THE QUEEN v. TAM CHI PANG AND OTHERS

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JUDGMENT

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[ Interventions by judge - the tired jury - power to order retrial.]

Roberts, C.J. -

Preliminary

1. The first appellant ("D.1") was convicted on -

2. All five appellants initially sought leave to appeal also against sentence. However, after the question of their convictions had been dealt with, D.2, D.3, D.4 and D.5 withdrew their applications for leave to appeal against sentence.

3. They did so after we had warned them that we might well be disposed to increase their total sentences, to take account of the fact that there was an interval of several days between the first and second sets of offences. For that reason it was our preliminary view that the sentences for the second group of offences might well be made to run consecutively in whole or in part, to the sentences imposed for the first group of offences.

Background Facts

4. At about 11 a.m. on 31st January, 1984, a Hong Kong Security Company Limited van, carrying three boxes of foreign currency, for delivery to the Po Sang Bank on the ground floor of Wing On House, Des Voeux Road, Central, arrived outside the bank's premises.

5. The van's rear compartment was opened, so that the cash boxes might be taken out and carried into the bank. As the third box was removed from it, five or six men, armed with pistols, arrived and shouted "Robbery - drop your gun".

6. One of the group, identified by Mr. Cheung, one of the security guards, as D.1, pointed a pistol at him and took away one of the cash boxes, containing Y138,400,000. The robbers retreated to the corner of Des Voeux Road Central and Pottinger Street, observed by a number of witnesses. They hurried from Pottinger Street into Connaught Road, Central. Here they were observed by another witness, Mr. CHAN Ka-wing, who saw that one of the five was carrying a shotgun, that some of them were holding pistols and that one or two of them were holding a cash box.

7. At about this time, Mr. CHAN Shun-yam, driving Mercedes Benz car No. AC 3223, stopped at the lights at the junction of Pottinger Street and Connaught Road Central. As he did so, several men approached his car, ordered him to get out of it and threatened him with a shotgun. Mr. Chan got out of his car and ran across tae road to call the police.

8. There can be no doubt that those who took part in the robbery of the Po Sang Lank cash box boarded car No. AC 3223 with the proceeds of the robbery and that several of those who boarded that car were carrying firearms.

9. At about 11.15 a.m. a police vehicle received a message regarding AC 3223, spotted it near Causeway Bay and chased it as far as Cloudview Road where it disappeared. At 11.22 the car arrived at the Crown carpark in Fortress Hill Road. The cashier at that carpark said that she thought that it contained five persons, one of whom got out of the car and walked out of the carpark separately.

10. Inside the car, when it was subsequently searched, were found a shotgun and a metal box of the kind taken from the security van. Also found in the carpark were a travelling bag and a brief case containing large quantities of the Japanese currency which had been stolen.

11. P.C. 1770, LAU Wah-po, observed four men emerge from the Crown carpark, the leader holding two pistols in his hands and the other three men each holding one pistol. He saw the leader fire a shot at him, followed by four more shots, though he did not know where they came from. He fired back once at the leader. The four men ran down Fortress Hill Road.

12. Mr. CHONG Sui-mei, a caretaker, was inside the management office of the North Point Centre, close to the entrance to the Crown carpark. Hearing the sound of a gunshot, he came to the entrance of the carpark and saw a man in a pale yellow jacket, standing inside the entrance of the Crown carpark. When the man saw Mr. Chong, he turned to face him and shot him ire the stomach.

13. At about this time, a police vehicle arrived and stopped opposite the Crown carpark. Two police officers ran towards the nearby Golden Crown carpark. As they did so a shot was fired at them. They took cover and saw four men run out of the Crown carpark, in two groups of two. The sergeant tried to intercept the second group, whereupon the first group fired several shots at him from the entrance to the carpark. Among this group was D.3, identified by P.C. LAW Kwok-leung.

14. The sergeant followed the four men, each of whom was holding a pistol. Shots were fired by them at the police as they chased them. When the four men turned into King's Road, where a police vehicle was waiting, at the junction of Fuk Yuen Street and King's Road, one of the four men fired a shot at it.

15. Three police officers alighted from it and pursued the four men into Electric Road, whether another exchange of shots occurred, between the police officers and the four men, in the course of which a bullet fired by either D.1 or D.2 hit Miss LI Yuet-kam, a bystander, in the head and killed her.

16. During the exchange of fire in Electric Road, a police officer fired a shot which hit D.1, who was lifted up and helped away by D.2.

17. Following the shooting of Miss Li, the robbers ran down Electric Road towards Oil Street. Near the junction of those two roads they hijacked another car, CS 9023. The forcible taking of this car was observed by Mr. FOK Ching-chung, a reporter of the Sing Pao newspaper, who took two photographs of the incident, which were subsequently enlarged and put before the jury. These showed four men boarding CS 9023, which was driven to Hing Fat Street where a police traffic officer fired a shot at the car when it halted. The four men got out of the car and fired a total of 7 or 8 shots at the policeman, after which they ran towards Victoria Park Road.

18. P.C. LEUNG Wai-hung observed this incident and identified D.2 as having fired 7 or 8 rounds in the direction of the police traffic officer and as holding two guns in his hand.

19. At about 11.40, Mr. TSUN Chun-kai, the driver of Taxi AZ 2139, noticed a B.M.W. HK 336 car ahead of him, in Victoria Park Road. He saw several men running from a construction site towards the B.M.W. car, gesturing to the passengers inside to get out of it.

20. Mr. LI Hung, the driver of HK 336, said that he was driving a female passenger, who had bought some star fruit that morning, and that when he and his passenger were ordered out of the car they left their belongings behind. After the B.M.W. car was forcibly taken, the police lost sight of it, until it was discovered by a police officer at 11.52 near Bowen Road The defendants had disappeared.

21. This was a determined bank robbery which went wrong, followed by a chase through the crowded streets of Hong Kong in the middle of the day, with a group of ruthless men prepared to use firearms against anybody seeking to obstruct their escape.

22. In the course of these appalling events, one innocent bystander was killed, one was severely wounded in the stomach and two others received wounds. At least 32 rounds were estimated to have been fired from the four guns used by the defendants.

23. This is unhappily not an end of the story. On 4th February, four days after these incidents, D.1, who had been shot in the buttock, surrendered himself to the police and told them where the other defendants could be found, at Flat 2303 Wun Sha Tower, Wun Sha Street, Causeway Say.

24. When a police party arrived at those premises on 5th February, there was an exchange of shots between them and D.2, D.3, D.4 and D.5. This incident was the subject of Counts, 2, 13, 14, 15, 16 and 17.

25. When the flat was searched, after the police had forced their way in, four loaded pistols were found, all of which had been recently fired. A substantial number of shots were fired at the police party, one of whom sustained a graze wound.

Interventions by trial judge

26. The main ground of appeal advance by D.1 was that, at the end of D.1's evidence, the judge had questioned ham at such length and in such a way as demonstrate his disbelief in D.1's evidence and in his defence of duress and that thereby D.1 was deprived of a fair trial.

27. Complaints of this nature appear in a number of reported cases, including R. v. Clewer¹, R. v. Hamilton², R. v. Hulusi & Purvis³, Jones v. National Coal Board⁴, R. v. Matthews⁵ and in the Hong Kong case of R. v. Yeung Kai Yin and Others⁶.

28. D.1 gave evidence, at great length. The record of it extends to 89 pages of transcript. At the end of his evidence, the judge questioned him for a time estimated as being more than an hour. His questioning extended to more than 9 pages of transcript and contained 150 questions.

29. It must be made clear that there is nothing improper in interventions as such by a judge, even if they are frequent and lengthy, provided that the judge follows the principles set out in Jones v. National Coal Board⁴ by Denning, L.J. in the following terms -

"The Judges' part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure: to see that advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevance and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth and at the end to make up his mind where the truth lies. If he goes beyond this he drops the mantle of a judge and assumes the robe of an advocate and the change does not become him well. Lord Chancellor Bacon spoke right when he said that 'Patience and gravity of hearing is an essential part of justice; and an overspeaking judge is no well tuned cymbal."

30. In R. v. Hulusi³, Lawton, L.J. delivering the judgment of the English Court of Appeal (Criminal Division), quoted the following passage from Lord Parker's judgment in R. v. Hamilton² -

"Of course it has been recognised always that it is wrong for a judge to descend into the arena and give the impression of acting as advocate. Not only is it wrong but very often a judge can do more harm than leaving it to experienced counsel. Whether his interventions in any case give ground for quashing a conviction is not only a matter of degree, but depends to what the interventions are directed and what their effect may be. Interventions to clear up ambiguities, interventions to enable the judge to make certain that he is making an accurate note, are of course perfectly justified. But the interventions which give rise to a quashing of a conviction are really three-fold: those which invited the jury to disbelieve the evidence for the defence which is put to the jury in such strong terms that it cannot be cured by the common formula that the facts are for the jury and you, the members of the jury, must disregard anything that I, the judge, may have said with which you disagree. The second ground giving rise to a quashing of a conviction is where the interventions have made it really impossible for counsel for the defence to do his or her duty in properly presenting the defence, and thirdly, cases where the interventions have had the effect of preventing the prisoner himself from doing himself justice and telling the story in his own way."

31. We do not consider that either Lord Parker's second or third grounds can be said to apply in this instance.

32. But with great reluctance, we found ourselves obliged to find that the judge's interventions were of such a volume and nature as to invite the jury to disbelieve D.1's evidence. Without finding it necessary to dissect his interventions in more detail, we have to comment that various questions do strongly suggest to the reader that the judge had no belief in the defence of duress put forward by D.1 and that he displayed his disbelief in a series of hostile questions.

33. In his excellent summing-up, which was not the subject of criticism, save in respect of his direction as to murder, the judge warned the jury that the facts were for them to decide. There was abundant evidence before them, including D.l's own evidence that he took part in the robbery and the shoot-out though under duress, to justify D.l's conviction.

34. Nevertheless, we administer an adversarial and not an inquisitorial system. Until the law is changed, as we hope it will not be, we roust seek to preserve it. One of its most important rules is that the judge must continue to preserve an appearance of neutrality throughout a trial. Whatever he may think, he must not seek to impose his views on a jury, during the course of a trial, by interventions of a volume or nature which put pressure on a jury to find as the judge has shown he wishes them to do.

35. It would, of course, be naive to expect that every convicted defendant would acknowledge that his trial has been fair. But a judge must strive to so conduct himself during a trial that a neutral observer would be left in no doubt that the trial was conducted fairly before a judge who stood above the conflict and retained his air of impartiality throughout.

36. We therefore felt impelled to regard the verdicts against D.1 as unsafe and quashed his convictions.

The Tired Jury

37. It was argued on behalf of all defendants that their convictions were unsafe, because the jury must have been too tired to return proper verdicts.

38. The judge summed up from 0940 on 14th March, 1984, with appropriate intervals, until 1550 when the jury retired.

39. The judge gave further directions to the jury from 0057 to 0100 on 15th March and from 0335 to 0340.

40. The jury began returning their verdicts at 0437.

41. Thus the jury deliberated, in all, for 12 hours and 47 minutes between the end of the summing-up and the delivery of their verdicts.

42. It was argued that this, of itself, combined with the fact that their deliberations followed a long summing up, must have rendered their verdict unsafe.

43. This issue has been canvassed in several cases, among them R. v. Daya Kalia and Others⁷ in which the judge concluded his summing-up, which had spread over three and a half days, at 1220. The jury asked for further direction at 0107 the next morning. This was given, the jury retired and returned their verdicts at 0350 - i.e. 15½ hours after their first retirement.

44. In R. v. Matthews and Ford⁸, the Full Court of Victoria upheld a conviction where the jury had been sent out at 1046, and were called back and asked if they thought it was desirable to carry on or resume the next day at 2202. The jury retired at 2211 and returned with a verdict at 2323, a period of 12 hours 37 minutes since they began deliberating.

45. In R. v. McMahon⁹, the Court of Criminal Appeal of Western Australia rejected an appeal based on the same ground (among others). Hers the jury retired at 1520. They returned their verdicts, without further direction, at 0310 the next day i.e. 11 hrs. 50 mins. after retirement.

46. In the Hong Kong case of R. v. Cheung and Yeung^l0, the jury retired at "about 11.00" and returned its verdict at 0220 the following morning - i.e. 15 hours and 20 minutes after retirement.

47. This court refused to allow the appeal on the ground that the verdict was unsatisfactory by reason of the long retirement and the late hour.

48. Li,  V. P., delivering the judgment of the Court, expressed its views at p.15 as follows -

"Having regard to the authorities cited we are of the opinion that the present case is clearly distinguishable. In any event, the trial judge has a discretion whether to arrange for accommodation for the jury or discharge it if, after long deliberations, they cannot come to any conclusion whatever. In the present case, it was plain that the jury were quite prepared to go on and preferred to go on for a couple of hours more. In the circumstances, we were of the opinion that this was not a valid ground by itself to interfere with the verdict."

49. Thus the mere length of continuous retirement is clearly not, of itself, a ground for upsetting a conviction, though there clearly must come a tune when this by itself may be sufficient.

50. If the jury shows any sign of undue fatigue, late at night, or of unwillingness to continue without a break, it would he the judge's duty to arrange for accommodation overnight, or to discharge it if there seems to be little prospect of agreement.

51. In this case, however, when the jury returned at 0057 and asked for more guidance on the definition of "murder", the foreman said that the jury would need two hours to reach a verdict.

52. The judge did not press the jury into reaching a verdict and adjourned so that they could continue their discussions.

53. When the jury did return their verdicts, these were of such a nature as to show a careful sifting of the evidence and of the judge's directions. In particular, their finding of not guilty of murder, while surprising on the facts, is explicable on the basis of a careful following of an inadequate definition of "murder" by the judge in relation to the killing of an innocent bystander.

54. While we have reached the conclusion that there is no indication that this jury was overtired, we suggest that arguments on the matter could be avoided in future if a trial judge would -

55. The above comments are intended as a guide to judges, not as a direction. If they are followed, the tired jury as a ground of appeal should be of little substance, though it is emphasized that failure to follow it does not mean that such a ground will succeed, as the circumstances of each case must be taken into account.

56. The tired jury argument was the only ground of appeal of D.2 and D.5 and their applications for leave to appeal against conviction were accordingly refused.

Representation of D.3

57. After the prosecution case closed, D.1, D.2, D.3 and D.4 gave evidence.

58. Throughout the trial D.3 was represented by counsel. However, when D.3 had completed his evidence-in-chief and had been cross-examined, he discharged his counsel, making allegations that the latter had failed to follow his instructions.

59. The judge ordered a short adjournment, during which D.3 was interviewed by a legal aid officer. The latter was of the opinion that D.3's allegations against his counsel were wholly without foundation and discharged his legal aid certificate.

60. The judge decided that the trial should proceed Without adjournment and with no representation for D.3.

61. By this time, the trial had continued for 32 days. The only remaining evidence was that of D.4. To have started the trial again would have been preposterous. It is, unfortunately, not infrequent in Hong Kong for defendants to discharge their counsel at a late stage in a trial, or to change their instructions to such an extent that counsel can no longer conscientiously continue to represent them.

62. It is entirely within the judge's discretion to decide whether to start again or to allow a sufficiently long adjournment to enable a new counsel to familiarize himself with the case. But it would be wrong to allow a defendant to obstruct the proper conclusion of a trial if the discharge of his counsel were usually followed by an adjournment or even a fresh start. Only if his reasons for discharge can be shown to be valid and persuasive should such an adjournment be granted.

63. In this instance, the accusations of D.3 against his counsel, the reason for his discharge of the latter, appear to have been baseless.

64. It was further argued that the judge should have done more to assist D.3 with the conduct of his case, and in the examination of his witness. The judge asked D.3 if he wished to ask further questions in re-examination, informed him that he could call his witness, who was available at court, if he wished and invited him to address the jury at the end of the speeches. We do not consider that he was under a duty to do more.

65. No other grounds of substance were advanced by D.3 and we dismissed his application for leave to appeal against conviction.

Admissibility of evidence

66. Counsel for D.4 advanced a separate ground of appeal, not related to those argued by any of the other defendants, that the judge had been wrong in law in ruling that D.4's counsel was not entitled to cross-examine two prosecution witnesses about the identification of D.5 as one of the participants in the gun battle which took place after the robbers had parked a car in the Crown carpark in Fortress Hill Road.

67. The evidence of several police officers was that four persons carrying arms, emerged from the carpark. Of these four D.1 admitted his presence in his evidence, D.2 was identified by P.W.33 and D.3 by P.W. 11. D.4 was identified by D.1 as having been present.

68. D.4, in his evidence, denied that he was present at the robbery or at any of the shoot-outs on the 31st January.

69. In the depositions, two witnesses, LAU Wah-po and CHU Tai-wah, had identified D.5 at an identification parade as one of those present at the robbery. The Crown called these witnesses for other purposes, but did not seek to elicit from them their identification of D.5 as present, since this was not the Crown case. It is to be noted that D.5 was discharged by the judge, on all counts relating to the incidents of 31st January, after he had found that D.5 had no case to answer on them.

70. Counsel for D.4 asked no questions of LAU Wah-Po about his identification of D.5. However, when CHU Tai-wah cans giving evidence, he sought leave to question him on this matter, though it seems to us that he should merely have done so. Counsel for D.5, understandably since such evidence was prejudicial to his client, opposed its admission. The Crown argued that this was not their case and that it was irrelevant, though they did not in terms oppose its admission.

71. The judge refused to allow questions to be put, on behalf of D.4, directed to establishing the identification of D.5 by the two witnesses as one of the robbers, on the ground that such evidence was irrelevant.

72. Four men were shown to have taken part in the shoot-out in Electric Road. Two of them were identified by independent witnesses and the presence of D.1 was established by circumstantial evidence.

73. If two independent witnesses had identified D.5 as present, this might have given weight to D.4's denial that he was there. We therefore disagree with the judge's conclusion that such evidence was inadmissible because it was irrelevant.

74. We cannot, however, believe for a moment that the reception of that evidence would have heal a material effect on the jury's verdicts against D.4.

75. In addition to the evidence of D.1, an admitted accomplice, of D.4's part in the robbery and shoot-out, two half eaten star fruit, bearing D.4's teeth marks, were found in HK 336, the car which was hijacked outside Victoria Park.

76. D.4's explanation of the presence of his teethmarks was that about 1100 on 31st January, he received a call from D.2 that he should go to the Peak and burn a green B.M.W. This did not surprise him because he had performed similar tasks for D.2 on previous occasions. He did as he was told, arriving about 1150 and finding the car empty. He discovered in it some star fruit, which he partly ate before leaving the car unburnt, when a police officer approached.

77. There was firm evidence that HK 336 was hijacked at about 1140 and was found abandoned in Bowen Road at 1152. Thus D.4 sought to persuade the jury that D.2 had asked him, at about 1100, to burn a car which came into the possession of D.2, by means of a random hijacking, over half an hour later. The story was entirely unbelievable.

78. The evidence of D.1, save in regard to his own defence of duress, must have been accepted as true in relation to all the defendants. This, combined with the evidence of the star fruit and of the tissue of lies told by D.4 can have led the jury to only one conclusion.

79. We have no hesitation, though we think the judge to have been in error as to the admissibility of the evidence as to the presence of D.5, in applying the proviso and dismissing the application of D.4 for leave to appeal against conviction.

Retrial

80. Counsel for the Crown, after we had announced our decision that D.1's application for leave to appeal against conviction and sentence would be granted, applied for a now trial. This was opposed by counsel for D.1. Having heard argument on both sides, we were in no doubt that the public interest required that there should be a retrial on all counts of which D.1 had been convicted and ordered accordingly.

81. There was, however, considerable argument as to whether we should order a retrial on the charge of murder, which D.1 had faced, or on a charge of manslaughter, of which he was convicted.

82. The powers of this court to order an appellant to be retried are governed by section 83E of the Criminal Procedure Ordinance (Cap. 221). Subsection (2) of that section reads as follows -

"(2)    A person shall not under this section be ordered to be retried for any offence other than-

 

83. In the circumstances of this appeal, sub-paragraph (a) would permit us to order a retrial for the offence of manslaughter only.

84. Sub-paragraph (b) permits a retrial on an offence of a lessor nature than that charged, for example, a defendant charged with burglary could be retried for theft.

85. Sub-paragraph (c) is designed to cover alternative counts, for example where there are two charges, one for theft, and an alternative charge of handling stolen property. It is not uncommon for a conviction to be recorded on the theft charge and for no verdict to be asked for on the alternative charge.

86. We thus felt obliged to order D.1's retrial on a charge of manslaughter only, though we can understand the Crown's feeling of disappointment that they are unable to charge D.1 with the full offence of murder, bearing in mind our view that a misdirection by the judge on the charge of murder must be the reason why the jury convicted the defendants of manslaughter, when all the evidence pointed to a verdict of guilty (or not guilty) of murder.

87. We were invited by the Crown, if we decided to order a retrial for manslaughter only, to express a view, for the guidance of the trial judge before whom the retrial might come, as to whether it would be proper for the Attorney General to charge D.1 with murder notwithstanding our order for a retrial on a charge of manslaughter, on the basis that there had been no verdict by the jury on the murder charge.

88. This argument was based on section 24 of the Jury Ordinance which reads as follows -

"24.    (1) In the event of any of the jurors, after reasonable consultation, dissenting from the residue, the verdict in civil cases of a majority, and in criminal cases of a majority consisting of not less than 5 jurors, shall be taken to be the verdict of the jury.

 

            Provided that 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 not less than 5, find such person guilty of a lesser offence, in which case the finding of such majority shall be the verdict, and sentence shall follow accordingly.

 

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

 

89. Counsel for the Crown sought to persuade us that the meaning of the proviso was that if there was not a unanimous finding by a jury on the murder charge and there was a finding of guilt on a manslaughter charge by a majority, the result was that there had been no verdict on the murder charge, merely a finding of guilty of manslaughter.

90. This section was considered by the Full Court of Hong Kong in Chan Charn-kau and another v. R.¹¹

91. In that case the defendants were found not guilty of murder and guilty of manslaughter unanimously. The judge directed the jury that he could not accept a verdict of manslaughter unless they first brought in a unanimous verdict of not guilty of murder. The Full Court held that the verdict of the jury was unambiguous and left no room for doubt, that it was unnecessary for any jury to bring in two verdicts and that the correct verdict is ''not guilty of murder but guilty of manslaughter", either unanimously or by a majority of not less than five.

92. At page 244, Briggs, J., delivering the judgment of the Full Court commented as follows, after quoting the proviso to section 24(1) -

"The word 'unless' in that proviso is all important. There is only one verdict to be given by the jury. And the correct verdict to be given in a case like the present is 'not guilty of murder but guilty of manslaughter' (either unanimously or by a majority of not less than five)."

93. The wording of the proviso is not without difficulty and it was submitted to us that the reference to a verdict in the phrase "unless a majority consisting of not less than five, find such person guilty of a lesser offence, in which case the finding of such majority shall be the verdict," means the verdict of manslaughter.

94. However, this ignores the fact that the first two lines of the proviso require a jury to be unanimous in their "verdict of guilty or not guilty" on a capital case. Consequently, the word "unless" must refer to the need for a verdict on a capital case to be unanimous, unless the circumstances set out thereafter apply. In this case such circumstances do apply since majority of not less than five found D.1 guilty of the offence of manslaughter. As we read it, this means that that is the verdict on the offence of murder.

95. Therefore, it would be wrong of the Crown to charge this defendant with murder on his retrial

¹    [1953] 37 Cr. App.R. 37

²    [1969] Crim.L.R. 486

³    [1974] 58 Cr.App.R. 378

⁴    [1957] 2 Q.B. 55

⁵    [1984] 78 C.A.R. 23

⁶    Crim. App. No.220 of 1984

⁷    [1974] 60 C.A.R. 200

⁸    [1972] V.R. 3

⁹    [1984] 15 A. Cri. Rep. 289

¹⁰    Crim. App. 314/84

¹¹    [1972] H.K.L.R. 241