PUN LUEN PAN v. HONG KONG SPECIAL ADMINISTRATIVE REGION

FACC No. 7 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2007 (CRIMINAL)

(ON APPEAL FROM CACC NO. 555 OF 2003)

_____________________

____________________

______________________

J U D G M E N T

______________________

Mr Justice Bokhary PJ :

1. The appellant asked us to quash his conviction and not to order a retrial while the respondent asked us to affirm the conviction but to order a retrial if we quashed the conviction.  At the conclusion of the argument on the issues of conviction and retrial, we announced that, for reasons to be handed down in due course, we allowed the appeal to quash the conviction.  We also announced that we ordered a retrial.  The appellant then applied for his costs of the trial and of this appeal including the application for leave to bring it.  We refused to award the appellant any costs.  The appellant then applied for bail pending his retrial.  We refused to grant him bail and instead remanded him in custody pending his retrial.  Our decisions on retrial, costs and bail all turned on the application of well established principles to the particular circumstances of this case.  Nothing more need be said as to the reasons for those decisions.  Indeed it would be undesirable to say more thereon since it is important to say nothing that might prejudice the retrial or any possible appeal or appeals therefrom.  As to our reasons for quashing the conviction, they are now handed down, being given by Sir Noel Power NPJ for the Court.

Sir Noel Power NPJ :

The Conviction

2. On 12 December 2003 after a jury trial before Nguyen J, the appellant was convicted by a unanimous verdict of the jury of one count of forcible taking away of a person with intent to procure a ransom for his liberation contrary to s.42 of the Offences against the Person Ordinance Cap. 212.  He was sentenced to 21 years imprisonment which was reduced to 18 years by the Court of Appeal on 29 June 2005.  His appeal to that court against conviction was dismissed.  His appeal against conviction to this Court is on a ground which was not raised in his appeal to the Court of Appeal.  This ground contends “that there were departures from accepted norms such as to render his conviction unsafe and unsatisfactory in that the learned Judge at the trial misdirected the jury as to the position which would arise if they were unable to agree on a verdict.”  That was pursued on the basis that the departures complained of constituted a substantial and grave injustice.  The appeal is brought pursuant to leave granted on 19 September 2007.

The Evidence at Trial

3. The prosecution case, shortly put, was that the appellant, who pleaded not guilty, and 3 others, who pleaded guilty, had on the 4 September 2002 at 7 pm kidnapped Mr Lam Yick-ming and demanded $5 million for his release.  This amount was raised by the victim’s business partner, Mr Lin Cheuk-chiu (Mr Lin).  The money was then dusted with a unique fluorescent powder (the powder) by the Government Chemist and at about 10:45 pm on 5 September, Mr Lin and Detective Inspector Wong Shu-bong (Detective Wong) went to a petrol station in Princess Margaret Road where they handed over the dusted money to 2 men in a white Honda Civic car (the Honda).  The victim was released at about 11:30 pm on that evening.

4. Between 7 and 8pm on the following day, the appellant and his wife visited a Madam Lam Yuet-lan and handed her $300,000 for safe keeping and borrowed a black nylon bag.  This money was later found to bear traces of the powder.

5. Two days later, on the 8 September, the appellant was arrested with 2 of the other defendants in Room 902 of the South Pacific Hotel.  This room had been booked by the appellant’s wife.  After arrest and caution by P.C.4558 the appellant said “I did not kidnap.  I helped my friend to collect from Lam Yick-ming a sum owed.  Ah sir, you are not making it so serious are you?”

6. The black nylon bag was found in Room 902 containing $297,000. 

7.  At the time of arrest the appellant was wearing a red sweater and $92,000 was found in the pocket of his jeans.  The sweater and both lots of notes contained traces of the powder.

8. At a formal identification parade on 9 September 2002 Detective Wong identified the appellant as the person in the front passenger seat of the Honda to whom the $5 million was handed by Mr Lin.

9. At trial the defence disputed only 2 matters - the identification by Detective Wong and the admission said to have been made at the time of arrest.

10. The appellant did not give evidence but called Mr Wong Ka-kui who said that around 1 to 2 pm on 6 September 2002 he had a meeting with the appellant to discuss transfer of shares in a mahjong school and that during the meeting Mr Chi Ka-cheuk, who was the second defendant, came in and handed a plastic bag containing wads of $1,000 notes to the appellant.

The Summing-up

11. Having dealt with the evidence the judge told the jury :

“	Now, members of the jury, each of you took an oath when you were first empanelled to return a true verdict according to the evidence.  That means that you must be true to your oath and you must not be false to that oath and you have a duty, not only as individuals, but also collectively as the jury, and that is the strength of the jury system.
	Each of you takes into the jury box your individual experience and wisdom.  You task is to put that experience and wisdom together and you do that by giving your views to your colleagues and listening to their views.  There must be discussion and argument and a willingness to give full consideration to the suggested logic of the other members of the jury and, if you are persuaded that there is some flaw or some fault in your own thinking, then you must be prepared to accept that perhaps your original decision can be changed after you have listened to the views of your colleagues.
	So what should happen, members of the jury, is you should make up your own mind how you feel the verdict should be and then you should listen to the views of your colleagues and see whether, after you have listened to their views, you want to change your original decision.  If you feel that you have not been persuaded by them to change your original decision, then that is fine, you must stick to your original decision, but the important thing is you should listen to their views and consider their views.
	Now you must try to reach a unanimous verdict.  A unanimous verdict means a verdict upon which all seven of you are agreed whether guilty or not guilty.  If, however, you are not able to do that, then I am entitled in law to accept from you what we call a majority verdict.  A majority verdict is a verdict where six of you are in agreement, in other words six one, one way or the other, guilty or not guilty, or five two, one way or the other, guilty or not guilty.
	A verdict of four three is not good enough so if you are locked in at four three, then you must continue your discussion until you reach at least five two.  But as I said, you must try to reach a unanimous verdict if you can.
	When you return to court, Mr Foreman, you will be asked a series of questions in order to bring out your verdict in a manner which is designed to avoid any mistakes or misunderstandings.  My clerk will now hand to each of you, for your assistance, a sheet of paper on which the questions have been typed and it may help if, before you return to court, you note against those questions the answers which have been agreed between all of you and which will be given by the foreman on your behalf.
	So when the foreman answers the questions, you should see whether the answers are in accordance with the agreement that all seven of you reached before you returned to court.  If answers given by the foreman are not correct, then you must draw that to my attention immediately.
	The first question is, “Have you reached a verdict?”  The answer will be either “yes” or “no”.  If the answer is “no”, I will deal with the matter.  If the answer is “yes”, you will be asked, “Is the verdict unanimous?” The answer will be either “yes, unanimous” or “no, not unanimous”, in which case you will asked, “What is the majority?”  If the majority is “six one” or “five two” then you will asked, “What is your verdict?”
	When you retire, members of the jury, you will be taken by the jury usher to your deliberating room.  If, after you retire, you require assistance on a matter of law or you wish to be reminded of some part of the evidence, then Mr Foreman, can you please write down your question or your request on a piece of paper and hand that paper to the usher.
	The usher will deliver that piece of paper to me and I will have to get counsel to come back to court and discuss the question or the request with them and agree with them how I should assist you before I invite you to come back to court.  So if you should have a question or request, please understand that you will not be invited back to court until after a bit of time because I have to get counsel to come back.
	The jury usher will at all times be outside your room but please do not, on any account, discuss with her any aspect of the case or procedure nor ask her any questions unless the question is simply to ask her to deliver an exhibit to you or to deliver a written question to me.
	Now, as I have told you, you have to stay together until you reach a verdict.  You have to be kept without communication with the outside world so, just before you go into the jury room, can you please leave your mobile telephones and pagers with my usher.  If, while you are deliberating, you remember that you have to make some urgent telephone call, then please write it out on a piece of paper and my usher will make the telephone call on your behalf.”  (Emphasis supplied)

The Complaints

12. Particular issue is taken by Mr Mumford SC, with him Miss Valerie Lim, for the appellant, with the two passages underlined above, to which I will refer as the first and the second alleged misdirections : 

“	a verdict of four three is not good enough so if you are locked in at four there, then you must continue your discussion until you reach at least five two.  But as I said you must try to reach a unanimous verdict if you can.”
“	Now as I have told you, you have to stay together until you reach a verdict.  You have to be kept without communication with the outside world so, just before you go into the jury soon, can you please leave your mobile phones and pagers with my usher.”

The Submission : Tam King Hon’s case

13. It is submitted by Mr Mumford SC, that these directions must have left the jury with the impression that disagreement is not an option open to them and that they had to continue their discussion until they reached a verdict of at least five two.  Reliance when making this submission was placed the Tam King Hon v. HKSAR (2006) 9 HKCFAR 206.

14. This Court found the summing up in that case unsatisfactory on three grounds :

(i)	that an analogy was inappropriately drawn between the deliberations of a jury and those of a board of directors.
(ii)	that the direction to the jury, when dealing with a majority verdicts, that “a majority verdict is either six to one, one way or another or five to two, one way or another.  Anything less would not be acceptable : so four to three will not be acceptable” was unsatisfactory.
(iii)	that the reference to the case being “an important case, important for the public of Hong Kong …” should have been avoided.

15. In his judgment delivered on 6 April 2006, with which the other judges agreed, the Chief Justice when dealing with majority verdicts held at p.217 :   :

“	31.	In Hong Kong, with a jury of seven, in the event that a unanimous verdict is not reached after “reasonable consultation”, a majority verdict of six to one or five to two would be acceptable.  Such a majority verdict “shall be taken as the verdict of the jury”.  Section 24(1) and 24(3) of the Jury Ordinance (Cap. 3).  Where a jury is split four to three either way, it would not constitute a valid verdict.  The jury would be “hung” and would have to be discharged.
	32.	In the Hong Kong context, it is appropriate for the jury to be directed on majority verdicts as part of the summing-up.  In the present case, the judge directed the jury in appropriate terms on the desirability of reaching a unanimous verdict and if that cannot be reached, then a majority verdict of six to one or five to two would be acceptable.  (See the third and fourth paragraphs of the directions in question).  But he continued and this is part which is criticised :
			Anything less would not be acceptable; so four to three will not be acceptable.
		He then concluded :
			So I would ask you to firstly try if you can be unanimous; if you cannot, then I can accept six to one or five to two, either way, guilty or not guilty, from you.
	33.	In HKSAR v Chan Ka Man [2005] 1 HKC 162, the judge had used identical words to the criticised words set out above.  Stock JA pointed out that in the sense that a four-three decision does not constitute a verdict, the judge was right but expressed the view that :
			… 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. (at para. 11)
		This view is a sound one.  Accordingly, the criticised words in the present case were unsatisfactory.
	34.	The appropriate approach in a summing-up when referring to a verdict of four-three is that contained in the Judicial Studies Board’s specimen directions on unanimous and majority verdicts as quoted in HKSAR v Chan Ka Man [2005] 1 HKC 162 (at para. 11) :
			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.
		At the stage of a summing-up, at which time a jury has not begun to deliberate, it is usually not appropriate to refer to discharge of the jury in the event of a verdict of four to three.  When a verdict of four to three does arise, the judge can then deal with the matter as may be considered appropriate in the circumstances.”

Pertinent also is the observation of the Chief Justice at p.212 where he said :

“

A summing-up must of course be fair.  In considering whether it contains material misdirections, the directions complained of must not be looked at in isolation but must be examined in their proper context.  Ultimately, it is the effect of the summing-up as a whole on the jury that has to be assessed.” (Emphasis supplied)

HKSAR v Chan Ka Man

16. Reliance was also placed by Mr Mumford SC on the judgment of the court delivered by Stock JA in HKSAR v. Chan Ka Man (2005) 1 HKC 162 to which reference is made above.  At that trial after the jury had been out for about 4 hours they returned and asked if 4:3 could be “defined as reached a verdict.”  The judge directed them “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 either six one or five two.  If after 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?” 

The Court of Appeal was satisfied that the direction as to majority verdicts with its “continued insistence on anything other than a disagreement” coming as it did after the jury had been out for 4 hours and with its emphasis on “very long discussion” was unsatisfactory.  It held :

“

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.”

The Proper Approach

17. Both of the above cases emphasize that properly to appreciate any part of a summing-up, it must, in each case, be read as a whole.

Chan Kar Leung’s case

18. Pertinent also to the present appeal is the appeal to this court in Chan Kar Leung v. HKSAR [2006] 9 HKCFAR 827 in which Bokhary PJ delivered the decision of the Court on 1 November 2006.  In this matter the trial judge :

(i)	directed the jury that a verdict by “anything less than 7-2 would not be acceptable”
(ii)	used the board of directors analogy
(iii)	told the jury that there would be “a lot of give and take” in their discussion
(iv)	told the jury that they had “a duty not only as individuals but also collectively …”

We are concerned only with (i) above as to which the Court of Final Appeal held at p.831 :

“

In the present case the Court of Appeal considered – and then rejected – the argument that the trial judge’s statement to the jury that “anything less than 7-2 would not be acceptable” would or might have given them the impression that they had to go on deliberating indefinitely.  In our view, there was no real danger of the jury getting that impression.  While not ideal, the trial judge’s directions to the jury on the position if they could not achieve the majority that constitutes a verdict were not fatally flawed.”

The Question before this Court

19. The question that arises in the present case is whether the alleged misdirections when read as a whole were fatally flawed as they may have left the jury with the impression that disagreement was not an option open to them and that they must continue until they reached a five two verdict.  Put another way it must be asked whether there was a realistic possibility that the alleged misdirections, particularly the first, might have brought improper pressure to bear on the jury to reach a verdict.

Mr Mumford’s Contention

20. Mr Mumford SC submits that these questions must be answered in the affirmative relying both on the words : “… if you are locked in at four three, then you must continue your discussion until you reach at least five two” and on the final direction to the jury before they retired that “you have to stay together until you reach a verdict.” 

21. As to the direction in Chan Kar Leung’s case (“anything less than 7-2 would not be acceptable”).  Mr Mumford SC submits that this was far less objectionable than what was said in the present case (“you must continue your discussion until you reach at least five two”).  The difference between the two directions can be readily seen but contrasting them does not of itself really assist as any direction must be looked in the context of the whole of the summing up in which it appears.

The Contentions of the Respondent

22. To appreciate the argument of Mr Robert S K Lee, with him Mr Edmond Lee, for the respondent, it is necessary, as is indicated in the cases cited above, to look sequentially at the totality of the directions given by the trial judge.  He told the jury :

(i)	that each juror “must be true to your oath …”
(ii)	that each must give “full consideration to the suggested logic of the other members of the jury…”
(iii)	that if unpersuaded thereby each “must stick to your original decision …”
(iv)	that “a verdict of four three is not good enough” and that if that occurred “you must continue your discussion until you reach at least five two”.  (The first alleged  misdirection.)
(v)	that, when they returned to court, they would be asked had they reached a verdict and if the answer was “No” he would deal with the matter.
(vi)	That if, after retiring, they required assistance on a matter of law or wished to be reminded of the evidence they could make a written request in that regard.
(vii)	That they must stay together until they had reached a verdict.  (The second alleged misdirection.)

23. Stuart Moore VP delivering the judgment of the court in HKSAR v. Huang Song Fu CACC No. 141 of 2005 emphasised that a jury must be given credit for its ability to apply commonsense to the directions given to them by the Judge.  Indeed, an oft-stated justification for the jury system is that juries do bring their commonsense to bear on the directions of the judge and the evidence they have heard.

24. Mr Lee relies upon the commonsense of the jurors pointing out that they were, at the outset, told that they must be true to their oath and that they must, if unpersuaded by argument, stick to their original decision.  Further that, almost immediately after the first alleged misdirection, they were told that if they answered “No” when asked if they had reached a verdict, the judge would deal with the matter and  were also told that they could at any time seek his assistance. 

25. Mr Lee did not, understandably, deal at any length with the second misdirection.  Indeed had it stood alone it could well be contended that a commonsense jury would realize that it meant no more than that they would be held incommunicado while they were deliberating.  It is only when it is allied to the first alleged misdirection that it might be considered objectionable.

26. Turning then to the first alleged misdirection - “a verdict of four three is not good enough so if you are locked in at four three, then you must continue your discussion until you reach at least five two.”  These words, standing alone, would undoubtedly constitute a serious misdirection?  Is the situation saved, for the respondent, when that direction is looked at in context or might those words nonetheless, have left some jurors feeling under pressure to, at least, return a majority verdict?

27.  The judge’s statement to the jury that they must continue their deliberations until they reached at least five : two should not have been made.  It was of such a nature as to put jurors under undue pressure to agree, was not cured by anything else said in the summing-up and gave rise to a substantial and grave injustice.  The conviction had therefore to be quashed.