The verdicts were unanimous.  The total quantity involved was 869.58 grams.  The appellant was sentenced to concurrent terms of 20 years’ imprisonment on each count.

4.  Three other defendants were charged together with the appellant.  Yuen Wai-shing (“Yuen”) was charged with one count.  Lau Hin (“Lau”) was charged with another count.  Ma Fat-chuen (“Ma”) was charged with all three counts.  They all pleaded guilty as charged and received lengthy sentences of imprisonment.  Yuen gave evidence for the prosecution against the appellant.

5.  The events in question took place on 25 February 2000 outside the taxi stand of Royal Ascot at Fo Tan, Shatin and outside the Royal Ascot Shopping Arcade.  On Admitted Facts, the appellant was the driver of a car.  It stopped outside the taxi stand of Royal Ascot.  Lau and Yuen alighted.  Lau was arrested and found to be in possession of one block of heroin.  Yuen boarded a taxi.  When a police officer approached the taxi, Yuen fled and was arrested after a chase.  Two blocks of heroin were found in the taxi.  The car, which had moved on, was pursued and intercepted by the police.  The appellant was the driver.  Ma was in the rear passenger seat and three blocks of heroin were found in a bag Ma had with him.

6.  The issue at the trial was whether the appellant knew that the packages in question contained heroin.  The prosecution relied on the evidence of Yuen, the co-defendant, who had pleaded guilty.  According to Yuen’s evidence, at an earlier stage of the journey, the passengers in the car driven by the appellant consisted of Yuen, Lau and two young men.  When the two young men were dropped off, the appellant said to them.  “You two will be picked up in a while and things will be given to you.”  After they alighted, Ma boarded with a bag.  Ma then asked Lau and Yuen how much stuff they wanted.  In response to their answers, Ma passed packages taken out of his bag to them.  The appellant then asked Yuen and Lau if the packages had been properly placed.

7.  The prosecution also relied on the video-recorded interview of the appellant by the police.  Some of the answers the appellant gave during that interview were clear admissions that he knew that the packages in question contained “white powder” (heroin).  Indeed the appellant admitted that Ma had told him at the outset that white powder would be carried in the car when Ma asked him to drive in return for a payment of $500 per passenger.

8.  The appellant gave evidence.  His defence was that he did not know that heroin would be carried in the car.  Ma had told him that pornographic discs would be carried.  He denied that during the journey, he had said the things attributed to him by Yuen in his evidence.  As to the admissions in the video-recorded interview, the appellant’s case was that he was forced to make the admissions in that interview as a result of mistreatment by the police.

Court of Appeal

9.  The appellant appealed to the Court of Appeal.  He appeared in person.  On 8 May 2002, that Court (Stuart-Moore VP, Stock JA and Seagroatt J) dismissed his appeal (Criminal Appeal No.31 of 2001 unreported).  It held that although it contained a material misdirection on the standard of proof, having regard to other clear, unambiguous and proper directions, the summing up in its overall impact could have left the jury in no doubt as how they should approach their task in respect of the standard of proof.  It further considered that the evidence against the appellant was overwhelming.  In these circumstances, although there was a material misdirection, it concluded that it was a proper case to exercise the proviso under s.83(1) of the Criminal Procedure Ordinance, Cap.221 as no miscarriage of justice had actually occurred.  It varied the individual sentences on the three counts but the sentence of 20 years in its totality was left unaffected.

Leave to appeal

10.  On 7 January 2005, the Court of Appeal (Ma CJHC, Stock JA, Gall J) delivered its judgment in HKSAR v. Chan Ka Man [2005] 1 HKC 162 quashing convictions for various sexual offences.  It held that the judge (Nguyen J) had misdirected the jury in drawing the analogy between serving on a jury and a board of directors with “a lot of give and take”.  It also considered that the judge’s direction on majority verdict was unsatisfactory as it created a risk of leaving the jury with the impression that disagreement was in no circumstances permissible.

11.  Phrases used in the relevant part of the summing up in the present case bear some similarities to those employed in Chan Ka Man.  The same judge had presided in both trials.  After the Court of Appeal’s judgment in Chan Ka Man, the appellant obtained legal aid and applied for leave to appeal.  This was granted by the Appeal Committee on both “the substantial and grave injustice” limb and the “point of law of great and general importance” limb.  The certified point of law was the question of what directions jurors should be given on how they should go about deliberating as a jury.

The summing up

12.  Towards the end of his summing up, the judge directed the jury as follows:

“… Now, members of the jury, when you retire to consider your verdict, I do not know whether any of you has ever served on a jury before, but if you have not, then I can tell you that when a jury works together, it is very much like a board of directors of a company having a meeting.  And the foreman will chair the meeting and guide the direction that discussions should take.

The thing about working as a part of a jury is, you have to make up your own mind about the guilt or innocence of the defendant.  But it does not mean that you should not listen to the views of your other colleagues.  Now, you should listen to the views of your other colleagues, and after you have listened to their views, if you feel that you can change your original opinion, because you have been persuaded by your colleagues, then by all means, do so.  But if you feel that you still want to maintain your original decision, you do not want to change your view, you would be quite entitled to do that.

So it is very much a question of give and take.  You are not obliged to follow the rest of the jury, you are entitled to maintain your own view of things.  Now, what we hope that you will be able to accomplish is, to return unanimous verdicts.  In other words, verdicts on which all seven of you are agreed, either guilty or not guilty.  But if, after careful and long and serious and conscientious discussion, you find that all seven of you cannot agree despite many hours or many minutes of careful discussion, then the law allows me to accept from you what we call majority verdicts.

A majority verdict, members of the jury, is either six to one, one way or another, or five to two one way or another.  Anything less would not be acceptable; so four to three will not be acceptable.  So I would ask you to firstly try if you can be unanimous; if you cannot, then I can accept six to one or five to two, either way, guilty or not guilty, from you.”

It will be convenient to refer to these directions as “the directions in question” and to the various parts as “the first, second, third and fourth paragraph”.

13.  Then, further on, just before the conclusion of the summing up, the judge explained to the jury that they should take all the time they needed, saying “Please take as long as you require”.  It was in this context that the judge said:

“…This is an important case, important for the public of Hong Kong and also very important for the defendant, and the defendant is entitled to, and he would like you to give the evidence, the most careful consideration before you return verdicts.”

The complaints

14.  Mr McCoy SC for the appellant submits that the judge misdirected the jury.  The directions complained of are: (1) The analogy drawn between a jury and a board of directors in the first paragraph of the directions in question together with the reference to “give and take” in the third paragraph.  (2) The statement in the fourth paragraph when giving directions on majority verdict that: “Anything less would not be acceptable; so four to three will not be acceptable”.  (3) The reference to the case being important for the public of Hong Kong.

The summing up as a whole

15.  A summing up must of course be fair.  In considering whether it contains material misdirections, the directions complained of must not be looked at in isolation but must be examined in their proper context.  Ultimately, it is the effect of the summing up as a whole on the jury that has to be assessed.

“Board of directors” and “give and take”

16.  The directions referring to a “board of directors” and “give and take” relate to the decision making process of the jury.  In examining the appropriateness of these directions, the principles relevant to this process must first be considered.

The principles

17.  First, jurors have a duty to give a true verdict according to the evidence.  Each juror has this responsibility.  Each juror has sworn or affirmed to do so.  It is a responsibility which rests on each juror.  Secondly, deliberating together when views are exchanged is an essential process for the jury in reaching a decision.  This deliberative process has rightly been regarded as the strength of the jury system.  This process enables jurors to pool their experience and wisdom.  Jurors should not only put their views but should listen to and consider the views of others.  As a result, a juror may be persuaded to accept the views of others and views initially held may be changed.  In deliberating, jurors must of course approach their task objectively.  Thirdly, no juror should come to a decision for the sake of conformity or out of submission to pressure by other jurors.  Ultimately, each juror must honour the oath or affirmation he has taken to give a true verdict according to the evidence.  No juror should compromise, or go against his own view based on the evidence which is conscientiously held after the deliberative process has been gone through.  See R v Accused (CA 87/88) [1988] 2 NZLR 46 at 58 line 15 - line 45.

“Board of directors”

18.  At the beginning of his directions on the subject of how the jury should go about deliberating, the judge drew the analogy between the functioning of a jury and a board of directors of a company having a meeting.  (See the first paragraph of the directions in question).  In the commercial world, business is regularly conducted by the striking of compromises.  The conclusion of bargains is how the market place functions.  This is all part of everyday business life.  In the context of a board of directors, a director may sink his own view in deference to the different view held by a majority of directors.  R v Davey [1960] 1WLR 1287 at 1291-2.  Whilst he remains unconvinced by the majority, he may decide not to continue to maintain his own view but to go along with the majority view for the sake of conformity or in order to achieve consensus. 

19.  Applying the relevant principles discussed earlier, the approach in relation to a board of directors is inconsistent with the duties of a juror.  Ultimately, after the deliberative process, a juror in the proper discharge of his duty must not subordinate his own view to the different view of the majority.   The use of the analogy between a jury and a board of directors is inappropriate and should be avoided.  This conclusion is consistent with the decision of the Court of Appeal in Chan Ka Man.  Whether the use of such an analogy in a particular case renders the conviction liable to be quashed would depend on an examination of the relevant passages in the context of the summing up as a whole.  This is of course true of any other shortcoming, whether of inclusion or omission, in a summing up.

“Give and take”

20.  After referring to the analogy of a company board of directors, the judge pointed out that a juror should listen to the views of other jurors and may change his mind if persuaded.  But if not, a juror is entitled to maintain his own views.  No criticism is made by the appellant of this part of the directions, (that is, the second paragraph).  The judge then stated (see the beginning of the third paragraph):

“So it is very much a question of give and take.  You are not obliged to follow the rest of the jury, you are entitled to maintain your own view of things.”

21.  The use of the phrase “give and take” on its own is inappropriate.  It might be taken to mean that a juror may compromise his own view for the sake of conformity.  See Black v The Queen (1993) 179 CLR 44 at 50-51.  The use of this phrase is particularly unsatisfactory where the accused faces more than one count since it might be misunderstood as permitting a trading of verdicts on different counts.  Black at 55-6.

22.  In England, it has been held that the phrase should not be used on its own.  The longer phrase that may be employed is “give and take within the scope of your oath”.  R v Watson [1988] 1 QB 690 at 700 F-G.  It has been emphasised that the last six words are extremely important.

“… They remind jurors that, while they listen to others and while there may have to be give and take, there are limits as to how far they should go.  They must remain true to their oath.”

R v Atlan [2004] EWCA Crim 1798 at paragraph 16.

23.  In the Hong Kong context, the use of the phrase “give and take”, even with the addition of the qualifying words such as “within the scope of your oath”, is best avoided.  Such qualifying words may not be adequate to communicate to a juror in Hong Kong the message that any “give and take” must not be at the expense of compromising his own view.  The essential message to be conveyed is that the deliberative process, in the course of which views should be exchanged and considered, is important to the functioning of the jury.  But at the end of the day, a juror must come to his own view according to the evidence and not forsake it for the sake of conformity.  That is the message which has to be put across adequately.  The use of the phrase “give and take” with the additional words “within the terms of your oath” is unlikely to enhance the clarity of that message but may give rise to the risk of muddying it.

24.  In the present case, the reference to “give and take” was immediately followed by the reminder that they are not obliged to follow the rest of the jury but are entitled to maintain their own view.  Considering the matter on its own, although the reference to “give and take” qualified by the reminder was not satisfactory and it would have been better to have avoided it, it would not have amounted to a misdirection.  However, the matter cannot be considered in isolation.  It must be borne in mind that this direction followed the earlier one that a jury works “very much like a board of directors of a company having a meeting”.  In the circumstances of this case, there was a risk that, in spite of the reminder, the jury might have thought that “give and take” in the sense of striking compromises with the subordination of one’s views, as may occur in a boardroom, is how the jury should function.

“Acting collectively”

25.  Directions concerning the deliberative process sometimes refer to jurors acting collectively or use similar phrases, such as “collective responsibility or duty”.  Although such a phrase was not employed in the present case, the word “collectively” is used in the specimen directions of the Judicial Studies Board[1].  They refer to jurors having “a duty not only as individuals but also collectively”.

26.  In Black, the High Court of Australia concluded that phrases using the word “collective” should be avoided.

“… Jurors do have a responsibility to act collectively but only in the sense that individual jurors should participate in the collective consideration and discussion of issues in the jury room.  There is a risk that references to a collective responsibility or duty may be understood more broadly by the jury and as an invitation to an individual juror to subordinate his or her views to those of a majority of jurors.” (at 51).

Similarly, in Hong Kong, in order to avoid the risk that “collective” may be understood more broadly by the jury in the sense referred to in Black, phrases using the word “collective” are best avoided.

27.  It should be noted that in Chan Ka Man, Stock JA observed that the use of the word “collectively” is not objectionable

“… in the full context of the specimen direction suggested by the Judicial Studies Board with its clear sense of collectivity as descriptive only of the task of pooling experience and wisdom, and its accompanying direction that is only if the individual accepts that there is a flaw in his own thinking that he or she is permitted a change of view” (at paragraph 9).

In HKSAR v Chan Kar Leung CACC287/2004 (26 January 2006) at paragraph 55, Stock JA explained that the use of the word “collective” is acceptable only in the sense that jurors should participate in collective consideration and discussion.  However, the better approach is to avoid its use altogether so as to avoid any risk of the jury understanding it more broadly as pointed out in Black.  In any event, the proper deliberative process for jurors can be adequately explained without the use of the word “collective”.

Appropriate directions

28.  Appropriate directions on the decision making process of the jury must communicate adequately the three relevant principles referred to above (paragraph 17).  Further, as discussed above, the use of the board of directors analogy should be avoided.  And the use of the phrase “give and take” even with the additional words “within the terms of your oath” and the use of phrases containing the word “collective” are best avoided.  Directions on the decision making process should usually be followed by directions on the subject of unanimous and majority verdicts.

29.  Judges may of course choose such language as they think fit in formulating appropriate directions in accordance with this judgment.  It may be of assistance to indicate that directions along the following lines are considered to be appropriate.

“Each of you has taken an oath to return a true verdict according to the evidence.  This is a responsibility you must fulfil. Each of you takes into the jury box your individual experience and wisdom.  Your task is to pool that experience and wisdom.  You do that by giving your views and listening and giving due consideration to the views of others. There must necessarily be discussion and debate, as a result of which an individual may be persuaded to accept a view which he or she did not previously hold.  But of course you must at all times stay true to your oath or affirmation to give a true verdict according to the evidence.  If after full discussion you cannot reach agreement, you must say so”.

30.  Three further points should be made.  First, the directions suggested above should be preferred to the specimen directions offered by the Judicial Studies Board (see paragraph 25).  Secondly, in Chan Ka Man (at paragraph 8), Stock JA noted the comment to those specimen directions that there will rarely be a need for such a direction.  See also R  v Watson at 700H.  Whatever may be the position in relation to the giving of the specimen directions in full, judges may well consider that it would usually be of assistance to the jury to direct them as part of the summing up on how they should go about deliberating as a jury.  It should be borne in mind that jurors are often serving for the first time and such directions may be helpful to them.  Thirdly, where such a direction has been given, if the jury subsequently asks questions on the same subject matter, that is, the jury’s decision making process, it would be prudent for a judge to repeat or stay as close to the directions previously given where possible.  If in response to such questions, a judge then uses different terms to convey the same meaning, depending on the circumstances, the risk of confusion or misunderstanding may arise.

Majority verdict

31.  In Hong Kong, with a jury of seven, in the event that a unanimous verdict is not reached after “reasonable consultation”, a majority verdict of six to one or five to two would be acceptable.  Such a majority verdict “shall be taken as the verdict of the jury”.  Sections 24(1) and 24(3) of the Jury Ordinance, Cap. 3.  Where a jury is split four to three either way, it would not constitute a valid verdict.  The jury would be “hung” and would have to be discharged.

32.  In the Hong Kong context, it is appropriate for the jury to be directed on majority verdicts as part of the summing up.  In the present case, the judge directed the jury in appropriate terms on the desirability of reaching a unanimous verdict and if that cannot be reached, then a majority verdict of six to one or five to two would be acceptable.  (See the third and fourth paragraphs of the directions in question).  But he continued and this is the part which is criticised:

“Anything less would not be acceptable; so four to three will not be acceptable.”

He then concluded:

“So I would ask you to firstly try if you can be unanimous; if you cannot, then I can accept six to one or five to two, either way, guilty or not guilty, from you.”

33.  In Chan Ka Man, the judge had used identical words to the criticised words set out above.  Stock JA pointed out that in the sense that a four-three decision does not constitute a verdict, the judge was right but expressed the view that:

“… But by leaving the matter as he did the judge created a risk of leaving the jury with the impression that disagreement was in no circumstances permissible.  There is no need to hide from the jury the fact that it is open to them, at the end of the day, to disagree; which does not, however, preclude a judge from encouraging, though not improperly pressurizing, a jury to arrive at a unanimous or majority verdict.”  (at paragraph 11)

This view is a sound one.  Accordingly, the criticised words in the present case were unsatisfactory.

34.  The appropriate approach in a summing up when referring to a verdict of four-three is that contained in the Judicial Studies Board’s specimen directions on unanimous and majority verdicts as quoted in Chan Ka Man (at paragraph 11).

“You should strive to reach a unanimous verdict, that is, a verdict upon which you all agreed; whether guilty or not guilty.  If however you are unable to do so, then I am entitled in law to accept from you a verdict upon which at least five of you are agreed, in other words, a verdict of six-one, or five-two.  A verdict of four-three either way does not constitute a verdict, and should that position arise I shall direct you further.”

At the stage of a summing up, at which time a jury has not begun to deliberate, it is usually not appropriate to refer to discharge of the jury in the event of a verdict of four to three.  When a verdict of four to three does arise, the judge can then deal with the matter as may be considered appropriate in the circumstances.

“The public of Hong Kong”

35.  Shortly before the conclusion of the summing up, in the context of telling the jury that they should take as long as they require, the judge said that “this is an important case, important for the public of Hong Kong and also very important for the defendant” and that they should give the evidence the most careful consideration (see paragraph 13 above).

36.  It is an essential principle that:

“… a jury must be free to deliberate without any form of pressure being imposed upon them, whether by way of promise or of threat or otherwise.  They must not be made to feel that it is incumbent upon them to express agreement with a view they do not truly hold simply because it might be inconvenient or tiresome or expensive for the prosecution, the defendant, the victim or the public in general if they do not do so.”

Watson at 700 A-B.  References to public inconvenience and/or expense or the like if a jury does not agree should be avoided.  Such references give rise to the risk of jurors feeling the pressure that they have to join in with the majority view although they do not agree with it.  Black at 50; R v Accused at 58 line 50 where Cooke P (as he then was) pointed out that “inconvenience and expense should not be measured against justice”.

37.  In the present case, the reference to the case being important for the public and also the defendant does not give rise to the same risk of pressure on the jury as a phrase such as public inconvenience and/or expense.  In the context of the directions in this case, that reference could not be regarded as objectionable.  However, every case in the criminal courts may be regarded as important for the public.  A judge’s reference to a case being important for the public is not of any material assistance to the jury.  And a jury may be puzzled by such a reference as to the particular significance of the case before them and whether the interests of the public may require a conviction.  References to the case being important for the public are best avoided.

Whether misdirections

38.  The use of the analogy of the board of directors in describing how a jury functions was inappropriate.  Later on, the judge stated that: “So it is very much a question of give and take”, although it was followed by the reminder that a juror is not obliged to follow the rest of the jury and is entitled to maintain his own view.  In the circumstances of this case, even taking into account that reminder, there was a risk that the jury may have tied the reference to “give and take” to the board of directors analogy and as a result, may have approached their task like a board of directors with give and take, believing that it was permissible to defer to the majority view for the sake of conformity.  There then followed the unsatisfactory direction of the unacceptability of a four to three split.  Considering the summing up in the present case as a whole, it should be concluded that the jury was misdirected as to how they should go about deliberating as a jury.

Proviso

39.  The respondent invites the Court to apply the proviso under s. 83(1) of the Criminal Procedure Ordinance, Cap. 221.  He submits that the evidence was overwhelming and relies on the fact that the jury returned unanimous verdicts on all three counts after deliberating from 11:16am to 5:39pm as indicative of what a reasonable hypothetical jury would do on the evidence.

40.  The test for the application of the proviso is whether a reasonable hypothetical jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion.  Launder v HKSAR (2001) 4 HKCFAR 457 at paragraph 61.

41.  It must be borne in mind that apart from the misdirection on the jury’s decision making process considered in this judgment, the Court of Appeal had held that there was a material misdirection on the standard of proof.  In all the circumstances, although Mr McCoy accepts that the evidence against the appellant was strong, this is not an appropriate case for the application of the proviso.

Orders

42.  Accordingly, the appeal should be allowed and the appellant’s convictions should be quashed.  A retrial should be ordered and the appellant should be remanded in custody pending retrial.

Mr Justice Bokhary PJ:

43.  I agree with the judgment of the Chief Justice.

Mr Justice Chan PJ:

44.  I agree with the judgment of the Chief Justice.

Mr Justice Ribeiro PJ:

45.  I agree with the judgment of the Chief Justice.

Lord Woolf NPJ:

46.  I agree with the judgment of the Chief Justice and have nothing to add.

Chief Justice Li:

47.  The Court unanimously allows the appeal and quashes the appellant’s convictions.  The Court orders a retrial and that the appellant be remanded in custody pending retrial.