THE QUEEN v. WONG HAU

Headnote : Pressure on jury to reach a verdict: direction on inferences.

IN THE COURT OF APPEAL

______________

J U D G M E N T

______________

Silke, V.P.:

1. The Applicant, Wong Hau, appeared for trial before Barnett, J. and a jury as the 4th Defendant in a six men indictment. He had originally been charged with two offences: the first: conspiracy to traffic in dangerous drugs and the second: possession of dangerous drugs for the purpose of unlawful trafficking.

2. On the fourth count, possession of dangerous drugs for the purpose of unlawful trafficking, the Applicant was found guilty by majority of five to one. He now seeks leave to appeal against that conviction and, if necessary, the sentence of eight years' imprisonment passed upon him.

3. The six defendants were dealt with in different ways. It is of moment to set out what occurred.

4. D1. Siu Koon Sheung, was charged with three counts, the conspiracy count and two counts of possession of dangerous drugs for the purpose of unlawful trafficking. He was acquitted, no evidence being offered, on the conspiracy count and he pleaded guilty to the fourth and the fifth counts. D2, Lee Wai Fung, was indicted for the fourth and the fifth counts. She was found not guilty by the jury after trial. The 3rd Defendant had no evidence offered against him on the count that concerned him; the 5th Defendant was the subject of a separate trial: and the 6th Defendant also had no evidence offered against him on the count in which he was involved.

5. On 29th April 1987 police party carried out a raid on Room 1339 in Yue Shun House, Yue Wan Estate, Chai Wan. Various persons, including the Applicant, were found in the premises. It was agreed. that a tin which was described as a "Quality Street" tin and which contained a large quantity of drugs in a plastic bag had been thrown out of the flat, together with a quantity of brown paper bags and small polythene bags. All were recovered by a police constable who was, on observation duty outside.

6. In the flat, in a crack at the toilet door, was found a packet of dangerous drugs.

7. It was the case for the. Crown that the Applicant had control of the flat. His wife was the tenant named in the Tenancy Agreement but she had left him and he remained there with his children. The trial judge referred to him as a "de facto" tenant. A key to the front door of the premises was found upon him on arrest.

8. In the flat, as well as the small packet of dangerous drugs, were found newspapers and polythene bags. The newspaper had traces of dangerous drugs and also bore the thrumb print of the Applicant. Plastic gloves were found in a cabinet. It was accepted that these gloves had no relevance to the drug charges. The Applicant's re-entry permit and permit to visit China were also found in the flat.

9. During the course of the trial, D1 gave evidence on behalf of the defence. He was the husband of D2. He attempted to take the blame for the drugs by saying that he had taken the "Quality Street" tin into the flat and that the small packet found in the flat was for his own consumption.

10. The Applicant had said that all he was doing in the flat was smoking dangerous drugs in company with D1 and D3. He denied any knowledge of the "Quality Street" tin and the quantity of drugs found in it nor was he aware of the existence of the other items such as the plastic bags other than the plastic bag from which he had taken the actual drugs which he was smoking.

11. The trial had continued with six jurors. Mr. Ramanathan, who appears for the Applicant in this Court, contends that after the summing up had concluded the trial judge erred first:- and this is a background point leading up to his main point - in causing the jury to retire to consider their verdict after lunch: the actual time being three minutes past three. Further that he erred, and this is the main point of the appeal, in causing the jury to be called back into Court at 6:25 p.m. and addressing them in terms which had the effect of insisting on their telling him how long they would require to be able to return a verdict despite an indication from the foreman that the jury would not like to set a time limit, thus constituting undue pressure.

12. Shortly afterwards the jury retired and then returned and rendered their verdict. It is Mr. Ramanathan's contention, that because of that about which, he complains the majority verdict, of 5:1 was rendered. He submits that that verdict was unsafe and unsatisfactory.

13. What had occurred was this. The summing up commenced at 2:00 p. m. and finished at 3:03 p.m.  The jury retired. At, 6:14, p.m. the Court resumed and it was clear from that which the judge said in open Court in, the absence of the jury that he had seen counsel in Chambers and discussed with them the course he intended to take. He indicated that he was going to ask the jury to return and said:

"I shall, ask them how they are getting on. If they indicate that they hope another hour or two may be sufficient for them to reach a verdict or verdicts, then I shall ask them to retire to consider the deliberations and say that I shall review the situation again at about 8:00 o'clock if I've not heard anything before."

He went on to indicate that if it were then apparent that the jury was very far apart - and he tock the view that this was a relatively short case - then the jury would be discharged.

14. Counsel then appearing for D2 foreshadowed some of the arguments which have been advanced to us today. He drew the attention,of the trial judge to the fact that the jury had been sent out after lunch sad stated he was concerned that by requiring them to come back and indicate a time, undue pressure might be brought upon them. These submissions were adopted by counsel then appearing for the Applicant though it was common case that it was a matter for the judge's discretion.

15. The jury returned at 6:25 p.m. and Mr. Ramanathan takes no exception to the first short address made to them by the trial judge where he said:

"I thought I would ask you to come back again just to see how you are getting on.

16. The judge then asked them did they see any prospect of reaching verdicts. The foreman of the jury replied saying that they had reached the verdict for the 2nd accused but not for the 4th accused - the Applicant. They were then asked:

                "How much longer do you think you might need for the 4th accused."

And the foreman replied that the jury had spilt opinions on the 4th accused, and went on:

                "I think it will take some time in order to get a 5:1 or unanimous verdict."

Immediately after that occurs a passage upon which Mr. Ramanathan lays emphasis for the judge then said:

                "When you say some time, is there any sort of indication?"

The foreman answered:

                "I am not sure if we should set a time limit.-

The judge then said:'

"I am not asking you to set any time limit whether you can just give a general indication. Don't feel there is any constraint upon you. Well, may I - rather than discuss in public - may I ask you just to retire to the small retiring room? You can talk about that and there's another point I want to talk to counsel about while you do it."

17. The jury retired at 6:27 p.m. and discussion took place in open court as to whether or not the verdict on D2 should be taken. No objection was made to the taking of that verdict.

18. The jury, apparently of their own volition, returned at 6:32 p.m. and the verdict in respect of D2 which, as we have earlier said was one of not guilty, was taken. D2 was discharged. The following dialogue then took place between the judge and the foreman:

"Court: All right, thank you. Now then, Mr. Foreman, what about the 4th accused? You say you're split. Do you think the spilt is capable of being resolved or not?

Foreman: During the retirement just now, we have reached also a verdict for the 4th accused.

Court: You have? Very well then."

19. The clerk then took the jury's verdict which was the 5:1 guilty verdict.

20. Mr. Ramanathan has urged upon us, by reason of the very short time between the retirement of the jury and their return their verdict, that justice was not done or seen to be done. This as a result of that which he alleges was the pressure brought upon the jury by the trial judge when he "insisted" upon their bringing in a verdict.

21. Certainly, it would be improper to bring pressure upon a jury to r render their verdict. R. v. McKenna, [1960] 1 Q.B. 411 and [1960] 44 Cr. App R. 63, makes that quite clear, but the circumstances in McKenna were very different from the circumstances here.

22. Cassels, J., delivering the judgment of the Court of Appeal, said at page 422:

"It is a cardinal principle of our criminal law that in considering their verdict, concerning, as it does, the liberty of the subject, a jury shall deliberate in complete freedom "uninfluenced by any promise, unintimidated by any threat. They still stand between the Crown and the subject, and they are still one of the main defences of personal liberty To say to such a tribunal, in the course of its deliberations that it must reach a conclusion within ten minutes or else undereo hours of personal inconvenience and discomfort, is a disservice to the course of Justice."

23. We have no hesitation in adopting the general principles enunciated by Cassels, J.

24. Looking at that which occurred and the very careful way in which the trial judge dealt with the question as to how long the jury might need to reach a verdict on the Applicant, we are firmly of the view that, no promise or intimidation was offered to and no pressure brought upon the jury here. It was made quite clear to them that they were not being asked to set any time limit. They were simply being asked to give an indication as to how long they might We do not consider what transpired to give us cause for concern.

25. In a case of this nature the fact that the jury retired shortly after lunch caused no, injustice. This is not to derogate from the general guidance given in R. v. Tam Chi pang [1986] H.K.L.R. 1122.

26. The second ground of appeal advanced by Mr. Ramanathan, and he, accepts that it is not his strongest point, was that in the course of his summing up - and of the generality of the summing, up there is no complaint at all the trial judge improperly directed on inferences. He had directed the jury at page 10 that it was for them alone to find facts and having found those facts to draw any "necessary inferences from those facts". He went on on the same page to indicate that it was for them to decide what weight they gave to such evidence as they believed and likewise "what inferences you draw ftom any facts you find proved."

In the course of his recital of the evidence, the trial judge, in particular at pages pages 24, 28 and 29, made references adverse to the defendants on trial.

27. He had, however, directed the jury, immediately after the last reference to inferences, in these words:

"So, if I anything that indicates I have taken a certain view of the evidence or what or whom I believe, that view is not binding upon you as counsel reminded you this morning. Indeed you must reject any view that I may have expressed unless it happens to coincide with your views because it is what you and you alone, members of the jury, think of all the evidence that matter. "(Emphasis supplied)

28. He gave an impeccable direction upon the burden of proof and concluded that direction by saying:

"I simply tell you to have it at the forefront of your mind throughout your deliberations that he Crown has to prove its case so that you are satisfied, so that you are sure. And if after considering all the evidence when I say all the, evidence, I do not just mean the evidence of the police officers but also in this case the evidence of the accused - if after considering all that evidence, you are left in a reasonable doubt, that is, you are not satisfied so that you are sure, then you must acquit the accused."

29. Mr. Ramanathan has referred us to McGreevy, [1973] 1.W. L. R. 276. Which concerned directions relating to circumstantial evidence, where Lord Morris of Borth-y-Gest said at page 285:

"In my view, it would be undesirable, to lay it down as a rule which would hind judges that a direction to a jury in cases where circumstantial evidence is the basis of the prosecution case must be given in some special from provided always that in suitable terms it is made plain to a jury that they must not convict unless they are satisfied of guilt beyond all reasonable doubt."

30. Mr. Ramanathan also asked ut toconsider that which was siad by Lord Morris at page 281 of the Report where he pointed out that it is not for the judge but the jury to decide what evidence is to he accepted and what conclusions should be drawn from it and that a summing up, provided it contains certain essential elements, must depend not only on the particular features of a particular case but also upon the view formed by the judge as to the form and style tht will be fair and reasonable and helpful.

31. It is Mr. Ramanathan's submission that, having made the adverse references he did and made clear his views, the trial judge to be "fair, reasonable and helpful" should then have gone on to deal in greater detail with inferences and given that which might be called the "Diplock direction": (see R. v. Kwan Ping Bong [1979] H.K.L.R. 1.)

32. This matter has been considered by several divisions of this court. In sequence: R. v. Chan Ho Kuen, C.A. 532 of 1987, where Hunter, J.A., in delivering the judgment of the Court, made reference to McGreevy and to the "Diplock direction" in Kwan Ping Bong. Huncer, J.A. took the view that Hodge's case, when Baron Alderson used language which is indistinguishable from that of Lord Diplock, gave rise, in certain jurisdictions, to the concept known as "the rule in Hodge's case." He took the view that R. v. Wong Mau Ting, [1967] H.K.L.R. 730, had rejected that "rule" and expressed the conclusion that circumstantial evidence and inferences required no specific direction other than a clear direction on the onus and standard of proof.

33. In Yu Wai Chun, C.A. 179 of 1987, where my Lord Kempster, J.A., in giving the judgment of the Court, also made reference to McGreevy, then to R. v. Lam Tsz Wah, [1984] H.K.L.R. 54 and to the judgment in R. v. Hune Hon Yee, C.A. 143 of 1987, from which last he quoted. He also came, as indeed did the Court in Hung Hon Yee, to the conclusion that, provided there is a clear direction as to the burden and standard of proof, no special directions upon inferences are called for as a general rule.

34. Here, the judge had made it very clear that he had formed views of the evidence but he made it equally clear to the jury that they were in no way bound by any any views which he might express. He had emphatically directed them as to the burden of proof and as to its lying upon the Crown throughout the course of the trial.

35. In those circumstances, we do not think that the criticisms of Mr Ramanathan have substance. They do not have such force as would cause us disquiet. For those reasons the application for leave to appeal against conviction is refused.

Sentence

36. The Applicant also seeks leave to appeal against the sentence imposed upon him of 8 years' imprisonment,

37. Mr. Ramanathan has drawn our attention to the sentence imposed in on D1. He had pleaded guilty to hoth the fourth and the fifth counts. Those involved a quantity of dangerous drugs in excess of the 464 grammes of a mixture which concerned the Applicant. D1 got 7 years which Mr. Ramanathan suggests to us makes the 8 year entence on the Applicant too high.

38. In passing sentence upon D1. the trial judge had taken into account that, from the very outset, there had been an admission and that admission had been carried into the Court itself by the plea thus shorteninp the trial: which is a normal matter to be borne in mind.

39. In sentencing the applicant, the trial judge was aware of his clear record which counts very little in offences of this kind. He also bore in mind that the flat of which the Applicant was the "de facto" tenant and where he lived was being used for packaging and distribution of dangerous drugs. It is correct that the Applicant was not charged with an offence of that nature but the trial judge was entitled to bear in mind the background to the offence when he came to assessing the sentence to be imposed.

40. In R. v. So Hong Lee, [1986] H.K.L,R. 1049 the Court of Appeal considered the matter of disparity. Barker, J.A., in delivering the judgment of the Court, referred to two situations. The first - the one which concerns us here - was where there is a disparity between sentences passed in the same occasion by the same judge. that case the sentence may be varied by this Court if but only if it can be shown that the judge has not properly apportioned the blame between the accused. If the sentence were otherwise appropriate and the judge was under no misapprehension as to the roles of the various accused then the sentence should stand.

41. It is difficult for this Court on a cold appeal to have the same appreciation of the evidential background as that formed by a trial judge by reason of his hearing the evidence given at trial itself.

42. In this case, unless it could be shown that the judge was plainly wrong in assessing sentence, one which was within, though on the higher level of, the guidelines set out in Chan Chi Ming, [1979] H.K.L.R. 491, we do not think that this sentence should be interfered with. He has not been so shown. The sentence was an appropriate one under all the circumstances.

43. For those reasons, the application for leave to appeal against sentence is also refused.