ATTORNEY GENERAL v. PAN CHI KEUNG AND OTHERS

IN THE COURT OF APPEAL

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J U D G M E N T

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Silke,V.P.:

1. This is an appeal by the Attorney General and the Commissioner of the Royal Hong Kong Police Force against the Order of de Basto J. dated 24th August l987. The Appellants seek to set aside the Judge's Order directing the release of the Respondents to this appeal; second they seek an order that the Indictment filed against the Respondents in Criminal Case No. 201 of 1986 - "201" - be proceeded with until its final and lawfu1 determination; third they seek warrants of arrest to issue to each of the Respondents to secure their attendance at the further hearing of the Indictment in 201; fourth they seek to set aside the costs order made in favour of the Respondents and they seek an order that costs be in favour of the Appellants both here and below.

2. They originally sought that an order be made for the issue of a Writ of Venire de Novo against the Respondents in 201. This is also the subject of a Respondent's Notice.

3. Such an order is no longer sought though the principles applicable to the issue of this writ do impinge on the general issues here.

4. The history of the matter is this.

5. Nine accused were named in a severed Indictment containing a single count of murder. At the conclusion of the trial before O'Dea J. and a jury, D1 and D9 were found guilty of manslaughter; D2, D4 and D7 were acquitted there being no case for them to answer; D8 was found not guilty by a unanimous verdict; D3, Pan Chi Keung, was found not guilty by a majority verdict of six to one; D5, Wong Yiu Lun, was found not guilty by a majority verdict of five to two; and D6, Chan Kwok Fai, was found not guilty by a majority verdict of six to one. These last three named Defendants are the Respondents to this appeal and I shall continue to refer to them as D3, D5 and D6.

6. The manner in which the verdict was taken bears repetition:

"Clerk: Now on the count of Murder against the 3rd Accused, PAN Chi-keung, have you reached a verdict? Please answer yes or no.

Foreman: Yes.

Clerk : Are you unanimous? Please answer yes or no.

Foreman: No.

Clerk: By what majority?

Foreman: 6 to 1.

Clerk: What is your verdict?

Foreman : Not guilty.

Clerk: Now, on the count of Murder against the 5th accused, WONG Yiu-lun, have you reached a verdict? please answer yes or no.

Foreman: Yes.

Clerk: Are you unanimous?

Foreman: No, we are not.

Clerk : By what majority?

Foreman : 5 to 2.

Clerk : What is your verdict?

Foreman : Not guilty.

Clerk. : Now, on the count of Murder against the 6th Accused, CHAN kwok-fai, have you reached a verdict? Please answer yes or no.

Foreman : Yes.

Clerk : Are you unanimous? Please answer Yes or no.

Foreman: No.

Clerk : By what majority?

Foreman: 6 to 1.

Clerk : What is your verdict?

Foreman : Not guilty."

7. There then came, in what we are told was an emotional and highly charged atmosphere, a request by counsel representing Dl that the jury be directed to return a formal verdict of not guilty of murder. They were so directed and did so.

8. They were also asked to return a formal verdict of not guilty in respect of D9. The matter of sentence was discussed. Mr. Hemmings for D8 interposed to ask whether those defendants who had been acquitted could be "released from the dock".

9. To this the judge replied:

"Yes. Well, I'll make that formal order. The 3rd, the 5th, the 6th and the 8th accused having been found not guilty of any offence are released and may be  discharged from the dock.....".

10. The formal order.

11. Mr. Dale who represented the Crown at the trial told the judge that both D5 and D6 were subject to another charge and asked for their detention and their remand to a future date to permit the Crown to make its decision in respect of the remaining charge. The judge then remanded them to come up again before him on 26th May.

12. Later in the morning successful applications for bail were made on behalf of D5 and D6.

13. On 8th June, the Deputy Crown Prosector wrote to the Registrar Supreme Court enclosing a copy of the Indictment in 201, stated that the Crown contended the count in the Indictment "had not been lawfully determined" and applied for the count to be relisted for hearing in the High Court. He undertook to file an amended Indictment restricted to one count of murder against D3, D5 and D6.

14. By letter dated 12th June, the Registrar informed the Director of Public Prosecutions that 201 was listed before O'Dea J. on 22nd June. Both of these letters were copied to the Director of Legal Aid.

15. When O'Dea J. sat on 22nd June counsel for the Respondents applied for an adjournment. This application was contested by the Crown. The jurisdiction of the trial judge was called into question. The issue of his being functus officio was raised. The Crown submitted that the trial was a nullity and that the judge was not therefore functus for the purpose of ordering a new trial.

16. O'Dea J. adjourned the Crown's application and directed that it be set down before another judge of the High Court after 14th August.

17. On 15th July, D3, D5 and D6 attended by arrangement at the Regional Crime Unit, Yaumati where they were arrested and taken into custody on a charge of murder - the count in 201. They made immediate application for leave to issue a Writ of Habeas Corpus which application was heard by Garcia J. who granted leave and made a bail order. He directed that the Writ be served on the Attorney General and upon the Commissioner for Police and further that the matter be adjourned into the Chief Justice's list for directions.

18. On 22nd July Garcia J. himself gave directions. He ordered that the Writ be returnable before de Basto J. on 10th August and further that the matter of the Writ of Habeas Corpus be heard and determined before the application by the Crown for a re-trial of 20l.

19. On 11th August the Commissioner of Police filed a return to the Writ. This was amended on 13th August. The amended return stated that D3, D5 and D6 had, on 15th July, been arrested "on the basis that they were reasonably suspected of being guilty of an offence of murder" and further stated that the cause and purpose of the arrest was to secure their attendance at the hearing of an application by the Crown in 201 "for the disposal of a count of murder against each of the Respondents".

20. The nature and content of the return became a matter of much controversy.

21. De Basto J. conceived it as his first duty to determine whether the order of O'Dea J. was a valid one and, alternatively, were it voidable, had he any jurisdiction to review, set aside or interfere with it and, in the further alternative, if he had jurisdiction whether he was functus officio.

22. He held that once a High Court judge made a final order such an order is valid until it is set aside: that one judge of co-ordinate jurisdiction does not exercise a supervisory jurisdiction over another: therefore he had no jurisdiction to interfere in any way with the order of O'Dea J.

23. On the issue of functus officio he held O'Dea J. was functus in respect of 201 and so therefore was he, even assuming that he had the jurisdiction which he denied himself.

24. The consequence was that the arrests of D3, D5 and D6 were unlawful. He ordered them to be unconditionally discharged and further that their bail monies be  returned to themselves and to their sureties.

25. It is from these findings and the orders made consequent upon them that the Attorney General now appeals.

26. The first issue for consideration is this: Was the verdict of the jury an imperfect one for, if it were, then the Respondents have never in fact been tried: " trial" meaning a complete and finished trial. Without a valid verdict there has been in law no trial.

27. Germane to this issue is the debate which took place at trial between O'Dea J. and counsel which involved the consideration of the obscurely worded subsection (4) of section 24 of the Jury Ordinance, Cap.2. This reads:

"If any person is arraigned for any offence punishable with death the jury must be unanimous in their verdict of guilty or not guilty unless a majority ...

(a) ...

(b) ...

find such person guilty of a lesser offence in which case the finding of any such majority shall be the verdict and sentence shall follow accordingly."

28. The debate started when Mr. Hemmings in the absence of the jury sought guidance from O'Dea J. on the directions the judge intended to give "in relation to the question of unanimity."

29. O'Dea J. initially was of the view, being aware of divided opinions held by his brother judges, that the law required a unanimous verdict of either guilty or not guilty of murder and that a manslaughter verdict, and it should be emphasised that manslaughter was a verdict which lay for the jury in respect of all those in their charge, could not be considered until there existed an unanimous verdict of not guilty of murder.

30. Mr. Dale was of the view that, it having recently been argued before this Court, while the jury must be unanimous to convict of murder, unanimity was not require to acquit. The issue was at this point left in the air as both the judge and counsel wished to consider authorities. The judge commenced his summing up.

31. As the summing up drew to its close Mr. Dale addressed the Court, the jury still being present, submitted upon the law and produced an authority to which he had earlier referred.

32. All counsel at trial agreed that that which Mr. Dale had earlier stated was the correct view of the law.

33. The judge went on to direct the jury on the verdicts open to them as follows:

"To find a persion guilty of murder in Hong Kong, the law requires that you need to give a unanimous verdict. In other words, we would require all seven of you to reach the same verdict if it were guilty of murder. It is possible for you - although I do hope that throughout we have unanimity between you, but it is possible if you wish to go on and consider a verdict of manslaughter - this is against any individual accused - that a majority of_. you of not less than five to two, and that would be five to two or six to one, that that majority^, find the defendant guilty of manslaughter."

34. So far so good. It should be borne in mind that in Hong Kong murder, is still, at least by statute, a capital offence O'Dea J. then went on:

"So a unanimous verdict please if it is guilty of murder, but if you wish to go on and consider the offence of manslaughter it may be by a majority of not less than five to two."

35. As will be apparent from the passage earlier set out, when the jury did come to render their verdicts they were not asked to give any finding on manslaughter. If a majority of the jury had stated a verdict not guilty of murder it must follow that there could be no guilty verdict upon that charge. But there was a failure by them to render a verdict upon that which was in issue - manslaughter.

36. What should have happened was for the jury to have been asked if they had any other verdict to render if the answer had been yes, then that was it. If, as might have happened here, they returned a manslaughter verdict either unanimously or by the required majority, then they should have been formally invited to return a verdict of not guilty of murder.

37. If the answer had been in the negative, then they should have been told that their verdict was an unacceptable one, have been given further time for consideration and, if eventually unable to agree, been discharged. A new trial would have been directed.

38. In Reg. v. Charlesworth⁽¹⁾ and in D.P.P. v. Nasralla⁽²⁾, the respective courts were concerned with the discharge of the  jury by the judge where the jury could not agree. Lord Devlin in Nasralla⁽²⁾ made reference to Rex. v. Barron⁽³⁾ and to Connelly v. D.P.P.⁽⁴⁾. These authorities all hinged on whether or not a lawful verdict had been given. They are apposite here for, in my judgment the same principles should apply where the issue is not a failure to come to a verdict at all but the giving of a verdict which is not a true one.

39. Chitty Criminal Law, Vol.18 1826 speaks of its then being settled law that a legal acquittal would be sufficient to preclude any subsequent proceedings before every other tribunal and even an erroneous acquittal was conclusive until the judgment was reversed.

40. In Burgess v Boltefeur and Brown⁽⁵⁾, Tindall C.J., at page 126, described the word "acquittal" as "verbum equivocum" and said that:

"(it) may in ordinary language be used to express either the verdict of a jury or the formal judgment of the court that the prisoner go forth thereof without day".

41. In Conway & Lynch v. The Queen⁽⁶⁾, in a dissenting judgment, Crampton J. at page 165 spoke of an imperfect verdict as amounting in law to no verdict whether it be recorded with the sanction of the Court or not and, in considering an order of venire de novo spoke of a trial proving abortive in consequence of no legal verdict.

42. In Charlesworth⁽¹⁾, the dissenting judgment of Crampton J. in Conway & Lynch v. The Queen⁽⁶⁾was picked up and approved by Blackburn J.. At page 67, Blackburn J. agreed with the reasoning of Crampton J. that there was no distinction in principle as to the effect of a bar of an imperfect verdict and the discharge of the jury thereon and any other discharge of a jury.

43. In Winsor v. The Queen⁽⁷⁾ Blackburn J., again a member of the Court, said at page 313:

"When the jury have once found their verdict of conviction or acquittal the matter has become res judicata and after that there can be no further trial?

44. At page 314 he went on to pose the question:

        "Had the matter been so determined by the jury as to have become res judicata."

45. We are here concerned with first principles and while the authorities to which I have so far made reference are of ancient lineage they were decided, albeit in circumstances somewhat different from today, by strong courts.

46. I considered the question which we must pose to ourselves to be: Has the matter been so determined by the legal verdict of the jury as to have between res judicata as between, to use the expression of Lord Morris of Broth-y-gest in Connelly v. D.P.P.⁽⁴⁾ "the plaintiff and the defendant".

47. I would answer by saying that, in the light of the authorities, because of the imperfections of the verdict here - and I would interpolate that I can understand O'Dea J's desire to give effect to the conclusion to which the jury apparently came - there was no legal verdict amounting to an acquittal.

48. So what is the effect of all this?

49. In R. v. Russell⁽⁸⁾, a necessarily truncated report, the Engligh Court of Appeal held that "once a jury had been told that they were discharged from reaching verdict that was the end of that particular trial and any subsequent proceedings were nullity".

50. Lord Diplock made it clear beyond peradventure in Issacs v. Robertson⁽9) that no category of order made by a Court of unlimited jurisdiction can be ignored. The High Court is a superior Court of record. There must either be proceedings to set the order aside or, in a limited category of order, the person affected thereby may apply to have the order set aside ex debito justitiae in the exercise of the inherent jurisdiction of the Court without recourse to sitting aside proceedings. It is not, I might add, any part of the Crown's case here that they come within the second category.

51. There is no provision in the laws of Hong Kong emerging from either statute or the common law to order a retrial in the case of an acquittal by verdict of a jury. Once the jury had been discharged though up to that time the trial judge is still seized of the case and can rectify errors, the trial is at end. Neither the trial judge nor any other judge of co-ordinate jurisdiction can interfere for they are functus officio. When the High Court makes such an order, being a court of unlimited jurisdiction and there existing no procedure for its being set aside, that order must be obeyed.

52. The return here to the Writ of Habeas Corpus relates the arrest to the original trial. It does not attempt to rely for the validity of the arrests on any new trial on a fresh indictment.

53. The acquittal and the order of discharge still standing, the arrests, specifically for the purpose of continuing 201, were invalid.

54. My Lord Clough J. A. in a judgment which I have had the benefit of reading in draft deals extensively with and rejects the arguments advanced on behalf of the Respondents that the judgment of de Basto J. could be sustained on the alternative basis that if there were to be a retrial on a fresh indictment the Respondents would succeed in establishing a plea of autre fois acquit.

55. I am in respectful and entire agreement with his conclusions and in particular the comfort he seeks to draw from that which Lord Lane L.C.J. had to say when delivering the judgment in Griffiths and others⁽¹⁰⁾ and in his acceptance of the observations of Lord Morris of Borth-y-gest contained in Connelly v. D.P.P.⁽⁴⁾, at 1307, where Lord Morris was discussing the principles governing the plea of autrefois acquit.

56. For me to add anything further would be as superfluous as it would be unhelpful.

57. I would dismiss this appeal and refuse the orders sought for the reasons given and adopt the course taken by my Lord Clough J. A. in stating that its dismissal is not on the basis that there are grounds for holding that a jury, properly directed in a voir dire on the issue, were the Respondents to face trial upon a fresh indictment as the result of the application by the Crown for a voluntary Bill, would uphold pleas of autrefois acquit.

(1) (1861) 9 Cox CC 44
(2) [1967] 2 A.C. 238
(3) [1914] 2 K.B. 570
(4) [1964] 2 K.B.1255
(5) (1844) 13 L.J. Magistrates cases 122
(6) (1845) H.T. 149
(7) [1866] Q.B. 289
(8) [1984] Cr. L. Rev. 425
(9) [1985] 1 A.C. 97 at 103
(10) [1981] 72 Cr. App. R. 307

Clough, J.A.

58. I agree that this appeal should be dismissed.

59. The judge purported to discharge the respondents as accused persons acquitted by the jury's verdict. He discharged the jury and absolved them from further jury service. Although the trial had not been lawfully conducted the discharge of the jury brought that particular trial to an end and any subsequent proceedings purporting to be a continuation of that trial would be a nullity: R. v. Russell⁽¹⁾.

60. As the Crown concedes, s. 119 of the Criminal Procedure Ordinance (Cap. 221) prohibits the issue of the writ of error in Hong Kong. There is no other common law or statutory procedure available in Hong Kong to obtain a re-trial in a case of acquittal. The old procedure of motion for re-trial was only available in certain cases of misdemeanour and not for felony, nor was it available in cases of acquittal: See Rep. v. Bertrand⁽²⁾ and Reg. v. Duncan⁽³⁾.

61. There being no procedure for setting aside the order of purported discharge of the respondents as acquitted persons it must, as the order of a court of unlimited jurisdiction, be obeyed by the Crown as the person against whom it was made in the course of contentious litigation: Isaacs v. Rohertson⁽⁴⁾: see the dictum of Lord Morris in Reg v. Connelly⁽⁵⁾ at p. 1304 citing Holdsworth, to the effect that under the English system of law criminal procedure has been conceived of as an action between a plaintiff and a defendant to be tried by a process substantially similar to that employed in any other action.

62. The return of the Crown to the writ of habeas corpus expressly relates the arrest to the original trial, which has ended, and does not rely on a purported new trial relating to a fresh indictment. In relation to the only indictment in existence there has been a purported trial and judgment of discharge. The Crown does not contend that it is entitled ex debito justitiae to have the order of discharge set aside or that this case is in the category of cases contemplated by the dictum of Lord Diplock in Isaacs v. Robertson⁽⁴⁾ at p. 103 B-C.

63. If the judge's error had been pointed out by counsel before the trial ended and he became functus officio, it clearly could have been corrected, but this did not happen and it is now too late for the trial judge or any other High Court judge to vary the judgment given at the trial

64. Whilst I therefore agree that this appeal should be dismissed. I confine my reasons to holding that there is no procedure in Hong Kong for obtaining a re-trial on the same indictment after a purported acquittal, and that in the absence of any such procedure the order of discharge on purported acquittal made by the High Court judge must be obeyed, cannot be set aside and renders the arrest of the three respondents for the purpose of the continuation of Criminal Case No. 201 of 1986 invalid.

65. As the issue has been fully argued before us and could be important hereafter I add my reasons for rejectnig the argument, advanced on behalf of the respondents, that the judgment below could also be sustained on the basis (not relied upon by the judge below ) that if there were to be a re-trial in this case the respondents would in any event be able to establish a plea of autrefois acquit.

66. In my judgment the present situation affords no bar to the Crown, if it thought fit in all the circumstances, applying for a voluntary bill under section 24A(1)(b) of the Criminal Procedure Ordinance (Cap. 221 ) (c.f The Queen v. Mak Foon-than⁽⁶⁾), resulting in a re-trial in which the plea of autrefois acquit would not be sustainable.

67. The basic principle underlying the plea of autrefois acquit, as propounded as proposition (1) by Lord Morris in Reg. v. Connelly⁽⁵⁾ at p.1305, is that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted or (proposition (9)) the fundamental principle that a man is not to be prosecuted twice for the same offence.

68. All the Lords of Appeal in Connelly⁽⁵⁾ regarded autrefois acquit being an application of the estoppel principle known as res judicata which was held to be applicable no less in criminal than civil proceedings: see the comments in Spencer Bower and Turner on Res Judicata (2nd edition) at para. 65 and in note 1 to para. 316. Reliance was placed by Lord Morris (inter alia) at p.1321 on the dictum of Lord MacDermott in Sambasivam v. P.P. Federation of Malaya⁽⁷⁾ at p.479 to the effect that a verdict of acquittal pronounced by competent court on a lawful charge and after a lawful trial is binding and conclusive in all subsequent proceedings between the parties to the adjudication.

69. Lord Morris cited with approval the dictum of Lord Reading in Rex. v. Barron⁽⁸⁾ at p.574 expressing what Lord Morris referred to as the accepted principle enunciated by Lord Reading in that case:

"that the law does not permit man to be twice in peril of being convicted of the same offence. If, therefore, he has been acquitted, i.e., found to be not guilty of the offence, by a court competent to try him,  such acquittal is a bar to a second indictment for the same offence. This rule applies not only to the offence actually charged in the first indictment, but to any offence of which he could have been properly convicted on the trial of the first indictment.

70. In D.P.P. v. Nasralla⁽⁹⁾, Lord Devlin, after referring to Rex. v. Barron⁽⁸⁾ and Connelly⁽⁵⁾ co-related the notions of double jeopardy and autrefois in the following passage at p.249-50:

"But if the rule against double jeopardy and the principles of autrefois are to produce the same result, the word 'peril' must be given a more restricted meaning. It is true that the object of the plea of autrefois is to ensure that a man is not placed in double jeopardy. It is true also that as a general rule, i.e. whenever the trial of an offence is concluded as it usually is, it is right to say that the accused must not be put in jeopardy again. But what is essential to the plea of autrefois is proof of a verdict of acquittal of the offence alleged - not proof that the accused was in peril of conviction for that offence."

71. Lord Devlin went on to approve an earlier statement of the law by Crompton J. in Reg. v. Charlesworth⁽¹⁰⁾ at p.57. Lord Devlin observed:

"In the popular sense a man is in jeopardy conviction from the moment he is put in charge of a jury; and if that jury is discharged and he is put in change of another, he is in jeopardy again. Cockburn C.J. in Reg. v. Charlesworth makes it plain that the rule against double jeopardy cannot operate in that way. He says:

'It appears to me, when you talk of a man being twice tried, that you mean a trial which proceeds to its legitimate and lawfu1 conclusion by verdict; that when you speak of a man being twice put in jeopardy, you mean put in jeopardy by the verdict of a jury, and that he is not tried, that he is not put in jeopardy until the verdict comes to pass, because if that were not so, it is clear that in every case of defective verdict a man could not be tried a second time ...' "

72. Both Charlesworth⁽¹⁰⁾ and Nasralla⁽⁹⁾were cases in which the court was concerned with the discharge of the jury, by the judge where the jury could not agree. However it seems to me that the same principles must apply where the jury has not  failed to arrive at any verdict but has purported to arrive at a verdict which is not a true verdict because it is not unanimous as required by the law.

73. It is fundamental at common law that the verdict of a jury must be unanimous. Thus in Winsor v. The Queen⁽¹¹⁾ at p.303 Cockburn C.J. indicated that one of the principles which lay at the foundation of our law was the maxim "that the verdict of the jury, in order to be binding, must be unanimous". That common law maxim applies in Hong Kong in relation to any person arraigned for any offence, such as murder, which is punishable with death, save that on a murder count a majority verdict of not guilty of murder but guilt of manslaughter is permitted under section 24(4) of the Jury Ordinance (Cap. 3).

74. In the present case  the purported verdicts of the juries were "not guilty" to a murder count by varying majorities, but the verdicts did not add any finding regarding manslaughter, which had not been made the subject of a separate count but was in issue. Thus the purported verdicts which the judge accepted were not verdicts at all in the lawful sense. The effect of those purported verdicts was no more than if the jury had simply announced that they could not agree. In the absence of any attempt by the judge to require the jury to give further consideration to the matter, the requirement of section 27 of the Jury Ordinance was that the jury should be discharged and a new trial of the indictment be ordered before another jury.

75. The verdict contemplated in the dicta cited above from Nasralla⁽⁹⁾ and Charlesworth⁽¹⁰⁾ is clearly a lawful verdict. As Crampton J observed in Conway & Lynch v. The Queen⁽¹²⁾ at p.165 - "To constitute a trial, not popularly but legally for the purposes of autrefois acquit there must be a verdict judgment": see also the dictum of Coleridge J. to the same effect in Reg. v. Drury⁽¹³⁾ at p.193. The judgment is necessary to give effect to the verdict, but if the verdict be a true verdict in the sense of being unequivocal and a unanimous verdict that can be properly returned upon the indictment the jury has been considering then the judge is bound to give effect to it: Reg. v. Yeadon⁽¹⁴⁾; Rex. v. Lester⁽¹⁵⁾.

76. The decisive importance of the verdict was emphasised by Blackburn J. in Winsor v. The Queen⁽¹¹⁾ at p.313 where he observed - "When the jury have once found their verdict of conviction or acquittal, the matter has become res judicata, and after that there can be no further trial". The passage containing this dictum was cited with approval in Reg. v. Murphy⁽¹⁶⁾ at pp.547-8. As James L.J. observed in Reg. v. Robinson⁽¹⁷⁾ at p.516:

"... in order to sustain a plea of autrefois convict or autrefois acquit the accused must show that there has been on a former occasion a verdict of the jury which is given to the court. It is not sufficient to say 'Well, the jury announced that they had reached a decision on one or any or all the counts and then were discharged from giving their verdicts.' A conviction or acquittal arises at the proper conclusion of the matter, and there is no conclusion of the matter until the verdict is given to the court. This is more than a matter of form. It is a matter of substance."

77. In Reg. v. Rose⁽¹⁸⁾ the House of Lords had occasion to consider the power of the Court of Appeal by virtue of section 1(2)(b)(ii) of the Criminal Appeal Act 1966 as amended by the Criminal Appeal Act 1968, to issue a writ of venire de novo. Lord Diplock with whose speech all the other Lords of Appeal concurred, drew the distinction at page 832E between cases (such as Crane v. D.P.P.⁽¹⁹⁾) where venire de novo lies because no valid trial has ever been commenced on the one hand and, on the other hand:-

"...those cases of trials which, although validly commenced, have not been validly concluded by a properly constituted jury bringing an unequivocal verdict of guilty or not guilty followed by sentence or discharge of the defendant by the court."

78. He cited Reg. v. Hancock⁽²⁰⁾and Reg. v. Yeadon⁽¹⁴⁾ as examples of such cases and mentioned an article by Sir Robin Cooke containing other examples of cases:

"... in which the jury has been discharged without having arrived at a lawful verdict and in consequence of this there has been neither a conviction nor an acquittal of the defendant."

79. At page 832H - 833A Lord Diplock made it clear that, on the authorities, the Court of Criminal Appeal had jurisdiction at the date of its abolition, to issue writs of venire de novo inter alia - "if the trial had come to an end without a properly constituted jury ever having returned a valid verdict." He observed at the end of his speech at pages 833H - 834A:

"In those cases where the Court of Criminal Appeal, immediately before its abolition, would have had jurisdiction to issues writ of venire de novo because there had been no valid verdict of guilty or not guilty by the jury, Part I of the Act of 1968 would have no application, since there would have been no conviction within the meaning of that Act which (with the exception of appeals against verdicts of 'not guilty by reason of insanity') deals only with appeals against convictions. The court's jurisdiction to deal with this class of case, where there has not been any conviction, is derived exclusively from section 1(2)(b)(ii) of the Act of 1966 as amended by the Act of 1968 and enables the Court of Appeal (Criminal Division) to issue a writ of venire de novo."

80. As the Crown has rightly conceded, no question of venire de novo arises in the present case, but derive fortification from the understanding of Lord Diplock manifested in Reg. v Rose⁽¹⁸⁾ that a trial has not been validly concluded if there has not been an unequivocal verdict of guilty or not guilty followed by sentence or discharge of the defendant by the court.

81. It was argued on behalf of the respondents that there had been merely an erroneous but unequivocal and lawful verdict followed by the discharge of the respondents as acquitted persons by a competent court in the exercise of its undoubted  jurisdiction to try the case. However this argument seems to me to start upon the false premise that there has in the eyes of the law been a verdict at all. Certainly there has been no verdict which binds the Crown because it was not unanimous as required by the common law and section 24(4) of the Jury Ordinance. The trial  judge had no power to accept such a verdict, nor could his acceptance of it followed by judgment of discharge breathe life into a verdict which was a nullity.

82. Furthermore, there being no lawful completed verdict of the jury the purported discharge of the respondents was a nullity and the judge could have ordered the arrest of the respondents at any time before he discharged the jury: c.f. Reg. v. Carter⁽²¹⁾ at p.6.

83. Envisaging a new trial in which the respondents plead autrefois acquit it seems to me that it would be impossible for them to prove the primary essential ingredient necessary to establish such a plea, namely a lawful unequivocal verdict of not guilty which was binding on the Crown. Moreover in the absence of such a verdict it is impossible for them to establish the judicial decision which is the foundation of res judicata: see Spencer Bower & Turner on Res Judicata (2nd edition) at paras. 30, 65 and 134 and c.f. R. v. Bitton⁽²²⁾ and R. v. Chamberlain⁽²³⁾. In the absence of the jury's lawful unequivocal verdict (whether based on a correct or erroneous direction of the judge) the judge had no jurisdiction to discharge the respondents and the mere judgment of discharge cannot by itself give rise to res judicata or provide a basis for a plea of autrefois acquit.

84. It was contended on the respondents' behalf that the circumstances of this case came within the principles applied in Reg. v. Middlesex Quarter Sessions (Chairman) Ex parte D.P.P.⁽²⁴⁾. There the Queen's bench Divisional Court had to consider a trial on indictment where there was jurisdiction to try the offence charged. After pleas had been taken and counsel for the Crown had opened the prosecution case to the jury, the chairman intervened and directed the jury to return a verdict of not guilty. The Divisional Court refused to grant certiorari to quash the acquittal, holding that, although the trial had been deplorably IRREGULAR, it did not amount to a mistrial in the legal sense of a nullity. In re Harrington⁽²⁵⁾ at p.753 Lord Roskill observed of this decision - "I do not see how it could have been said that what happened was a nullity ...".

85. For my part I derive no assistance from the Middlesex case⁽²⁴⁾. It was not concerned with a situation where a jury had purported to return a verdict which was fundamentally unlawful and not binding. In that case the jury's verdict must have been unanimous, albeit the result of an erroneous and improper direction from the chairman who was not acting beyond his jurisdiction. In the present case the facts are wholly distinguishable and for the reasons given above the trial was, in my view, a nullity.

86. The respondents also relied on the decision of the Supreme Court of Canada in Petersen v. The Queen⁽²⁶⁾. In that case a provincial court judge, exercising summary jurisdiction, had dismissed an information without hearing evidence on the ground that he lacked jurisdiction for reasons connected with his understanding of statutory provisions relating to the effect of various adjournments which had been granted before the trial. The Crown subsequently proceeded by indictment against the accused in respect of the same matter. The accused's plea of autrefois acquit was dismissed. He was subsequently acquitted but the acquittal was reversed by the Saskatchewan Court of Appeal and a conviction was entered. On appeal by the accused to the Supreme Court of canada the appeal was allowed.

87. The Supreme Court held that the plea of autrefois acquit should have been upheld when the accused was charged again on indictment because the provincial court judge had made an error in law in deciding that he had no jurisdiction when disposing of the case. Even if the order was wrong it nevertheless disposed of the case and stood until rescinded, quashed or reversed on appeal, i.e. the order had been made within the jurisdiction of a court of competent jurisdiction and was not a nullity, albeit erroneous. It did effectively dispose of the case for purposes of the plea of autrefois acquit because the accused had been placed in jeopardy by the first trial before a court of competent jurisdiction and there had been a disposition in his favour resulting in an acquittal or dismissal of the charge.

88. In the course of delivering the judgment of the court McIntyre J. (summarising the effect of the judgment of Dickson J. in the earlier leading case of R. v. Riddle⁽²⁷⁾ had this to say at page 390 about the plea of autrefois acquit:-

"... a plea of autrefois acquit is available and should succeed where an accused shows that he was placed in jeopardy on the same matter on an earlier occasion before a court of competent jurisdiction, and that there was a disposition in his favour resulting in an acquittal or dismissal of the charges. The question for decision in this case then is whether the proceedings before the provincial court had that effect. Was the court a court of competent jurisdiction? Was the appellant placed in jeopardy before that court, and did his trial commence and proceed to a final disposition of the charges by dismissal or acquittal?"

89. McIntyre J. concluded the judgment of the court in the following passage at page 393:-

"In the facts of this case I am of the view that the appellant was put in jeopardy, and the summary conviction court dismissed the informations thus giving the appellant such a determination of the issue that it could be raised in bar of any later proceedings on the same charge. The fact that the provincial court judge may have made an error in law in dismissing the informations does not alter the situation. He made an order. Assuming, as I do, that his order was wrong, it none the less disposed of the informations. Such an order, though voidable, must stand, however, until it is rescinded, quashed or reversed on appeal. It was therefore in force and effect when the plea of autrefois acquit was raised and it should have received effect. This is not to say the Crown was left without remedy in the face of judicial error. The Crown could have appealed; it might have had the right to relief by prerogative proceedings, but it could not simply conclude that the summary conviction court's order was ex facie a nullity and ignore it by commencing new proceedings. By this approach, the Crown has forgone its remedy and a plea of autrefois acquit should have succeeded. I would allow the appeal."

90. This court would always treat with great respect and be inclined to follow a decision of the Supreme Court of Canada. However, it seems to me that applying the test adumbrated in Petersen⁽²⁶⁾and asking the question, on the facts of the present case "were the respondents placed in jeopardy before the court, and did the trial commence and proceed to a final disposition of' the charges by dismissal or acquittal?", the answer must be "No".

91. One of the important distinctions between Petersen⁽²⁶⁾ and the present case is that Petersen⁽²⁶⁾ was a case concerning a trial by a summary court where the judge himself exercised jurisdiction and made the necessary decisions and orders. In dismissing the information he was held by the Supreme  Court to have made effective disposition of the charges in the exercise of his jurisdiction albeit a disposition which was erroneous in law. In the present case the factual matrix is quite different, we are concerned with the discharge  of the respondents by the judge on a trial on indictment at a time when  there was not even an erroneous verdict of the jury on the record. There cannot therefore be said to have been a final disposition of the murder charge or any lawful conclusion to the trial, because in a trial by jury there must be a lawful verdict of the jury before any question of double jeopardy in its technical sense or of res judicata can arise. Petersen⁽²⁶⁾ does not therefore provide the solution to the issue of autrefois acquit in this case.

92. Then it was contended on behalf of the respondents that because the order of discharge made by the trial judge in the present case was not subject to appeal or any proceedings in error, it not only had to be obeyed but could not be questioned by any other judge of the High Court or by this court in any other proceedings between the Crown and the respondents. In particular reliance was placed upon the dictum, cited above, of Lord MacDermott in Sambasivam v. P.P. of Malaya⁽⁷⁾ at p.479.

93. Whilst I accept that the order of discharge made by the trial judge cannot be varied or set aside by any court I can see no reason in principle why the Crown should be precluded from initiating fresh proceedings against respondents on a fresh indictment preferred, with the consent of a judge under section 24A(1)(b) of the Criminal Procedure Ordinance (Cap. 221) which could, if necessary, lead to the lawful arrest of the respondents under section 46 of the Ordinance.

94. If the Crown were to apply for such an indictment to be preferred it would be on the basis that the effect of the purported verdict of the jury and of the judge's order of discharge was that the trial was a nullity because the verdict of the jury, which the judge accepted, was not a lawful verdict which the judge had any jurisdiction to accept. I can see no reason why such an indictment should not be consented to by a judge on being satisfied that there is a genuine issue between the Crown and the respondents to be raised by a plea of autrefois acquit at the second trial. It would follow that the issue would have to be determined in that trial by the jury on the direction of the trial judge as to the effect, for the purposes of the issue of autrefois acquit, of the purported verdict of the jury and the order of discharge made by the judge in the first trial.

95. If this were not the case it is difficult to see how any plea of autrefois acquit could ever be permitted to raise an effective issue for the jury in a second trial after an acquittal on previous trial on indictment in the High Court, because the judge would be bound to direct the jury that the fact that the acquittal (however wanting in jurisdiction) had not been set aside was conclusive of the issue of autrefois acquit.

96. I am fortified in this view by the approach adopted by the English Court of Appeal in Griffiths⁽²⁸⁾which unfortunately was not cited to us. It seems to me that the English authorities reviewed above make it clear that it is not every acquittal or purported acquittal which gives rise to a successful plea of autrefois acquit. It is therefore necessary for the court conducting the second trial to consider the effect of the order made at the first trial and determine whether or not there has been a lawful disposition of the indictment at the first trial which gives rise to res judicata: c.f. Reg. v.West⁽²⁹⁾.

97. In the present case the Crown would be entitled to contend that it is in the interest of justice that there should be a lawful determination, one way or the other, on the issue whether the respondents are guilty or not guilty of murder or the lesser offence of manslaughter. In this connection the following observations of John Stephenson J., the trial judge on the general issue in Connelly⁽⁵⁾, which were cited by Lord Morris at page 1304 with approval are apt:-

"...generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it."

98. Lord Morris himself observed:-

"There is no abuse of process if to a charge which is properly brought before the court and which is framed in an indictment to which no objection can in any way be taken there is no plea such as that of autrefois acquit or convict which can successfully he made."

I respectfully adopt these observations which do not seem to have lost any force by reason of anything that was said in D.P.P. v. Humphrys⁽³⁰⁾.

99. Accordingly I would dismiss this appeal for the reasons given earlier and not because there is any ground for holding that a jury, properly directed, would uphold pleas of autrefois acquit by the respondents if they were to face another trial on a fresh indictment.

Penlington, J. A.:

100. I have no doubt that the Judgment of De Basto J. was correct and this appeal should be dismissed.

101. A verdict on a charge of murder must be unanimous, either guilty or not guilty, unless they find the accused not guilty of murder but guilty of manslaughter. Then, and only then, they need not be unanimous as to not guilty of murder. Here the jury having found the appellants not guilty of murder by a majority were not asked if  they had any other verdict, which they should have been. However in respect of the lst (and 9th) accused the jury when asked if they had reached a verdict on the charge of murder did not reply directly to that question but said they found the accused guilty of manslaughter by a majority of 5 to 2.

102. It was clearly assumed after that when returning verdicts against the other accused the jury by simply saying not guilty of murder were also saying "and also not guilty of manslaughter". The case illustrates the need for the jury to be required to firstly return a verdict on the murder charge of that verdict is "not guilty" whether or not it is unanimous, they should then be asked if they have any other verdict, if a verdict of manslaughter is open to them. If they have not and if the murder verdict was unanimous that is an end to the matter. If however it was not unanimous they jury must either be asked to retire again for further consideration or they must be discharged.

103. Notwithstanding the verdicts in respect of the respondents were, on the face of record, not in accordance with Section 24(4) of the Jury Ordinance, it was accepted by the trial judge and he made an order discharging the respondents. I am satisfied that, as the law now stands, there is no way that order can be discharged and the respondents brought back to court to again answer to the indictment in 201. It most certainly cannot be done by simply asking the Registrar to re-list the indictment and for the Commissioner of Police to re-arrest the respondents and bring them again before the Court. The only way that can be done is for a fresh indictment to be issued. I have no doubt De Basto J. who has clearly considered fully all the relevant authorities on this difficult matter, was entirely correct in finding that he had no power to set aside the order of O'Dea J. I am also satisfied that this Court also has no such power. Isaacs v. Robertson⁽⁹⁾.

104. On the second issue of whether the plea of autrefois acquit is open to the respondents, I was in very considerable doubt indeed and it seemed to me that the reasoning in Petersen⁽²⁶⁾ was a very strong argument for holding that such a plea must succeed. However having had the benefit of reading in draft the opinion of may Lord Clough J. A. I am now of the view that such a plea is not available. The plea must depend on an existing verdict: of not guilty to the offence charged or any other offence which, on the evidence, could have been charged, but I am satisfied that "verdict" must mean a lawful verdict - in R. v. Rose^(l8) Lord Diplock refers to a "valid verdict". I think the meaning is the same. There is no such verdict here.

105. In Petersen⁽²⁶⁾ it was held that when a judge exercising summary jurisdiction dismissed an information by wrongly finding that he had no jurisdiction, even though he was clearly in error in doing so, the defendant could not be charged with the same offence again. While McIntyre J. said that the Crown could not simply say that the order was a nullity because it was based on false reasoning and ignore it by commencing fresh proceedings, when as here, there is a trial on indictment the position in Petersen⁽²⁶⁾ seems to me analogous to a jury being given a totally wrong direction, favourable to the defence. A verdict of not guilty, even though based on that wrong direction, would found a plea of autrefois acquit. That is not the case here.

106. I also therefore agree with the reasoning of my Lord Clough J.A. on this question.

(1) (1984) Cr. L. Rev. 425(C.A.)
(2) [1867] 1 L.R.P.C. 520
(3) (1881) 7 Q.B.D. 198
(4) [1985] A.C. 97 (P.C.)
(5) [1964] A.C. 1255
(6) [1986] H.K.L.R. 629
(7) [1950] A.C. 458
(8) [1914] 2 K.B. 570
(9) [1967] 2 A.C. 238 (P.C.)
(10) (1861) 9 Cox. C.C. 44
(11) (1866) 1 L.R.Q.B. 289
(12) (1845) 7 I.L.R. 149
(13) (1849) 18 L.J.M.C. 189
(14) (1861) Leigh & C. 81
(15) (1938) 27 Cr. App. R. 8
(16) (1869) 2 L.R.P.C. 525 (P.C.)
(17) [1975] 1 Q.B. 508
(18) [1982] A.C. 822 (H.L.)
(19) [1921] 2 A.C. 299 (H.L.)
(20) (1931) 23 Cr. App. R. 16
(21) (1964) 2 Q.B. 1 (C.A.)
(22) (1833) 6 C. & P. 92
(23) (1833) 6 C. & P. 93
(24) [1952] 2 Q.B. 758
(25) [1984] A.C. 743
(26) (1982) 69 C.C.C. (2d) 385
(27) (1979) 48 C.C.C. (2d) 365
(28) (1981) 72 Cr. App. Rep. 307
(29) [1964] 1 Q.B. 15
(30) [1977] A.C. 1 (H.L.)