HKSAR v. CHUNG CHI BOR

[English Translation - 英譯本]
CACC 151/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 151 OF 2007

(ON APPEAL FROM HCCC NO. 20 OF 2007)

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REASONS FOR JUDGMENT

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

1. The Applicant was charged with one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and 4(3) of the Dangerous Drugs Ordinance (Cap. 134 of the Laws of Hong Kong).  The dangerous drug involved was 14.41g of methamphetamine hydrochloride, commonly known as “ice”.  The Applicant was convicted after trial before Deputy Judge Poon and a jury and was sentenced to 7 years’ imprisonment.  The Applicant now seeks leave to appeal against both conviction and sentence.

The facts

2. The facts revealed that at 9.20 p.m. on 8 November 2006, Customs and Excise officers entered a unit at Flat B, 4/F., 98 Yen Chow Street, Shamshuipo.  The unit was rented by the Applicant, who was present in the unit at the time.  From a waist-bag hung on the frame of a metal bed, the officers found a transparent plastic bag containing a drug.  One of the officers (i.e. PW1) asked the Applicant what was in the transparent plastic bag, and the Applicant replied that it was “ice”.  The drug in question was subsequently confirmed upon laboratory tests to be “ice” weighing 13.15g.  PW1 cautioned the Applicant immediately and inquired of him whether there was any other drug in the unit apart from the abovementioned “ice”.  The Applicant said there were drugs at the edge of the frame of the lower bunk bed and inside the sock which he was wearing on his left foot.  From the edge of the frame of the lower bunk bed, a packet of a drug was found, which was subsequently confirmed by laboratory tests to contain 0.62g of “ice”.  Another packet of a drug was also found from the said sock that the Applicant was wearing, and subsequent laboratory tests confirmed that the packet contained 0.64g of “ice”.  Those two packets of drugs were each rolled into a straw-like shape and secured with adhesive tapes.  The total weight of the three bags of drugs in question was 14.41g.  The officers found only 61 transparent plastic bags from a plastic cabinet at the unit.

3. At trial, the Applicant elected to give evidence.  He said he had been consuming heroin for more than 20 years, but two years prior to the offence he gave up heroin and consumed “ice” instead.  He said he was a welder at a construction site, working for 20 days on average and earning $15,000.00 per month.  Two days prior to the offence, he purchased the drugs in question at $3,400.00.  He said that the drugs in the two packets that the officers found from the edge of the frame of the bunk bed and his left sock came from the drugs in the larger bag found in the waist-bag.  The Applicant explained that he divided the drugs into smaller portions because he wanted to limit his drug consumption.  He took drugs twice a day, and he could finish each packet of drug in two takes.  The drugs in question had been delivered to his home by a drug peddler.  At the time of the offence, he was about to consume the drug contained in one of the packets.  When the entrance door of the unit was being opened, he thought it was his girlfriend from whom he had been concealing his drug-taking habit, and so he hid the drug away by stuffing it into the sock that he was wearing on his left foot.  The Applicant testified that he consumed “ice” with a consumption device made from a soda bottle.

Grounds of appeal

4. Mr Hung for the Applicant has put forward a number of grounds of appeal in respect of the present application.  Among these grounds, the most significant one is, in our view, that pertaining to the direction given by Deputy Judge Poon to the jury on the question of majority verdict.

Initial direction on majority verdict

5. In her direction to the jury, Deputy Judge Poon made it clear that they must first consider if the Applicant was guilty of trafficking in a dangerous drug and that, even if they did not consider him guilty of that offence, they still had to consider if the Applicant was guilty of possessing a dangerous drug.

6. In the course of directing the jury, Deputy Judge Poon twice explained the type of verdict that was acceptable to the Court.  The first direction, which has been reproduced on page 10 of the Appeal Bundle, is in the following terms:

Members of the jury, whether you find [the defendant] guilty of trafficking in a dangerous drug or not, it is best for you to reach a unanimous verdict.  A unanimous verdict is a verdict upon which the seven of you all agree, which means a 7:0 verdict, whether it be one of guilty or not guilty.  If you are unable to reach a unanimous verdict after thorough deliberation, the Court is prepared to accept from you a majority verdict, i.e. a 6:1 or 5:2 verdict.  Whether it be one of guilty or not guilty, a 6:1 or 5:2 verdict is acceptable, although of course it is better to have a 7:0 verdict.  On the other hand, an even lower ratio of 4:3 is not acceptable to the Court because it is not a majority verdict.  If this situation occurs, I shall further direct you as appropriate.  If, upon careful consideration, you find whether by majority or unanimously that the defendant is not guilty of trafficking in a dangerous drug, then you must unanimously find him guilty of possessing a dangerous drug.

7. Later on, Deputy Judge Poon distributed to the jurors a document which was intended to assist them in reaching a verdict.  That document, which again contained statements about majority verdict, read as follows:

HONG KONG SPECIAL ADMINISTRATIVE REGION

High Court Criminal Case No. 20 of 2007

Verdict

Jury can find the defendant guilty or not guilty.  It can be a unanimous verdict or a majority verdict of 6:1 or 5:2. (The Court will not accept a verdict of 4:3.)

Direct the jury to return a verdict

Question 1:       On the count of trafficking in a dangerous drug against the defendant CHUNG Chi-bor, have you reached a verdict?

Yes

No

Question 2:       Is your verdict unanimous?

Yes (go to Question 4)

No (go to Question 3)

Question 3:       By what majority?

6:1                   5:2

Question 4:       What is your verdict?

Guilty

Not Guilty (go to Question 5)

(Where there is an alternative verdict)

Question 5:       On the count of possessing a dangerous drug against the defendant CHUNG Chi-bor, the Court directed you to return a guilty verdict; do you return a unanimous verdict as directed?

Yes / No

8. Deputy Judge Poon then went on to explain to the jury the contents of that document and revisited the question of majority verdict in the following terms:

… let us look again at the beginning [of the document], which states that you can find the defendant guilty or maybe not guilty, but either way the verdict can be unanimous or 6:1 or 5:2.  It should be made clear here that the Court will not accept a 4:3 verdict.  Then it is about guilty or not guilty.  If the offence being charged is established, and [the defendant is] guilty, then the matter comes to an end – pardon me, if guilty, then you will be asked if the verdict is unanimous or by what majority.  On the other hand, as you can see from Question 4, if you find that the offence of trafficking in a dangerous drug is not established and that [the defendant is] not guilty, then go to Question 5.  Question 5 concerns the offence of possessing a dangerous drug.  In other words, if you find him not guilty, you must unanimously find him guilty of possessing a dangerous drug.

9. Deputy Judge Poon concluded her directions to the jury at 11.15 a.m. that day.  The jury then retired for deliberation.

A jury verdict of 4:3

10. The jury returned to the Court at 3.07 p.m. that day.  The audio transcript records the following exchanges among the Judicial Clerk, Deputy Judge Poon and the Foreman: 

Judicial Clerk:         Foreman, please stand up.  On the count of trafficking in a dangerous drug against the defendant CHUNG Chi-bor, have you reached a verdict?

Foreman:                No.

Court:                     [Have you] reached a verdict?

Judicial Clerk:         Have [you] reached a verdict?

Court:                     Question 1.

Judicial Clerk:         Question 1.

Court:                     Question 1 first.

Foreman:                Yes.

Judicial Clerk:         Is your verdict unanimous?

Foreman:                No.

Judicial Clerk:         By what majority?

Foreman:                4:3.

Court:                     Members of the jury, please retire first.  There are a few questions that I need to discuss with counsel to see how the 4:3 [verdict] should be dealt with.

Further directions by Deputy Judge Poon

11. After the jury retired, Deputy Judge Poon discussed with counsel for both parties the direction on majority verdict.  Subsequently, she directed the jury in the following terms:

Court:         Members of the jury, as I told you this morning and indeed as printed on the sheet of paper, a 4:3 [verdict] is not a verdict that can be accepted by the Court because it is not a majority verdict.  The Court is prepared to accept a verdict of 7:0, 6:1 or 5:2, whether it be one of guilty or not guilty.  Therefore, at this stage you do not have to tell me this is your final verdict, because the Court cannot accept your 4:3 verdict at this stage.  I will allow you a bit more time for you to discuss and see if you can reach a verdict acceptable to the Court, be it a majority or a unanimous verdict, within that extra time.  If this cannot be done even after a certain period of time, I will give you further directions.  But now I give you some more time and hope [you] can reach a verdict acceptable to the Court.  The 4:3 verdict at this stage cannot yet be accepted by the Court.  Please retire for further deliberation.

Jury verdict

12. The jury retired at 3.17 p.m. and the hearing resumed at 3.54 p.m.  The relevant notes of proceedings read as follows:

Judicial Clerk:         Foreman, please stand up.  On the count of trafficking in a dangerous drug against the defendant CHUNG Chi-bor, have you reached a verdict?

Foreman:                Yes.

Judicial Clerk:         Is your verdict unanimous?

Foreman:                No.

Judicial Clerk:         By what majority?

Foreman:                5:2.

Judicial Clerk:         Is it a verdict of guilty or not guilty?

Foreman:                Guilty.

Judicial Clerk:         Thank you.

Mr. Hung’s submissions

13. Mr. Hung submits that Deputy Judge Poon failed to indicate to the jury that they had to inform the Court if they were unable to reach a majority upon deliberation after further retirement.  Instead, Deputy Judge Poon requested the jury to proceed with their deliberation and reiterated that the Court would further direct them should they be unable to reach a majority verdict.  Mr. Hung contends that Deputy Judge Poon might in this way leave the jury with an impression that individual jurors had to yield to the majority jurors.  Mr. Hung submits that the approach taken by Deputy Judge Poon might cause the jury to mistakenly think that they could never return a 4:3 verdict and were bound to reach a majority verdict which was acceptable to the Court.

Discussion

14. Whenever a case is tried with a jury, the verdict returned by the jury must be either unanimous or by majority.  A unanimous verdict by seven jurors is a verdict where they all agree that the defendant is guilty or otherwise, whereas a majority verdict is one where six jurors against one or five jurors against two agree that the accused is guilty or otherwise.  Anything less than this majority verdict, i.e. 4:3, does not constitute a valid verdict.

15. Where in the end the jury come up with a 4:3 verdict, this means they are unable to reach a verdict on the case, and hence the court may have to discharge the jury.  However, as the Court of Final Appeal pointed out in Tam King Hon v. HKSAR [2006] 2 HKLRD 143, at the stage of a summing-up, when the jury have not started to deliberate, it is usually inappropriate to refer in the directions to jury to a discharge of the jury in the event of a 4:3 verdict.  The Court of Final Appeal has also held that when a jury do reach a 4:3 verdict, it is open to the judge to give further directions to them.

16. In her initial directions to jury, Deputy Judge Poon made it clear that the Court could not accept a 4:3 verdict and that she would give them further directions as appropriate.  In our judgment, Deputy Judge Poon was correct in giving such directions.

17. A special feature of the present case is that the facts were relatively straightforward.  Despite Deputy Judge Poon’s indication on three separate occasions (two oral directions and one written direction) that a 4:3 verdict was not acceptable to the Court, the jury returned a 4:3 verdict following deliberation which lasted approximately four hours.  In this case, the Judge should, in our judgment, have tried to find out why the jury returned such a verdict: was it because they did not understand the Judge’s direction earlier on that a 4:3 verdict was not acceptable to the Court, or was it because they held diverse views on the verdict and were unable to reach a consensus despite the 4-hour deliberation?  In our view, in the circumstances of the case, it would have been unsatisfactory for Deputy Judge Poon not to clarify the issue of a  4:3 verdict but instead simply to request the jury to continue their deliberation and reiterate that further directions would be given if they returned a 4:3 verdict again.  

18. It is true that a judge is entitled to encourage the jury to continue their deliberation in order to arrive at a legally valid verdict.  However, when the jury clearly indicate that they have arrived at a 4:3 verdict, it is insufficient to simply ask them continue their deliberation and tell them that further directions will be given later.  In our view, the judge should at the same time remind the jury that in the end they are entitled to have diverse views on the verdict and are not bound to arrive at a legally valid verdict.  As this Court (Ma CJHC, Stock JA and Gall J) pointed out in HKSAR v. Chan Ka Man [2005] 1 HKC 162, there is no need for the judge to hide from the jury the fact that the law allows them to hold diverse views on the verdict in the end.  Therefore, upon being told by the jury that they were returning a 4:3 verdict, Deputy Judge Poon should not simply have repeated, for a fourth time, the direction on majority verdict, thereby creating a risk of leaving the jury with the wrong impression that they could not possibly disagree on the verdict.  As this Court pointed out in Chan Ka Man, where a jury returns a 4:3 verdict, the judge must make it clear to the jury that if they are still unable to reach a unanimous or majority verdict after further deliberation, they are not only entitled to hold diverse views on the verdict, but must clearly indicate to the judge that they are holding diverse views on the verdict.  Furthermore, in Tam King Hon, the Court of Final Appeal explained that a jury must be free to consider and arrive at a verdict without being subjected to pressure by way of promise or threat or otherwise.  The court must avoid giving the jury the misconception that it is incumbent upon them to express a consensus on a verdict that they do not genuinely hold simply because otherwise it will cause inconvenience, trouble or expense to the prosecution, the defendant, the victim or the general public.

19. Mr. Leung, Senior Government Counsel for the Respondent, submits that, in telling the jury before they retired for the second time that “the Court cannot accept your 4:3 verdict at this stage … The 4:3 verdict at this stage cannot yet be accepted by the Court”, Deputy Judge Poon did not make the jury feel that they were bound to reach a verdict acceptable to the Court.  With respect, we do not agree.  As the Judge had told the jury earlier on that she would direct them further if they returned a 4:3 verdict, if she simply repeated this point at that stage, the jury might mistakenly think that they were expected to arrive at a verdict acceptable to the Court.

20. It is clear from the 5:2 verdict the jury returned in the end that they held diverse views on whether the Applicant had trafficked in a dangerous drug.  This being the case, we must not overlook Deputy Judge Poon’s failure to make it clear in her further directions that it was open to the jury to disagree on the verdict, as a result of which the jury might have mistakenly thought that they had no alternative but to arrive at a verdict acceptable to the Court. 

21. For the above reasons, the Applicant’s conviction is in our view unsafe.

Conclusion

22. We allow the Applicant’s application and, treating it as the appeal, allow the appeal and quash the conviction.

Re-trial

23. The present appeal is allowed on the sole basis of the proper approach that a court should take in giving the relevant directions to the jury.  This has nothing to do the strength or otherwise of the prosecution case.  We therefore consider there should be a re-trial and make an order for re-trial accordingly.