HKSAR v LAM TSZ HO

CACC 121/2021

[2022] HKCA 1618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 121 OF 2021

(ON APPEAL FROM HCCC NO 26 OF 2020)

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J U D G M E N T

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

Introduction

1.  On 8 June 2021, following a trial before Wong J (the judge) and a jury the appellant was unanimously convicted of trafficking in a dangerous drug, namely 5,006 grammes of a crystalline solid of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced to 26 years’ imprisonment.

2.  The appellant attended a post office and collected a parcel that was found to contain dangerous drugs. The appellant claimed he collected the parcel on the instructions of a friend and did not know it contained dangerous drugs. The appellant did not give evidence or call any witnesses. He relied on his answers in his video recorded interview and his counsel’s cross-examination and submissions in putting his defence before the jury. The key issue at trial was whether the appellant knew the parcel contained the dangerous drugs. The jury by its verdict found that the appellant knew the parcel contained dangerous drugs when he collected it at the post office.

3.  The appellant’s appeal against conviction is focused on a single ground, for which leave was granted by a Single Judge.[1] It is contended that the judge made “strong and inappropriate remarks” in his summing-up to the jury when he said:[2]

“If you do not follow any of my directions, it may amount to contempt of court, which is a criminal offence. And as I have told you earlier, if you do not follow my directions, your verdict will be set aside by the Appeal Court and your efforts will be wasted.”

It is complained that these remarks amounted to a form of pressure and threat upon the jury in the evaluation process of the verdict which deprived the appellant of a fair trial. It is further complained that the appellant’s conviction was therefore unsafe and unsatisfactory.

Discussion

4.  As a fundamental principle care needs to be taken by a judge when summing up to the jury not to improperly pressure the jury to arrive at a verdict: Tam King Hon v HKSAR[3]. However, it is important that the jury are reminded of the need to follow faithfully the instructions of the trial judge and return their verdict based on the evidence. Sometimes firm language is required to ensure the jury does not engage in any impermissible conduct, such as doing their own research about the case on the Internet: HKSAR v Chan Huandai[4].

5.  The Court of Final Appeal in Tam King Hon held that appropriate directions on the decision-making process of the jury must communicate adequately the following three relevant principles:[5]

“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 the 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. ”

6.  The Court of Final Appeal in Tam King Hon[6] cited with approval the principle stated in R v Watson and Others[7], namely:

“… a jury must be free to deliberate without any form of pressure being imposed upon them, whether by way of promise or of threat or otherwise. They must not be made to feel that it is incumbent upon them to express agreement with a view they do not truly hold simply because it might be inconvenient or tiresome or expensive for the prosecution, the defendant, the victim or the public in general if they do not do so.”

7.  This is the cardinal principle that runs through the fabric of our jury system and must be adhered to at all times.

8.  It is imperative when considering whether a summing-up contains material misdirections, the impugned remarks must not be looked at in isolation but must be examined in their proper context. The ultimate object is to assess the effect of the summing-up as a whole on the jury and ensure that in the circumstances of the case it is fair: Tam King Hon[8].

9.  The judge commenced his summing-up on Friday, 4 June 2021. After briefly setting out the cases for the prosecution and defence, he explained to the jury their different functions, reminding them that:[9]

“It is my job to tell you what the relevant law is and how to apply it in the present case. As to the law, you must accept what I tell you and must follow the directions I give you. If in case what counsel told you about the law is different from what I am to tell you, my direction prevails. You must accept and follow what I tell you about the law.”

10.  He then told the jury that as for the facts, they alone were the judges. He said:[10]

“… It is for you to decide what evidence you accept, what evidence you reject. It is also for you to decide whether or not you are sure. When you come to consider your verdict, you, and you alone, must make the decision. When I go along, something I say may make you think that I have expressed certain view of the evidence or certain issues on the facts of the case. This is something I do not intentionally do, but if you do think that I have expressed a view on the fact, it is important that you bear this in mind. It is your own views that matters. You are free to take into account my view of what I think or reject what I say in relation to the facts. If you do not agree to what I say about the facts, you are free to reject what I say. You can just simply ignore it.

You may take into account what counsel said in their speeches. You are also free to accept or reject whatever view that has been said by counsel. You are the sole judges of fact. Now, later, I will sum up the evidence. I am not going to repeat the whole of the evidence to you. In the course, if I appear to be emphasising certain evidence, and if you think such evidence as not important, you may just disregard it. There may be some evidence which you think is important but which I do not mention, follow your own view and take that evidence into account.”

11.  The above quoted remarks followed Specimen Direction 1.1 contained in the Judicial Studies Board’s specimen directions on the functions of judge and jury.

12.  Immediately thereafter, the judge gave the jury the standard directions on the burden and standard of proof and reminded them in strong terms that they had to be sure of guilt and not base their decision on suspicion or probability.[11]

13.  The judge then took the jury very carefully through the elements of the offence of trafficking in a dangerous drug, giving in comprehensive terms the relevant legal directions.[12] At this juncture, the judge turned to address the relevant directions in respect of the appellant. He reminded the jury of the appellant’s right of silence, which he exercised during the course of his video recorded interview, as well as his right not to give evidence or call any witnesses.[13] He finished this part of the summing-up on Friday and continued the following Monday, 7 June 2021, having warned them that he proposed to send them out to deliberate on Tuesday, 8 June 2021.

14.  On the Monday, the judge reiterated to the jury that they must decide the case only on the evidence received in court and not talk to other people about it. He then stressed that they were not to conduct any research or investigation, including doing so on the Internet. He made the point that they were not investigators, that they had to decide the case on the evidence presented to them, and that they must not speculate or guess.[14] It was at this stage of his summing-up that the judge made the impugned remarks. It seems he did so because he knew the jury would be returning home that night and retiring to consider its verdict the next morning. It is appropriate to set out in full the relevant passage of the judge’s summing-up where the impugned remarks are made:[15]

“Now, as I had told you earlier, you must decide the case only on the evidence that you have received in this court. Please remember that each of you has taken an oath that you are to give a true verdict in this case according to the evidence adduced to you in this trial. You may also recall that I have told you not to talk to other people about the case, by any means not to conduct any research or investigation, including doing so on the internet. You must not do any of these things even if you think it will help you in your decision. You are not investigators. You can only decide the case on consideration of the evidence which has been adduced before you. If you happen to have heard anything about the case from outside this court, including from mass media, internet, or hearing from others, you must disregard what you have heard. Now, you have heard speeches of counsel, you are listening to my summing-up and directions. All of these are not evidence.

Now, when witnesses testified, suggestion of certain version of facts were from time to time put to them by counsel. You must also remember that unless the witness agreed to the version of facts suggested, suggestion by counsel are not by themselves evidence. Now, you have heard all the evidence. There is no more evidence. Even if you feel that there is a gap in evidence, do not try to fill the gap. Only in very exceptional cases, there will be evidence to cover every aspect. We have to accept the limitation of reality. If there is no evidence, you must not speculate or guess, this is very important. Even if you feel that something is lacking, you must not let anything which is lacking distract you. You should focus on the evidence which has been adduced before you. What you are to do is to decide whether or not the whole of the evidence before you, the prosecution has proved to make you sure that the defendant is guilty. If you do not follow any of my directions, it may amount to contempt of court, which is a criminal offence. And as I have told you earlier, if you do not follow my directions, your verdict will be set aside by the Appeal Court and your efforts will be wasted.” (Emphasis added)

15.  When the judge reminded the jury of what he had previously said to them about not conducting any research or investigation, particularly on the Internet, he was referring to his introductory remarks to them after they had been empanelled on 31 May 2021. He had said:[16]

“Now, you are members of the jury. You are not investigators. Your duty is to determine the guilt or innocence of the defendant only on the evidence presented to you in the course of this trial. You must not obtain information elsewhere about the case. You must not let any information in the media affect your mind and decision. The only basis of your decision is the evidence which you have received inside the court.

Now, media must nowadays include the internet. Do not let anything appearing in the internet affect you.

Also you must not do any research, test, or investigation of any kind by any means on your own. If you were to do any of these unknown to the prosecution and the defence, they would not be in a position to comment on or otherwise deal with it and that would not be fair. Besides the origin of the information you obtained elsewhere is often unknown and it may be wrong. You must not go to the places to visit which are mentioned in the course of the evidence. Your duty is to decide the verdict according to the evidence.

Now, there may be a chance that you feel that there is a lack of evidence about some aspects of the case. Now, it is a reality which we must accept. If that happens, you must resist the temptation of doing your own research or investigation. You can only consider the case on the evidence adduced before you during the trial and inside the court.

Now, what I have said is not only advice to you, it is direction you must obey. If you do not confine your consideration to the evidence, your verdict would be set aside by an appeal court as it might amount to miscarriage of justice and that would result in a waste of your time and that of your fellow jurors and lead to a considerable expense to the community and the parties.

And I would also like to give you a gentle reminder that the consequence of not following what I told you can be serious. Failure to comply with direction of the court may amount to contempt of court which is a criminal offence.

Now, I stress again, it is important. Your duty is to determine the guilt or innocence of the defendant only on the evidence presented to you in the course of this trial and on nothing else.”

16.  We will return to the judge’s introductory remarks to the jury when considering the impugned remarks because they are directly connected.

17.  On the third day of his summing-up, Tuesday, 8 June 2021, before sending the jury out to consider its verdict, the judge repeated to them the importance of their task. He stressed:[17]

“… Each of you must make your own decision as to the proper verdict. You should do so only after considering the evidence with your fellow jurors. I ask each of you to go into the jury room with an open mind and listen to what your colleagues have to say before you finally make up your own mind. There must be discussion and debate between you, and as a result of which, any one of you may be persuaded to accept a different view which you might not necessarily have held when you first go into the jury room. If you have committed yourself to a particular position, it will not be easy to listen to your colleagues’ opinion. At the end, you must stay true to your oath and give a true verdict according to the evidence.”

18.  These remarks were consistent with Specimen Direction 55 in the Judicial Studies Board specimen directions on the concluding directions in respect of verdict and jury management.

19.  There are two additional matters we would highlight from the judge’s concluding remarks, which concern his reiteration to the jury that they must decide their verdict on the evidence presented to them[18], and his instruction that if they felt they needed further direction about the law they should submit a written note to him.[19]

20.  Mr James Tze, for the appellant, accepts that the judge’s impugned remarks were appropriate when instructing the jury not to rely on extraneous materials. However, he takes issue with the fact that the judge made his remarks in the context of “any of his directions” and therefore covered all the directions he gave to the jury. He contends that this was contrary to the principle that a jury must be free to deliberate without any form of pressure being imposed on them, whether by way of promise or of threat or otherwise.

21.  Mr Tze also argues that the effect of the impugned remarks ran through the whole of the jury’s evaluating process in reaching a verdict and there was a real risk they would have felt compelled to return a unanimous verdict. In accordance with Specimen Direction 55, the judge stated that it was desirable they should all agree on their verdict, but if they could not do so they could return a majority verdict.[20] Mr Tze makes no complaint about the judge’s directions on returning a verdict which follows the relevant specimen direction and we do not agree that the judge’s impugned remarks would have compelled the jury to return a unanimous verdict. After all, the judge merely followed the specimen direction and told them that it was desirable that they should all agree on the verdict, not that they had to.

22.  Mr Raymond Cheng[21], for the respondent, submits that the judge’s impugned directions have been approved by the Court of Appeal in HKSAR v Chan Huandai[22], where a direction in these terms was held to be appropriate in the context of jurors having accessed the Internet about the case. He also refers to various decisions from the United Kingdom, Australia and Canada of a similar nature in that they address the possible liability for contempt of court by jurors for breach of a direction not to seek and rely on extraneous materials.[23]

23.  As correctly noted by Mr Cheng, the impugned remarks were only made on one occasion in the summing-up and immediately after the directions against speculation and seeking and relying on extraneous materials. He submits that the judge was making his remarks in respect of this direction when he said “any of my directions”. He accepts it would have been preferable had the judge been more specific, but submits that when the remarks are considered in their context, they did not have any adverse effect on the appellant. He adds that the remarks did not constitute any improper pressure or threat on the jury’s deliberations.

24.  The suggestion by the judge to the jury that not following his directions may amount to contempt of court, obviously sought to convey to them the importance of following his directions and the serious consequences in not doing so. Whilst emphasising the likelihood of a criminal sanction if the jury does not comply with the judge’s legal directions in stringent terms, the jury are nevertheless properly reminded that the law is the province of the judge and they must follow his directions.

25.  The judge also remarked that if they did not follow his directions, their verdict would be set aside by the Appeal Court and their efforts would be wasted. This Court in Chan Huandai[24], recommended that trial judges on directing the jury against doing their own research of a case should follow the suggested directions of the judicial commission of New South Wales. The suggested directions included a passage that states:

“You should not conduct research about the case or about any person or issue connected with the case. That includes keeping away from the Internet (for example Google) to find out something which you think might assist you in coming to a decision.

Your role in this case is not to investigate the incident giving rise to the charge/s. Jurors might in some cases feel frustrated by what they see as a lack of evidence or information about some particular aspects of the case and be tempted to do their own research. But investigation is not your function and it is not my function. Your function is to make a decision based on the evidence that is placed before you and any verdict influenced by your own investigations results, in law, in a miscarriage of justice and any verdict given, even if it was not in fact affected by such investigations, would be set aside by an appeal court because of such investigations.

That would result in a waste of your time and that of your fellow jurors, and lead to a considerable expense to the community and the parties.”

26.  The Court in Chan Huandai[25] stated that trial judges may adopt the suggested directions, with necessary modifications, in their opening speech to the jury after empanelment, and may also wish to stress again in the summing-up the importance of not doing Internet research about the case. The Court went as far as to say that judges should also warn the jury that if they do not abide by the directions and carry out Internet search, the consequences would be very serious, possibly involving being prosecuted for contempt of court and if convicted being sentenced to imprisonment.

27.  It seems clear that the judge must have had this Court’s comments in Chan Huandai in mind when using the terms he did both in his introductory remarks and summing-up to the jury.

28.  When the summing-up is considered as a whole and in the circumstances that the jury were to return home before retiring to consider their verdict the following morning, we agree with Mr Cheng’s submission. In the context in which the judge’s remarks were made, he was emphasising with the jury the importance that they should not speculate or conduct their own research but be bound by the evidence presented before them. Even if the judge’s remarks were considered to apply to all his directions, in our judgment they did no more than express in stringent terms the obligation on the jury to follow the judge’s directions on the law. Having regard to the entire context, we consider that the judge’s remarks were not inappropriate to the circumstances of the case.

29.  As we stated at the outset of our judgment, care needs to be taken to ensure that a jury is free to deliberate on the evidence presented to them without any form of improper or inappropriate pressure being imposed upon them in deciding their verdict. There are two important underlying principles that need to be strictly adhered to. First, the jury is to give a true verdict according to the evidence that has been presented to them. Secondly, the jury should arrive at its verdict free of any improper or inappropriate pressure upon them. However, it is well recognised that the Internet has become part of our daily lives and together with human curiosity, there is a risk that jurors may conduct their own research about the case. That is why a direction as suggested in Chan Huandai may need to be given. If it is decided that such a direction should be given, it should be explicitly in respect of a juror not investigating or conducting his or her own research of the case with extraneous sources, including the Internet.[26] It is a matter for the discretion of the judge as to the nature and terms of the warning that should be given, which will depend upon the particular circumstances of the case so as to ensure a fair trial. In our view, on most occasions, a direction in emphatic terms will suffice.

Conclusion

30.  We are therefore of the view that no miscarriage of justice has taken place in the present case and the appeal is dismissed.