HKSAR v. Chan Huandai

CACC 114/2014

CRIMINAL APPEAL NO 114 OF 2014

(ON APPEAL FROM HCCC 444 OF 2012)

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REASONS FOR JUDGMENT
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The Court :

A. INTRODUCTION

1.The applicant was charged with one count of unlawful trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.[1]  The particulars of the offence alleged that on 3 April 2011, at the Hong Kong International Airport she unlawfully trafficked in 1.30 kilogrammes of a mixture containing 0.64 kilogrammes of heroin hydrochloride. At the first trial, she was convicted.  The Court of Appeal later allowed her appeal and ordered a retrial.  The retrial took place before Deputy High Court Judge Joseph Yau (as the Judge then was) and a jury (“the Jury”).  On 19 March 2014, the Jury, by a majority of 5-2, found the applicant guilty.  The Judge adjourned the sentence to 27 March 2014.

2.On 24 March 2014, that is, three days before sentence, a member of the Jury (“Juror A”), telephoned the Judge’s clerk (“the Clerk”), informing him that after commencement of the trial and before verdict, Juror A himself and some other members of the Jury had searched the internet and through the search came to know that the case was a retrial.  Juror A told the clerk that he was concerned that some members of the Jury might have preconceived idea about the case to the prejudice of the applicant.  He therefore told the court of what had happened and awaited the court’s determination.  The Clerk then reported the matter to the Judge.

3.On 27 March 2014, the Judge sentenced the applicant to 20 years and 8 months’ imprisonment.  He then told the parties about the telephone call by Juror A to the Clerk.  But he rightly pointed out that after the Jury’s verdict, he was functus officio and could not do anything but to inform the parties about it.

4.On 17 September 2014, the applicant applied to the Court of Appeal for leave to appeal against conviction. The only ground of appeal complained that the Jury had acted contrary to the Judge’s direction by searching the internet, thereby knowing that it was a retrial.  As the Judge was not aware of it at the time, he had not given any corresponding direction.  The applicant therefore did not have a fair trial.

5.At the hearing on 22 July 2015, this Court told the parties and they agreed that investigations had to be conducted to ascertain if what Juror A told the Clerk was true.  We then adjourned the matter for such investigations to be carried out.  After the adjournment, we directed the Registrar of the High Court to ask (a) the Clerk to make an affirmation to verify the telephone conversation with Juror A; and (b) each member of the Jury to answer the questions listed in a Questionnaire.[2] The Clerk subsequently made an affirmation to confirm the contents of the telephone conversation with Juror A.  The Questionnaires were sent to the Jury by registered post on 31 July 2015.  One letter was retuned unclaimed.  Other than that, the other six members of the Jury duly completed and returned to Questionnaire to the Registrar.  According to the answers provided by the jurors, all of them knew that the case was a retrial.  Five knew about it during trial.  One did not say when.  Juror A and another juror learnt of it through their own internet search, two other jurors, from other fellow juror(s).

6.Both parties accepted the truthfulness of the answers provided by the jurors and did not require them to attend court to give oral evidence or to be cross-examined.

7.At the resumed hearing on 23 February 2016, we gave the applicant leave to appeal against conviction and treating it as the appeal, allowed the appeal.  The respondent asked for a retrial.  The applicant did not oppose.  We therefore ordered a retrial.

8.These are the reasons for our judgment.

B. THE JURY SYSTEM

B1. An entrenched institution

9.A trial by jury is a trial of an accused by fellow members of the community.  It has been adopted in all the main common law jurisdictions.  Its contribution to the administration of criminal justice is immense.  In R v Mirza, Lord Hobhouse commended it in these terms :[3]

“It is rightly regarded as a bastion of the criminal justice system against domination of the state and a safeguard of the liberty of its citizens. This is an affirmation of human rights principles.”

10.Deeply rooted in our common law tradition, the trial by jury of criminal cases in the Court of First Instance is an integral and indispensible feature of the criminal justice system.  It has since 1997 been entrenched in Article 86 of the Basic Law constitutionally :

“The principle of trial by jury previously practised in Hong Kong shall be maintained.”

B2. A judicial tribunal with lay membership

11.A jury possesses two essential characteristics.

12.The first characteristic derives from its lay membership.  Selected randomly from the statutorily qualified members,[4] the jury is drawn from a pool broadly representative of the community. They represent the peers of the accused holding the norms and values of the community.  This random selection of jurors from a pool broadly representative of the community, sometimes referred to as the “fair cross-section” principle, is inherent in the concept of a fair trial by an impartial jury : see Rojas v Berllaque (Attorney General for Gibraltar intervening).[5]

13.With its board lay membership, the jury is also in the eyes of the law the epitome of the reasonable man, who has the collective wisdom based on individual members’ own knowledge and experience of life.  With these qualities, a jury can be relied on as an excellent fact finder.

14.The second characteristic of a jury derives from its legal function.  Although the jury consists of laymen not trained in the law or forensic skills, it is a judicial tribunal : R v Mirza, per Lord Steyn.[6]  It is tasked with the momentous responsibility of determining whether a defendant is guilty as charged on the evidence and in accordance with the directions of the trial judge.

B3. Acting with judicial attributes

15.As a judicial tribunal, a jury must conform to judicial standards.  Fundamental to such judicial standards is to act independently, fairly and impartially.  These judicial attributes required of a jury ensure the full compliance with Article 10 of the Hong Kong Bill of Rights[7] and Article 87 of the Basic Law[8] which guarantee a person’s constitutional right to a fair trial.

16.In practical terms, when discharging their function with the requisite judicial attributes, the jurors must keep to the oath that they took when they assumed duty.  They must act in good faith.  And most pertinently for present purposes, they must follow the directions of the trial judge and base their deliberations and return their verdict on the evidence and the evidence alone.  They must not introduce any extraneous materials into their deliberations.  They must put aside any extraneous prejudice.  Acting in conformity with the trial judge’s instructions and returning a verdict in accordance with the evidence only underpin the integrity of the entire system of trial by jury.  As Lord Hope explained in Montgomery v HM Advocate :[9]

“[The] entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they received from the trial judge and that they will return a true verdict in accordance with the evidence.”

17.In a similar rein, Ribeiro PJ said in HKSAR v Lee Ming Tee & Another :[10]

“Reliance of 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.”

18.Recently this Court reiterated in HKSAR v Kissel :[11]

“In our system of the administration of justice, the court must act on the assumption that the jury will act in good faith, on the evidence and in accordance with the directions of the judge.”

19.The court’s assumption as articulated above is based on the strong rebuttable presumption at common law that the jury, like any other judicial tribunal, is impartial, unless the contrary is proved : see Rojas v Berllaque (Attorney General for Gibraltar intervening);[12] and R v Mirza.[13]

20.It is axiomatic that the integrity of jury trials depends on the jury acting in accordance with the above judicial attributes.  If it does not, the public will lose confidence in the legitimacy of jury verdicts.  The jury system will be brought into disrepute.  The very foundation of our criminal justice system will be jeopardized.[14]

C. JURY IRREGULARITY

21.Exceptionally when on appeal, as is here, it is alleged as a ground of appeal that the jury had failed to act in accordance with the trial judge’s directions or had taken into account extraneous materials, the Court of Appeal has to approach the complaint with extreme caution.  On the one hand, the Court must uphold the common law confidentiality rule pertaining to jury deliberations which, as will be seen shortly, is fundamental to the function and integrity of the jury system.  On the other, the Court must ensure that the appellant has not been deprived of a fair trial.  Within the limited scope permitted by the confidentiality rule, the Court has to conduct all necessary inquiry, however daunting it might be, to ascertain the truth of the alleged jury irregularity before it is able to dispose of the appeal justly.

C1. The confidentiality rule

22.The common law confidentiality rule had existed for about 200 years,[15] which has generated a wealth of authorities.  In R v Mirza, the House of Lords rehearsed the case law extensively.  Thereafter, Lord Carswell provided a useful summary in R v Smith,[16] which Stuart-Moore VP in HKSAR v Mohammed Saleem quoted as follows :[17]

“(1) The general rule is that the court will not investigate, or receive evidence about, anything said in the course of the jury's deliberations while they are considering their verdict in their retiring room: see Ellis v Deheer [1922] 2 KB 113 at pp.117-118 per Bankes LJ; R v Miah [1997] 2 Cr App R 12, p.18 per Kennedy LJ; R v Mirza at p.1156 para.95 per Lord Hope.

(2) An exception to the above rule may exist if an allegation is made which tends to show that the jury as a whole declined to deliberate at all, but decided the case by other means such as drawing lots or tossing a coin. Such conduct would be a negation of the function of a jury and a trial whose result was determined in such a manner would not be a trial at all: see R v Mirza at pp.1164-1165 para.123 per Lord Hope.

(3) There is a firm rule that after the verdict has been delivered evidence directed to matters intrinsic to the deliberations of jurors is inadmissible. The House so held in R v Mirza, affirming a line of cases going back to Ellis v Deheer and R v Thompson [1962] 1 All ER 65.

(4) The common law has recognised exceptions to the rule, confined to situations where the jury is alleged to have been affected by what are termed extraneous influences, eg contact with other persons who may have passed on information which should not have been before the jury: see such cases as R v Blackwell [1995] 2 Cr App R 625 and R v Oke [1997] Crim LR 898.

(5) When complaints have been made during the course of trials of improper behaviour or bias on the part of jurors, judges have on occasion given further instructions to the jury and/or asked them if they feel able to continue with the case and give verdicts in the proper manner. This course should only be taken with the whole jury present and it is an irregularity to question individual jurors in the absence of the others about their ability to bring in a true verdict according to the evidence: R v Orgles [1994] 1 WLR 108.

(6) Section 8(1) of the 1981 [Contempt of Court Act] is not a bar to the court itself carrying out necessary investigations of such matters as bias or irregularity in the jury's consideration of the case. The members of the House who were in the majority in R v Mirza all expressed the view that if matters of that nature were raised by credible evidence the judge can investigate them and deal with the allegations as the situation may require: see the opinions of Lord Slynn of Hadley at pp.1144-1145 paras.50, 51, Lord Hope of Craighead at pp.1155, 1161 and 1165, para.92, 112, 126, Lord Hobhouse of Woodborough at pp.1170 and 1172-1174 paras.141, 148, and Lord Rodger of Earlsferry at p.1176 para.156.”

C1.1 Three policy considerations

23.The confidentiality of jury deliberations is not temporary.  It is permanent and not capable of waiver.  The duty of the juror to respect that confidentiality continues and applies after the case is over and the jury has been discharge and dispersed.  In R v Mirza, Lord Hobhouse stressed the importance of confidentiality of jury deliberations thus :[18]

“142 … Nothing could be more destructive of the duty of confidentiality than the juror coming out of court and communicating his or her views about the jury's deliberations to the media or to persons who are likely to disagree with the verdict which was returned….”

24.As can be seen from the authoritative expositions of the confidentiality rule in the speech of Arbour J of the Canadian Supreme Court in R v Pan,[19] and the speeches of Lord Steyn, Lord Hope, Lord Hobhouse and Lord Rodger in R v Mirza,[20] there are three considerations, in terms of legal policy, in support of it.  

25.First, confidentiality promotes candour and the kind of full and frank deliberations that is essential to the type of collegial decision-making process undertaken by the jury.  In searching for a correct verdict, preferably unanimity, jurors should be free to explore out loud all venues of reasoning without risk or fear of exposure to public ridicule, contempt or hatred.  This is of particular importance to the potential acquittal of an unpopular accused, or one charged with a particularly repulsive crime.  In short, the confidentiality rule underpins the independence and impartiality of the jury as a whole by ensuring that the jury can be true to their oath to return a true verdict according to the evidence and evidence alone without fearing the consequences of the reporting of things individual jurors have said or the arguments they have advanced during their deliberations.  They can play their part in the collective deliberations of the jury without fear of quotation, embarrassment or victimisation. 

26.Second, there is a need for finality of the jury verdict.  A verdict returned in the presence of all the jurors and on their behalf by the foreman becomes the verdict of the jury as a whole.  It is not to be open to second thoughts and must, subject to very limited exceptions, for example, patent inconsistency with another verdict, be accepted by the trial judge.  It cannot be impugned by any individual juror who later wishes to undermine it.  To hold otherwise would not only call into question the entire status of the authority of the jury’s verdict but would also expose jurors to pressure, especially from convicted defendants.  The accused also needs this finality which works as much in his favour as against him.  Plainly, finality is what the acquitted defendant wants and needs.  On the other hand, the convicted defendant can always invoke his right to appeal to the Court of Appeal.

27.Third, our system of jury selection is sensitive to the privacy interests of prospective jurors.  A jury is a collection of lay citizens selected at random from all walks of life.  Many of them will be unaccustomed to discussing an issue in the company of others who are strangers before empanelment in a structured way.  Their deliberations may be stormy requiring the reconciliation of strongly held views.  The confidentiality rule preserves the jurors’ privacy interests by protecting them from quotation, embarrassment, harassment, censure and even reprisals.  Such a protection is important because the proper functioning of the jury system depends upon the willingness of jurors to discharge their functions honestly and honourably.  This in turn is dependent, at the very minimum, on a system that ensures the safety of jurors, their sense of security, as well as their privacy.  It is essential to their ability to perform cohesively and properly deliberate together within the confines of the jury that they are protected by the confidentiality rule.

C1.2 A rule against admissibility

28.As already alluded to, the confidentiality rule against any investigation or inquiry into jury deliberations is a rule of admissibility.  Evidence about the jury deliberations is inadmissible.  The rule is subject to two narrow exceptions which Lord Judge CJ set out in R v Thompson :[21]

“[4] The rule is subject to two narrow exceptions. The first arises if it emerges that there may have been a complete repudiation of the oath taken by the jurors to try the case according to the evidence; examples include a decision arrived at by the casting of lots or the toss of a coin, or the well-known case of the use, or rather misuse, of a ouija board. If there are serious grounds for believing that such a repudiation may have taken place, this court will inquire into it, and may hear, de bene esse, evidence, including the evidence of jurors themselves, in order to decide whether it has happened. If it has, the verdict will inevitably be unsafe, and any resulting conviction will be quashed.

[5] The second exception arises in cases where extraneous material has been introduced into the jury deliberations. The verdict must be reached, according to the jury oath, in accordance with the evidence. For this purpose each juror brings to the decision-making process, his or her own experience of life and general knowledge of the way things work in the real world; that is part of the stock-in-trade of the jury process, and the combination of the experience of a randomly selected group of 12 individuals, exercising their civic responsibility as a collective body, provides an essential strength of the system. However, the introduction of extraneous material, that is non-evidential material, constitutes an irregularity. Examples are provided by earlier decisions of this court. They include telephone calls into or out of the jury room, papers mistakenly included in the jury bundle, discussions between jurors and relatives or friends about the case, and in recent years, information derived by one or more jurors from the internet. All this is familiar territory, and no citation of authority is needed. Where the complaint is made that the jury has considered non-evidential material, the court is entitled to examine the evidence (possibly after investigation by the Criminal Cases Review Commission)[22] to ascertain the facts. If extraneous material has been introduced into the decision-making process, the conviction may be quashed.”

C1.3  Compatibility with Article 10

29.Concern had previously arisen as to whether the confidentiality rule might infringe a defendant’s fundamental right to a fair trial.  In Gregory v United Kingdom, the European Court of Human Rights :[23]

“… acknowledges that the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law which serves to reinforce the jury’s role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors on the evidence which they have heard.”

Thus the House of Lords held in R v Mirza that the rule is compatible without modification with a defendant’s right to a fair trial under Article 6(1) of the European Convention on Human Rights, the European counterpart of Article 10 of the Hong Kong Bill of Rights.

30.No point has been taken before us as to whether the confidentiality rule is compatible with Article 10 of the Hong Kong Bills of Rights.  In light of the comparable jurisprudence on this point both in Europe and England, we would say with confidence that the rule is also compatible with our Article 10.

C2. Inquiry by the court

31.If an alleged jury irregularity takes place during the course of the trial itself, the judge must grapple with it.  Depending on the actual circumstances, he may give further directions to the jury, if necessary in severe and unequivocal language, which he may or may not combine with the discharging of the jury : R v Thompson.[24]

32.When the allegation is only raised on appeal, the position becomes much more difficult.  As Lord Judge CJ explained in R v Thompson :[25]

“[2] Much more difficult problems arise when, after the verdict has been returned, attention is drawn to alleged irregularities. This may take the form of a complaint from a defendant, or his solicitors, or in a very few cases it may emerge from one or more jurors, or indeed from information revealed by the jury bailiff. It is then beyond the jurisdiction of the trial judge to intervene. Responsibility for investigating any irregularity must be assumed by this court. In performing its responsibilities, it is bound to apply the principle that the deliberations of the jury are confidential. Except with the authority of the trial judge during the trial, or this court after the verdict, inquiries into jury deliberations are ‘forbidden territory’ (per Gage LJ in R v Adams [2007] EWCA Crim 1, [2007] 1 Cr App R 449). If any complaint about jury deliberations is received by the trial court after verdict it is immediately referred to this court and whether the complaint has been received from the court of trial or by this court directly, the practice is to examine each case to see whether or not, exceptionally, further inquiries ought to be made, and if so, to invite the assistance of the Criminal Cases Review Commission to conduct the necessary inquiry.”

33.Lord Slynn underscored the importance of the need to conduct the inquiry by the Court of Appeal in these terms :[26]

“54 It is to my mind clear that allegations by jurors cannot be decided simply on the say so of one juror whether by letter or orally. An inquiry would be needed to assess whether the facts alleged were true and what was the response of the other jurors. If the jurors disagree, the inquiry might become complex and lengthy. If such allegations have to be investigated this could lead to considerable controversy between one or more jurors and other jurors. At the very least it could involve a long inquiry and if the issue is only raised at a late stage jurors may well have forgotten what happened. It is as I see it, both inappropriate and undesirable that there should be a public inquiry as to what happened in the jury room after the verdict has been given. This is not something which can be done in private and kept out of the public gaze. It would have to be done in public with a full inquiry. ...”

34.We echo Lord Slynn’s remarks.  We would add this.  A public inquiry by the Court of Appeal to ascertain the truth of the alleged jury irregularity is inevitable, however cumbersome or difficult it might be.  Its importance transcends the need of the individual case where the result of the inquiry will help the Court dispose of the appeal.  By conducting the inquiry, the Court is telling the community at large that a complaint based on jury irregularity will always be taken most seriously by the Court lest the integrity of the jury system might be easily jeopardized by a disgruntled defendant who, without any justification, raised or caused the complaint to be raised with a view to luring the Court to overturn the conviction, or even by a discontent juror who is displeased with the verdict.  As to the latter possibility, Lord Judge CJ had this to say :[27]

“We acknowledge the danger that a juror who is in a minority may be disturbed at his or her failure to persuade the other jurors to his or her point of view and, where the majority has convicted, to the sensitivity of a dissenting juror that an injustice may have been done. There are occasions when it is difficult to avoid the conclusion that a post-trial letter to the judge complaining about different aspects of the process of deliberation is no more than a protest at the verdict.”

35.The Court of Appeal can only act on the alleged jury irregularity as a ground of appeal if its truth is established after a thorough and public inquiry into the complaint.

D. THE PRESENT CASE

36.With the above considerations in mind, we turn to the present case.

D1. The alleged irregularities

37.In his opening speech to the Jury immediately after empanelment, the Judge told the Jury :

“你哋只可以根據喺呢個法庭裡面所聽到嘅證供、所見到嘅證據嚟作出裁決，你哋唔可以受其他外面嘅事情所影響，所謂外面嘅事情係包括傳媒嘅報導，因為有時有啲案件，報紙會報導嘅，報紙報導嘅唔係證據，你哋就算睇到都好，你哋唔可以倚賴嘅，你哋只可以倚賴法庭裡面所聽到嘅證供、見到嘅證據。或者互聯網上面，亦都有時有案件嘅資訊，你見到都好，亦都唔可以倚賴，要係完全係將佢哋放埋一面，唔好加以考慮，你只可以考慮法庭裡面聽到嘅證據、聽到嘅證供，你哋亦都唔好自己上互聯網度就呢件案件或者案件任何嘢作出調查，因為你哋只係應該倚賴喺呢件案件裡面，法庭裡面所聽到嘅證供同埋證據，而唔應該倚賴你哋所作出嘅調查，因此法庭畀你嘅指示就係千萬唔好自己就呢件案件或者呢件案件任何嘅嘢去作出任何形式嘅調查，亦都唔好倚賴任何喺呢個法庭外面所得到關於呢件案件嘅任何資訊，因為法庭唔希望你哋受其他非案件嘅證據同埋證供所影響，因為如果你哋受呢啲外面嘅資訊影響嘅話，係會令到個審訊產生唔公平嘅地方，點解呢？…

因為如果你倚賴咗外面所聽到嘅資訊嘅話，我哋唔知你倚賴咗咩嘢資訊，法庭同律師都冇機會向你即係就呢啲你所想倚賴嘅資訊，律師唔可以向你作出陳詞，法庭亦都唔會作出處理，咁因此為咗審訊公正起見，你哋一定只可以倚賴喺呢個法庭裡面所聽到嘅證供、所見到嘅證據。”

38.If what Juror A told the Clerk is true, some of the jurors had acted in blatant breach of the Judge’s clear and express directions and had wrongly allowed extraneous information, namely, the fact that the case was a retrial, to be made available for their deliberations.  That was impermissible.

D2. The inquiry and its result

39.As said, before we could proceed any further, we must first carry out the necessary inquiry to ascertain the truth of what Juror A had said.  After consulting the authorities and careful consideration, we came up with the following investigative steps :

(1) The Registrar of the High Court should be directed to carry out the initial inquiry with the Clerk and the Jury.[28]

(2) The initial inquiry with the Clerk was to ask him to make an affirmation to verify the telephone conversation with Juror A.

(3) The initial inquiry with the Jury was by way of the Questionnaire to address the essential questions that we had in mind : R v Adams.[29]

(4) Depending on the contents of the Clerk’s affirmation and the answers provided by the Jury and the stance of the parties, we might have to hear oral evidence from the Clerk and each member of the Jury in open court : R v Adams.[30]

40.For these reasons, we made the directions as we set out at [5] in Part A above.

41.To recap, the Clerk confirmed the contents of the telephone conversation with Juror A.  According to the answers provided by six jurors who responded to the Questionnaire, they all knew that the case was a retrial.  Five knew about it during trial.  One did not say when.  Juror A and another juror learnt of it through their own internet search, two other jurors, from other fellow juror(s).

42.Both parties accepted the truthfulness of the Clerk’s affirmation and the answers provided by the jurors and did not require them to attend court to give oral evidence or to be cross-examined.  That being the case, we treated the Clerk’s affirmation and the answers provided by the jurors as aforesaid as admitted facts and received them as such into evidence for the purpose of this appeal. We dispensed with the attendance of the Clerk and the Jury for oral evidence or cross‑examination.

D3. Dispositions

43.On the evidence now before us, we are satisfied that two members of the Jury had acted contrary to the Judge’s express directions by doing their own research about the case on the internet after empanelment and before verdict.  And through the internet search and disseminating the information so obtained, at least six members of the Jury came to know that the case was a retrial.  They had thereby made available extraneous information for their deliberation.  Since neither the parties nor the Judge was aware of the irregularity during trial and before the return of verdict, nothing could have been done to remedy it.  Their conduct had rendered the trial unfair to the prejudice of the applicant.  The verdict returned by the Jury is unsafe and must be set aside.

44.We therefore gave the applicant leave to appeal, and treating the hearing as the appeal allowed the appeal.  We further ordered a retrial as it is just to do in the overall circumstances of the case, bearing in mind in particular the gravity of the offence and the strength of the prosecution case.

E. SUGGESTGED DIRECTIONS FOR USE OF INTERNET

45.This case went awry because some members of the Jury conducted their own internet research despite the Judge’s directions to the contrary.  It highlights the challenge that the use of internet is imposing on the system of trial by jury.

46.We recognize that the use of the internet has expanded so rapidly in recent years that it has become part of our daily life.  Jurors may find it impossible not to use the internet while trying a case.  But to quote Lord Judge CJ again :[31]

“… Jurors need to understand that although the internet is part of their daily lives, the case must not be researched there, or discussed there (for example, on social networking sites), any more than it can be researched with, or discussed amongst friends or family, and for the same reason. The reason is easy for jurors to understand. Research of this kind may affect their decision, whether consciously or unconsciously, yet at the same time, neither side at trial will know what consideration might be entering into their deliberations and will therefore not be able to address arguments about it. This would represent a departure from the basic principle which requires that the defendant be tried on the evidence admitted and heard by them in court.”

47.Lord Judge CJ then stressed the importance of the trial judge giving a proper direction to the jury about the use of internet :

“[W]e do not purport to lay down a standard form of words; the sense of the message is familiar to all judges. What matters is that it should be explicitly related to the use of the internet. We recommend a direction in which the principle is explained not in terms which imply that the judge is making a polite request, but that he is giving an order necessary for the fair conduct of the trial. Such a direction will naturally fall to be given at the outset of the trial, in the same way as the direction as to collective responsibility addressed earlier in this judgment.”

48.With a view to assisting trial judges on properly directing a jury against doing their own research of the case, we would respectfully draw their attention to the following suggested directions contained in the Judicial Institute Bulletin (Nov 2015) :[32]

“Publicity

Let me emphasise that your verdict must be based on the evidence presented to you in this courtroom.

If you have read or heard about this case from the press or television or heard chat about it, it is of fundamental importance that you put such publicity or chat or rumour out of your minds.

You will remember that a short while ago you each took an oath or affirmation to decide this case upon the evidence presented here in this courtroom and upon the basis of legal directions which I provide to you. I am sure you appreciate that if you start taking into account or allow yourself to be influenced by information that has come from something you have read, seen or heard outside the courtroom, that would be contrary to your oath or affirmation and to the central principle of our system that decisions in our courts are made only in the light of the evidence which has been heard in the court. Rumours, reports and articles of any sort can be inaccurate and are not subject to being tested in a court of law for their reliability. The same goes for reports that might appear in newspapers, or on the radio or television during the trial. You should pay no regard to those reports whatsoever. Even if it is a report of evidence in the case, that report might be incomplete and it is, in any event, only a snapshot of what may have occurred at one point of the previous day and possibly out of context.

Discussions with outsiders

For the same reason you should not discuss the case with anyone except your fellow jurors and even then only when you are all together in the jury room. This is because a person with whom you might speak who is not a fellow juror – even someone you value and trust – might make some comment or offer some opinion on the nature of the charge/s or the evidence but that person will not have had the advantage that you have of hearing the evidence first-hand, the addresses of counsel on that evidence and the directions of law from me. And the real problem is that any comment or opinion by an outsider might influence your thinking, perhaps not consciously but subconsciously and that would be quite wrong.

Of course, family members and work colleagues will be interested in the fact that you have been selected as a juror in a criminal trial and they may be interested in the details of the case or tempted to tell you what they have heard about it. But if they begin a conversation about the case or ask you about it, tell them that the judge has directed you that it is absolutely prohibited for you to discuss the case or any aspect of it.

This prohibition on discussion with those outside your number extends to the social network. Please do not communicate about the case on the phone or by email or by text messaging or on Twitter or any medium of that kind.

There is a third potential source of inappropriate discussion and that comes not from the media or family members, but some outsider to you. If any such person attempts to speak to you about the case at any stage of trying it, it is your duty to report that fact to me as soon as possible and you should not mention it to any other member of the jury. I am not suggesting that this is likely to happen in this case but I mention it simply as a precaution; and this is a direction given to all jurors in all cases.

Prohibition against making enquiries outside the courtroom

For the same reason as I have emphasised a few moments ago, namely, that your decision in this trial must be based only on what you hear and see in this courtroom, it is fundamentally important that you do not, during the course of the trial, make any enquiries of your own about the case or ask some other person to make them on your behalf.

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.

For the same reason, you are not permitted to visit or inspect any place connected with the incidents giving rise to the charge/s.

The warning not to discuss the case or to conduct your own research is not mere advice from me.  It is a firm direction which must be obeyed.”

49.Trial judges may adopt the suggested directions, with necessary modifications, in their opening speech to the jury after empanelment.  They may also wish to stress again the importance of not doing internet research about the case in the summing-up.  In giving the directions against internet search, 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.  They may be prosecuted for contempt of court and if convicted, may be sentenced to imprisonment.

F. A WARNING

50.We fully understand that jury service is not easy.  It involves a major civic responsibility.  Experience confirms that our jurors are intelligent, conscientious, efficient and reliable.  They faithfully follow the instructions of the trial judges and return their verdict based on evidence.  They have done a great service to the community and helped significantly in engendering and nurturing public confidence in the administration of criminal justice in Hong Kong.

51.However, where exceptionally, as is here, the jurors do not follow the express instructions from the trial judge by conducting their own research and thereby availing themselves of materials extraneous to the evidence, they fall short of the judicial attributes required of them. They do a disservice to the case and the criminal justice system as a whole and, on a personal level, may even be liable for contempt of court, and upon conviction, be sentenced to imprisonment.

52.In the present case, we have decided not to pursue the matter further against those members of the Jury who had acted contrary to the Judge’s directions by searching the internet because this is the first case where such jury irregularity is brought to the attention of the Court of Appeal and we thought, in fairness, they should be clearly and firmly warned of the serious consequence first.  Now that we have given the warning, if jurors in the future do not heed the judge’s directions and carry out internet research about the case, the court will refer the matter to the Department of Justice for possible or consideration of prosecution for contempt.

Mr Li Hay Chit Andrew, SPP, of Department of Justice,for the respondent/HKSAR

Mr Leung Chun-Keung, instructed by To, Lam & Co, assigned by DLA,for the applicant

Appendix

CACC 114/2014

Questionnaire to Juror

1.     Do you confirm that you were one of the jurors in HCCC 444/2014 (“the Criminal Case”)?

2.     In the course of your participation in the Criminal Case as a juror, that is, between empanelment on 4/3/2014 and return of verdict on 19/3/2014, did you know that the Criminal Case was a retrial?

3.     If yes,

(1)	How did you know that?
	_________________________________________________
	_________________________________________________
	_________________________________________________
(2)	When did you know that?
	_________________________________________________
	_________________________________________________
	_________________________________________________
	Name_______________
	Signature_______________
	Date_______________

[1] Cap 134.

[2] See Appendix for the Questionnaire.

[3] [2004] 1 AC 1118, at [144], p 1171G - H.

[4] For qualifications and exemptions from jury service, see sections 4 and 5 of the Jury Ordinance, Cap 3.

[5] [2004] 1 WLR 201, per Lord Nicholls at [14], p 206D - E.

[6] Supra, at [6], p 1131 D.

[7] Cap 383.  Article 10 provides that “… In the determination of any criminal charge against him, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by the law…”.

[8] Article 87 provides that “Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay…”.

[9] [2003] 1 AC 641, at p 674B - C.

[10] (2001) 4 HKCFAR 133, at p 190G.

[11] [2014] 1 HKLRD 460, per Yeung VP at [115] at p 482.

[12] Supra.

[13] Supra, per Lord Hope at [112], p 1161F.

[14] See R v Mirza, supra, per Lord Steyn at [16].

[15] R v Mirza, supra, per Lord Hope at [78], p 1151B.

[16] [2005] 1 WLR 704, at [16], pp 712D - 713B.

[17] [2009] 1 HKLRD 369, at [25], pp 376 - 378.

[18] Supra, at [141], pp 1170 - 1171.

[19] [2001] 2 SCR 344, at pp 373 – 375; quoted by Lord Steyn in R v Mirza at [13], pp 1133F - 1134E as instructive.

[20] Lord Steyn at [13], pp 1133F - 1134E; Lord Hope at [114], p 1162D - F; Lord Hobhouse at [142] - [143], pp 1170G - 1171F; Lord Rodger at [161] - [166], pp 1178B - 1180A.

[21] [2011] 2 All ER 85, at [4] - [5], pp 85j - 86e.

[22] In Hong Kong, we do not have a similar body to assist the courts.

[23] (1998) 25 EHRR 577, at [44], 594.

[24] Supra, per Lord Judge CJ at [1], 85c - d.

[25] Supra, at [2], p 85e - h.  See also HKSAR v Mohammed Saleem, supra.

[26] R v Mirza, supra, at [54], p 1145F - H.

[27] R v Thompson, supra, at [9], p 87h - j.

[28] As noted already, since we do not have a body like the English Criminal Cases Review Commission which can be enlisted to assist the court, we consider the Registrar of the High Court to be the best person to carry out the initial inquiry on behalf of the Court.

[29] [2007] 1 Cr App R 34, at [160], p 457.

[30] Supra, at [174], p 459.

[31] R v Thompson, supra, at [12], pp 88g - 89a.

[32] It is largely taken from Criminal Trial Courts Bench Book, Judicial Commission of New South Wales. It covers other related matters and is quoted here in its entirety to give its full context for better understanding.