CAI ZONG GANG v. HKSAR

FACC No. 4 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2008 (CRIMINAL)

(ON APPEAL FROM CACC NO. 486 OF 1998)

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Between:

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J U D G M E N T

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Mr Justice Bokhary PJ :

1.  At the conclusion of the hearing, we allowed the appeal, quashed the appellant’s convictions, set aside his sentences, ordered his discharge rather than a retrial and said that we would hand down our reasons in due course.  These are our reasons.

Complaint upon which this appeal is brought

2.  When they first came back, this jury purported to acquit by a majority of 4 to 3.  They being a jury of seven, the majority that constitutes a verdict is 6 to 1 or 5 to 2.  So they were further directed.  They then resumed their deliberations.  On the following day, they came back again and convicted by a majority of 6 to 1.  This appeal is brought upon a complaint against what the jury were and were not told when they were further directed.  Before coming to the details of those further directions, we will outline the circumstances of the case.

Circumstances

3.  The appellant was charged with two offences.  Under the first count, he was charged that he had on 30 May 1997 at the 6th floor of Asia House, 390 King’s Rd, North Point in Hong Kong trafficked in dangerous drugs consisting of 2,023.26 gms of a mixture containing 1,626.29 gms of cocaine hydrochloride.  And under the second count, he was charged that he had on that date and at that place attempted to traffic in dangerous drugs consisting of 4,081.96 gms of a mixture containing 3,275.91 gms of cocaine hydrochloride. 

4.  In the autumn of 1998 the appellant stood trial in the High Court (Mr R Wong SC sitting as a recorder) on those two counts.  At that time, the appellant was a man of previous good character aged 37.  As mentioned above, the jury had initially purported to acquit him on both counts by a majority of 4 to 3.  That was on 1 September 1998.  Then on the following day, they convicted him on both counts by a majority of 6 to 1, whereupon the recorder sentenced him to 20 years’ imprisonment by way of concurrent terms of that duration on each count.  On 1 June 1999 the Court of Appeal (Mayo, Leong and Stuart‑Moore JJA) affirmed the appellant’s convictions.

5.  The events which led to the charges were these.  On 28May 1997 a Bolivian drug courier arrived in Hong Kong on a flight from Japan.  At the airport here he presented his luggage for customs clearance.  His luggage included a suitcase containing three transformers.  A customs officer opened one of those transformers.  Three blocks of white substance were found inside.  It was suspected, rightly as testing later showed, that the substance was a dangerous drug.  Later similar substance was found inside the other two transformers.  All such substance eventually proved, upon testing, to be cocaine.  Upon arrest at the airport, the courier remained silent under caution.  But later on when interviewed under caution he said that he had been handed the three transformers in Bolivia with instructions to deliver them at Asia House for a reward of US$8,000 of which he had received US$ 1,000 before leaving Bolivia.

6.  With his consent and cooperation, the courier was taken to Asia House by customs officers in order for him to deliver there, under their surveillance, one of the transformers in its original state and two dummies.  At Asia House, the courier made and received a number of telephone calls, following which the appellant arrived at the 6th floor.  There the courier delivered the drug-laden transformer and the two dummies to the appellant who handed him US$1,000.  The appellant was arrested at the scene.  At his trial, he chose not to testify.  Instead he relied on his account, given when interviewed by the Customs and Excise, of having taken delivery on behalf of a friend without knowing that dangerous drugs were involved.

Further directions of which complaint is made

7.  Having outlined the circumstances of the case, we can now come to the details of the further directions of which complaint is made.  Part of those further directions were given before the recorder consulted counsel, and consisted of the recorder saying this to the jury :

“Yes. I’m afraid there might be a misunderstanding in relation to my directions as to majority verdict. I can only accept a majority verdict from you if it is the consensus of at least five persons. So I cannot accept a majority verdict from you of four to three. May I therefore invite you to retire to the jury room for a moment, so that I can confer with counsel, and perhaps invite you to return later. So may I invite you to return to the jury room at this juncture?”

The rest of the further directions complained of were given after the recorder had consulted counsel, and consistsed of the recorder saying this to the jury :

“Members of the jury, again, I express regret in failing to give you sufficiently clear direction as to the majority verdict. Be it guilty or not guilty, there must be a consensus of at least five amongst you. So may I invite you to return to your jury room and reconsider the matter? Is that clear enough? Yes. So may I invite you to return and reconsider. Thank you.”

8.  In essence, the complaint made against those further directions is that the recorder did not tell the jury that if they were eventually unable to reach a majority of at least 5 to 2, then they would be directed as to the position in such a situation.  So, it is argued on the appellant’s behalf, the jury might have been left with the impression that they had to continue their deliberations until they reached a majority of at least 5 to 2.

Leave to appeal out of time

9.  The complaint upon which the appellant appeals to us was not made a ground of appeal before the Court of Appeal.  All that the Court of Appeal said in regard to this aspect of this case is that the convictions by a majority of 6 to 1 were

“… not before a most unfortunate mishap. The jury attempted to deliver 4:3 verdicts and regrettably were not stopped by the Recorder from indicating the result of their deliberations at that time. However after they were sent back again to continue their deliberations they did eventually reach acceptable verdicts.”

10.  On 31 January 2008 we handed down our reasons in the kidnapping case of Pun Luen Pan v. HKSAR [2008] 2 HKLRD 404 where the trial judge (Nguyen J) had said this to the jury :

“ A verdict of four : three is not good enough so if you are locked in at four : three, then you must continue your discussion until you reach at least five : two. But as I said, you must try to reach a unanimous verdict if you can.” (Emphasis supplied)

At the conclusion of the hearing of that appeal on 16 January 2008, we had quashed Mr Pan’s convictions and ordered a retrial.  In the reasons which we handed down on the 31st of that month, we said this at p.415 :

“ The judge’s statement to the jury that they must continue their deliberations until they reached at least five : two should not have been made. It was of such a nature as to put jurors under undue pressure to agree, was not cured by anything else said in the summing-up and gave rise to a substantial and grave injustice. The conviction had therefore to be quashed.”

About six weeks after we handed down our reasons in Pun’s case, the appellant initiated steps which resulted on 17 June 2008 in a successful application by him to the Appeal Committee for leave to appeal to us out of time upon the present complaint.

Had the jury been put under undue pressure to agree?

11.  In Pun’s case the jury were, as we have seen, told that they “must continue” to deliberate until they reached a majority that constitutes a verdict.  The jury in the present case were not told that.  What they were told about the position if they were unable to reach the requisite majority was along the lines of what the jury was told about that in the drug trafficking case of Tam King Hon v. HKSAR (2006) 9 HKCFAR 206, the false accounting case of Chan Kar Leung v. HKSAR (2006) 9 HKCFAR 827 and the murder case of Lam Chi Kwong v. HKSAR, FACC No.2 of 2008, 5 December 2008.  In each of those cases, as in this one, the jury were not told that they would be directed further if they were unable to achieve the requisite majority.  And in each of those cases, this Court held that such an omission, while unsatisfactory, was not fatal.  The difference between the present case and those cases is that this jury had purported to acquit before they eventually convicted. 

12.  Once a jury announces a majority that does not constitute a verdict, the verdict-taking should be stopped immediately, and the jury should be directed further on what constitutes a verdict and on the position if they are unable to achieve the requisite majority.  In the present case, the taking of the verdicts proceeded even after the foreman had announced a majority of 4 to 3.  However it is only fair to the recorder to note that the difficulty in the present case was compounded by the fact that the foreman did not merely announce a majority of 4 to 3 but, all in the same breath, indicated that four jurors were for acquitting while three were for convicting.  This is how the jury purported to acquit by that majority which did not constitute a verdict :

“COURT : Will you take the verdict, please?

CLERK : Mr Foreman, would you please stand up? I'm going to ask you to return your verdict. On the 1st count of trafficking in a dangerous drug against the defendant, CAI Zong-gang, have you reached a verdict?

FOREMAN : Yes.

CLERK : Is the verdict one upon which you all are agreed?

FOREMAN : No.

CLERK : By what majority have you arrived at the verdict?

FOREMAN : Four – not guilty; three – guilty.

COURT : So is -- the majority is four to three?

FOREMAN : Yes, four to three.

COURT : All right. And what is your verdict?

FOREMAN : Not guilty.

COURT : Yes.

CLERK : On the 2nd count of attempting to traffic in a dangerous drug against the defendant, CAI Zong-gang, have you reached a verdict?

FOREMAN : Yes.

CLERK : Is the verdict one upon which you all are agreed?

FOREMAN: No.

CLERK: By what majority have you arrived at your verdict?

FOREMAN : Four to three. The four number is guilty plea; the three number is not guilty.

CLERK : What is your verdict?

FOREMAN : Not guilty.

COURT: Sorry. So by what majority you arrived atyour verdict is four to three again, is that right?

FOREMAN : Yes.

COURT: And your verdictis not guilty, is that right?

FOREMAN :  Yes.”

13.  Even though the foreman had initially said that “[t]he four number is guilty plea; the three number is not guilty” when purporting to return a 4 to 3 verdict on the 2nd count, we treat that purported verdict as a purported acquittal.  We do so because that would be to resolve in favour of the appellant any ambiguity as to what the jury thought about his guilt or innocence at that stage.  The prosecution cannot complain since, quite apart from anything else, an unresolved ambiguity in what the jury had earlier done would hardly be a sound foundation on which to uphold what the jury eventually did. 

14.  That the jury had at one stage purported to return verdicts by an inoperative majority does, in our view, bring about a crucial difference between this case and the previous cases in which the jury were not told that they would be directed further if they were unable to achieve the requisite majority.  Telling the jury that is a standard direction.  This jury having purported to return verdicts by an inoperative majority, we think that there is a real danger that the failure to give them the standard direction that they would be directed further if they were unable to achieve the requisite majority put them under undue pressure to return verdicts if not unanimously then at least by an operative majority.  At the hearing the prosecution indicated that no retrial was sought.  In our view, the prosecution was right not to seek a retrial.  Having regard to the length of time which the appellant has already spent in custody, a retrial would not be appropriate.  But for the length of time which the appellant has already spent in custody, serious consideration would have had to be given to ordering a retrial.

15.  The foregoing are the reasons why we allowed the appeal, quashed the appellant’s convictions, set aside his sentences and ordered his discharge rather than a retrial. 

Costs

16.  Following our announcement of the result of the appeal, counsel for the appellant indicated that he might, after studying our reasons, apply on the appellant’s behalf for his costs in the Magistrate’s Court and the High Court.  The appellant has been legally represented throughout, but was on legal aid only in the Court of Appeal and here.  We said – and both sides are content – that any application for costs will be dealt with by us on written submissions.  Unless the Registrar is informed within 21 days of the handing down of these reasons that costs are sought, there will be no order as to costs.  If the Registrar is informed within that period that costs are sought, costs will be dealt with by us on written submissions as to which the parties should seek procedural directions from the Registrar.