HKSAR v. CHAN KA MAN

CACC 476/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 476 OF 2003

(ON APPEAL FROM HCCC NO. 126 OF 2003)

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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):

Introduction

1. This applicant was tried before Nguyen J and a jury upon an indictment containing nine counts.  Counts 1, 7 and 9 alleged indecent assault and the remaining counts alleged rape.  On 28 October 2003, the applicant was convicted upon Count 1 (indecent assault); Count 2 (attempted rape); Count 5 (rape); and Count 9 (indecent assault); in all cases by a majority of five-to-two, save the last which saw a majority of six-to-one.  He was found not guilty on the other counts.  This is his application for leave to appeal against each conviction.

2. For the purposes of this appeal it is not necessary to deal with the evidence in detail.  It suffices, by way of background, to state that the applicant lived in premises on an estate in Tsuen Wan with his wife and son.  At the date of the offences he was aged 34 years.  In June 2002, the complainant, a female from Indonesia, was engaged by the applicant as a domestic helper.  She went to live at the premises where the applicant and his family resided.  The alleged offences were said to have taken place at those premises between mid-July and mid-September 2002.  The complainant’s assertion was that on these various occasions the applicant forced her, under threat of loss of her employment and repatriation to Indonesia, to submit to acts of indecency and, on occasion, to sexual intercourse, to none of which acts she was a willing party.  After the last incident she reported the matter to the police.  The testimony against the applicant consisted of her evidence, corroborated, it was said, by some forensic evidence in the form of semen on tissues which she kept, and there was also evidence of recent complaint.

3. The applicant gave evidence at trial and denied the allegations.  He said that they were fabricated and that there had never been any intimate contact between him and the complainant.  He suggested that the motive for the fabrication stemmed from an unhappy employer-employee relationship occasioned by her suggested inability or unwillingness to perform her job properly, and an alleged desire by her to engineer her dismissal so that, without returning to Indonesia, she could obtain more remunerative employment in Hong Kong.

Directions

4. Towards the close of the summing-up the trial judge directed the jury as follows:

“You should discuss the case amongst yourselves and try to arrive at what we call unanimous verdicts, in other words, verdicts upon which you are all agreed – all seven of you – either guilty or not guilty.  Now, I do not know whether any of you have served on a jury before, but serving on a jury is very much like a board of directors of a company having a meeting.  In other words, there is a lot of give and take.

You should make up your own mind about the verdicts, but you should also listen to the views of your colleagues and see whether, after you have listened to their views, whether you want to stick to your own decision or whether you are prepared to change your decision and be persuaded by them that your decision should be different.  So there is a lot of give and take.  You should make up your own mind, but you should also listen to the views of your colleagues.

However, after careful and conscientious and long deliberations, if you find that all seven of you cannot be agreed on any one charge, then in law I can accept from you what we call a majority verdict – in other words, a verdict upon which not all of you are agreed.  But the majority has to be either six-one or five-two.  Anything less would not be acceptable, so four-three would not be acceptable.  So it should be a unanimous verdict, but failing that, it can be a majority verdict of six-one or five-two.” (Emphasis added).

5. At about 11 a.m. on the day of the summing-up, the jury retired to consider its verdict but after luncheon submitted three questions in writing:

“	1.	If the jury reach 4:3, can it be defined as reached a verdict?
	2.	Can any one of us abstain from voting?
	3.	If we think the evidence is not strong enough, we should assume the defendant is being not guilty?”

6. Having discussed the matter with counsel, the judge then gave the jury further directions which we repeat only in so far as is relevant to this appeal:

“… the answer to question 1 is quite clearly, no.  If it’s four three, it is not an acceptable verdict.  It has to be six one or five two, either way, guilty or not guilty on all the counts, all right?

So, four three is not acceptable, which means that you have to carry on discussing until you reach either unanimous verdict or a verdict of six one or five two.  If, after a very long discussion, you are still, as it were, deadlocked and it is still four three, then you will have to report the progress to me and I will have to decide what to do, all right?

But for the time being, since you only went out at about 11, I would urge you to carry on discussing until you arrive at six one or five two, or unanimous, all right?” (Emphasis added).

The appeal

7. The gravamen of the complaint is that in delivering these directions, the judge inappropriately conveyed to the jury the message that it was not open to them to come to individual determinations which would lead to a four-three split; and further, that the effect of his analogy with decisions by a board of directors and of his reference to a requirement that there be “a lot of give and take” was, in context and in the absence of any accompanying exhortation nonetheless to stay true to the individual oaths, a misdirection giving rise to a danger that one (or more) jurors may have thought that it was incumbent upon him or her, for some greater good, to concur with a view which he or she did not truly hold.

Analysis

8. Assuming that there was good reason for the judge to say anything at all about the methodology of the jury’s decision-making process, we do not understand why the judge departed from the recognised formula.  The standard specimen direction offered by the Judicial Studies Board, which follows after a comment that there will rarely be a need for such a direction, is this:

“Each of you has taken an oath to return a true verdict according to the evidence.  No one must be false to that oath, but you have a duty not only as individuals but also collectively.  That is the strength of the jury system.  Each of you takes into the jury box with you your individual experience and wisdom.  Your task is to pool that experience and wisdom.  You do that by giving your views and listening to the views of others.  There must necessarily be discussion and argument, and a willingness to give full consideration to the suggested logic of others, and if an individual is persuaded that there is a flaw in his own thinking, a preparedness to concede the flaw.  This is how agreement is reached.  But of course you must at all times stay true to your oath or affirmation and if after full discussion cannot reach agreement, you must say so.”

9. This is akin to the direction suggested in Watson [1988] 1 QB 690; (1988) 87 Cr App R 1; although the reference to “give and take” in the direction suggested in Watson is omitted.  We note that in the High Court of Australia doubt has been expressed not only about the wisdom of referring to the concept of “give and take”, but also about reference to a responsibility to act collectively.  See Black v The Queen [1993] 179 CLR 44, 51.  We do not ourselves think that the use of the word “collectively” is objectionable in the full context of the specimen direction suggested by the Judicial Studies Board with its clear sense of collectivity as descriptive only of the task of pooling experience and wisdom, and its accompanying direction that is only if the individual accepts that there is a flaw in his own thinking that he or she is permitted a change of view.  The point we wish here to highlight is the care which is there emphasized (as indeed it is in other decisions) which a judge must take not, by loose phraseology, to invite “an individual juror to subordinate his or her view to those of a majority of jurors”.  It is a cardinal principle that “no juror should change his or her mind merely for the sake of conformity or out of submission to pressure by other jurors; in the end no juror should vote against his or her conscientious view based on the evidence.  This is an elementary and the central bulwark of the jury system.”  See R v Accused [1988] 2 NZLR 46, 58.

10. It is this cardinal principle that the judge has, in our judgment, offended by the effect of the directions given in this case.  The analogy with boards of directors was entirely inappropriate and could have served only to confuse.  The boardroom often consists of directors representing quite separate interests and functions which will trigger maneouvres, tactics and compromises wholly alien to the duties of a juror.  In the jury setting there can be no question of compromise for some perceived common good or individual interest; no bargain struck in relation to one count in exchange for another.  The language of “a lot of give and take” – twice used – and of “whether you want to stick to your own decision” is loose language of a kind that may indeed apply to the boardroom function; but in the context of the jurors’ function was an unwarranted and, in our view, unsafe departure from the standard direction.  That judges should stick to the standard direction, if they give one at all along the Watson line, and add nothing to it, was an injunction sounded in Buono [1992] 95 Cr App R 338, 344; and the danger of not doing so is well illustrated by the present case.  The “give and take” to which Watson referred was a give and take only in the sense of giving one’s views and harkening to the views of others; it was not a give and take in the sense of compromising for the sake of conformity.  It is this latter sense that, in our judgment, was clearly left open by these directions, and it does not require an analysis of the motives behind the second question posed by the jury – as to the right to abstain – to lead us to that conclusion.  We do not think that the message thus conveyed was in effect altered or corrected by the judge’s comment that “you should make up your own mind”.  As we intimated in HKSAR v Kwok Chi-wai [2004] 3 HKLRD 185,190, issues such as these are determined not by picking out a phrase here and there, as if in a statutory instrument, as curing a defect; it is the sense of it as gleaned from context and experience that counts most; and the sense of these directions was altogether too loose and susceptible to impermissible application by the jury.  Viewed thus, the use of the phrase “you should make up your own mind” was in full context a mantra the import of which was not brought home to this jury.

11. In relation to unanimity, majority verdicts and a failure to agree, the effect of the directions given in the main body of the summing-up in the morning was that anything other than a unanimous verdict or a verdict by a majority of at least five-to-two “would not be acceptable”; and in particular that “four-three would not be acceptable”.  In the sense that a four-three decision does not constitute a verdict, and was not acceptable as a verdict, the judge was correct.  But by leaving the matter as he did the judge created a risk of leaving the jury with the impression that disagreement was in no circumstances permissible.  There is no need to hide from the jury the fact that it is open to them, at the end of the day, to disagree; which does not, however, preclude a judge from encouraging, though not improperly pressurizing, a jury to arrive at a unanimous or majority verdict.  The specimen direction suggested by the Judicial Studies Board is as follows:

“You should strive to reach a unanimous verdict, that is, a verdict upon which you all agreed; whether guilty or not guilty.  If however you are unable to do so, then I am entitled in law to accept from you a verdict upon which at least five of you are agreed, in other words, a verdict of six-one, or five-two.  A verdict of four-three either way does not constitute a verdict, and should that position arise I shall direct you further.”

12. In this instance as well, we do not understand why the judge chose to depart from the standard formula.  We do not say that a judge may not exhort a jury to seek conscientiously to reach agreement.  But what in effect has happened here went further than that.  The continued insistence on anything other than a disagreement is evident in the directions given in answer to the jury questions, with the comment that “it has to be six-one or five-two” that “you have to carry on discussing until you reach either unanimous verdict or a verdict of six-one or five-two”.  We simply do not know why the judge continued to be so markedly and unusually coy about any possibility of a disagreement, and we fail to see why he found it necessary to tell the jury, at a time when they had already been out for over four hours, that a disagreement was reportable, and then only as a matter of progress, only after “very long discussion”.  Unqualified, unexplained, and without the sort of assistance we see suggested in Black at page 51, this was in our judgment unsatisfactory.  In such circumstances and given in particular the encouragement to approach matters as a board of directors with “lots of” give and take, we find it impossible to be satisfied that the bare majorities by which three of the four verdicts were reached represent the product of conscientious decisions in respect of which each individual juror was faithful to his or her oath.

13. We do not hereby suggest that the judge should by his initial direction wave before a jury or highlight in any way the prospect of disagreement.  The initial direction need contain no more than the passing reference to the option of disagreement that we see in the standard direction.  If, however, the issue later arises because there appears to be difficulty in reaching an agreement, or because of a question such as that raised in this particular case, then it must be made clear, preferably in the form of the standard direction, that if after full discussion agreement cannot be reached, the jury is not only entitled to say so, but must say so.  This was a message which the judge seemed reluctant to convey at a stage that required it; and the manner of his answer and the text of his other directions created, we think, too great a risk that the jury was left with the impression that they really had little choice but to agree upon a verdict.

Conclusion

14. For these reasons, we are unable to say that the verdicts delivered were safe.  Accordingly, we grant the applicant leave to appeal against the four convictions and treating the hearing of the application as the appeal, we allow the appeal and set aside each conviction.

15. We shall hear counsel on the issue of a re-trial.

[Re-trial ordered in respect of Counts 1, 5 and 9, and for attempted rape on Count 2].