HKSAR v. KWOK CHI WAI

CACC 300/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 300 OF 2003

(ON APPEAL FROM HCCC NO. 238 OF 2002)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1. This appeal against conviction comes before us with leave of the single judge, legal aid having been refused, and then granted by this Court.

2. On 24 June 2003 the appellant was convicted of rape after trial before Bokhary J and a jury. The indictment alleged that he had raped the complainant at his own accommodation in Yuen Long on 12 May 2002. The appellant had previously been tried for the same offence but the jury had failed to reach a verdict, and a retrial was ordered. This appeal is from the conviction following that retrial.

Preparation

3. For the facts and issues, this Court has had to search the papers for itself. There is nothing in the written submissions by either party which tells us anything at all about the case, whether about the evidence, who the central characters were, or about the admitted facts or about the issues at trial. It is no answer to say that one of our number was involved at the leave stage, for that was some time ago, and there are in any event three members of this Court. Authorities have been placed before us but in the appellant's submissions, which were served late, there is no reference to any of those authorities, save one. In the respondent's submissions, authorities are referred to with no indication, save once, of the passages relied on. In the case of the first ground of appeal there is a recent authority directly on point, an authority the court found from a standard text. It is referred to by neither counsel in their submissions. We say all this because counsel should hardly be surprised when judges of this court are from time to time somewhat exasperated by this sort of approach to work in the preparation of criminal appeals. All that we ask for is that which is fundamental; and not to have to waste hard-pressed time. Appellate courts in this jurisdiction are very busy indeed and, it is not our function to do the work that counsel is paid to do. This is far from the only instance in which this court finds assistance in criminal appeals lacking, and we include our concern in this judgment as a message generally to those who prepare appeals that this court looks for proper assistance in the preparation of its work.

The prosecution case

4. The complainant's case was that on the night of 11 May 2002 she had been out with her boyfriend, and he put her on a bus and she then telephoned the appellant whom she had previously met and whose telephone number she had been given the month before. They met for a drink and went to a bar. There they drank, and she and a friend apparently consumed some drugs. The appellant walked her home and she wanted to vomit, so he suggested that she come to his place, which is what they did. On arrival at the entrance to the block where he lived, she vomited. They saw a watchman. She went to the appellant's flat and lay down. He came to lie down beside her; and her account was that he lay on top of her and then had intercourse with her against her will. She tried to leave, she said, but he held on to her telling her not to go, so she bit his arm. He released her and she left. She then telephoned her boyfriend and told him what had happened and they went to the police.

5. Evidence was also forthcoming from her boyfriend about her complaint of rape.

The defence case

6. The applicant testified at trial. He said that at the bar the complainant was very affectionate and hugged and kissed him, and that he walked her to his home but that on the way, as well as once there, she vomited. He says that when he entered the block he was holding her hand, an assertion which the complainant had denied. But the appellant's testimony in this regard was, significantly perhaps, supported by the testimony of a night watchman. The appellant said that the two lay down on a bed and he kissed her, and she did not resist and that this petting led to sexual intercourse which was consensual. She did bite him, but this was not in anger. Before she left there was, he said, an argument about a call to her mobile telephone, and he asked her to choose between himself and her boyfriend; and she left.

This appeal

7. The first ground of appeal is in relation to the judge's directions to the jury on the question of recent complaint. Given our conclusion in relation to the second ground, it is unnecessary for us to delve into the issue raised, though we can say that the judge scrupulously followed the normal direction, a direction endorsed in the recent case of R v Abdul Kahir Mohammed Islam [1991] 1 Cr.App.R. 22.

8. The second ground is the one which motivated the single judge to grant leave. Towards the close of the submissions the judge said to the jury:

"Strive to reach a unanimous verdict, that is, a verdict upon which you are all agreed, whether guilty or not guilty. But if you are unable to achieve unanimity, 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-to-one or five-to-two. A verdict of four-to-three either way does not constitute a verdict. It has to be either six-to-one or five-to-two." (Appeal bundle p. 18). (Emphasis added).

And then again a short while later, she said this:

"I repeat that your verdict of either guilty or not guilty may, if not unanimous, be a majority of six-to-one or five-to-two. But four-to-three is not a verdict. It has got to be unanimous, or six-to-one or five-to-two." (Appeal bundle p. 19). (Emphasis added).

9. The jury retired at 11.30 a.m. Nothing then transpired until 7.39 p.m. The judge called counsel back to court and suggested that she would recall the jury and advise them that if by 8.30 p.m. they were not able to return a verdict, then there were overnight facilities. Counsel agreed with the proposed course, save that counsel for the appellant suggested that the judge tell them that if there was a point upon which they needed assistance, they should say so. The judge intimated that that was not necessary since had there been such a problem the jury would have raised it by then.

10. The jury returned and the judge then said this to them:

"Members of the jury, you have been deliberating for quite a long time now, and you must not overtire yourselves. Now, when jury needs more than a day to reach its verdict, what happens is that they will spend the night in bedrooms in this building, and then continue to deliberate the following morning after a night's rest. Now, this does happen from time-to-time, that's why in this building, we have very nice accommodation - not quite five star - but it is quite nice because I have personally inspected them and they are very, very nice accommodation - it's comfortable.

And also, if it does happen, the jury usher will get from the jury the names and telephone numbers which she needs in order to inform each juror's family that they will be spending the night in this building. Now, I mean, I do not want you to have to spend the night in this building if that can be avoided. Equally, I do not want you to overtire yourselves considering that you have been out deliberating since 11.30 this morning.

All things considered, I think that you should be given until 8.30 tonight to see if you can reach a verdict of either "guilty" or "not guilty" unanimously if possible, but by a majority of six to one or five to two if you cannot be unanimous. So if you reach a verdict by 8.30 this evening, we'll take the verdict tonight, even if it takes a little after 8.30 by the time we can all re-assemble in this courtroom. I'm talking about your reaching a decision by 8.30. But if you cannot reach a verdict by 8.30, then the jury usher will bring you back to court and I shall then give you further directions as to what you should do when you go to your sleeping quarters. Basically, what happens is that there will be no verdict taking until tomorrow morning, say about 10 o'clock or thereafter. Anyway, I'll give you further directions should that happens. In fact, I'll also be telling you that when you do go to your sleeping quarters, you should rest and you should not continue with your deliberation tonight, but you should resume deliberation tomorrow morning.

Breakfast would be provided in the morning along with all other necessities. I've been told that there are pyjamas and all kinds of necessities that you'll require in order to be able to spend the night here. Also, you cannot contact anybody - but as I said, the jury usher would contact your families on your behalf. Now, please retire and continue your deliberations and let us see whether you reach a verdict by tonight. If not, then rest and resume tomorrow. But remember, take your time in deliberating on your verdict, do not feel under any pressure whatsoever, all right? So that's all I want to say to you now. I just want to let you know what is going to happen should you not be able to reach a verdict tonight. Remember, do not feel under any pressure to have to reach a verdict by tonight. Take all the time you need, all right? Very well then, would you like to retire now and continue with your deliberations?" (Appeal bundle pp 35M-36N). (Emphasis added).

11. The ground of appeal as framed by counsel is that the judge placed undue pressure upon the jury by stating a time limit by which they should reach a verdict unless they were to be kept overnight; and by telling them, without any qualification, and without asking if there was any prospect of them reaching a verdict, that the verdict had to be unanimous or six-to-one or five-to-two, giving no indication that it was open to them to disagree.

Analysis

12. There is authority to which our attention has been drawn that frowns on anything that imposes a time limit for deliberations coupled with a statement that overnight accommodation is the alternative: see, for example, R v George [1984] 1 NZLR 272.

13. When the issue of pressure on a jury is raised, each case will turn on its own events, the words used by the judge, the context in which they were used, the time the jury has been out for deliberations, and what then transpired. It is not possible to lay down exhaustive parameters as to what is or is not acceptable. It is a matter of experience, and the sense of the message conveyed by all the circumstances to the jury, and the facts of the particular case, remembering always that jurors are lay persons unversed in the law.

14. It is quite clear that the judge was ever conscious of the need not to put pressure on the jury and that she went to some length to explain to them that they were not to feel under pressure. It is also clear that counsel for the appellant took no issue with what the judge said, save for the suggestion that she should ask if there were any difficulties in respect of which she might assist the jury. That said, we find ourselves, on the facts of this particular case, feeling uneasy about the verdict that was reached and the circumstances in which it was reached.

15. This jury had been out for over eight hours by the time they were recalled; a long time in a case where the issue fell within such a short compass. They returned a majority verdict less than an hour after the judge's further directions. In the previous trial involving this appellant, the jury had failed to agree, and had been discharged. Whilst the judge in this trial was perfectly correct to say that a verdict of four-three did not constitute a verdict, we are troubled, in full context, by the emphasis that was twice placed on the direction that "it has to be either six-to-one or five-to-two"', and "it has got to be at least five-to-two", in direct juxtaposition with mentioning four-three decisions, with no hint at any stage, not even when they returned eight hours later, that if at the end of their deliberations their settled view revealed a four-three split, then they were entitled to say so. The formula for intimating to a jury that they are entitled at the end of the day to disagree is implicit in the question which is sometimes asked when a jury has been deliberating for a substantial time, namely, whether there was any likelihood of reaching an agreement if given a while longer, a question which we note was not put in this case; or a formula along the lines suggested in the specimen directions issued for the guidance of judges: "A verdict of four-three either way does not constitute a verdict and should that position arise I shall direct you further."

16. An intimation to this effect was never given. The jury had been told that they had to come to a majority of at least five-two, if they were not all agreed, and no other option was hinted at by the time they were told that if a verdict was not reached by the stated hour, they would have to stay overnight. Indeed the implication of the judge's comments about four-three decisions combined with the imperative words requiring a majority of five-two at least, must (or at least might well) have left the impression that four-three was never an option. It is this combination of circumstances and the facts of the case, in this particular instance, that leads us to fear that one or more jurors might have felt compelled to a course which resulted in the verdict reached. At least we cannot exclude that as a real possibility. We therefore do not feel able to say that the verdict is safe and satisfactory, and accordingly we allow the appeal and quash the conviction.