HKSAR v. FADONOUGBO FREJUS LEZIN

CACC 121/2022 [2025] HKCA 524

On appeal from [2022] HKCFI 2587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 121 OF 2022

(ON APPEAL FROM HCCC NO 74 OF 2021)

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.  With leave of the Court[1], the appellant, a Beninese national, appeals against his conviction for trafficking in a dangerous drug, namely 988 grammes of a powder containing 806 grammes of cocaine. He first stood trial before Deputy High Court Judge Woodcock (as Woodcock J then was, “the Judge”)  and a jury, which she discharged on 10 June 2022. A second trial followed on 13 July 2022 before the Judge and a new jury, which found him guilty of the trafficking offence. He was sentenced to 22 years and 3 months’ imprisonment.

2.  During the hearing, we granted the appellant leave to appeal against his sentence out of time.  We dismissed his appeal against conviction but granted his appeal against sentence, which we substituted with a sentence of 19 years and 3 months’ imprisonment.  We said we would hand down our judgment in due course, which we now do.

The brief facts

3.  On 1 February 2020, the appellant arrived in Hong Kong on a flight from Johannesburg, South Africa.  Customs officers intercepted and searched him, noticing that his shoes were unusually heavy.  Upon examination of the shoes, they found a white powder inside the soles, which tested positive for cocaine.  When confronted about the discovery, he initially denied knowledge of the white powder.  However, in a subsequent video recorded interview, he admitted that he knowingly brought the drugs into Hong Kong.  He said a man called “Yudi” gave him the shoes, which he knew contained drugs. The plan was that after he arrived in Hong Kong and checked into a hotel, which had been booked for him, someone would meet him to collect the drugs.  He was to be paid US$5,000 as a reward.

4.  At trial, the appellant testified in his defence, claiming he did not know there were drugs in the shoes.  He stated that he was not wearing the shoes when the Customs officers intercepted him, as they were in his suitcase.  He claimed that a client had asked him to bring the shoes to Hong Kong and give them to a person who would introduce him to potential business opportunities.  He also claimed that the admissions he made in the interview were not true, but were obtained by being deceived and mistreated by the Customs officers.

The appeal against conviction

5.  On 3 July 2024, Mr David Boyton, counsel for the appellant, filed a notice of Perfected Grounds of Appeal outlining a single ground of appeal:

“Whether, the Court of Appeal has jurisdiction to entertain a wrongful (or erroneous)  discharge of a jury and set aside a conviction.

Particulars

1. Jurisdiction of the Court of Appeal: Sections 82 and 83 of the Criminal Procedure Ordinance, Cap. 221; and the matter was material irregularity and/or abuse of process.

2. Power to discharge the juror or jury: Section 25 of the Jury Ordinance, Cap. 3.

3. Power to discharge the juror or jury because of an insufficient understanding of the language: see Sections 4 and 25 of the Jury Ordinance, Cap. 3; and HKSAR v. CHAN Hon Wing (2021)  24 HKCFAR 448.

4.  Connected to the Question posed by the Court of Appeal at the leave hearing are (1)  what is an appropriate period of deliberation or circumstance to discharge a jury; and (2)  on what basis, if at all, should a jury be discharged because of the nature and content of the questions asked by them during their deliberations, and if so, how should that be assessed.[2]”

The procedural history

6.  The appellant argued that the Judge erred in “cancelling” his first trial and ordering a second trial.  The appellant was first tried before the Judge and a jury from 20 May to 10 June 2022, when the Judge discharged the jury.  He contended that the Judge had unfairly terminated his first trial.

7.  During the first trial, the jury initially consisted of seven jurors.  However, on 8 June 2022, one juror was discharged for non-compliance with the public health restrictions then in effect, and the trial continued with six jurors.  The Judge commenced summing up to the jury in the afternoon on 8 June 2022, and continued until 9:35 am on 9 June 2022.[3]  At around 11:40 am, the jury retired to consider their verdict.  They had lunch and deliberated until 8:08 pm, when the Judge instructed the jury to retire for the night.  The next morning, at around 9:30 am on 10 June 2022, the jury submitted to the court Question MFI-11, which read as follows: [4]

“(1)  In terms of the post-recorded statement translation should we base on tab 8 & tab 9 (exhibit P33 & P33A), or should we base on the video footage & audio in the DVD? In terms of counter 117, the transcript says ‘I have admitted for the offence’ while in the DVD audio, the Cantonese we heard are ‘我係嫌疑犯’ which has big difference in terms of meaning.

Should we base on the transcript or the DVD?

If there is fundamental error in translation of claiming the suspect admitted for the offence which he didn’t intent to, should we still look at this evidence?”

8.  At 9:39 am, the Judge, in the absence of the jury, discussed the question with counsel[5], with the following initial remarks from prosecuting counsel: [6]

“MR RAFFELL: My Lady, I’ve looked at the question. I suspect there’s someone on the jury - I don’t know who it is - but they think they’re Miss Marple. First of all, I don’t understand the question because Chinese is not what we’re not (sic)  talking about. There’s something in Chinese. What counts is, is the question at 117, ‘Does that mean you recognise that you are committing an offence?’, is correctly translated in French.

COURT: Hang on, hang on, hang on. I need to make -- well -- sorry, ‘Does that mean’? Say that again? So -- yes.

MR RAFFELL: If you look at 117, that’s Madam So.

COURT: Yes.

MR RAFFELL: At the end, she says to him, in French, not in Chinese, and no one has said this in Chinese, ‘Does that mean you recognise that you have committed an offence?’ and he says, ‘Yes.’

COURT: Yes.

MR RAFFELL: Now, what counts is the French ...

COURT: Yes.

MR RAFFELL: ... not the Chinese.

COURT: Well, I agree.

MR RAFFELL: So I don’t even understand the question.

COURT: Well, I do, because they are -- they’re right in that the 116 ...

MR RAFFELL: Yes.

COURT: ... ‘I’m already suspected of an offence’, right?

MR RAFFELL: Yes.

COURT: He does say that.

MR RAFFELL:  Yes.”

9.  After further discussion, the jury returned at 9:56 am and the Judge gave the following answers to the jury’s questions and instructed them to continue with their deliberations.[7]

“COURT: Good morning, members of the jury. I have your question. I’m going to answer it. I’ve spoken to counsel. Let me just read the question out again: ‘In terms of the post-record statement translation, should we look at tab 8 and tab 9?’ Well, tab 8 and tab 9, I think you’ve just made a mistake here. It’s not the post-record. It’s the video-recorded interview.

So ‘In terms of the video-recorded interview translation, should we base on tab 8 and 9, or should we base on the video footage and audio in the DVD? In terms of counter 117, the transcript says, “I have admitted for the offence”, which in the DVD audio, the Cantonese we heard is’ - I can speak Chinese but I can’t read it, so I can’t read that sentence to you, but you wrote the question – ‘which has a big difference in terms of meaning. Shall we base on the transcript or the DVD?’

Let me answer that. First, the DVD, which you have seen several times, is the best evidence. The transcript for the -- the tab 8 is the transcript, word for word, French-Chinese, French-Chinese, French-Chinese. Tab 9, we call it a translation, is all English, so it’s someone translating the Chinese and the French into English.

In this case, we all need to rely on the transcript translation to help us. Unless you speak French, you need the transcript, which is -- it’s to help you. We call it an aid, you know, it’s to help you, and it is accurate. It’s a certified translation, so we accept it as accurate translation. So you are right. There is a difference in the Chinese and the French.

But, you must remember to look at the French only. I know you can’t read the French, but look at the translation of the French, but you must look at the French only, because the defendant only speaks French. So what is important is the French spoken between the defendant and the interpreter. The defendant didn’t speak Chinese, so he did not understand the Chinese at 117. When the interpreter repeat -- when the interpreter spoke to the police -- to the Customs officer and said, ‘I have admitted for the offence’, she was speaking Chinese. The defendant didn’t understand that. So you have -- what counts is the French and the French translation.

You are right. In 116, the translation is, ‘He said, “I’m already suspected of an offence.”’ The interpreter says in Chinese, ‘I have admitted to the offence.’ There is a mistake, but you will recall and you will see that she clarifies, she checks the mistake, because at the bottom of 117, I know you don’t have your bundle with you, but at the bottom of counter 117, she says in French, but we can read it in English, she says in French, ‘Does that mean that you recognise that you have committed an offence?’ That’s what she asked him, so she is checking her translation, and his answer was ‘Yes’ at 118. You will recall that. You can check that again when you return to the jury room.

So she checked, she clarified the mistake, and she can do that because she’s doing her job properly, if she thinks ‘Maybe I made a mistake, I need to check what my mistake is’, so she does. If you are concerned that there is this error, mistake or conflict in the translation, then you can resolve that conflict or error in favour of the defendant. You can ignore this sentence. 116, 117, if you want to ignore it, if you feel you cannot resolve the mistake, then ignore it.

So that’s the answer to your last question. Your last question, let me repeat: ‘If there is a fundamental error in translation of claiming the suspect admitted the offence, which he didn’t intend to, should we still look at this evidence?’ So my answer to you is, if you are concerned about this fundamental error, you can resolve that error in favour of the defendant and ignore it. But you will recall that I told you in my summing-up, ‘Look at all the evidence.’ That means if you ignore this, you do not ignore the whole video-recorded interview. You must look at all the evidence, includes all the other answers.

That is my answer to your question.  I hope I have resolved your query.  So, members of the jury, I am going to ask you now to continue your discussions and debate, and follow my usher back into the deliberation room.  Thank you.”

10.  Although prosecuting counsel expressed difficulty comprehending the jury’s question, their inquiry regarding the translation of the appellant’s interview was not unreasonable.  The interview was conducted in French and Chinese, which was translated into English.[8]  The jury raised this query when noticing a difference between the Chinese and English translations as audio recorded in the DVD and transcribed in the transcript.  In any event, the Judge properly dealt with the question and gave an appropriate answer to the jury.

11.  At 10:03 am, the jury returned to consider its verdict.[9]

12.  At 12:25 pm, the jury submitted a note indicating that their initial vote was four to two (MFI-12).[10]  Appropriately, the jury did not disclose which side was in the majority.

13.  After the luncheon break, at 2:35 pm, the Judge, in the absence of the jury, informed counsel that she had received a note that the jury were split four to two and Question MFI-14 (which was received at 2:12 pm[11]), which read as follows: [12]

“(1)  Kindly re-confirm the principle/guideline for making a judgement (guilty/not guilty)  if this should be based on:

(a)  Defendant knew he brought an unlawful item into HK?

or

(b)  Defendant knew he brought an item into HK without knowing this was unlawful until he arrived, and was cautioned/arrested in HK?

(2)  Possible procedural flaws/loopholes which directly/ indirectly affect the given testimony as recorded?  e.g. (Explain right to defendant, signing on documents in language not understood by defendant), which may put the defendant into an unfair situation?”

14.  The question brought the following trenchant response from prosecuting counsel: [13]

“MR RAFFELL: I have to be honest, my Lady. These questions really worry me.

COURT: Yes.

MR RAFFELL: They really worry me about there’s at least somebody on the jury who hasn’t understood ...

COURT: Yes.

MR RAFFELL: ... anything.

COURT: Yes.

MR RAFFELL: To start with, ‘the defendant knew he brought an unlawful item into Hong Kong’. Well, they should be focusing on the evidence. The evidence was that it was hidden in his shoes. If they don’t believe that, it was hidden in the shoes inside the suitcase. You don’t hide something if you think it’s lawful.

COURT: Well ...

MR RAFFELL: I mean, it’s just ...

COURT:  I’m not -- yes, now, see, you read that question that way.  Now, I read it the other way.  There are several ways to read these questions.  That’s just the first one.  They’re basically saying, is he guilty or not guilty if he knew he brought an unlawful item into Hong Kong, or is he guilty or not guilty if he knew he brought that item without knowing this was unlawful.”

15.  The discussion continued regarding the topic and focus of the questions and how they should be answered.  At 2:54 pm, the jury returned and the Judge gave the following answers to Question MFI-14:[14]

“Yes, members of the jury. Your first message was that at 12:25 that you are at the moment split four-two. Now, normally in that situation, I would ask you if there is anything that we could help you with, and you have given us some questions. Before I answer that -- no, let me answer that first, let me answer your questions.

So you have two questions. Let me answer the second question first. ‘Possible procedural flaws or loopholes which directly or indirectly affect the given testimony as recorded. For example, you explained, rights to the defendant, signing on documents in a language not understood by the defendant, which may put the defendant in a -- into an unfair situation.’

What I will need you to do is be more specific. Tell me what -- you have to tell me what document or signature you are referring to, because, as you know, we have several documents and we have a lot of signatures. What is -- what evidence is causing you a problem? What evidence is causing you concern? I’m going to ask you to put that in writing for me. That’s the second question.

The first question, ‘Kindly reconfirm the principle or guideline for making a judgment of either guilty or not guilty. If this should be based on (a)  the defendant knew he brought an unlawful item into Hong Kong or (b)  the defendant knew he brought an item into Hong Kong without knowing this was unlawful until he arrived and was cautioned and arrested.’

Let me first say that -- I don’t know if you understand this, but ignorance of the law is no excuse. The defendant does not need to know the law of Hong Kong. What you need to do to make a judgment of guilty or not guilty, you must decide if you are sure he knew before he came to Hong Kong that he was bringing to Hong Kong drugs, drugs in shoes, even if he was wearing it on his feet, or the drugs in the shoes were in his suitcase, did -- are you sure he knew they were -- he was carrying them, either in his -- on his feet or in his suitcase? If you are sure, then you find him guilty. If you are not sure -- I said to you that if you are not sure or maybe he did not know, then -- that he was carrying those drugs, either in shoes on his feet or in his suitcase, then you find him not guilty.

So I just repeat that. Are you sure the defendant knew he was carrying drugs in shoes? If you are sure, then you find him guilty because bringing drugs into Hong Kong is a crime, is an offence, it’s trafficking dangerous drugs at this quantity. If you are not sure or maybe he did not know that he was carrying drugs, then you find him not guilty.

I hope that makes it clear. I will add that you have referred to it as ‘an unlawful item’. You have to find that he knew he was carrying drugs, not cigarettes or diamonds or gold. You must find he knew he was carrying drugs. You don’t -- the prosecution, I -- you will recall, the prosecution does not have to prove to you that he knew it was cocaine. He just has to know it was drugs. All right. I hope that answers your first question.

As far as your verdict that you say you are four to two, I’m going to ask you to spend a little bit more time to give further consideration and I am going to repeat what I said earlier and, that is that each of you has taken an oath or an affirmation on the first day to return a true verdict according to the evidence. So this is a responsibility you must fulfil. I know you are fulfilling it now. Each of you takes into the jury room your own experience, individual adult experience, and your wisdom and your common sense.

So you -- your task is to pool together, all of you, that experience and wisdom, and how do you pool it together? You give your views, you listen to other people’s views, and you think about other people’s views, you consider other people’s views, which means there must necessarily be discussion and debate, and it may be that a view one of you holds, you may be persuaded to accept a different view that you had previously held. But, at the same time, you must stay true to your own oath that you will give a true verdict according to the evidence.

So I’m going to give you a bit more time. After a bit more discussion, if you still can’t reach agreement, just let me know. All right. That is all I can say for now. I am going to ask you to follow my usher again. Thank you. And if you do have a clarification with question 2, please send us -- send me a written note.” (Emphasis added)

16.  Immediately after the jury left the court room, the discussion focused on imposing a time limit for the jury.  The Judge remarked that  extending the deliberations into another night would be “probably too much time.”[15] Prosecuting counsel, indicated that, from his experience, he thought a time limit by 5:00 pm would be appropriate, although adding that an enquiry should be made of the jury whether it was likely that they would reach a verdict.[16]  Defence counsel submitted to the Judge that, from his experience, it would be appropriate for her to ask the jury foreperson if they were given more time, would they reach a verdict within a reasonable period of time.  The Judge said that was sensible, and if she did not hear anything from the jury by 5 o’clock, that was what she would do.[17] 

17.  The court was adjourned but resumed the hearing at 3:30 pm with the Judge expressing “grave concerns”. She referred to prosecuting counsel’s previous concerns regarding the jury’s “comprehension”, and said that having re-read question 1 in Question MFI-14, she was very worried about a miscarriage of justice either way.[18]  Prosecuting counsel then argued that, notwithstanding the complications with the post-record and the procedure, some of the jurors did not seem to understand how much more valuable was the video recorded interview and, further they did not seem to understand the directions as to what amounted to guilt; although, it was accepted that this could not be known.[19] The Judge expressed concern that the jury did not appear to understand the burden and standard of proof, or the straightforward directions regarding the appellant’s knowledge of the drugs.  She said that the reference to the “unlawful item” was very concerning.[20] 

18.  Defence counsel responded by noting that the Judge had already redirected the jury on the matter and the question of the signatures and how they were relevant.  She could nevertheless stress with the jury that they were not relevant to the main issue, as to whether the appellant knowingly brought drugs into Hong Kong.[21]  The discussion continued in minute detail about issues relating to the jury’s first question that were not apparent, leading into a critical appraisal of their other questions.  It reached a crescendo with the view that the jury had not understood the evidence or the directions and were not focused on the main issue regarding the appellant’s knowledge. 

19.  The Judge then gave defence counsel time to explain the situation to the appellant, but after some further discussion, she was concerned that their questions had not grasped the main issue in the case, and she decided that it was in the interests of justice to discharge the jury.  After a short adjournment, at 4:14 pm, the Judge said to counsel: [22] 

“Yes. Yes, thank you. I’ve considered both what you said, what I have said, and I’ve come to this decision: I am going to discharge the jury. I know it’s undesirable but I -- my reasons are that, in the interests of justice, to make sure there’s no injustice, I really feel I have no choice. It’s been a long time, they are a hung jury, and then the questions asked demonstrate to me that they don’t -- they have not at this stage grasped the fundamental principles. They have not grasped the main issue, and the main issue is not difficult in this case.

So I think their questions demonstrate the danger of a miscarriage of justice. So I’m -- and as I -- as Mr Raffell has pointed out, Mr Raffell has pointed out, I have a duty to ensure a fair trial, and I’m not of a view -- I’m of a view that that’s not possible under these circumstances, with those questions posed, and I will discharge the jury. I’ll ask them to come in now and I will just tell them that we’ve considered the stage -- situation that they have not been able to return a verdict, we’re going to stop the trial there, and I’ll thank them for their hard work. Thank you.” (Emphasis added)

20.  The jury were brought into the court room at 4:16 pm, whereupon the Judge discharged them without further inquiry: [23]

“Yes, members of the jury. It’s late in the afternoon. I have considered that at this stage you are still what we call a ‘hung jury’, four to two. That’s the situation as it is now. You have been a long time deliberating, since about half past 11 yesterday. You have -- you’ve stayed overnight. You have spent today deliberating, and you are at this impasse. We’re at a hung jury. So I have considered the situation. I’ve discussed it with the parties, but ultimately it’s my decision to stop the trial now. That means you will not have to return a verdict. I will discharge you as a jury.

But before I do that, I’m going to thank you for your hard work. You have been very conscientious, I know. I can see the note-taking, the questions that you asked. You have thought about the evidence. You thought about submissions, and we don’t have a verdict but at the same time you have worked hard to get to this stage of the afternoon and throughout the entire trial. So I do thank you. I’m sure you realise that criminal trials can’t go on here without a jury and so you have performed fundamental civic duty, that we, the Judiciary and I, thank you for your work.

So there is nothing else left for you to do. You are free to go. Thank you very much.” (Emphasis added)

21.  The Judge informed the jury that they were being discharged due to the length of their deliberations.  She then empanelled a new jury of seven jurors.  After the trial, the new jury returned a unanimous verdict of guilty.

22.  We note at this juncture that while the jury indicated that they were divided four to two, they had also submitted questions, which suggests they were still deliberating and that one, some or all of them wanted these questions addressed to aid their decision-making process.

The jurisdictional issue

23.  The first issue in this appeal is whether the Hong Kong Court of Appeal has jurisdiction to consider an appeal against conviction based on the discharge of a previous jury.  This issue requires an examination of the legal framework of the appellate jurisdiction and the circumstances of the case. 

24.  It is questionable whether the decision to discharge a jury is susceptible to appeal in Hong Kong because of the limited jurisdiction of the Court of Appeal.[24]  However, there is a right to review a trial judge’s discretion not to discharge a jury where it is shown that it may have a bearing on the conviction: R v Yeung Hing-yu [25]; HKSAR v Chow Wing Man [26]; HKSAR v Li Yanhong [27].

25.  The criminal jurisdiction of the Court of Appeal is provided by section 13 of the High Court Ordinance (Cap 4)  (HCO), which reads:

“13. Jurisdiction of Court of Appeal

  (1)  The Court of Appeal shall be a superior court of record.

  (2)  The civil jurisdiction of the Court of Appeal shall consist of—

  ...

  (3)  The criminal jurisdiction of the Court of Appeal shall consist of—

(a)  appeals from the Court of First Instance or District Court under Part IV of the Criminal Procedure Ordinance (Cap. 221);

(aa)  appeals from a judgment or order of the Court of First Instance given or made in the exercise of the powers conferred on it under section 21I(1) and relating to a criminal cause or matter;

(b)  the consideration of questions of law reserved under section 81(1) of the Criminal Procedure Ordinance (Cap. 221);

(c)  the consideration of—

  (i)  applications by the Secretary for Justice for the review of any sentence under section 81A(1) of the Criminal Procedure Ordinance (Cap. 221);

  (ii)  references by the Secretary for Justice of questions of law under section 81D of the Criminal Procedure Ordinance (Cap. 221);

(d)  appeals by way of case stated from the District Court under section 84 of the District Court Ordinance (Cap. 336); and

(e)  any other jurisdiction conferred on it by any law.

(4)  For the purposes of and incidental to—

(a)  the hearing and determination of any appeal to the Court of Appeal; and

(b)  the amendment, execution and enforcement of any judgment or order made on such an appeal,

the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought.

(5)  Any provision in this or any other Ordinance which authorizes or requires the taking of any steps for the execution or enforcement of a judgment or order of the Court of First Instance applies in relation to a judgment or order of the Court of Appeal as it applies in relation to a judgment or order of the Court of First Instance.”

26.  Section 82 of the Criminal Procedure Ordinance (Cap 221)  (“CPO”), provides that a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction, and sets out the basis for such an appeal.  The section reads as follows:

“82. Right of appeal

(1)  A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.

(2)  The appeal may be—

(a)  on any ground which involves a question of law alone; and

(b)  with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal;

but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal.”

27.  In considering the terms and scope of the Court of Appeal’s criminal jurisdiction, it is appropriate to note the grounds for allowing an appeal under section 82, which are set out in section 83 of the CPO.  The section reads:

“83. Grounds for allowing appeal under section 82

  (1)  Except as provided by this Ordinance, the Court of Appeal shall allow an appeal against conviction if it thinks—

(a)  that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b)  that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law; or

(c)  that there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal:

Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

(2)  In the case of an appeal against conviction the Court of Appeal shall, if it allows the appeal, quash the conviction.

(3)  An order of the Court of Appeal quashing a conviction shall, except when under section 83E the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal.”

28.  The parties acknowledge a line of authority that a judicial decision to discharge the jury (as opposed to a decision not to discharge one, leading to a conviction)  is generally not reviewable by an appellate court.[28]  However, they argue that, depending on the circumstances, a judge’s discretionary discharge of a jury based on erroneous considerations, may form a ground of appeal under section 82(2)(b)  of the CPO, or constitute a complaint of “material irregularity in the course of the trial” under section 83(1)(c)  of the CPO.

29.  The English Court of Appeal in R v Gorman [29], considered the following key questions (1)  whether the Court had jurisdiction to review any alleged material irregularity in a trial by jury when after the irregularity is alleged to have taken place the jury is discharged; and (2)  whether, once the judge had decided to discharge a jury, there was any way which that decision could be challenged in the Court of Appeal.  The Court expressed substantial doubt whether it had jurisdiction to review a procedural irregularity occurring in a trial prior to the discharge of the first jury; however, they were prepared to assume such power for the purpose of the appeal before them.  The Court held that the discretion of a trial judge to discharge a jury was not the subject of review by an appellate court; thus, the decision of the trial judge in that case was not reviewable by the Court of Appeal.  In addressing these questions, the Court identified two problems:[30]

“The first is whether this Court has any jurisdiction to review any alleged material irregularity in a trial by a jury when after the irregularity is alleged to have taken place that jury has been discharged. The second problem is whether, once a judge has decided to discharge a jury, there is any way in which that decision can properly be challenged in this Court.”

30.  Regarding the first problem, the Court clarified that the jurisdiction of the court was statutory and arose only after a person was convicted of an offence.  It noted that appellate jurisdiction could be exercised under the equivalent section of section 82(2)  of the CPO.  It observed that it was arguable that the statute only referred to one jury, because only one jury returns a verdict and that it could also be argued that the trial begins when the defendant is first arraigned, and only ends when the verdict is returned, whether by the first jury or by the second jury.[31] 

31.  Regarding the second problem, the Court noted that, based on the authorities, no appellate court had previously reviewed the decision to discharge a jury.  The Court concluded that the decision in that case to discharge the first jury was not open to review by it.[32] 

32.  The rationale in Gorman is understandable because discharging a jury is a matter of judicial discretion, and the trial typically continues with the empanelment of a new jury.  However, the terms of section 82(2)  allow for a broad range of grounds to base an appeal against conviction. Questions of mixed fact and law require either certification from the trial court or leave of the Court of Appeal, but a pure question of law does not require leave.  The grounds for allowing an appeal are also broad where the conviction is unsafe or unsatisfactory; or the judgment of the trial court was a wrong decision on a question of law; or there was a material irregularity in the course of the trial.[33] The essential question in allowing an appeal against conviction is whether there has been a miscarriage of justice, or more fundamentally, whether the accused has been denied a fair trial.

33.  We accept Hong Kong appellate courts may possess jurisdiction to consider an appeal relating to the discharge of a previous jury if it is relevant to or affects the conviction under the applicable statutory provisions.  However, exceptional circumstances would be required to demonstrate how an error in discharging a previous jury prejudiced the conviction in a subsequent fair trial of the defendant by a newly empanelled jury.  It would  have to be shown that an injustice might have resulted: R v Hambery [34].  This was highlighted by Keith J (as he then was)  in Nattrass v Attorney General [35].  He referred to Gorman in considering whether an order to discharge the jury was analogous to an order to discharge the judge, and whether it was amenable to judicial review.  He rightly observed that the rationale underlying the well-established judicial reluctance to review a decision to discharge a jury “can only be that such a review is an exercise in futility.”  He explained that even if the judge should not have discharged the jury, there was not much that could be done about it sometime later when the decision was reviewed.

34.  We will proceed on the basis that we have jurisdiction to address the complaints in the first trial.  However, we find that the discharge of the first jury caused no unfairness to the appellant.

Discharging a jury

35.  The second issue in this appeal concerns whether the trial judge’s discretion to discharge a jury was exercised judicially in the circumstances of this case. 

36.  A body of case law addresses the discharge of a juror or jury, as well as the handling of questions from the jury after they have retired to consider their verdict.[36] Key principles apply from the moment a defendant is placed in the jury’s charge until they are asked to return a verdict.

37.  Given the complexity of a criminal trial, it is not uncommon for something to occur where a trial judge is asked to exercise his or her discretion to discharge a juror or the whole jury.  Although various circumstances may warrant exercising this discretion, it is usually done in the interests of justice or in accordance with a statutory or procedural requirement. 

38.  Under the Jury Ordinance (Cap 3)  (JO), a court may discharge individual jurors where, in the interests of justice, it is expedient to do so or where it is in the interests of the juror: section 25(1).  Similarly, a jury may be discharged if it becomes clear they cannot agree on a verdict: section 27.[37]  These provisions reflect the common law power vested in a judge to discharge a jury or an individual juror.  While discretionary, this power requires a high threshold for exercise given the strong public interest in completing jury trials: Najibi v R [38]. 

39.  The provision to discharge an individual juror is section 25(1)  of the JO, which reads:

“25. Death or discharge of juror

  (1)  A court may at any time during the trial of any action, suit, information or indictment prior to the verdict discharge a juror—

(a)  where, in the interests of justice, it appears to the court expedient to do so; or

(b)  in the interests of the juror.”

40.  The provision to discharge the jury when they cannot agree upon a verdict is in section 27 of the JO, which reads:

“27. Case of jury not agreeing upon verdict

Whenever the jury in any case have withdrawn and been kept apart for the purpose of considering their verdict, and have not returned the same before all the other cases for trial at the same sitting or session have been disposed of, or when it sufficiently appears to the court that the said jury cannot agree upon a verdict, and that there is not such a majority as aforesaid agreeing, the court shall discharge such jury, and shall cause a new jury to be empanelled and sworn and charged with any person accused, and the action, suit, information, or indictment shall be tried as if such first jury had not been empanelled.”

41.  The general rule is that the jury may be discharged in the interests of justice and when it is expedient to do so.  The usual practice is to let a jury deliberate at an hour or on a day when they will have most of the court day to consider their verdict with appropriate breaks until around 8:00 pm.  The jury may submit case related questions which the court will answer after discussion with counsel.

42.  Neither counsel suggested that the Judge fell into any obvious error in discharging the jury.  

43.  Citing HKSAR v Chan Hon Wing [39], the appellant argued that there is a duty on the trial judge to exercise his or her discretion to discharge a juror (or the whole jury)  only if a concern or “red flag” is raised as to the juror’s (or jury’s)  competence or ability, such as the sufficiency of his or her knowledge of the language of the proceedings as required under section 4 of the JO.  The appellant argued that the Judge should have determined whether the jury’s questions (in the third note)  raised an obvious problem, or “red flag”.  If so, the Judge should have exercised her discretion while considering factors such as the  complexity of the case, the seriousness of the offence, the relevant stage of trial, the length of deliberations, and the views of the parties.  The jury should have been discharged only if it was in the interests of justice and necessary to do so (if based on section 25(1)(a), not (b), of the JO).

44.  The respondent submitted that the Judge was entitled to discharge the jury based on the long deliberation and the nature and content of the questions they asked, as those factors sufficiently demonstrated to her that the prospect of a valid verdict was unlikely.  She contended that it was not obligatory for the Judge to make a formal enquiry of the views of the parties.

45.  Trial by jury is an integral and indispensable part of the criminal justice system of Hong Kong.  The inviolability of trial juries is an essential feature of the conduct of criminal trials for serious offences.  To this end, trial juries must be free to deliberate without any pressure being brought to bear upon them and to take whatever time they need in reaching a verdict.  As stated by Ribeiro PJ in HKSAR v Lee Ming Tee [40]:

“Reliance on the integrity of the jury and its ability to try the case fairly on the evidence, to put aside extraneous prejudice and to follow the directions of the judge is fundamental to the jury system itself.”

46.  The relevant principles relating to the integrity of the jury system have been discussed in a series of cases[41].  In Tam King Hon v HKSAR [42], Li CJ, with whom the other judges agreed, set out the principles regarding the decision making process of the jury:

“17. First, jurors have a duty to give a true verdict according to the evidence. Each juror has this responsibility. Each juror has sworn or affirmed to do so. It is a responsibility which rests on each juror. Secondly, deliberating together when views are exchanged is an essential process for the jury in reaching a decision. This deliberative process has rightly been regarded as the strength of the jury system. This process enables jurors to pool their experience and wisdom. Jurors should not only put their views but should listen to and consider the views of others. As a result, a juror may be persuaded to accept the views of others and views initially held may be changed. In deliberating, jurors must of course approach their task objectively. Thirdly, no juror should come to a decision for the sake of conformity or out of submission to pressure by other jurors. Ultimately, each juror must honour the oath or affirmation he has taken to give a true verdict according to the evidence. No juror should compromise, or go against his own view based on the evidence which is conscientiously held after the deliberative process has been gone through. See R v Accused [1988] 2 NZLR 46 at p. 58 lines 15-45.”

47.  Li CJ emphasized that appropriate directions on the jury’s decision-making process must clearly communicate three relevant principles.[43] He observed that if a jury later asked questions regarding directions given in the summing-up, it would be prudent for a judge to repeat or adhere closely to the original directions where possible.[44]  He further noted that in Hong Kong, with a jury of seven, if a unanimous verdict cannot be reached after “reasonable consultation”, a majority verdict of six to one or five to two would be acceptable.  However, a split of four to three either way would not constitute a valid verdict and would require the jury to be discharged.[45]  He cited the remarks of Stock JA in HKSAR v Chan Ka Man[46] with approval, emphasising that while it is unnecessary to hide from the jury the fact that it is open to them to disagree, this does not preclude a judge from “encouraging, though not improperly pressurizing, a jury to arrive at a unanimous or majority verdict”.[47]  Li CJ added that when a verdict of four to three arises, the judge may address the matter as considered appropriate under the circumstances.[48] 

48.  The case of Chan Hon Wing provides authoritative guidance on a trial judge’s duty to address issues involving the jury.  Fok PJ, delivering a judgment with which the other judges agreed, considered a criminal trial involving concerns about the language proficiency of jurors and how such concerns should be addressed.  Although his observations focused on language proficiency, they have broader general application. 

49.  Discussing section 25(1)  of the JO, Fok PJ stated that the reference to “the interests of justice” in that section is “broad and flexible” and necessarily includes the judge’s power to discharge a juror if it becomes clear that their knowledge of the trial language is insufficient to understand the proceedings.[49] He clarified that the section’s permissive language grants discretionary power to discharge to the courts, which must be exercised lawfully.[50]  He further explained section 25(1), which allows the court to discharge a juror shown to be unqualified or unable to fulfill their duty to deliver a true verdict based on the evidence, reflects common law principles.  He cited with approval the following remarks of Lord Lane CJ in R v Ford [51]:

“At common law a judge has a residual discretion to discharge a particular juror who ought not to be serving on the jury. This is part of the judge’s duty to ensure that there is a fair trial. It is based on the duty of a judge expressed by Lord Campbell CJ in Reg v Mansell (1857)  8 E & B 54 as a duty ‘to prevent scandal and the perversion of justice.’ A judge must achieve that for example by preventing a juryman from serving who is completely deaf or blind or otherwise incompetent to give a verdict.”

50.  Fok PJ, emphasised that a trial judge’s obligations regarding a juror’s language proficiency are ongoing.  The judge should exercise the discretion conferred by statute to discharge a juror if, in the circumstances, he or she is not satisfied that the juror has sufficient knowledge of the language to understand the proceedings.  He explained that if a concern or “red flag” might be raised, the trial judge should consider exercising their discretion.  Whilst this case was concerned with the language proficiency of members of the jury, Fok PJ explained that the trial judge’s role was in the nature of a reactive role to monitor the position in the case of any concern coming to light during the trial.[52]  Where such a concern or red flag was raised, the trial judge should inquire as to the extent of the problem with the aim of furnishing the court with sufficient information to exercise its discretion to discharge a juror.  Fok PJ stressed that the discretion was to be exercised with the overriding purpose of securing a fair trial for the defendant.[53]

51.  A judge plays an important role in ensuring that a jury is given every reasonable opportunity to deliberate and reach a true verdict according to the evidence.  No fixed temporal constraints govern jury deliberations.  It depends very much on the jury and whether they have reached an impasse where progress to a lawful verdict is impossible.  The duration of a jury’s deliberations has been examined by the Court of Appeal in HKSAR v Mak Wing Cheung and Another [54] and HKSAR v Chan Kui Yuen also known as Thomas Chan and Another [55]. 

52.  In Mak Wing Cheung, Stock JA highlighted the judicial responsibility to provide structured guidance to deliberating juries and that a judge should ensure that the jury have breaks at the appropriate intervals during their deliberations.  He went on to say:

“17. … but we nonetheless disapprove of the fact that a jury was left for ten and a half hours with no inquiry whatsoever as to progress, and with no hint to them as to when they might find any relief from their deliberations, and the comments to which we refer were singularly inappropriate.

18. … What steps a judge must take, and when, is case and situation sensitive, but we are satisfied that in this case nothing justified simply leaving this jury sitting without a break for so long without any inquiry being made of them, or any indication to them as to how matters might progress.” (Emphasis added)

53.  After citing with approval Stock JA’s remarks, Lunn JA in Chan Kui Yuen elaborated:[56]

“‘What steps a judge must take, and when, is case and situation sensitive’ resonates with common sense. A trial judge is best placed to judge the time at which it is appropriate to direct the jury to cease their deliberations on any particular day. That is all the more so in a case of the length of this trial, where the judge has had the opportunity over many months to become well acquainted with the jury. The jury retired to consider their verdicts on Day 127 of the trial and delivered their verdict on Day 131. As was made clear, in the judgments of both Bokhary PJ and Stock JA, their observations that a jury ought to cease its deliberations at about 8 p.m., provide general guidance to trial judges. Those observations are not ‘black letter’ law.”

54.  Lunn JA was satisfied that the times at which the judge directed the jury to cease their deliberations on each of the days on which they deliberated were procedural matters of case management, which lay squarely within the judge’s judicial discretion.  There were occasions when the jury deliberated some time past 8:00 pm, this clearly had no detrimental effect on the jury’s deliberations and was a matter for the judge to assess.[57]

55.  Lunn JA referred to Tam King Hon where the Court of Final Appeal provided alternative directions to be given to the jury on majority verdicts as part of the summing-up.[58]  On occasions after the delivery of the summing-up, judges are enjoined, “… to repeat or stay as close to the directions previously given where possible.  If in response to such questions, a judge then uses different terms to convey the same meaning, depending on the circumstances, the risk of confusion or misunderstanding may arise.”[59]

56.  In R v McKenna [60], the trial judge told the jury that if they did not reach a verdict in the next ten minutes, they would have to be kept all night.  The jury returned with guilty verdicts, but the defendants’ convictions were quashed on appeal because of the judge’s interference.  The Court of Appeal affirmed that verdicts must represent the jury’s unconstrained judgment, and if there was some pressure or threat so that the verdict was not free, it was not a true verdict, and there was, therefore, more than a mere irregularity.[61]  The Court stated: [62]

“It is a cardinal principle of our criminal law that in considering their verdict, concerning, as it does, the liberty of the subject, a jury shall deliberate in complete freedom, uninfluenced by any promise, unintimidated by any threat. … To say to such a tribunal in the course of its deliberations that it must reach a conclusion within ten minutes or else undergo hours of personal inconvenience and discomfort, is a disservice to the cause of justice.”

57.  In quashing the convictions, the Court reiterated that: [63]

“… it is of fundamental importance that in their deliberations a jury should be free to take such time as they feel they need, subject always, of course, to the right of a judge to discharge them if protracted consideration still produces disagreement. Plain though many juries may have thought this case, the principle at stake is more important than the case itself.” (Emphasis added)

58.  The decision of whether a judge should make inquiries with the jury to establish the possibility of reaching a verdict will depend on the circumstances and the time spent in discussion.  In R v Payne [64], citing Lord Lane CJ in R v Rose [65], the Court of Appeal stated:

“It is axiomatic that where it appears from the length of their retirement and the circumstances of the case, even after a majority direction has been given to them, the jury may be unable to agree on a verdict and therefore further deliberation by them may be simply a waste of time, the judge should re-assemble the court, send for the jury and in open court ask the jury, through their foreman, whether there is any chance of their reaching an agreement, emphasising, needless to say, that he is not inquiring how they are divided. According to the answer which the judge receives from the jury, he will then decide whether to discharge the jury there and then, or whether he should ask the jury to retire once again to make a further effort to reach agreement between them.”

59.  Numerous variables inform the determination of whether the jury’s deliberations have become irreconcilably deadlocked.  A jury should be able to take as long as it needs or feels that it needs to reach a verdict.  Factors that may be relevant in determining whether to discharge a jury because of the time taken in their deliberations, include the nature and number of the charges, the number of defendants, the time already taken by the jury in its deliberations, the nature and frequency of the jury’s questions and other circumstances.  There are many variables that operate in the dynamics of a jury’s deliberations, but whatever the case, a realistic and common sense assessment should be made with the clear objective of facilitating a true verdict from the jury for as long as the jury willingly requires.

60.  The parties have not identified any significant consequence of the first jury’s discharge on the appellant’s subsequent conviction.  Furthermore, the appellant does not argue that the discharge warrants setting aside the conviction or ordering a retrial.  The respondent submits that the Judge’s decision to discharge the first jury did not amount to a material irregularity.  Even if any irregularities occurred, they were effectively remedied by the second trial.

61.  When considering the issues at trial, the jury’s impugned questions were not inexplicable or unreasonable. The defence case was that the appellant did not know there were drugs in the shoes, and it was not until the Customs officers discovered them that he learnt that there was white powder concealed inside.  The Judge referred to the defence closing address in her summing-up:[66]

“Mr Percy suggested in his closing speeches that if you view it in proper context that sentence, what was said was not intended to be an admission that he knew he was carrying drugs into Hong Kong before he arrived, this means, and although it is not evidence directly from the defendant, it was said on his behalf that these words or that sentence are capable of having another meaning, another interpretation other than an admission that he knew he was trafficking dangerous drugs into Hong Kong. It may possibly mean that his knowledge came after he saw the Customs officer extracting the white powder from inside one of the shoes and being arrested for drug trafficking. It may possibly mean that he only knew there were drugs inside the black shoes after he saw the examination and the test, but he did not know before he was stopped and searched and intercepted.”

62.  The first part of the question addressed the defence argument that the appellant may have brought something unlawful into Hong Kong without knowing what it was until the Customs officers discovered it. When the question was discussed between counsel and the Judge, defence counsel proposed that the Judge should direct the jury again on the essential elements of possession and knowledge, clarifying that bringing an unlawful item into Hong Kong is not the same as bringing dangerous drugs into Hong Kong.  The Judge agreed, and defence counsel continued:[67]

“So if he thought he was bringing something other than drugs which is lawful, it’s got to be not guilty, but we’re here dealing with drugs only, so they’ve got to be reminded, if we knew at the time of his arrival in Hong Kong that there were drugs, any drugs, in any part of his belongings or on his feet, he’s guilty of the offence.

The other thing is, the alternative, this is what I think I was submitting to the jury, his state of knowledge, I was submitting, may well have come after the narco test, so here we have a question: Did -- if the defendant knew he’d brought an item into Hong Kong without knowing this was unlawful until he arrived and was cautioned and arrested -- I think they’re trying to understand, if his state of knowledge that these were drugs in his shoes after the narco test, of course, that wouldn’t be required -- that is insufficient to find him guilty of the offence of importing with knowledge, because the knowledge comes after the event. He’s got to be found guilty only if he knew prior and at the time of his arrival, not afterwards.

So those are matters of law that I think should be highlighted.  As to the procedural matter at the bottom, again your Ladyship would have to ask them to come back with a more specific document that they’re concerned about, and it goes to weight, really.”

63.  The Judge comprehensively addressed the question, clearly providing an answer.  Any difficulty or confusion the jury may have had regarding the matter was resolved through the Judge’s clarification.  The jury’s question, which was reasonable under the circumstances, focused on one aspect of the case that, for some reason, occupied the mind of one or more jurors.  However, this did not reflect a misunderstanding of the burden or standard of proof or the central issues at trial.  To extrapolate a miscarriage of justice out of this question is difficult to accept.  It needs to be remembered that jurors, not being lawyers, are there to represent the community in determining whether or not an accused is guilty of the offence alleged against him or her.  It is also important to note that the vast majority of jurors do not have English as their first language.  Consequently, when a trial is conducted in English, the questions from the jury may not always be expressed with exemplary grammar and syntax.  A reasonable allowance should be made when questions in English are submitted to the court from the jury, whose first language is not English.

64.  When the jury retires to consider its verdict, they deserve reasonable time and opportunity to return a lawful verdict.  If, after a realistic and common sense assessment of the circumstances, it becomes clear that the jury cannot reach a lawful verdict, the court has the discretion to discharge them.  Many factors may influence the time taken by the jury in its deliberations.  There is no fixed time limit, and a jury should be allowed as much time as is reasonable in the circumstances.

65.  Based on our reading of question 1, it focused on whether guilt could be established if the appellant knew he had brought an “unlawful item” into Hong Kong, or he had brought “an item” into Hong Kong without knowing it was unlawful until his arrest and caution.  As noted earlier, the Judge addressed the question and emphasised to the jury that they must be sure that the appellant “knowingly” brought a dangerous drug into Hong Kong.  While it may have been the query of one or more of the jurors, treating it as a fundamental misunderstanding of the evidence or the key issue at trial is an overreach.  Juries are invited to ask questions during their deliberations so that the court can provide guidance and assistance to them, and a court needs to take appropriate steps and be assured before critically appraising a question to determine whether to discharge a jury because of it.

66.  The jury system is sacrosanct, and arbitrary discharges of juries would severely undermine the community’s vital role in the criminal justice system.  While we acknowledge that the Judge may have been influenced by prosecuting counsel’s critical remarks and her own concerns about the phrasing of question 1, in our view, these concerns did not justify the discharge of the jury.  This decision also deprived the jury of the opportunity to further deliberate and potentially reach a verdict.  We discourage the imposition of a time limit as suggested by prosecuting counsel.  The proper approach is to make appropriate inquiries with the jury to see if any impasse between them may be resolved in a lawful verdict if more time is given to them.

67.  There was no complaint about the appellant’s eventual trial, and whilst a different approach could have been taken in dealing with the jury’s question in the first trial, the appellant suffered no prejudice.  There was no doubt that the prosecuting counsel should have been more temperate and considered in his remarks about the jury’s questions, which, on careful examination, were not unreasonable or inexplicable.  Although the Judge could have given the jury more time to deliberate at the first trial, the appellant nevertheless received a fair trial, and there is no basis to interfere with the jury’s verdict in the second trial.

68.  The appellant’s appeal against conviction is dismissed.

The appeal against sentence

69.  During the conviction appeal, the appellant applied for leave to appeal his sentence out of time, citing the new sentencing guidelines for trafficking in large quantities of drugs (heroin, cocaine and Ice)  laid down in HKSAR v Huang Ruifang [68] on 5 March 2025.  We granted the application, as we were seized of an appeal from the appellant’s case, and under the new sentencing guidelines, his sentence would be significantly reduced.

70.  On 21 July 2022, the appellant was sentenced to 22 years and 3 months’ imprisonment.  This was based on a starting point of 20 years and 3 months’ imprisonment under the old guidelines, with an enhancement of 2 years for the international element involved in bringing dangerous drugs across the border into Hong Kong.[69] 

71.  Applying the new guidelines, and taking into account the international dimension in this case, we considered that an overall sentence of 19 years and 3 months’ imprisonment was just and appropriate.  We noted that there were no meaningful mitigating factors that warranted a reduction in the sentence.

Conclusion

72.  It follows from what we have said that we dismissed the appellant’s appeal against his conviction, and allowed his appeal against sentence, which we substituted with a sentence of 19 years and 3 months’ imprisonment.