R. v. YEUNG MOK YEH AND ANOTHER

HEADNOTE

A direction by the judge to the jury that they must be unanimous in finding an accused not guilty of murder before they can consider the question of manslaughter is incorrect and contrary to section 24(4) of the Jury Ordinance (Cap. 3). When the count is one of murder, it is only when a jury returns a verdict of guilty of murder or not guilty of murder that the verdict must be a unanimous verdict. The requirement of unanimity ceases to apply when neither of those verdicts is the verdict of the jury.

It is therefore not only unnecessary for the jury to be unanimous in returning a verdict of guilty of manslaughter, but it is also unnecessary for them unanimously to find the accused not guilty of murder before they turn to a consideration of the question of manslaughter.

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicants were convicted of murder on 4 July after trial before Gall J. and a jury. They were granted leave by this court on 6 August to appeal against conviction but their appeals were dismissed. We now give our reasons.

2. It was common ground at the trial that on the evening of 14 April 1990 the applicants were members of a large group of youths who had armed themselves with knives and had set out in search of another group of youths whom they believed had assaulted their leader earlier that evening. The applicants and several other members of their group eventually succeeded in locating four or five youths whom they suspected of having been involved in the earlier assault. When one of these youths attempted to escape by running down the road, the applicants took off in pursuit and succeeded in catching him after he had fallen over. They then attacked him with their knives as he was lying on the ground.

3. In video recorded reconstructions of the incident and cautioned statements, the admissibility of which was not challenged at the trial, the 1st applicant admitted that he had given the order to chop the victim twice and had himself inflicted one chop wound, and the 2nd applicant admitted that he had chopped the deceased once, but could not remember on which part of his body the blow had landed.

4. The deceased sustained seven chop wounds consisting of two to his head, one in which his jawbone, right trapezius and sternomastoid muscles and jugular vein were severed, one to his left elbow, one to the back of his left hand and one to his right thigh. The underlying bone was fractured in each of the arm injuries. It was the neck wound which was the cause of death.

5. Neither applicant gave evidence. However, in the course of his video recorded reconstruction the 1st applicant sought to blame the 2nd applicant for having inflicted the fatal neck wound. In his statement in answer to the charge of murder he denied that he had had any intention of killing the deceased. The 2nd applicant, in his cautioned statement to the police, while saying that he could not remember what parts of the deceased's body he had chopped, asserted that the 1st applicant had chopped the deceased on the head, trunk, hands and legs. In reply to the charge of murder he said "I did not have the intent". The judge correctly directed the jury that whatever one applicant said in a statement to the police was not evidence against the other.

6. A prosecution witness, Mr. Mo Man-chiu, testified that during the course of a discussion in a hut. at Tai Mo Shan to which the applicants had fled after the killing, the 1st applicant had admitted to him that he had chopped the deceased twice on the head, and that the 2nd applicant admitted that he had intended to chop the deceased on the shoulder but had accidentally chopped him on the neck.

7. Mr. McCoy, who appeared for the 1st applicant in this court but not in the court below, and Mr. King, who appeared for the 2nd applicant in both courts, frankly accepted that on the evidence the only verdicts open to the jury in respect of both applicants were those of guilty of murder or guilty of manslaughter. The defence efforts at the trial had all been directed at persuading the jury that they should return verdicts, of guilty of manslaughter on the basis that the prosecution had not established beyond reasonable doubt that the applicants had the requisite mens tea for murder.

8. Although Mr. King initially sought to argue three grounds of appeal in respect of the 2nd applicant, he very sensibly abandoned the first two grounds and relied only on his third ground which, in essence, was the same as the sole ground upon which Mr. McCoy relied for the 1st applicant.

9. We intend no disrespect to Mr. King by reciting only the relevant parts of the ground drafted by Mr. McCoy:

"The Verdict of murder, returned by the jury, is unsafe and unsatisfactory, as the learned trial judge seriously misdirected the jury as to the only permissible circumstances in which they could return a verdict of manslaughter. The direction and subsequent re-direction were contrary to s.24(4) Jury Ord Cap 3, and significantly inhibited the jury from considering a verdict of manslaughter, despite their request for re-directions on the substantive law of manslaughter, after a retirement of 6.5 hours.

.....

The only proper and lawful direction that the learned trial judge should have given w is; 'for a verdict of guilty of murder you must be unanimous, that is, you must all agree. For a verdict of not guilty of murder you must 311 agree, unless, at least five of you agree on a verdict of manslaughter.'"

10. The relevant parts of section 24 of the Jury Ordinance read:

"24. (1) In the event of any of the jurors, after reasonable consultation, dissenting from the residue the verdict of the jury shall be determined as provided in this section.

                (2)    .....

                (3)    .....

(4)     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, consisting of ?

(a) where a jury of 7 persons has been sworn, not less than 5 of them; and

(b) where a jury of 9 persons has been sworn -

(i) if the full number of jurors remain, not less than 7 of them;

(ii) if the number of jurors has been reduced to 8 in accordance with section 25, not less than 6 of them; or

(iii) if the number of jurors has been reduced to 6 or 7 in accordance with section 25, not less than 5 of them,

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.

(5) If in any trial it seems for any cause to be desirable, the judge may direct the jury to consider their verdict further."

11. Having directed the jury as to three bases on which the jury could find the applicants guilty of murder, the judge said:

"If after considering these propositions, you are not sure of the guilt of the accused for murder, you will consider a further matter.

12. He then went on to direct them that it was open to' them to return an alternative verdict of manslaughter in respect of each applicant. There is no complaint that the judge misdirected the jury either in respect of-murder or manslaughter.

13. Then follows a passage on which, apart from the first paragraph, Mr. McCoy and Mr. King placed reliance in support of the applicant's ground of appeal:

"When you reach your verdict in respect of murder, you must all agree on either the verdict of guilty or all agree on the verdict of not guilty.

If after a substantial period of deliberation, you are not all able to agree on either a verdict of guilty to murder or not guilty of murder, you must come back to me for further direction.

If you all agree on a verdict of not guilty of murder in respect of an accused, you will then consider a verdict of manslaughter in respect of that accused. It is desirable that you return a unanimous verdict for this offence if you consider it. But if you are not all agreed, a verdict of six to one or five to two for guilty or not guilty of manslaughter will be accepted."

14. The relevant part of the note which the jury sent to the judge after their retirement reads as follows:

"..... can we again please have definition of all the possibilities that constitute murder and (would] like definition of manslaughter."

15. After the court had re-convened, the judge again directed them on the applicable law relating to both murder and manslaughter. However, he then returned to the matter of which complaint is made. He said:

"I directed you earlier that you should, before you consider the question of manslaughter, be unanimous in finding the accused, in respect of whom you wanted to consider a verdict of manslaughter, not guilty by a unanimous verdict. I will still maintain that direction to you but tell you this: if, after further conscientious consideration, you come back to me and tell me that you are unable to reach a unanimous not-guilty verdict without telling me what that verdict is and asking me for further directions, I will then give you other directions concerning how you will approach the matter."

16. We at once observe that we cannot understand how, having been instructed that they were to consider the question of murder first and to come back to him if they were unable to reach a unanimous verdict of not guilty of murder, the jury could tell the judge that they were unable to reach a unanimous not guilty verdict without letting him know what verdict they were referring to.

17. Notwithstanding the imprecision of this direction we are satisfied that the jury would have understood the judge to have told them that they were first to consider the question of murder and that, if they could not arrive at a unanimous verdict, they were to return to the court for further directions.

18. The thrust of Mr. McCoy's submission was that the judge's directions amounted to "a form of pressure or diversion or intrusion which he had no power to exert" and that he "took away the jury's function and supplanted it with his own decision and, by so doing, confused the roles which the judge and jury have in the decision making process."

19. Mr. King contended that "the judge overrode the provisions of the Jury Ordinance by denying the jury the right to consider the possibility of a manslaughter verdict as soon as they retired. The right was removed by the imposition of two conditions: (1) that a verdict of guilty of manslaughter could only be arrived at after a unanimous verdict of either guilty or not guilty of murder had been reached, and (2) that they had to return for further directions."

20. Mr. Bruce, who appeared for the Crown in this court but not in the court below, immediately accepted that the judge had misunderstood section 24(3) of the Jury Ordinance notwithstanding its clear terms and the decision of the Full Court in Chan Charn-kau v. R. [1972] HKLR 241 and the two decisions of this court in R. v. Tam Chi-pang [1986] HKLR 1122 and Attorney General v. Pan Chi-keung [1989]1 HKLR 19.

21. We entirely accept that there was no obligation cast on the jury to arrive at a unanimous verdict of not guilty of murder before they went on to consider a verdict in respect of manslaughter. But the Crown, having indicted the applicants on a charge of murder, was entitled to have the jury consider whether they were guilty of murder. The jury were equally entitled to find the applicants guilty of. manslaughter if they (a) were unable to agree unanimously that the applicants were guilty of murder or (b) were unable to agree unanimously that they were not guilty of murder or (c) agreed unanimously that they were not guilty of murder.

22. A verdict of guilty of manslaughter in a trial at which an accused person is indicted on a count of murder necessarily means that the jury, for however long or short a time, has considered but rejected a verdict of guilty of murder. The judge's direction that the jury should first consider the question of whether the applicants were guilty of murder was therefore not inconsistent with this process. Where he. went astray was to tell them that if they found themselves unable to reach a unanimous verdict of not guilty of murder they should then return to the court, when, if they requested it, he would give them further directions.

23. However, contrary to the submissions made to us by Mr. McCoy and Mr. King, we are entirely satisfied that nothing said by the judge placed the jury under any pressure or in any way inhibited them from considering the verdicts open to them. The judge twice correctly directed them on the law relating to manslaughter. They were therefore fully aware of the distinction between murder and manslaughter. The instruction that they should return to the court if they were unable to come to a unanimous verdict of not guilty of murder would have resulted in nothing more than an unnecessary interruption of the course of the jury's deliberations had they in fact been unable to reach a unanimous verdict of either guilty or not guilty of murder. Had this occurred they would have been given further directions if they had so requested. There was nothing in what the judge told them that could reasonably have led them to believe that they could not find the applicants guilty of manslaughter.

24. In the event, the jury returned unanimous verdicts of guilty of murder. We are not prepared to assume that these verdicts were otherwise than true verdicts conscientiously arrived at on the evidence. Nothing that has been said to us leads us to think that they were either unsafe or unsatisfactory.

    Although it follows from what we have said that the judge made a wrong decision on a question of law, we were of the opinion that no miscarriage of justice actually occurred (sec 83 of the Criminal Procedure Ordinance Cap. 221). We therefore granted the applications and, treating them as the hearing of the appeals themselves, dismissed the appeals.