CHAN KAR LEUNG AND OTHERS v. HKSAR

FACC Nos. 5 & 6 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS. 5 & 6 OF 2006 (CRIMINAL)

(ON APPEAL FROM CACC NO. 287 OF 2004)

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J U D G M E N T

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Chief Justice Li :

1.  At the conclusion of the hearing we : allowed the appeals; quashed the convictions; ordered that the 1st appellant be retried for false accounting under the 2nd, 4th and 6th counts; admitted him to bail pending retrial; and declined to award any of the appellants any of their costs here or in the courts below.  We now hand down our reasons.  They are given by Mr Justice Bokhary PJ for the Court.

Mr Justice Bokhary PJ :

2.  This appeal concerns the directions to be given to a jury on two matters.  One is how they should go about their deliberations.  The other is the position if they cannot achieve the majority that constitutes a verdict.  Each is of vital importance to our system of trial by jury.  And the principles governing each are to be found in the recent decision of this Court in the case of Tam King Hon v. HKSAR [2006] 2 HKLRD 143.  It is necessary to say something about the background before stating those principles and applying them to the directions complained of in the present case.

3.  In the summer of 2004 these three appellants stood trial in the High Court before Nguyen J and a jury of nine members on an indictment containing eight counts.  The counts were based on four letter of credit transactions.  Each transaction formed the subject-matter of a pair of alternative counts.  Procuring the making of an entry in the record of a bank by deception contrary to s.18D of the Theft Ordinance, Cap.210, was charged under the 1st, 3rd, 5th and 7th counts.  False accounting contrary to s.19(1)(b) of that Ordinance was charged under the 2nd, 4th, 6th and 8th counts.  In respect of each transaction, false accounting was charged in the alternative to procuring the making of an entry in the record of a bank.  Thus the 2nd, 4th, 6th and 8th counts were brought in the alternative to the 1st, 3rd, 5th and 7th counts respectively.

4.  At the trial the 1st, 2nd and 3rd appellants were the 1st, 2nd and 3rd accused respectively.  The 1st accused faced every count; the 2nd accused faced the 1st and 2nd counts together with the 1st accused; and the 3rd accused faced the 3rd and 4th counts together with the 1st accused.  By a majority of 7 to 2 the jury acquitted on all the procuring counts.  They were unanimous in convicting the 1st accused of false accounting under the 2nd, 4th and 6th counts and in acquitting him of false accounting under the 8th count.  The 2nd accused was unanimously convicted of false accounting under the 2nd count.  And the 3rd accused was unanimously convicted of false accounting under the 4th count.  All the convictions were affirmed by the Court of Appeal (Stuart-Moore VP, Stock JA and Suffiad J).  The Appeal Committee granted the appellants leave to appeal to us on the substantial and grave injustice ground.  Such leave was limited to the complaints made against the trial judge’s directions to the jury on the two matters identified at the beginning of this judgment, namely (i) how a jury should go about their deliberations and (ii) the position if they cannot achieve the majority that constitutes a verdict.

5.  With that statement of the background, we can turn now to state the principles laid down in Tam’s case.  These are to be found in the judgment of the Chief Justice with which the other members of the Court agreed. 

If the jury cannot achieve the majority that constitutes a verdict

6.  We deal first with the position if the jury cannot achieve the majority that constitutes a verdict.  In Tam’s case at p.154 C – F the Chief Justice said that for a jury of seven members the appropriate approach is contained in the Judicial Studies Board’s specimen directions which read :

“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.”

Then at lines F – G of the same page the Chief Justice said :

“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.”

For the sake of completeness, it should be noted that the majority that constitutes a verdict is not less then seven if there are nine jurors, not less than six if there are eight jurors and not less than five if there are seven jurors or six jurors.  If there are only five jurors the verdict must be unanimous.  All of that is laid down in s.24 of the Jury Ordinance, Cap.3.

7.  In the present case the Court of Appeal considered – and then rejected – the argument that the trial judge’s statement to the jury that “anything less than 7 – 2 would not be acceptable” would or might have given them the impression that they had to go on deliberating indefinitely.  In our view, there was no real danger of the jury getting that impression.  While not ideal, the trial judge’s directions to the jury on the position if they could not achieve the majority that constitutes a verdict were not fatally flawed.

How a jury should go about their deliberations

8.  We turn now to how a jury should go about their deliberations.  As to that the Chief Justice said this in Tam’s case at pp 148 J – 149 D :

“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 [1988]2 NZLR 46 at p.58 lines 15-45.”

9.  From there the Chief Justice went on to say (at p.149 E – I) that drawing an analogy between the way in which a jury should function and the way in which a board of directors functions is “inconsistent with the duties of a juror”.  Then the Chief Justice said (at p.150 C – D) that “[t]he use of the phrase ‘give and take’ on its own is inappropriate”.  And then the Chief Justice, citing the High Court of Australia’s decision in Black v. The Queen (1993) 179 CLR 44 at p.51, said (at p.151 G – H) that “phrases using the word ‘collective’ are best avoided.”  The reasons why the Chief Justice said each of those things are set out in his judgment in Tam’s case and need not be rehearsed here.

10.  These are the directions which the trial judge gave the jury on how they should go about their deliberations :

“Now, members of the jury, when you retire to consider your verdict you will of course, be discussing the evidence amongst yourselves and then deciding on what the verdict should be.  If you have never served on a jury before, members of the jury, it is like, I suppose, the board of directors of a company meeting.  In other words, you have to make up your own mind but you will also have to listen to the^-views of your colleagues to see whether after you have heard their views, you want to change your original decision.  You are not bound to follow what your colleagues say.  You should make up your own mind but you should also listen to the views of your colleagues.  There is, of course, a lot of give and take in these discussions before you arrive at your verdict.

Each of you took an oath to return a true verdict according to the evidence.  No one must be false to that oath but you have a duty, not only as individuals but also collectively, and that is the strength of the jury system.  Each of you takes into the jury box with you your individual experience and wisdom.  Your task is to pool that experience and wisdom.  You do that by giving your views and listening to the views of others.  There must necessarily be discussion and argument and a willingness to give full consideration to the suggested logic of your colleagues and if an individual is persuaded that there has been a flaw, a mistake in your own thinking you must be prepared to concede that there is such a flaw.  That is how agreement is reached but of course you must at all times stay true to your oath or affirmation and if, after full discussion, you cannot reach agreement, then you must say so.”

11.  As can be seen, those directions are open to the threefold criticism that they (i) draw the board of directors analogy which is inconsistent with the duties of a juror, (ii) use the inappropriate phrase “give and take” and (iii) use the best avoided word “collectively”.  The Court of Appeal’s judgment in the present case was given before – and therefore without the benefit of – our decision in Tam’s case.  Without that benefit, the Court of Appeal proceeded on their own decision in HKSAR v. Chan Ka Man [2005] 1 HKC 162.  They said that they were concerned in the present case, as they had been concerned in Chan’s case, with the principle that a jury must not be so directed as to lead to “the danger that an individual juror might subordinate his or her true view to those of the majority”.

12.  Having said that, the Court of Appeal continued by saying this :

“We do not think that in the event the direction of the judge led to that risk in this case;which is not, we emphasise, to approve the judge's approach.  The reference to board of directors was quite inappropriate. But we perceive material differences in the overall effect of the directions about which complaint is made in the two cases.  The board of directors' analogy in Chan Ka Man was sparsely put and less qualified than in the present case.  The reference in that case to the individual jurors making up their own mind was almost entirely submerged by phrases such as ‘whether you want to stick to your own decision’ and whether ‘your decision should be different’.  There was absent the phrase we find in this particular case: ‘You are not bound to follow what your colleagues say’; and absent also from the Chan Ka man directions the entire passage to be found in the present case beginning with the words ‘Each of you took an oath...’.  In particular, that paragraph in the present case emphasised that a change of mind might only properly follow ‘if an individual is persuaded that there has been a flaw, a mistake in your own thinking’, and that what then was to be conceded was the flaw, remembering however at all times that the jurors had to stay true to their oaths or affirmations and ‘if, after full discussion, you cannot reach agreement, then you must say so.’  It is, in our judgment, safe to say that the effect of the passages taken together is that the judge told the jury that each individual juror must not, for the sake of collegiality, be false to such conclusion as he reached having heard the views of others and having conceded such flaws in his logic as may have been demonstrated.  If it could properly be said that the reference in this case to a board of directors was a misdirection, then, because of the overall effect of the directions which in our judgment negates the risks to which we have referred, this would, for that reason, be a proper case, in our opinion, for the application of the proviso to Section 83 of the Criminal Procedure Ordinance.”

13.  It has to be said that that is not how the proviso operates.  If the overall effect of the directions to a jury conveyed the right message to them, then it would not be a matter of applying the proviso.  Rather would it be a matter of rejecting the complaint that the jury had been misdirected.  It is only if the jury had indeed been misdirected that the question of applying the proviso would arise.  And then the test would be, as the Chief Justice said in Tam’s case at p.156 A – B, “whether a reasonable hypothetical jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion”.  That follows a well established line of decisions including our own in Launder v. HKSAR (2001) 4 HKCFAR 457 at p.471 and those of the House of Lords in Stirland v. DPP [1944] AC 315 at p.321 and Customs and Excise Commissioners v. Harz [1967] 1 AC 760 at pp 823-824.

14.  Did the overall effect of the trial judge’s directions to the jury on how they should go about their deliberations convey the right message to them in that regard?  In our view, those directions did not do so.  The errors which those directions contained were serious.  Those parts which were right cannot be taken to have cured those parts which were wrong, for the bad was as capable of polluting the good as the good was capable of cleansing the bad.  The wrong parts and the right parts combined to produce a contradictory amalgam apt to confuse the jury in regard to how they should go about their deliberations.  On that vitally important matter, therefore, the jury had been misdirected.

15.  There is something else to be mentioned in regard to jury deliberations.  This jury began their deliberations at about 10 minutes past noon.  At 10:35 that night they were back before the trial judge for further directions on a question which they had sent him.  He gave them those further directions, and then told them to continue their deliberations even at that time of night, saying this : “some judges take the view that by 10 pm, any jury should be asleep, but I don’t take that view”.  As to that, we endorse the broadly held view that jurors should generally cease deliberating by about 8 o’clock at night and then rest overnight before resuming their deliberations together after breakfast the following morning.  That is the view on which trial judges should act.

Proviso

16.  As to the disposal of these appeals in the event of our concluding that the jury had indeed been misdirected on how they should go about their deliberations, counsel for the respondent invited us nevertheless to dismiss the appeals by applying the proviso to s.83 of the Criminal Procedure Ordinance, Cap.221.  Since the 1st appellant is going to be retried, it is necessary for us to avoid saying anything that might prejudice the retrial.  That being so, we say no more than this as to why it is inappropriate to apply the proviso in this case.  There was a live issue as to dishonesty.  This jury had not been properly directed on how they should go about their deliberations.  And we feel unable to go so far as to say that a reasonable jury properly directed on that vitally important matter would inevitably have resolved the issue of dishonesty against the appellants so as to convict them. 

Retrial

17.  The only appellant whose retrial the respondent sought is the 1st appellant.  To avoid prejudicing his retrial, we say no more on why we ordered it than that doing so was, in our opinion, the just course in all the circumstances.

Bail

18.  Nothing more than this need be said on why we admitted the 1st appellant to bail pending retrial.  After granting the 1st appellant leave to appeal to us, the Appeal Committee had granted the 1st appellant bail pending appeal on certain terms.  His counsel asked us to grant the 1st appellant bail pending retrial on similar terms subject to minor variations.  This was not opposed by counsel for the respondent.  And we saw no reason not to accede to this unopposed bail application.

Costs

19.  On the matter of costs, too, it is necessary for us to avoid saying anything that might prejudice the 1st appellant’s retrial.  All the appellants were legally represented throughout.  The 2nd and 3rd appellants were on legal aid before us and in the Court of Appeal, but not at the trial.  Their counsel applied to us for their costs of the trial.  Initially counsel for the respondent did not oppose this application.  But when we raised the question of whether the appellants had brought suspicion upon themselves, counsel for the respondent opposed the application on that basis.  And on that basis we refused the application.  Counsel for the 1st appellant then sought – and received – our confirmation that we were not minded to award his client any costs either.