HKSAR v. CHAU HON KWONG

CACC 234/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

criminal APPEAL NO. 234 OF 2004 

(ON APPEAL FROM HCCC NO. 242 of 2003)

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving reasons for judgment of the Court):

1.  On 6 October 2004, we granted extension of time to the applicant, Chau Hon Kwong to apply for leave to appeal against conviction. In respect of the 1^st charge, we granted leave, but dismissed the appeal. In respect of the 2^nd and 3^rd charges, we allowed the appeal and quashed the convictions and set aside the sentence.

2.  We also dismissed the applicant’s application for leave to appeal  against sentence in respect of the 1^st charge.

3.  We indicated that we would give our reasons in writing and this we now do.

Background

4.  The applicant appeared before Deputy Judge Wright in the High Court on an indictment consisting of three charges of trafficking in dangerous drugs, namely “ice” and heroin.

5.  On 13 May 2004, the applicant was acquitted of the charges but convicted of three alternative charges of possession of the dangerous drugs specified in the charges. He was sentenced to the respective terms of 18 months, 18 months and 27 months’ imprisonment on 27 May 2004.

6.  The sentences on the first two charges were to run concurrently but consecutively to 18 months of the sentence on the 3^rd charge, making a total of three years’ imprisonment.

7.  On 1 June 2004, the applicant filed a notice of application for leave to appeal against sentence only. On 11 August 2004, the applicant further filed his notice of application for leave to appeal against conviction together with his application for extension of time to do so.

8.  The applicant, in his affirmation for extension of time, suggested that his trial counsel had initially suggested that there was no ground of appeal against conviction. However, he was subsequently advised by senior counsel that there were grounds of appeal against conviction in relation to at least the 2^nd and 3^rd charges.

Prosecution Case

9.  In the early hours of 26 February 2003, a party of three police officers (Sgt. 7396, PC 51525 and PC 33448) noticed a car left unattended and they were concerned that a loss might have happened.

10.  When the applicant and a woman entered the car and when the applicant had started the engine, a police officer approached him and asked if he was the car owner. The reply from the applicant aroused suspicions and he was asked to alight from the car.

11.  The applicant was searched and the first batch of dangerous drugs, 1.52 grammes of a mixture containing 1.06 grammes of heroin and about 0.5  grammes of “ice”, i.e. the subject matter of the 1^st charge, were found on his person.

12.  The applicant was then cautioned by PC 51525 and in response, he said the drugs had been left over from his earlier consumption and that he was taking them home for later consumption. The applicant also asked for a chance. However, the applicant refused to sign on the notebook of PC 51525 recording the caution and his response.

13.  PC 51525 then conducted a search of the car in the presence of the applicant. From the pocket of the driver’s seat, there was a brown purse and a transparent plastic packet containing a number of smaller re-sealable plastic packets. The dangerous drugs the subject matter of the 2^nd charge were found inside the purse.

14.  The applicant was again cautioned and in response the applicant said it was not necessary to go “that far”, that he had been co-operative and he also asked for a chance. After PC 51525 recorded the caution and the reply in his notebook, the applicant again refused to sign.

15.  A further search of the boot of the car produced the dangerous drugs the subject matter of the 3^rd charge. When the applicant was cautioned again, he said, “What else can I say. They are all mine and have nothing to do with the girl”.

16.  PC 51525 again recorded the caution and the applicant’s reply in his notebook. Again, the applicant refused to sign.

17.  Other suspicious items, including plastic drinking straws, scales and transparent bags were also found in the car.

Defence Case

18.  The applicant admitted that he did have some of the drugs included in the subject matter of the 1^st charge when the police searched him. He said they were for his own consumption. However, he said he had no knowledge of the drugs the subject matters of the 2^nd and 3^rd charges although he did not dispute that they were found inside the car.

19.  The applicant also denied that he had said anything in response to the caution. He said there was in fact no record made of his alleged replies to any caution and he had not been invited to sign anything.

20.  The suggestion by the applicant was that the car in question belonged to a family company and that it was lent to a friend on 25 February 2003. The car was returned in the early hours of 26 February 2003 when his female companion took the car key to him. He was about to drive his female companion home when he was stopped.

21.  The facts of the case and the issues for the jury were simple and straightforward. The judge gave a detailed and comprehensive summing up to the jury. No criticism was or could be advanced on the judge’s summing up, which was perfectly fair.

Ground of Appeal

22.  The only ground of appeal advanced by Mr MK Wong, SC, arose out of the way in which the verdicts were taken from the jury. It is perhaps necessary to set out parts of the transcript relating to the taking of the jury’s verdict:

“Court:                            Thank you.

Clerk:                           Madam Foreman, please stand up. On the 1^st count of trafficking in dangerous drugs against Chau Hon-kwong, have you reached a verdict? Please answer yes or no.

Madam Foreman:         Yes.

Clerk:                            Is the verdict unanimous? Please answer yes or no.

Madam Foreman:         No.

Clerk:                            By what majority have you arrived at such a verdict?

Madam Foreman:         Six to one.

Clerk:                            What is your verdict? Do you find the accused guilty or not   guilty of trafficking in dangerous drug?

Madam Foreman:         Not guilty.

Clerk:                            Having found the accused not guilty of trafficking in dangerous   drugs, do you find him guilty or not guilty of possession of   dangerous drugs?

Madam Foreman:         Guilty.

Clerk:                            On the 2^nd count of trafficking in dangerous drugs against Chau   Hon-kwong, have you reached a verdict? Please answer yes or   no.

Madam Foreman:         Yes

Clerk:                            Is the verdict unanimous? Please answer yes or no.

Madam Foreman:         No.

Clerk:                            By what majority have you arrived at such a verdict?

Madam Foreman:         Five to two.

Clerk:                            What is your verdict? Do you find the accused guilty or not   guilty of trafficking in dangerous drugs?

Madam Foreman:         Not guilty.

Clerk:                            Having found the accused not guilty of trafficking in dangerous   drugs, do you find him guilty or not guilty of possession of   dangerous drugs?

Madam Foreman:         Guilty.

Clerk:                            On the 3^rd count of trafficking in dangerous drugs against Chau   Hon-kwong, have you reached a verdict? Please answer yes or   no.

Madam Foreman:         Yes.

Clerk:                            Is the verdict unanimous? Please answer yes or no.

Madam Foreman:         No.

Clerk:                            By what majority have you arrived at such a verdict?

Madam Foreman:         Six to one.

Clerk:                            What is your verdict? Do you find the accused guilty or not   guilty of trafficking in dangerous drugs?

Madam Foreman:         Not guilty.

Clerk:                           Having found the accused not guilty of trafficking in dangerous   drugs, do you find him guilty or not guilty of possession of   dangerous drugs?

Madam Foreman:         Guilty.”

23.  It is plain from reading the transcript that the clerk did not ask the jury whether the guilty verdicts of possession of dangerous drugs were unanimous and if not by what majority were the verdicts arrived at.

24.  Mr Wong suggested such a failure constituted an irregularity and that the verdicts returned by the jury were not valid or indeed lawful verdicts authorized by law.

25.  The wording of the relevant statutory provision is clear. Section 26 of the Jury Ordinance provides:

“The verdict of the jury shall in all cases be given by the foreman in open court and in the presence of all the jury, and, if in a criminal proceeding, in the presence of the person accused, and shall thereupon be recorded by the Registrar or clerk of court who shall, before taking the verdict, ask if they are all or by what majority agreed upon, and …whether they find such person accused guilty or not guilty…”

26.  In Bateson (1969) 54 Cr. App. R 11 at p. 15, Salmon LJ by way of dictum, said that “the court had no power under the Act to accept a majority verdict of Guilty unless the foreman stated in open court the number of jurors who respectively agreed to and dissented from the verdict”.

27.  A similar view was taken in Barry (1975) 62 Cr. App. R. 172. It is perhaps sufficient to set out the following head-note of the case:

“Section 13 of the Criminal Justice Act 1967 which has been re-enacted in section 17 of the Juries Act 1974, provides: ‘(2) A Court shall not accept a majority verdict of guilty unless the foreman of the jury has stated in open Court the number of jurors who respectively agreed to and dissented from the verdict. (3) A Court shall not accept a majority verdict unless it appears to the Court that the jury have had not less than two hours for deliberation or such longer period as the Court thinks reasonable having regard to the nature and complexity of the case.’

The requirement regarding majority verdicts imposed by section 17(2), as well as that imposed by section 17(3), is mandatory and failure to comply with it vitiates the majority verdict. Where, therefore, the judge, having decided to accept a majority verdict, omitted to ask the jury how many of them were agreed on their verdict. Held, that the conviction must be quashed.”

28.  The House of Lords also had the opportunity to examine the issue in Pigg (1983) 76 Cr. App. R. 79. In deciding the point of law, “whether it is necessary in order to comply with the terms of section 17(3) of the Juries Act 1974 for the foreman of the jury, having stated in open court the number agreeing to the verdict, to go on to state the number of those dissenting”, Lord Brandon of Oakbrook opined at p. 86:

“In short, compliance with the requirement of section 17(3) of the 1974 Act is mandatory before a judge can accept a majority verdict of guilty; but the precise form of words used by the clerk of the court when asking questions of the foreman of the jury, and the precise form of words used by the latter in answer to such questions, as long as they make it clear to an ordinary person how the jury was divided, do not constitute any essential part of that requirement.”

29.  Section 26 of the Jury Ordinance may not be couched in exactly the same words as its counterparts in the Criminal Justice Act 1967 or the Juries Act 1974; however, the words used are clear and they prescribe that “the verdict of the jury shall…be recorded by the…clerk of court who shall, before taking the verdict, ask if they are all or by what majority agreed thereon…”

30.  In his summing up to the jury, the judge did remind them that the court would only accept a verdict of 6 to 1 or 5 to 2 and that there must be at least five of them who were agreed.

31.  However, it is not open to this court to second guess what was in the minds of the jury or that of the lady foreman. The fact remains that it is not certain whether the lady foreman was returning a unanimous verdict or a majority verdict and if a majority verdict, how many jurors convicted and how many jurors acquitted.

32.  The case involves the liberty of an individual and any ambiguity must be resolved in favour of the applicant.

33.  Mr Zervos SC, on behalf of the respondent fairly conceded that the guilty verdicts in respect of the 2^nd and 3^rd charges could not stand. He argued, however, that as the applicant admitted possession of the dangerous drugs in the 1^st charge, the proviso should be applied. Mr Wong was content with the quashing of the convictions in respect of the 2^nd and 3^rd charges only.

34.  Although the applicant did admit possession of dangerous drugs, he did not, at the hearing, admit that all the drugs set out in the 1^st charge were found on his person. He only admitted part of them.

35.  In the circumstances, we were not originally persuaded that the proviso should apply. However, we were then presented with further admitted facts with the applicant admitting possession of all the drugs set out in the particulars of the 1^st charge. It was on that basis that we were persuaded to apply the proviso and dismiss the appeal against conviction in respect of the 1^st charge.

36.  However, the guilty verdict in respect of the 2^nd and 3^rd charges must be quashed because of the material irregularity.

37.  We therefore granted the applicant extension of time to apply for leave to appeal against conviction. We granted leave and treating the application as the appeal proper, we dismissed the appeal in respect of the 1^st charge but allowed the appeal and quashed the convictions in respect of the 2^nd and 3rd charges. The sentences in respect of those charges were also set aside.

38.  As the applicant did not pursue his application in relation to sentence on the 1^st charge, his application for leave to appeal against sentence in respect of that charge was dismissed.

39.  But for the fact that the applicant had served a substantial part of his sentence and the respondent therefore did not apply for a re-trial, a great deal of time and money could have been wasted because of the error that crept in at the very end of the trial. The clerk of the court should not have made the error and it is regrettable that the judge and counsel did not notice the error.

40.  It is important for all parties concerned to pay the closest attention to all procedural matters including the taking of the verdicts from the foreman to avoid similar errors in the future.