HKSAR v. CHEN KEEN (alias JACK CHEN) AND OTHERS

HCCC 309/2019

[2021] HKCFI 1751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 309 OF 2019

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RULING

APPLICATION FOR DISCHARGE OF THE JURY

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The submission

1.  On 7 June 2021, Mr Kerry Joel Knight testified in this trial as a prosecution witness.  In the course of his testimony, he told the jury that earlier in 2021 he had a conversation with the 2^nd Accused.  Mr Knight related to the jury that in the course of that conversation, the 2^nd Accused had told him that she had been convicted, that she had served time in jail and that she was undergoing a retrial.

2.  As a matter of fact, each of the accused had previously been convicted. The indictment was cast in a slightly different and impermissible way in the previous trial and, indeed, this was the reason that the Court of Final Appeal determined that the appeal should be allowed. For present purposes, the main point is that in consequence of that determination, a retrial was ordered[1].

3.  On any view, such evidence was irrelevant to the principal facts in issue and is, at minimum, capable of being highly prejudicial to at least the 1^st Accused and the 2^nd Accused.  As will shortly appear, on a careful analysis of what was actually said, the testimony of Mr Knight in this regard was capable of affecting the position of the 3^rd Accused.

4.  Counsel for the Accused informed me on 8 June 2021 that they sought the discharge of the jury.  The jury were then and there sent away and submissions on the issue of discharge were heard on 10 June 2021.

Ruling

5.  I have decided that the proper course to adopt is to order that the jury be discharged from continuing to try all 3 accused.  It is right that parties and members of the community be provided with an explanation as to why I have adopted this course, and I have accordingly provided my reasons below. 

The impugned testimony

Context

6.  On 7 June 2021, which was Day 57 in the trial, the prosecution called Mr Kerry Joel Knight.  Mr Knight was a witness I invited the prosecution to call, following a submission by those representing the accused that I should do so.  The submission was opposed by the prosecution.

7.  Mr Knight was, at times material to these proceedings, the senior partner of a New Zealand firm of Barristers and Solicitors by the name of Knight Coldicutt.  That firm acted for the listed company at the centre of these proceedings: Natural Dairy (NZ)  Holdings Limited. The stock code of this listed company was “462”.  The firm held a substantial sum of money raised by 462 in escrow.  Just over NZ$51 million was released from the monies held in escrow to the 2^nd Accused. In a judgment dated 26 May 2021 concerning whether to invite the prosecution to call Mr Nicholas John Cross, I described by reference to the evidence in the case the mechanics of how that money came to be released[2].  This can be seen in paragraphs 3-16.  Those paragraphs also describe aspects of the events which occurred following the transfer of the NZ$51 million.  The judgment concerned a ruling I had made as to whether I should invite the prosecution to call Mr Cross to give evidence.  I incorporate those paragraphs by reference in this ruling.

8.  To set the scene for Mr Knight’s testimony, it is also relevant to note that I also ruled that the prosecution should be invited to call Mr Knight to testify.  It is fair to say that the prosecution did not want to call either Mr Cross or Mr Knight.  It is relevant to note that both Mr Cross and Mr Knight gave statements.   I use the word “statements” in what might be characterised as a somewhat loose manner because they were statements taken by those individuals themselves.  In fairness, that is not to criticise the statements because much of this part of the evidence was presented on an improvised basis.  Certainly, at the outset of the proceedings, neither the prosecution nor (probably)  the defence ever contemplated calling these witnesses.

9.  Mr Knight and Mr Cross were witnesses who could prove certain documents put to Mr Yip Kean Mun in the course of cross-examination.  Mr Yip was the second prosecution witness in the trial.  These documents were put to him in support of the case for the defence that the payment of the NZ$51 million was a lawful payment made with the authority of 462.  Mr Cross and, perhaps more importantly, Mr Knight were likely to be able to speak to the circumstances which led up to that payment.

10.  The case for the prosecution has always been that this was not a lawful payment because the Sales and Purchase Agreement dated 22 May 2009 between, in effect, the 2^nd Accused through companies under her control on the one part and 462 on the other part (which was, taken together with subsequent amendments, the founding commercial document for the transaction)  did not permit money to be transferred from 462 to the 2^nd Accused at this stage of the commercial arrangements between the 2^nd Accused and her companies.  The case for the prosecution is that money could only have been transferred at this specific time for the specific purpose of providing financial assistance to the companies controlled by the 2^nd Accused under the terms of the Sales and Purchase Agreement and for no other purpose.  The case for the prosecution was that once certain events had occurred then payment could be made for the purpose of a purchase by 462, first, 20% of the shares of a company under the control of the 2^nd Accused and then second, at a later time, the balance of the shares in this company.  The positive case being advanced by the 2^nd Accused in particular was that at this stage 462 was entitled to pay and she was entitled to receive the money as consideration for the sale of 20% of the shares of a company owned by the 2^nd Accused to 462 and that the payment was made with the authority of 462.

11.  Plainly, on the documents put to the second prosecution witness, Mr Yip, by the defence, the assertion was that Knight Coldicutt who held the relevant funds in escrow had done so for the purpose of paying, on behalf of 462, for the 20% of the shares in the company owned by the 2^nd Accused.  It was the positive case of the 2^nd Accused that this was done on the authority of 462 and the second prosecution witness knew it.  Critically, he was the chairman of the board of 462.  The positive case for the 2^nd Accused was that the documents in respect of which Mr Knight could speak demonstrated the payment on lawful authority.  The essence of the prosecution case in this regard was that even if there was the appearance of lawful authority, there was no actual authority to do what had been done.

12.  It is important to note that there is no charge on the indictment alleging that the transfer of NZ$51 the million was, in itself, ever the subject of a criminal charge.  The events surrounding its transfer are said by the prosecution to be[3]:

(1)  circumstantial evidence which supports the inference of dishonesty in respect of the existing conspiracy charges;

(2)  circumstantial evidence which supports the inference that the 1^st Accused and the 2^nd Accused had been working together at times material to the existing conspiracy charges; and

(3)  given that the 1^st Accused received from a company under the control of the 2^nd Accused a substantial portion of the NZ$51 million without any obvious legal right to any of that money, this was evidence from which the jury could infer that the 1^st Accused was a member of the conspiratorial agreement with the 2^nd Accused and that his share was the proceeds of the criminal conspiracy is the subject of the indictment.

Of course, the receipt of the portion of the NZ$51 million by the 1^st Accused was also a fundamental element in support of the charge of which was Count 5 on the Indictment.  Any summing up in this area would be, to say the least, a difficult area to navigate.  In this regard, it is only appropriate that I pay tribute to the skillful manner in which Anthea Pang J navigated this area in her summing up in the first trial[4].

13.  At the time the problems arose, the examination-in-chief of Mr Knight had not been concluded.  Indeed, judging by the range of issues identified in his witness statement and by reference to what I understand to be the relevant issues in the case, his examination-in-chief was far from concluded.

The testimony

14.  At the outset of her examination of Mr Knight, Ms Draycott, SC asked questions about how Mr Knight came to be aware that he (or possibly Mr Cross)  was possibly going to be needed as a witness in these proceedings.  This formed no part of the statements provided by Mr Knight. The examination proceeded as follows[5]:

Q.  Mr Knight, who first contacted you in relation to these transactions involving the Crafar dairy farms this year?

A.  May Wang or maybe – yes, I think it was May Wang.

Q.  What was the nature of that communication?

A.  She brought me up to date to the fact that she was being released from prison and was in a re-trial.

It is to be noted that no objection was raised at this stage by the defence.  A little later on, a further exchange between the prosecutor and Mr Knight occurred as follows[6]:

Q.  Was that all that she sent you, or were there other matters that she sent you?

A.  That was the gist of it.  I don’t think she sent anything more in relation to what she – I mean, until I was asked to give evidence, I wasn’t even aware what she was charged with.

15.  The examination of Mr Knight continued.  The issue arose as to why certain documents possibly germane to the case at hand had not been preserved by the firm.  In this context, a question was asked as to whether Mr Knight knew that the 1^st Accused and the 2^nd Accused had been arrested.  The exchange is as follows[7]:

Q.  Even though the fraud office[8] had made enquiries, and indeed presumably you knew Jack Chen and May Wang had been arrested?

A.  And they had been charged.  And that was the end of the case.  So – and they’re in jail.  So I don’t think any other lawyer would have done anything differently in the circumstanced (sic).

16.  Further into the examination of Mr Knight, the prosecutor was asking about the destruction of documents and the events in 2010.  In that context, the following exchange occurred[9]:

Q.  I’m talking about why documentation wasn’t preserved.

A.  I cannot – I cannot answer that.  I was not – I had a health issue at that time. I wasn’t – in 2010 and 2011, I wasn’t in the office a lot.  And that’s one of the reasons I left.  And Brett Cran was in charge.  I mean, he did what he did.  And then as that case went on, and she got convicted, there was no – for seven years keeping the files – in 2017, it was long gone.

Earlier directions on previous proceedings

17.  Earlier in the trial, when it became apparent that those representing the accused wished to cross-examine certain prosecution witnesses as to their previous testimony, it became necessary to explain to the jury that there had been earlier proceedings.  Such a direction was requested by those representing the accused and the essence of its terms suggested.  The direction given was[10]:

MR WINTER:  Your Lordship may feel this is now the appropriate time to give the jury the direction about the fact there’s been a previous piece of litigation in this case.

COURT:    All right.

MR WINTER:  Which will explain –

COURT:    What I will simply say is that there have been some proceedings before, as you probably guessed, so they will feel they knew all along.

MR WINTER:  Exactly.

[irrelevant short passage omitted]

(In the presence of the jury and witness)

COURT:    Members of the jury, I’m sure you’ve already guessed that there were other proceedings in this case at an earlier time.  The documents which I suspect you’re about to see were dealt with in a particular way in those proceedings.  That doesn’t apply anymore and they are relevant and admissible in these proceedings.

As I say, doubtless you guessed there was something else going on in the time between 2009 and now, but I would ask you – in fact, I will direct you – not to speculate about what those proceedings were, what the outcome may have been.  Just concentrate on the evidence in this case, and that will do justice according to law.

All right?    Thank you very much.

MR WINTER:  Thank you very much, my Lord.

Who is affected by this testimony?

18.  One of the features of the testimony given by Mr Knight is that it clearly refers to the 2^nd Accused.  It is to be readily construed as affecting the 1^st Accused.  It does not directly mention the 3^rd Accused.  It is accepted by the prosecution if it is considered that what was said by Mr Knight results in it being appropriate to discharge the jury with respect to the 1^st Accused and the 2^nd Accused, it is also appropriate to discharge the jury with respect to the 3^rd Accused.  That is a concession which is entirely proper.

Submissions

Submissions by those representing the accused

19.  As an overview, the case for the accused is that the jury learned (1)  the 2^nd Accused had been released from prison and was in a retrial; (2)  that the 2^nd Accused of being convicted of the very thing with which she was charged in previous proceedings and (3)  they (referring to the 1^st Accused and the 2^nd Accused)  had been in jail as a result of such a conviction.

20.  The case for the accused is that these items of information given to the jury through the testimony of Mr Knight created extreme prejudice to the fairness of the trial.  It was submitted that this cannot be cured by any judicial direction to the jury.  The defence rely on the fact that not only have the jury learned about previous criminal conduct on the part of at least the 2^nd Accused and the 1^st Accused, but also that it is for the very offences for which they are currently in the jury’s charge.  It was, therefore, submitted that the jury could not get this information out of their minds.

21.  The defence make the point that the in usual course of criminal proceedings great care is taken to ensure that the jury are not aware of previous convictions on the part of the accused and that except in very limited circumstances to provide that information to the jury is a grave departure from the standards of fairness required in a criminal trial.

22.  The defence submit that this is a stage substantially worse than the case where the previous convictions of an accused person are revealed to the jury because the information in this case amounts, in effect, to information about a prior determination of guilt on the specific facts of this case.  Given the directions that have already been given by the Court as to the burden and standard of proof[11], the present jury therefore have information that another jury was, on the evidence presented to them, satisfied beyond reasonable doubt as to the guilt of these accused.  Counsel for the accused would face a very difficult task in trying to explain to the jury why they should come to a different conclusion to the first jury. Further, in dealing with this issue, the defence will have to grapple in their closing submissions before the jury with the issue of destruction of documents (which are relevant to the credibility of Mr Knight)  in closing submissions and yet remind the jury of the context in which the issues of destruction were raised.  Indeed, as will appear from the transcript quoted above, it is the fact of the conviction which provided Mr Knight with the justification for not taking steps to preserve the documents so that they were available for trial in 2021.  As the defence submission says[12]: “On the one hand therefore the Jury is expected to put the conviction out of their mind; but on the other to rely on it when assessing the honesty and bona fides of Mr Knight.”

23.  The submission is that the harm that has been done in this case is not capable of being remedied by direction.  The point made about the difficulty faced by the defence to make closing submissions is repeated in the contemplation of how the jury would be directed on the topic of assessing listed Mr Knight’s credibility on this topic concerning how the documents came to be destroyed or not retained.

24.  Those representing the accused contend that the situation is made worse by the fact that the witness who revealed this evidence was a lawyer.  Further, it is contended that  “The jury will rightly conclude that great care has been taken to conceal from them, for many months, the reality of why this trial is taking place so long after the key events”.[13]

25.  Those representing the accused argue that the jury will now know, on the basis of the earlier directions given by the Court taken together with the impugned testimony of Mr Knight, what was kept from them when they were asked not to speculate about the previous proceedings to which the Court referred in the direction given.  That, so the defence argues, heightens the inability of the jury to keep from their minds what they were told not to speculate about[14].

26.  At the heart of the submissions is that it would be impossible to provide proper directions in all of the circumstances to ameliorate the prejudice created by the impugned testimony of Mr Knight.  Accordingly, the Court is enjoined not to attempt the impossible[15].

27.  It was also submitted that the stage at which the inadmissible material is received is not critical.  Those representing the accused contend that in the event that this highly prejudicial material was received was early in the proceedings the Court would not have hesitated to discharge the jury and start again.

28.  It was contended by those representing the accused that the revelation of the prejudicial material in this case would make directions in any summing up on good character to be impossible.

Submissions by the prosecution

29.  The prosecution also made submissions.  I have not included references to the response by the prosecution to allegations by those representing the accused of recklessness and, perhaps, a faint suggestion, despite the suggestion being expressly eschewed, of fault.  As will appear later in these reasons, the prosecution was neither at fault nor was it reckless.  In my opinion, no one could have imagined that the questions by the prosecutor in those circumstances would have produced the answers. Even less could anyone have imagined that such responses would come out of the mouth of a New Zealand barrister and solicitor.

30.  The prosecution contends that the trial judge is in the best position to decide the degree of prejudice.  In this regard, citing Imran Aslam v R [2011] EWCA Crim 2797, the prosecution contends that a discharge should only occur if it can be established that there is “a high degree of need”.  The prosecution submits that there is a preference in the criminal law for proceeding with the trial once it is underway.  The options available to a trial judge in the circumstances were outlined in the submissions of the prosecution.  Essentially, the contention comes to the proposition that in the specific circumstances of this case a firm direction by the trial judge will meet the problem which has arisen in the present case.

31.  It is fair to say that as to the principles and the relevant factors that the trial judge should take into account the prosecution and the defence are essentially in agreement.

32.  The prosecution contends that the revelation that the accused was convicted and that the present proceedings are a retrial is not as prejudicial as where the jury learns of other previous convictions.  In the written submissions of the prosecution, it is observed[16]:

“We believe that jurors would readily accept that in those circumstances the defendants are entitled to a new trial uncontaminated by the old.  The jurors are seized of the evidence in relation to the current offending and unlike “previous conviction cases” there is no basis for them to speculate about the nature or extent of other offending about which they know nothing. The disclosure is thus capable of being contained by the giving of adequate directions.”

33.  The prosecution referred to HKSAR v Mok Swee Chuan [2010] 3 HKC 318 in which in a retrial it emerged that the accused was facing a retrial.  The Court of Appeal (Stock VP, Yuen JA & McMahon J)  refused an appeal which was argued on the basis that the trial judge should have discharged the jury.  As the Court of Appeal noted the trial judge had pointed out that the evidence had been different in the previous trial[17].  The Court also took account of the fact that this arose out of an entirely proper cross-examination of the accused by the prosecutor about a real inconsistency between his present testimony about at the previous trial.  The Court also considered the prejudice of knowing about the previous trial was of no greater prejudice than the fact that the accused had in the present trial lied about what was said at the previous trial.

34.  The essence of the prosecution position is best stated by the following passage from the prosecution’s written submissions[18]:

“Because the disclosure relates to matters within the same factual matrix but in prior proceedings, the issue can be more effectively and directly dealt with by direction(s)  as the jury understands the issues and is not left to speculate about unspecified bad conduct on other occasions and what that means in terms of the defendants’ character. The remedy of a firm direction is thus more and not less, effective and appropriate than in a situation where previous convictions have been revealed. The jury do not know and do not need to know the circumstances of the earlier trial or subsequent appeal. Against the background of an appeal and consequent retrial, we suggest an ordinary person would readily understand the need for the previous proceedings to be put aside and that they should not form part of their consideration. It is not hard to understand that in all fairness the retrial must start afresh, untrammeled by the previous proceedings. By contrast the revelation of previous dishonesty may be harder to ignore.”

Principles

Values engaged

35.  When faced with the reception into evidence of prejudicial material which might call into question the fairness of the trial, the trial judge has a discretion to discharge a jury.  At the heart of that discretion is the obligation to accord to an accused person a fair trial.  The central value engaged in this aspect of a fair trial is that the jury should receive and consider relevant and admissible information, but should not receive irrelevant and/or prejudicial material which might divert the attention of the jury from their task in evaluating the relevant and admissible material in rendering a true verdict against the accused.  In this regard, as the authorities demonstrate, it has long been regarded as inappropriate to reveal to the jury the previous convictions of an accused person.  There are exceptions to this rule but those exceptions, as the authorities and statute demonstrate, are carefully circumscribed.  These exceptions do not arise and are not engaged in the present case.  However, a reference to these situations does demonstrate a recognition of the dangers which arise here. The underlying assumption is that there is a risk that such material might prejudice the jury against the accused and divert them from their task. However, at the heart of those values is the concern to accord to an accused a fair trial.  Another critical value which comes into play in dealing with the issue at hand is the strong preference under our system of criminal justice for a trial, once started, to be taken to its conclusion.

Fair trial

36.  While, in a sense, it is unnecessary to cite authority to establish the critical primacy of the right to a fair trial, it is appropriate to state some of the basics.  The right to a fair trial finds itself firmly rooted in the common law and the Hong Kong Bill of Rights Ordinance, Cap 383 and the Basic Law.  Article 87 of the Basic Law declares[19]:

“Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs.”

37.  Further, the system of justice which operates in Hong Kong is designed to ensure a fair trial.  In Randall v R [2002] 1 WLR 2237 Lord Bingham observed:[20]

“There is, however, throughout any trial and not least a long fraud trial, one overriding requirement: to ensure that the defendant accused of crime is fairly tried. The adversarial format of the criminal trial is indeed directed to ensuring a fair opportunity for the prosecution to establish guilt and a fair opportunity for the defendant to advance his defence. To safeguard the fairness of the trial a number of rules have been developed to ensure that the proceedings, however closely contested and however highly charged, are conducted in a manner which is orderly and fair.”

38.  Lord Bingham added:[21]

“But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”

39.  While context is important and it is appropriate to recall that Randall was about egregious prosecutorial misconduct, which is rarely seen in Hong Kong, the principles stated by Lord Bingham are fundamental. In HKSAR v Lee Ming Tee & Anor [2001] 1 HKLRD 599,[22] the right to a fair trial is clearly articulated.”

Discretion to discharge

40.  The trial judge has a discretion to discharge a jury.  Some of the authorities which support this proposition are old but none the worse for that.  They are: R v Charlesworth (1861)  9 Cox CC 44, 121 ER 786 and Winsor v R (1866)  LR 1 QB 289.  Indeed, the language which is often used in cases considering whether it is appropriate to discharge – “high degree of necessity” – echoes the language of Winsor v R[23].

41.  In modern times, the discretion to discharge was recognised in R v Weaver [1968] 1 QB 353.  In that case, an application to discharge the jury was made because two pieces of evidence, possibly prejudicial to the appellants, were inadvertently admitted during their trial of a charge of fraudulent conversion.  The first – which was admitted notwithstanding efforts to prevent its disclosure by “editing” the depositions – was to the effect that, when cautioned, the appellants had recited in a light-hearted manner the words of the caution addressed to them by the police; the second was that the appellants’ address was known to the police and had been circulated.  The application was refused and the accused were convicted.  The Court of Appeal (Sachs LJ, Brabin & James JJ)  rejected an appeal on the basis that the trial judge should have exceeded to the application to discharge.  In the course of giving judgment for the Court, Sachs LJ observed[24]:

“Cases parallel to the present one have been brought before the Court of Criminal Appeal on a considerable number of occasions in the course of the last few years and the modern practice has become well defined. In each of those cases it has, of course, been natural for counsel for the appellant or applicant to cite a trio of cases which are mentioned in Archbold’s Criminal Pleadings, Evidence and Practice, 35^th ed (1962), para. 936, Rex v Peckham (1935)  25 Cr App R 125, 52 TLR 159, CCA; Rex v Palmer (1935)  25 Cr App R 97, CCA and Rex v Firth (1938)  26 Cr App R 148, [1938] 3 All ER 783 CCA. Those cases cannot, however, be looked at in isolation. As already stated, the modern practice evolved in the light of these cases is that in essence, as has now often been said (see, for instance, a passage which appears in Reg v Parsons [1962] Crim LR 631, 632, CCA), whether or not to discharge the jury is for the discretion of the trial judge on the particular facts and the court will not lightly interfere with the exercise of that discretion.”

42.  R v Peckham, R v Palmer and R v Firth to which Sachs LJ referred, suggest that where there is anything prejudicial to the accused which comes out in the trial, the jury should be discharged.  Perhaps the best example are of that is in R v Peckham where Lord Hewart CJ observed[25]:

“First counsel for the prosecution should always before opening acquaint themselves with the contents of the indictment by seeing either the actual indictment or a copy thereof; and secondly, where a statement injurious to the prisoner with regard to his previous record is made to the jury and counsel for the defence applies for the trial to be started afresh, the Court should begin the trial afresh before another jury.”

43.  By the time of cases such as R v Weaver, the approach to the issue had changed.  Hence, the reference by Sachs LJ to “modern practice”.

44.  In Australia, earlier authorities such as R v Knape [1965] VR 469 are not quite as doctrinaire as R v Peckham, R v Palmer and R v Firth could be seen to be, but it is fair to say that there are clear echoes of those 3 cases in R v Knape.  In Knape, the accused had been convicted on several counts of robbery and illegal use of a motor car.  He appealed on the ground that evidence of his prior bad character had inadvertently been given at his trial.  The circumstances under which that had occurred were as follows. The accused had called a witness on his behalf.  During his evidence-in-chief, the witness was asked by the accused, for a relevant purpose, “How long have you known me?” The witness answered that he had known the accused since about 1960, and then added, non-responsively, that they had met “at Bendigo Training Prison”.

45.  The trial judge assumed, that the jury were likely to infer, from that answer, that the accused had been a serving prisoner.  However, in deciding not to discharge the jury in Knape, the trial judge took into account the fact that the accused, whilst awaiting trial, had absconded, a fact that was in evidence.  Indeed, it was also in evidence that the accused and his alleged co-offenders had escaped from legal custody while the trial was being conducted.  In addition, the jury would have known that Jones, with whom the accused clearly had a close association, had a long criminal record.  In those circumstances, he concluded that the inadvertent disclosure of the bad character of the accused was of less significance than it might otherwise have been.

46.  On appeal the Court (Winneke CJ, Pape and Starke JJ)  concluded that the trial judge had erred in failing to discharge the jury.  The Court held[26]:

“The law has long recognized the prejudicial effect of evidence of prior conviction and bad character, and that such evidence is calculated to render a fair trial improbable. Thus as a matter of high policy evidence of such matters, apart from the well-known exceptions, is rigidly excluded.”

47.  Their Honours later added[27]:

“However, if evidence of bad character is inadvertently and improperly given there is undoubtedly a discretion in the trial judge to determine whether or not the jury should be discharged, a discretion to be exercised according to the circumstances of the particular case. An examination of the authorities leads us to the view that unless it can be said, upon the evidence, that the irregular disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty, the trial judge should exercise his discretion in favour of the accused.”

48.  However, while it is appropriate to note that modern practice is, to some extent, now different to that which operated in R v Peckham, R v Palmer and R v Firth, and to an extent, R v Knape, what remains constant is the concern of our courts to ensure that jurors should not be distracted by prejudicial and irrelevant material such as knowledge of previous convictions unless there are good and sound reasons for that. What has changed is not the underlying policy that such material should be kept from the jury.  What has changed is how that is dealt with in determining what to do if the policy is breached.

49.  The current position in Australia is best exemplified by Crofts v R (1996)  186 CLR 427.  In that case, the accused was tried on numerous counts alleging sexual offences against a child.  The prosecutor elicited from the complainant’s evidence that the accused had committed not just those acts, but also a series of uncharged acts against the same child. Evidence of these acts were acknowledged to have been highly prejudicial. Nonetheless, the trial judge refused to discharge the jury, having decided instead to give them a strong warning against paying any attention to it. The High Court held that, in the circumstances, the refusal to discharge the jury had occasioned the risk of a substantial miscarriage of justice.  The Court held that it was not possible to say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable. The High Court of Australia (Toohey, Gaudron, Gummow and Kirby JJ, Dawson J dissenting), held[28]:

“No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its appropriate impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind.  The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice.  In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable.  In our view, in the particular circumstances of this case, that could not be said.”

50.  R v Halliday (2009)  23 VR 419, followed the approach in Crofts.  More recently, in Martin v R [2015] ACTCA 38 in the Court of Appeal of the Australian Capital Territory (Refshauge, Burns & Ross JJ)  considered a case where the appellant was charged with murder.  The defence was self defence.  Part of the evidence of the prosecution included a recorded phone call between the accused and another person. What the jury did not know was that the accused was in prison when he made that call.  There was an oblique reference to the accused “getting out”. Great care was taken by the prosecution to avoid any suggestion that the accused person was in prison at the time of the call.  However, an unsolicited answer by a subsequent prosecution witness revealed that the accused was in jail for a purpose unconnected with the murder.  Defence Counsel applied for the discharge of the jury.  That application was refused. The Court of Appeal, following Crofts v R held that the context did not require appellate interference in the decision of the trial judge not to discharge the jury.  Court of Appeal pointed to the fact that even on the defence case the murder occurred in the context of a plan to rob the victim. Martin v R was followed in R v ETJ (No 2)  [2017] ACTSC 259 which was another case in which the incarceration of the accused was revealed, this time by a police officer who was a witness for the prosecution.  The decision is one of first instance but none the worse for that.  The learned trial judge declined to discharge the jury saying that there were many reasons why a person might be in jail including for non-payment of parking fines.

51.  Bad behaviour or criminal conduct is sometimes revealed in the course of the trial.  In R v Koppen (1975)  11 SASR 182, a witness for the prosecution in a charge of larceny as a servant, in a somewhat rambling answer bluntly hinted at other criminal conduct on the part of the accused. The Full Court of the Supreme Court of South Australia (Bray CJ, Hogarth & Sangster JJ)  noted that no objection had been taken at the time to the impugned answer.  Subsequently, the trial judge was asked to discharge the jury.  The attack on appeal was to the exercise of discretion by the trial judge.  In this regard, Bray CJ giving the principal judgment of the Full Court observed[29]:

“This question has usually arisen with regard to disclosure of the accused’s previous convictions inadvertently elicited or volunteered by a witness. In such a case the court has a discretion, to be exercised, of course, on judicial grounds, to discharge the jury or allow the trial to proceed. That discretion is ultimately controllable by an appellate court.”

52.  Bray CJ then referred to the authority the bulk of which has been cited earlier in these reasons.  His Honour concluded[30]:

“The latest decisions (see, for example, Reg. v Palin (1969)  53 Cr App R 535)  stress the wide range of the discretion and declare that appellate courts will not lightly interfere with its exercise. I accept this, but I think it must be borne in mind that the law for very good reasons protects an accused person against the disclosure of his previous record or of his bad character, subject to clearly defined and limited exceptions. Breaches of the rule ought not, in my view, to be lightly treated, even if they were unsolicited or proceed from inadvertence, and the fact that they were not objected to at the time is not conclusive.”

53.  Bray CJ noted that the exercise of discretion by the judge could not be successfully attacked.  His honour said that his reasons for this included that “This was a long trial; the answers complained of were likely to be drowned in the volume of testimony; the hostility of the witness was obvious; and the jury were told that there was no suggestion that the appellant had committed any crimes in relation to pay”.  Perhaps critical to understanding the reasoning of Bray CJ is his concluding comment on this issue. His honour held: “Whatever I might have decided if I had been presiding at the trial, it is not in my view possible for us to say that the bounds of the discretion were exceeded”.  Hogarth J in a concurring judgment added[31]:

“Even so, if some really damaging and otherwise inadmissible material were to be volunteered by a witness, then I think it would be proper for a judge to exercise his discretion to discharge the jury. I myself have done so on occasion where this has happened.”

54.  Hogarth J concurred with the Chief Justice that the Full Court could not interfere with the exercise of discretion. Sangster J took a slightly different line in concurring with Bray CJ placing more emphasis on the choice that counsel made not to object[32].

55.  The defence also refer to R v Lawson [2007] 1 Cr App R 20.  In that case, the appellants were convicted of conspiracy to import cannabis resin.  A central plank of Lawson’s defence case was that he was duped by a person named Taylor who employed a number of people to do runs including a person named Hall-Jones with whom some of the appellants had associated.  In the course of summing up, the judge inadvertently told the jury that Hall-Jones had been arrested for a drug smuggling operation, and implicitly, of his guilt of being involved in an offence involving drugs. As a result, Lawson applied to the trial judge to discharge the jury which application was refused.

56.  On appeal the English Court of Appeal, after reviewing the specific facts and circumstances applicable to the case held that despite the strength of the prosecution case against the appellant, the reception of the prejudicial material in the case was of such importance to the central issue in the case that it could not be remedied by judicial direction, however strong. In making that determination the Court of Appeal held[33]:

“64.  The ultimate question for the court in determining whether the judge correctly ruled against the appellants’ application to discharge the jury is whether, given the error he made and the steps he took to mitigate it, it is satisfied that the convictions are safe; Docherty. And, in determining that question in a case such as this of wrongly admitted prejudicial material, the appropriate test for the trial judge is that identified in Docherty, namely as to the “the most prejudicial interpretation” and its possible effect on the jury. Perhaps, more useful is the simpler and more broadly expressed formulation in Medicaments and Related Classes of Goods (No 2)  [2001] 1 WLR 700, CA, whether a fair-minded and informed observer would conclude that there was a real possibility, or real danger, that the jury would be prejudiced against a defendant by wrongly admitted prejudicial information.

65.  Whether or not to discharge the jury is a matter for evaluation by the trial judge on the particular facts and circumstances of the case, and this court will not lightly interfere with his decision. It follows that every case depends on its own facts and circumstances, including: 1) the important issue or issues in the case; 2)  the nature and impact of improperly admitted material on that issue or issues, having regard, inter alia to the respective strengths of the prosecution and defence cases; 3)  the manner and circumstances of its admission and whether and to what extent it is potentially unfairly prejudicial to a defendant; 4)  the extent to and manner in which it is remediable by judicial direction or otherwise, so as to permit the trial to proceed. We repeat, all these matters and their combined effect are very much an evaluative exercise for the trial judge in all the circumstances of the case. The starting point is not that the jury should be discharged whenever something of this nature is put in evidence through inadvertence. Equally, there is no sliding scale so as to increase the persuasive onus on a defendant seeking a discharge of a jury on this account according to the weight or length of the case or the stage it has reached when the point arises for determination. The test is always the same, whether to continue with the trial would or could, by reason of the admission of the unfairly prejudicial material, result in an unsafe conviction.”

57.  The reference to Docherty is a reference to the decision of the English Court of Appeal in R v Docherty [1999] 1 Cr App R 274.  Reliance is placed on Docherty in the submissions on behalf of the prosecution.

58.  Those representing the defence also rely on Arthurton v R [2005] 1 WLR 949, [2004] 2 Cr App R 33, the defendant was charged with unlawful sexual intercourse with a girl under the age of 13.  Under cross-examination the police officer who had interviewed the defendant disclosed the fact that the defendant had previously been “arrested and charged for a similar offence”. The defence applied for a discharge of the jury which application was refused.  In summing up the judge gave a good character direction and told the jury that they must not consider that the defendant was once involved in a similar offence.  The defendant was convicted.  His conviction was quashed by the Privy Council.

59.  Dame Sian Elias giving the advice of the Privy Council held[34]:

“28 A decision to discharge a jury is a matter of discretion for the trial judge. It falls to be exercised in the context of the trial, the flavour of which may not be readily recaptured on appeal. It will often be a difficult decision. Questions of fairness arise in relation to others, as well as to the accused. The judge in the present case was conscious that the case was a retrial, involving a young complainant. In many cases jury directions will sufficiently meet fears of prejudice through disclosure of irrelevant or insufficiently probative evidence. Whether there is unfairness turns on the context, including in particular the issues at trial. The decision whether or not to discharge a jury is one an appellate court will not interfere with lightly, as cases such as Weaver and Palin emphasise. Where the trial judge has not fallen into any error of principle, it is necessary for the appellate court to form the view that there has been unfairness which, if not corrected, would amount to a miscarriage of justice.”

60.  The defence also rely on the curious decision in R v Dubarry (1977)  64 Cr App R 7.  The appellant was charged on one indictment with possessing an offensive weapon.  His trial proceeded in the normal manner and the jury retired to consider their verdict, the jury room adjoining the court.  The jury were unable to reach a verdict after one and a half hours’ deliberation and one of the jurors went to the door of the jury room and opened it to have a note delivered to the trial judge.  The trial of the appellant on another indictment was then in progress, the appellant being in the dock.  The dock officer drew the judge’s attention to the fact that the juror might have seen the appellant and realised that he was facing another trial.  The judge dismissed the incident as an unfortunate accident, and that due to the geography of the Court he could not have done anything about it.  An appeal was instituted upon the basis that the judge ought to have discharged the jury. The English Court of Appeal (Stephenson LJ, Thompson & Milmo JJ)  held that knowledge of the fact that the appellant was standing trial on another indictment could well have tipped the balance against him, bearing in mind the time the jury had spent deliberating both before and after the incident in a short and simple case.  The case is possibly also significant because Milmo J observed that the judge may not have realised that he had a discretion to discharge the jury[35].  Milmo J observed:

“Had he done so, and had he said that he had done so, and allowed the trial to continue, this Court would not have interfered, but it has come to the conclusion that it would not be safe or satisfactory in all the circumstances to allow this conviction to stand. It is unsatisfactory because of the undoubted irregularity, it is unsafe because, had that irregularity not occurred, the jury might have come to a different conclusion.”

61.  There are a multitude of other examples.  The prosecution pointed to the case of R v Morry (1970)  1 CCC (2d)  498 in which a trial was adjourned and during the adjournment there was a newspaper report of the accused attempting suicide.  In this case, counsel representing the accused did not even ask for a discharge of the jury.  Counsel asked for a change of venue to somewhere else within the province of British Columbia.  This was the subject of complaint on appeal. Small wonder the Court of Appeal for British Columbia rejected this complaint.  Further, the prosecution referred the Court to R v Docherty (above)  in which there was a vague reference to the accused possibly being of bad character.

62.  The prosecution also referred to the decision of the Court of Final Appeal in HKSAR v Chan Ka Man (2008)  11 HKCFAR 614.  In so doing, the prosecution readily conceded that the facts and circumstances of that case are a long way from the facts and circumstances which give rise to the issue in the present case.  Indeed, in that case, counsel representing the accused had expressly wanted the jury to know that the trail underway was in fact a retrial.  Counsel appearing for the appellant before the trial judge, said that his client wanted the jury to be informed that it was a retrial, that at the first trial there had been nine counts and the appellant had been found guilty of four and acquitted of five counts. (That is to be compared with the efforts made in the present trial to keep that very fact from the jury).

63.  Lord Woolf NPJ, giving the judgment of the Court of Final Appeal observed[36]:

“Counsel for the appellant appeared to accept that if the jury were to be told about the acquittals, they would also have to be told about the findings of guilt and to have been told why those findings were set aside. I agree, otherwise, the situation would be very unfair to the prosecution and the victim. But absent an appropriate direction of the Judge, this additional knowledge could mislead them into being prejudiced against the appellant on the retrial.”

64.  In short, Lord Woolf recognised the prejudice that an earlier conviction which was the subject of a retrial could engender.  Perhaps wistfully, his Lordship recognised that information that a trial is a retrial and that the accused has been convicted were distractions from the task of the jury.  Lord Woolf concluded[37]:

“My view, like that of the Court of Appeal, is that this is not a case where the appeal should be allowed. If there is a lesson to be learnt from this case, it is that trial Judges, unless there is a clear justification for taking a different course, should not allow material which is not relevant to go before a jury. The danger of allowing this to happen is that it will, without justification, make both the task of the jury and the task of the judge more difficult. It can divert the jury from their primary task of deciding whether the defendant is or is not guilty of the offences with which he is charged. An outcome that is to be avoided if possible.”

Permitted use of previous convictions and discreditable conduct

65.  The law permits the use of previous convictions and discreditable conduct in criminal trials in three main circumstances:

(1)  previous convictions and other bad conduct might be admissible as circumstantial evidence to prove a charge in restricted circumstances – part of which is permitted by section 54(1)(f)(i)  of the Criminal Procedure Ordinance, Cap 221; and

(2)  as exception (ii)  and (iii)  to the prohibition in section 54(1)(f)  of the Criminal Procedure Ordinance to the effect that a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character. Exception (ii)  is that the accused “… has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution” and exception (iii)  is that the accused “has given evidence against any other person charged in the same proceedings”.

(3)  Where the crime occurs in prison and the accused is a prisoner. Almost invariably the fact that the accused is a prisoner would, of necessity, come out[38].

66.  The first main exception is to use previous criminal convictions or bad conduct as circumstantial proof of the facts of the charge facing the accused.  As a general rule, evidence of a criminal conduct or other bad conduct by the accused, other than the act, the subject of the charge that he faces, is inadmissible.  The basis for this rule is that such evidence is usually both irrelevant and, even if relevant, unfairly prejudicial to the accused.  The rule is one of considerable antiquity and was authoritatively articulated by the Privy Council in Makin v AG of New South Wales [1894] AC 57.  The modern (and binding)  iteration of the prohibition and the exceptions to it is found in the decision of the Court of Final Appeal in HKSAR v Zabed Ali (2003)  6 HKCFAR 192.  As can be seen from the decision, the primary focus is on relevance to an issue in the case.  Once it is determined that the conviction or other discreditable conduct is relevant then the prosecution has to demonstrate that relevance goes beyond mere propensity.  As Li CJ pointed out[39]:

“whether its probative force in support of an allegation against the accused is sufficiently great to make it just to admit it, notwithstanding that it is prejudicial to the accused. It is only where the test is satisfied that the evidence would be ruled admissible as a matter of law.”

67.  In Myers v R [2016] AC 314, the Privy Council revisited the rule upon the basis that the admission of such evidence could only be justified if the probative force of such evidence is sufficiently great to make it just to admit such evidence.  In making this conclusion the Privy Council pithily observed:[40]

“41.  Moreover, to respect the general rule, where such justification does exist the evidence which is admitted ought normally to be restricted to that which is within the justification. The justification is the measure of the admissibility.  The existence of such justification does not generally create “open season” to adduce any evidence of the defendant’s bad character or misbehaviour.”

68.  In short, the rule recognises the prejudicial impact of previous convictions and previous discreditable conduct.  The authorities set a high barrier to admissibility.  That barrier recognises the danger of the prejudice caused by the reception into evidence of such material.

69.  The second major exception to the rule prohibiting the reception into evidence of previous convictions (a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged)  is what is commonly referred to as the accused losing he is “shield” in the circumstances described in section 54(1)(f)(ii)  and (iii).  It is no understatement to say that over the years the application of the exception to the principle enunciated in section 54(1)(f)  has at least the appearance of inconsistency.  However, there is now a clear recognition in modern authority that a Court should not permit the revelation of a previous convictions where that is to the prejudice of the accused. No longer is the section considered permission for a simple tit for tat approach.

70.  In R v Tam Chung Shing & Ors [1991] 1 HKLR 458, the Court of Appeal (Yang CJ, Silke VP & Power JA[41])  considered an appeal following a conviction of conspiracy to defraud.  In the course of cross-examining, one of the prosecution witnesses, serious implications against the honesty and character of that witness were put and clearly, on any view, the exception in section 54(1)(f)(ii)  was engaged.  However, Silke VP recognised that the critical issue at trial for the appellant was credibility and indicated that while the provision was engaged, the proof of a conviction of one of the appellants which was very similar to the charts the subject of the indictment was highly prejudicial.  Silke VP observed[42]:  

“The question which a judge may well think it right to ask himself when such application is made is: Given the nature of the conviction will the putting of questions as to the character of an accused be fraught with results which immeasurably outweigh the result of questions put by the defence and which may make a fair trial of the accused almost impossible.”

71.  Silke VP considered that the conviction proved against the appellant was such as to create such prejudice[43].  The Court of Appeal considered the prejudice to be so great as to compel the Court to interfere with the exercise of discretion by the trial judge to permit such cross-examination.

Knowledge on the part of the jury that the proceeding is a retrial

72.  It is contended by those representing the accused that there is prejudice in the jury knowing that the present proceedings are a retrial.  That topic was considered in HKSAR v Chan Huandai [2016] 2 HKLRD 384, 2 HKC 136.  In that case, the appellant faced a charge of trafficking in dangerous drugs.  He was convicted after trial before a jury.  As a matter of history, the conviction under consideration by the Court of Appeal in that case was a conviction after a retrial.  In the trial, the jury had been instructed by the trial judge not to conduct research on the Internet.  In defiance of that instruction some members of the jury, possibly as many as 6 out of 7 jurors conducted some research and learned that the case that they were considering was in fact a retrial.  This was discovered after the verdict and before the appeal.  Accordingly, the trial judge was never asked by those representing the accused to discharge the jury.  The Court of Appeal (Yeung V-P, Poon[44] & Pang JJA)  allowed the appeal.  In doing so the Court held[45]:

“On the evidence now before us, we are satisfied that two members of the Jury had acted contrary to the Judge’s express directions by doing their own research about the case on the Internet after empanelment and before verdict. And through the Internet search and disseminating the information so obtained, at least six members of the Jury came to know that the case was a retrial. They had thereby made available extraneous information for their deliberation. Since neither the parties nor the Judge was aware of the irregularity during trial and before the return of verdict, nothing could have been done to remedy it. Their conduct had rendered the trial unfair to the prejudice of the applicant. The verdict returned by the Jury is unsafe and must be set aside.”

73.  A superficial analysis of the foregoing paragraph might suggest that what triggered the decision by the Court of Appeal was the defiance on the part of the jurors of the instruction not to conduct independent research.  That suggestion has to be considered against the background that not only did the jurors have extraneous information for their deliberation but the very nature of the extraneous information was the fact that the trial was a retrial.  The clear implication of what the Court of Appeal held he is that it was the specific information which caused the verdict to be unsafe upon the basis that the research by the jurors had rendered the trial unfair to the prejudice of the appellant.

74.  The other point about this case is the fact that the trial judge only learned of this misconduct on the part of the jurors after they had rendered their verdict of guilty and the accused had been convicted.  The judge considered himself (I respectfully consider that he did so correctly)  functus officio.  That carries with it the implication of what might have been the situation had the trial judge learned of the misconduct on the part of the jurors before they rendered their verdict.  In other words, it might be argued that it would have been open to the judge to direct or admonish the jury to ignore the facts that they had learnt.  In my opinion, it is just conceivable that such a direction might have succeeded but that is to rather missed the point of what the Court of Appeal said.  They were, with respect, pretty firm on the proposition that a jury should not learn of the fact of a retrial having existed.  Plainly, the fact that the case was a retrial implies that on an earlier occasion a tribunal (in all probability a jury)  had made a finding that the appellant was guilty.  In other words, 7 other people just like the jury learning of the same evidence had already come to the view that the appellant was guilty.  That is the prejudice of knowing of the fact that the trial the subject of appeal was a retrial.

75.  Of course, it is easy to speculate that the previous conviction resulting in the retrial might have been because of inadmissible evidence or because of misdirection by the judge or for any of the other myriad reasons that the bases for the Court of Appeal allowing an appeal by reference to section 83(1)  of the Criminal Procedure Ordinance.  However, in my opinion, such speculation which rather assumes a lawyerly knowledge of the intricacies of appellate law and procedure, rather misses the point of the potential prejudice caused the jury by knowing that a trial is a retrial.

Considerations relevant to the determination

Fundamental consideration: fair trial

76.  The authorities demonstrate that in determining whether or not to discharge a jury when inadmissible and prejudicial material is heard by them, a number of issues need to be considered in exercising the discretion vested in the trial judge.  The most fundamental and overriding concern is whether in the circumstances of the case a fair trial can be held. There are other considerations identified in the authorities which require consideration and may, to an extent, inform the overriding consideration.

The nature and impact of the prejudicial material

77.  This is one of the most important considerations.  In my opinion, the components of the prejudicial material should be viewed together.  In this case, the jurors have learned that the accused had been tried before.  Not only have they been tried before but on that trial, they were convicted.  They would have readily inferred that another jury found the accused guilty on fundamentally the same facts on fundamentally the same issues as are faced by the accused in this trial.  It would be essentially dishonest to try to say to the jury that they do not know what facts and issues arose in the first trial.  As has already been noted, they heard previous testimony from the previous trial by way of cross-examination and had read to them the transcript of two witnesses.  What they must have learned from this that the topics covered in cross-examination and in the statements were certainly essentially along the same lines as the present trial.  That said, the topics covered in cross-examination and in the reading of transcripts by no means covered the whole of the field.  In essence, the jury could readily conclude that 7 or 9 other fellow members of the community considered these accused to be guilty after a trial.

78.  At the beginning of the trial when I delivered introductory remarks to the jurors, I warned them that they would hear often in the trial references to the burden and standard of proof.  They heard it from the prosecution in opening.  In the event that this case was to go to them for a verdict, they would be told of this in a summing up and doubtless in closing submissions by counsel for the parties.  Accordingly, it would be no stretch of imagination for the jury to presently realise that the other jury must likely have applied the burden and standard of proof to come to their verdict.

79.  In my judgment, the prejudice which arises from this revelation might be contrasted with the position where jurors learned of the fact that an accused person was or had been in jail and have been previously convicted.  In such a situation, an assessment of the prejudice might depend on what the jurors learned of the nature of the conviction or convictions. Whilst I consider that the direction given in ETJ (No 2) by the trial judge that the accused could have been in prison for many things including non-payment of parking fines was, to put it politely, wishful thinking, this cannot be said in the present case.  Further, it is unlike the cases where the jury learned of an accusation, even a serious accusation made against the accused.  That was the implication of Dubarry because the jurors saw the accused in the dock of another court room and that was more explicit in Arthurton.

80.  Finally, the jurors will have learned that the accused were sent to prison.  Viewed as a separate and discrete topic, it would be hardly surprising on the facts that this present jury could think that prison was close to inevitable.  It would not be necessary to have a finely tuned appreciation of the principles which govern how a person is to be sentenced following conviction for conspiracy to defraud to work that out.  However, I do not consider it is appropriate to view this specific topic in isolation.

81.  The impact of the material must also be viewed against the fact that earlier in these proceedings the jury were directed that it would be understandable that they might conclude there were previous proceedings, but that they should not speculate about the nature of those proceedings or the outcome of such proceedings.  That direction was perfectly fine in its context and circumstances and it would be justified to conclude that the jury took this on board.  Now the jury know that there is a whole lot more to what they were told.  While I doubt that they would resent the notion that the Court told them only a part of the story and the critical part was kept from them, the fact is that now they know a prejudicially greater part of that story.  I agree with the submissions of the prosecution that the jury must have worked out with or without a direction that this case has a history and that it was likely that there were proceedings.  That well-trained lawyers could have worked out that there must have been a conviction and a retrial and that the law is that you cannot have a retrial without a conviction (because section 83E of the Criminal Procedure Ordinance says so)  is not to the point.  Jurors would be unlikely to appreciate this. Accordingly, in my judgment, the interplay between the earlier direction and the present revelation only adds marginally to the prejudice arising from what the jury learned.

How did the prejudicial to material go before the jury before the jury?

82.  I have held that it was inadvertent.  On no account could anyone have expected a barrister and solicitor of New Zealand to have said such a thing.  Criminal proceedings in New Zealand are essentially conducted in the same manner and with the same values and constraints as criminal proceedings in Hong Kong.  Frankly, I was shocked that this witness would come out with what he came out with.  An inappropriate reaction by either the Court or counsel representing the parties could have made the position even worse than it is at the moment.  I pay tribute to counsel, perhaps particularly prosecuting counsel, for the way in which the matter was handled.

Whether other directions or other events earlier in the trial might ameliorate or exacerbate the situation

83.  Previously in the trial, at the request of, in particular, those representing the accused, I directed the jury that there had been earlier proceedings and that they should not speculate about what had happened to those proceedings. The reason for that was that those representing the accused wished to cross-examine witnesses on previous statements.  Further, transcript of testimony of two witnesses was read out before the jury. Clearly that implied an earlier event.  The highly-sensitive listener would have noticed references to “my Lady” when addressing the tribunal in the transcript that was read and the extremely alert might have concluded that there was an earlier proceeding similar to the one before the present court. That, in the end, probably is a minor matter.  However, the more important point is that now the jury know what was deliberately kept from them.  In my opinion, to an extent, that makes things worse.  That said, while I consider this this point is relevant, it is by no means determinative.

Whether the impact of the prejudicial material can now be ameliorated by judicial intervention

84.  This is taken together with an assessment of the nature and impact of what was said is in the light of the prejudice which, arises the critical issue.  The prosecution contended that a simple, clear direction would solve the problem.  Those representing the accused say that no direction, simple or clear is possible and that any direction at this stage would only make matters worse.  Clearly, both sides accept that there has been at least some prejudice by the revelation of the matters identified a few paragraphs earlier.  Directions to the jury either in summing up and possibly as soon as they reassemble to continue this trial is the only conceivable thing that could save the situation.  This is the only conceivable remedy to ameliorate the prejudice which has been revealed and could conceivably lead to a fair trial.

85.  It is in relation to this issue that the declarations of appellate courts, some of which have been noted earlier in this judgment, where it is said that the judges appreciation or “feel” of the case is most important.

86.  It is no understatement to say that this is probably the issue in respect of which I have given the most anxious consideration.  I reject out of hand the suggestion that a simple direction would do the trick.  Perhaps, it is my appreciation of this jury but I consider that the information having been revealed, if I was to give a direction it would have to be one which respects the collective intelligence of this jury.  Simply saying “please ignore this” would never be appropriate in this case.  The trouble is that after the anxious consideration to which I have referred, I cannot conscientiously think of any direction which would be effective to ameliorate the prejudice.  I cannot see how a jury, perhaps particularly this jury, could put out of their minds this specific collection of items of information which, has taken together amount to the prejudice which arises in the present case.  It may be that effect of the prejudice would only arise if the jury or a significant number of jurors came to the view that on the evidence before them that they were not quite convinced but that the previous opinions of 7 or 9 members of the previous jury might push them towards a verdict of guilty.  All of that is in the end about as complete a piece of speculation as can be imagined.  I do not think that it is fair to the jury to expect them to put out of their minds the prejudice which has been engendered when considering their verdict.

Jurors likely to follow direction

87.  There are a multitude of authorities which declare that when jurors receive a direction from a trial judge, they must be taken to have understood and accepted that direction[46].  That is a fundamental working truth under which our criminal justice system works in relation to trials on indictment before a jury.  As a generality, that is clearly true.  However, the authorities also demonstrate that there are sometimes occasions where the rulings of appellate courts on appeals against conviction do not support this conclusion.  These happen where the Court of trial has permitted the trial to proceed notwithstanding the reception of prejudicial material upon the basis that an appropriate direction can cure the perceived harm.  There are many examples of this in cases such as R v Docherty (above).  There are cases on the other side of that equation such as Arthurton v R (above); R v Halliday (above).  This approach is also seen in cases where the Court permitted previous convictions to be put to an accused after he had “lost his shield”.  See in this regard R v Tam Chung Shing & Ors (above).

88.  The basis on which appellate courts have intervened contrary to the general assumption that juries who receive a direction from the trial judge must be taken to have understood and accepted the direction is that on this specific topic the verdict of the jury was unsafe and unsatisfactory. It is not correct to say as the prosecution submitted, that there is only intervention in obvious cases.  Certainly, in cases such as Arthurton v R and R v Halliday that could fairly be said.  It could not necessarily be said in relation to, for example, HKSAR v Chan Huandai (That said, nothing should be implied from these reasons that I disagree with the reasoning in Chan Huandai (above).  Quite the opposite.  The point I am making is that it does not have the same degree of blatant obviousness as the previous two cases mentioned.)

Length of the trial and the stage at which the material was placed before the jury

89.  The issue arose on Day 57 of a complex trial alleging serious commercial dishonesty.  The prosecution case was very close to finishing. On any view, the community has expended substantial resources on presenting this case and a substantial quantity of judicial time has been taken up in hearing the matter.  It was contended by the defence that the time at which the prejudicial material was received is irrelevant.  It was argued that had this prejudicial material been received at an early stage of these proceedings that the Court would not have hesitated to discharge the jury.  I agree with that.

90.  It does not wholly follow that the stage at which the material was received is completely irrelevant.  If the time that it was received is early in the proceedings, then little is lost by discharging at that stage.  It would be a dangerous thing indeed to continue on for days, weeks and perhaps months taking the risk that the exercise of discretion by the trial judge would pass muster on appeal in the event of a conviction.  In the purest sense, the right to a fair trial trumps all and, on that premise, the fact that this occurred on Day 57 should be irrelevant.  As Ms Draycott, SC correctly observed, in days past, trials rarely lasted more than 3 or 4 days and that may inform how judges dealt with the reception of prejudicial evidence.  In the end, the primacy of the right to a fair trial does, in effect, trump issues of the time taken, the judicial resources taken up, the community resources taken up and the effort and cost expended by an accused person must ultimately give way to this fundamental right.  In truth, what it has done is make me pause longer than perhaps I might otherwise have done before coming to the conclusion that I have.

The costs of the proceeding including, but not limited to the cost to the community of staging the case and the cost of defending that case.

91.  In my opinion, this is largely bound up with the issues in the preceding paragraph and adds nothing to the consideration.

The issues in the trial

92.  This is a complex commercial crime case involving allegations of conspiracy to defraud the shareholders of a listed company and that company and the regulators who have responsibility for managing the market in which listed companies conduct themselves.  There are issues of credibility in determining whether or not the jury accept as true the testimony of some of the principal prosecution witnesses.  For reasons I have earlier articulated, one of the issues in the trial concerns whether a payment to the 2^nd Accused and, arguably in turn to the 1^st Accused was lawfully made by the listed company.  In relation to one of the main witnesses, Ms Katherine Chan, the prejudicial material almost certainly has no impact on her credibility.  In relation to Mr Yip Kean Mun, his credibility might be affected by how the evidence as to the payment in question plays out.  Part of the reason for this is that one of the critical emails which is said by those representing the accused to represent authority to make the impugned payment was copied to Mr Yip.  That is important because he was chairman of the board of directors of the listed company at the time that the payment was made.

93.  It is conceivable that there would be issues of credibility in many of the other aspects of this payment including the credibility of the witness who was the source of the prejudicial material, Mr Kerry Knight. As presently advised – his testimony has not concluded, I think it is at least on the cards that there might be issues as to the credibility his testimony about the impugned transaction.  Part of the reason he says that he referred to the prejudicial material was to explain that he considered that there was no necessity to retain certain documentary records in relation to the transaction.  It takes little imagination to see how it will be at least tricky for the defence to navigate that issue in case Mr Knight’s credibility has put in issue: please believe Mr Knight as to the reason he gives for not retaining the records of the solicitor’s firm, that is, because the accused had already been convicted of the charge which they presently face and there was no reason to retain the documents anymore.  I say nothing of the challenges that summing up on this issue might present.  Initially, I must confess that I did not see this as a very important issue.  On careful reflection, I could foresee serious difficulties in navigating through this topic without adding to the prejudice which is already there.

Where the prejudicial material came from

94.  There are cases where the source of the information could have an impact on the response of the Court to the prejudicial information. For example, if the material was deliberately elicited from a prosecution witness, there are authorities which would suggest that discharge is virtually automatic.  Where the evidence comes from a prosecution witness but the answer was non-responsive (as in the present case)  then the situation is clearly more subtle.  There have been a number of cases where the evidence came from a non-responsive answer from a defence witness.  This is bound up with the issue of fault.  In my judgment, this is irrelevant to the present issue.

The relative strength of the prosecution and defence cases.

95.  As I consider this to be irrelevant to the present case and it is at least possible that there will be a further trial, the less I say about this the better.  Further, I am aware that the accused intend to make a no case to answer submission which includes submissions as to the law which should be applied to this case which would, if the submission succeeded, be damaging if not destructive to the prosecution case.  Those submissions have not been formally made although I am generally aware of the nature of them.  Perhaps, the appropriate thing to say is that absent those submissions case for the prosecution is a strong but not necessarily overwhelming case.  It is, in the present circumstances largely irrelevant because of the specific content and circumstances of the prejudicial material under consideration in the present case.

Whether the receipt of the prejudicial information might prejudice the weight that a good character direction might otherwise have

96.  It was contended by those representing the accused that the prejudicial information would prejudice any meaningful character direction.  That rather assumes that there would be such a direction.  The only conceivable candidates for such a direction would be the 1^st Accused and the 3^rd Accused.  In the first trial, Anthea Pang J declined to give such a direction.  I can readily understand the reasons why she chose that approach.  I had not, myself, decided what approach I would take.  I do not think that in the present circumstances this argument makes the case for the accused as to discharge any stronger.

Whether there was any relevant objection to the reception of the prejudicial material

97.  For reasons I have already articulated, the absence of an objection at the time that the prejudicial material came out is irrelevant. There are cases where the absence of an objection could conceivably be relevant.  Going slightly further, there are cases where those representing the accused positively wished the fact of a retrial and its sequalae to go before the jury.  There is also one case where the history of drug convictions of a person charged with trafficking in a dangerous drug came out in the trial and very experienced counsel rather than apply for a discharge sought to make use of that material (the accused may have committed other offences but not this one)  before the jury.

Whether counsel representing the accused could make sensible closing submissions without making the matter worse

98.  In my opinion, the answer is that it would be at least difficult. I have already addressed this in another context.  In my opinion, it is relevant to the decision I have to make but by no means decisive.

Conclusion

99.  In my opinion, there can only be one conclusion in this case. The prejudice is substantial.  My obligation is to accord to the accused a fair trial and the only way that I could do so in the circumstances would be to cure the prejudice by direction.  After careful and anxious consideration, I conclude that that would not be possible.  I think that it would be unfair to ask a jury to put out of their minds the information they received which was prejudicial to the accused.  For the reasons I have earlier outlined, I will discharge the jury when next they are assembled.

100.  This ruling and its content are not to be reported for one month from the date of delivering this ruling unless either party seek for extension to that order.