R. v. POON CHIN LUNG

No. 305 of 1995

(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Gall J.:

1. The applicant seeks leave to appeal against conviction and sentence. He was found guilty after trial on 22nd March 1995. He was sentenced to five years imprisonment on 6th April 1995 in respect of one count of trafficking in a dangerous drug. The applicant was charged that on 4th July 1994 on a staircase landing between the 4th and 5th Floors of No.60, Shanghai Street, Kowloon, he unlawfully trafficked in a dangerous drug, namely a mixture of 645.24 grammes, containing 158.97 grammes of salts of esters of morphine.

2. The facts are not in issue in this appeal.

3. The first ground of appeal is that the learned judge erred in law in giving or failing to give various directions to the jury both before retirement and subsequently.

4. Mr Beaumont argues that when the judge in the court below directed the jury, he was in error, when he said :

"It is desirable if you can be that you should all be agreed about your verdict. If you cannot all agree, I can accept from you a verdict of 6 to 1 or 5 to 2 of guilty or not guilty which ever it may be. But there must be at least 5 of you who are agreed about the verdict at least 5."

Mr Beaumont argues that the learned judge should have directed only that the jury be unanimous and should not have given them a direction as to a majority verdict and further that even if it were proper for him to give a direction as to a majority verdict at the time of his summing up he should not have directed the jury that a majority verdict of 6 to 1 or 5 to 2 for conviction or acquittal was required. Mr Beaumont relied upon the practice in the U.K. which differs from the practice here.

5. This issue was settled in R. v. Wong Kim Wah & another C.A. No.258 of 1993, where Penlington J.A. said :

"The practice here has always been that the jury is informed of what is required of it. Unanimous if they can but if they cannot then a verdict of a majority is acceptable. This is the better practice and is the one which should be followed in the future."

There is no substance in the arguments advanced before us that the judge in the court below ought not have defined the word "majority" for the jury. Not to have done so would have left the jury in a position where they may have believed that a decision on a majority basis of 4 to 3 was acceptable. To state it at its lowest, we do not see that the judge can be criticised in any way in clarifying the matter in the way he did.

6. In this matter the jury retired at 11:25 am and returned a verdict at 6:07 pm in the evening. It was argued for the applicant that the judge ought to have discharged the jury when they came out at 3:40 pm in the mistaken belief that they had a verdict. Further that at 3:47 pm when the judge enquired of the jury as to whether there was any prospect of their reaching a verdict he should have directed them that overnight accommodation was available and that an option of discharge was available to them should they be unable to reach a verdict of unanimity or a majority. When the jury entered the court at 3:40 pm the judge had been informed that they had reached a verdict. The foreman of the jury volunteered that four of the jury realised that "the defendant is guilty, the verdict is 4 to 3." The judge directed the jury for a second time that there must be at least 5 for a verdict of guilty or not guilty. At that time, he also directed the jury in these terms :

"Now, if there is no chance of your reaching a verdict in this case, if there is no chance of your ever reaching a verdict, then I would like you to let us know."

At 4:37 pm, the jury again returned and again the judge asked the jury whether, if they had more time, they would be able to reach a verdict. At that point, he mentioned to the jury that they could be accommodated overnight in the Supreme Court in the following terms :

"... because we have accommodation here but I am not suggesting you would want to do that."

The judge then went on to tell the jury that they could have as much time as they wished. The jury again retired.

7. It is quite apparent from the exchanges between the judge and the foreman of the jury that the judge was impressing upon the jury they were not constrained by time and also impressing upon them that they were to advise him if they were unable to reach a verdict. At no time did they suggest to him that they would be unable to reach a verdict. It is not in our view incumbent upon a judge to advise them at such a point in their deliberations that in the event they were unable to reach a verdict of unanimity or proper majority they would be discharged. That point may be reached after a jury has conscientiously deliberated for a very long time but the point had not been reached at the time when the judge here gave the directions concerned.

8. Mr Beaumont argues that the suggestion by the judge that the jury would not want to use the accommodation at the Supreme Court amounts to pressure upon them. Given the nature of the issues before the jury and the length of time the jury had deliberated when the comment was made, together with the fact that it was still in the late afternoon, the comment is no more than an observation upon the progress which could generally be expected from the jury at that point of time. Further, we find no merit in the argument that the judge, having been informed by the jury at 3:40 pm that they had reached a point where they had by a majority of 4 to 3 decided on the guilt of the accused, should have discharged the jury or at least indicated to them that in the event they have failed to reach the majority required they would be discharged. The jury were a little over four hours into their deliberations and it was proper at that point, upon the judge being told that no proper verdict had been reached, to send them back for further consideration without directing them as to the possibility of their being discharged . We hold that there is no bar to a judge enquiring of a jury whether they are able to reach an acceptable verdict nor to his enquiring of them whether they need additional time and to consider their verdict. Incorporated in this ground of appeal was also an argument that the judge erred when he permitted communication between a member of the jury and his clerk on a pertinent matter without bringing the jury back into court. It is clear from the transcript that as the jurors left the court at 4:45 pm one of them told the clerk that she was worried that she might not be able to go to work next day. The transcript shows that the clerk replied that it was up to the jury to decide how long they needed. The judge immediately recounted the exchange to counsel. The comment to the juror by the clerk did not amount to pressure on the jury nor did it prejudice the applicant in any way. Counsel having been made aware of the exchange did not seek to address the court in respect of it. We are not persuaded by the first ground of appeal.

9. The second ground of appeal is that the learned judge erred in law in his directions to the jury and instructions to the jury when they returned seeking answers to questions.

10. The first matter argued was that the judge erred when he directed the jury that that he was not permitted to call back witnesses after the evidence was finished. The time at which the judge directed the jury as to the law pertaining to the further calling of witnesses was at 2:55 pm, after his summing up was completed and the jury had deliberated for over 3½ hours. It is our view that he was correct to give this direction. When the jury returned to court on that occasion, they placed before the judge eight questions; seven of which the judge told them could not be answered by him. The eighth question related to a schedule compiled by the Royal Observatory and placed before the jury in evidence during the trial. The exhibit comprises a column showing the hours of the day divided into hourly segments. Other columns show the weather during those periods including the amount of rain. It is not clear from the face of the document when rain is shown at, for example 5 pm, it relates to the time prior to 5 pm or the time after 5 pm. It was the evidence for the applicant in the trial that slightly before 5 pm on the relevant day he went to Shanghai Street and it was raining, he purchased an umbrella and ascended the stairway at No.60 Shanghai Street. It was the evidence for the prosecution that the police had the applicant under observation from just before 4:50 pm, the same day, until his arrest at 5:05 pm on the same day and that during that period no rain had fallen. The question from the jury was as to whether an amount of rain of 8.9 mm against the time 17:00 hours meant a measurement from 16:00 to 17:00 hours or from 17:00 to 18:00 hours.

11. There was no evidence on the point and the learned judge examined the document and gave to the jury his view as to how they might consider that exhibit. It was his view that the time important to the applicant was at about 5 o'clock and that on the face of the exhibit the period referred to by the Royal Observatory was the period between 17:00 and 18:00 hours. He said :

"But now that I think about it again it is 5 o'clock onwards that the bad weather started and 8.9 mm you may think did fall at around that time."

The trial judge very carefully directed the jury that the time they should consider that rain was falling was around the time of 5 pm and this was the time when the applicant in his testimony had alleged that rain was falling. We do not consider that by directing the jury as he did that the trial judge was giving evidence. He was doing no more than giving his view as to the manner in which the jury might read a documentary exhibit. He had already warned the jury that they need not accept any view which he took of the evidence. In any event, the view expressed by the judge was not to the detriment of the applicant; indeed, placing the rain as it did around the period of time when the applicant alleged that rain was falling was favourable to the appellant. It is unfortunate that later the same afternoon a late advice was received from the Royal Observatory to the effect that the period encompassed by the exhibit was in fact the period from 16:00 to 17:00 hours and not the period as suggested by the judge. At the time when this was received the judge ruled that the new material should not be placed before the jury and we consider that he was right to do so.

12. In all circumstances, no prejudice was occasioned to the applicant by the direction given.

13. The third ground of appeal is that the judge erred in law when he directed the jury that both counsel had agreed that the bad weather was between 5 pm and 6 pm on 4th July when they had not so agreed.

14. It is clear from an examination of the transcript that Mr Beaumont did not agree with the view of the judge as to the time to be inferred from the exhibit and clearly the learned judge was of the erroneous belief that he had Mr Beaumont's support in the matter. No prejudice was occasioned to the applicant by the direction nor by the error in telling the jury that Mr Beaumont supported the view taken by the judge. It was of course open to the judge to give the direction whether or not Mr Beaumont concurred with it and his only error was to say that Mr Beaumont had supported his view. That was peripheral.

15. The fourth ground of appeal was that the learned judge erred in law in informing the jury that the direction that the weather was bad between 5 and 6 pm was in favour of the defence when in fact it was in favour of the Crown.

16. We have dealt with this matter. The direction given by the judge covered the period when it was alleged by the applicant that rain was falling and nothing turns upon this point.

17. The fifth ground of appeal is that the learned judge erred in law when he intervened in the questioning of the first defence witness with the implication that neither the defence nor prosecution had in fact adequately questioned the witness.

18. A judge may question any witness at any stage in the course of a trial particularly when he is of the view that this is necessary to clarify the evidence or otherwise in the interests of justice. Such interventions should be used with care and restraint. We have carefully considered the transcript of the intervention by the judge complained of by Mr Beaumont and his response to the objection by Mr Beaumont which clearly indicate that the judge was of the view that both the prosecution and the defence ought to have explored more fully the evidence of this witness. The allegation was even handed against both counsel and we cannot take the view that the jury could or might have come to the conclusion that the defence was less than ably conducted. Further having considered the nature of the intervention and the evidence elicited by it, we are of the view that no real prejudice was caused by that intervention.

19. Having considered all the grounds of appeal and the arguments in respect of them, advanced by Mr. Beaumont in both his written submissions and in court, we are satisfied that the conviction is neither unsafe nor unsatisfactory and application for leave to appeal against conviction is refused.

20. Having heard Mr Beaumont in respect of the application for leave to appeal against conviction, we heard from the applicant in person in respect of his appeal against sentence. He did not advance any ground of appeal other than that at the date of the offence, he was 15 years of age, that he is now 17 years of age, and that the sentence of 5 years imprisonment imposed upon him was, in the circumstances, excessive.

21. The applicant was convicted after trial of trafficking in a mixture containing 158.97 grammes of salts of esters of morphine, otherwise known as heroin. He had a previous criminal record of 3 convictions of which none were similar to this offence. In R. v. Lau Tak Ming & others [1990] HKLR 370 the Court of Appeal suggested as a guideline for possession of between 50 and 200 grammes of pure salts of esters of morphine a sentence of 8 to 12 years imprisonment. On such a scale, possession of 158.97 grammes of salts of esters of morphine for unlawful trafficking merited a sentence in the vicinity of between 10 and 11 years after trial and before any mitigation. In sentencing the applicant the court took into account that he was 16 years of age at that time. He took that age into account and said "rightly or wrongly I think your age is a factor to be borne in mind and the least sentence that I feel proper to impose is one of 5 years imprisonment". Given the circumstances of this case, we cannot say that the learned trial judge was wrong. The application for leave to appeal against sentence is dismissed.