HKSAR v. CHAN KAR LEUNG AND OTHERS

CACC 287/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 287 OF 2004

(ON APPEAL FROM HCCC NO. 226 OF 2002)

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J U D G M E N T

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

1. This is a case in which we gave judgment on 26 January 2006.  The appellants seek a certificate under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 that there is involved in that decision a number of points of law of great and general importance.

2. The first appellant seeks a certificate on the following point of law:

“What directions should jurors be given on how they should go about deliberating as a jury?” 

The second and third appellants seek to frame a question based on much the same concern that motivates the question formulated on behalf of the first appellant:

“Whether a trial judge by referring to the jury being like a board of directors, that there is a lot of give and take, and that they have a duty collectively (or any one or more of the above) in his summing-up commits an error of law?”

3. The effect of decisions given by this Court thus far is that references to a board of directors are not acceptable and that a jury should be so directed as to make it clear that individual jurors are never to subvert their own true individual conclusions to that of others, and that a direction which in its overall effect makes that plain will suffice.  In its Determination dated 16 November 2005 the Court of Final Appeal in Tam King Hon v HKSAR, FAMC No. 68 of 2005, read this court as saying in Chan Ka Man v HKSAR [2005] 1 HKC 162, that it disagreed with the High Court of Australia in Black v R (1993) 179 CLR 44 as to the use of the phrase “collective responsibility”, and in our judgment in this case we have addressed that interpretation of the Chan Ka Man judgment.  It seems to us that the question now raised in this regard by the notice of motion is to ask whether inevitably such phraseology is unacceptable.  That is the question which has now been the subject of argument before the Court of Final Appeal in Tam King Hon and leave was granted in that case by that court on that question.  Counsel before us today concede that the point there is the very same as the one now raised by these two questions put forward by the appellants.  It may well be said that a certificate in this case on the two questions raised by the appellants must follow and we fully understand why the application has been made despite the pending case before the Court of Final Appeal.  The applicants were bound to do so, but the practicality before us is a different matter given the unusual circumstances.  If the Court of Final Appeal decides the point in Tam King Hon in a way that favours these appellants, then they go to the Court of Final Appeal under the grave and substantial injustice limb; if against them, that would seem to be the end of the matter.  Accordingly in these unusual circumstances we think it appropriate not to grant the certificate in relation to those two questions.

4. The second question posed by the second and third appellants is as follows:

“Whether it is a general principle of the civil law that in relation to banker documentary credit one can expect to come across a wide variety of circumstances in which documents come into existence in a commercial context which do not necessarily reflect the factual situation but which parties may nonetheless employ as a convenient means of progress in a particular transaction, and that such general principle is not fact-sensitive and consequently in relation to offences arising from alleged banker documentary credit fraud a failure to give the above direction to the jury (and/or coupled with the direction of the civil law does not concern the jury) amounts to a material non-direction?”

5. In a case involving alleged dishonest deception upon a bank, the question whether there was a deception and, if so, whether it was material and, if so, whether there was dishonesty is in our judgment fact-sensitive and we cannot conceive that regardless of the facts, a direction along the lines suggested by this question must inevitably be given in a criminal trial and, accordingly, we refuse to certify as requested.

6. The next question suggested for certification by the second and third appellants is as follows:

“Whether for the purpose of the charge of false accounting under s.19(1)(b) of the Theft Ordinance, Cap. 210 for furnishing false accounting documents (as distinct from a charge of deception which can consist of more than one act all directed to obtain the proceeds of the documentary credit) the application for, and the drawing down on a banker documentary credit is necessarily 2 different activities so that a count of false accounting which refers to both must necessarily be bad for duplicity?”

7. In paragraphs 59 to 62 inclusive of the judgment, we examined the question in the context of the charges themselves and held that the counts in question alleged a single criminal activity or enterprise.  We do not think it reasonably arguable that the counts were bad for duplicity.  Accordingly, we will not grant the certificate requested in this regard.

8. Finally, the second and third appellants pose a further question for certification:

“Whether a failure by a trial judge to explain to the jury the basis upon which they could convict an alternative charge where the factual basis relied on by the prosecution is identical is a material non-direction?”

9. What we said, at paragraph 80 of the judgment was that whilst it would have been better in this case for a judge to have explained to the jury the circumstances in which they might acquit on one and convict on another, the failure to do so did not in this case amount to a material non-direction.  We do not think that such an omission is inevitably fatal.  The certificate for this question is, accordingly, also refused.

10. In summary therefore the certificates sought will not be granted.