HKSAR v. Chung Tang Ping

[English Translation – 英譯本]

CACC 313/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 313 OF 2013

(ON APPEAL FROM HCCC 58 OF 2013)

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BETWEEN

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REASONS FOR JUDGMENT

Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.Around 3 pm on 10^th October 2012, the Applicant (Chung Tang Ping) entered Hong Kong territory from Mainland China via Lok Ma Chau Control Point.  At that time, the Applicant was carrying with him a red backpack containing a yellow environmental bag, inside of which were twelve plastic bags.  The said twelve plastic bags were placed in brown sealed bag(s) with characters“鐵觀音”(Tie Guan Yin) and “茶”(tea) printed on the outside, but they in fact contained solid substance weighing 2.88 kilograms containing 2.35 kilograms of ketamine.

2.Besides the said dangerous drugs, the backpack which the Applicant was carrying also contained four cell phones and on his person, there was a Construction Industry Safety Training Certificate, a Construction Workers Registration Certificate, a Hong Kong Octopus Card, a Shenzhen Octopus Card, 170.5 Renminbi, HK$500, six bank cards and six keys.

3.The travelling record of the Applicant showed that the Applicant left Hong Kong to enter Shenzhen via Lowu Control Point at around 6 pm on 9^th October 2012.  He returned to Hong Kong via Lok Ma Chau Control Point at around 3 pm on 10^th October 2012.

4.For the said incident, the Applicant was charged with the offence of trafficking 2.88 kilogrammes of solid substance containing 2.35 kilogrammes of ketamine.  The Applicant pleaded not guilty and was tried before Deputy High Court Judge Woo Kwok Hing (trial judge) sitting with a jury.

5.On 7^th August 2013, the Applicant was found guilty upon a unanimous decision reached by the jury and was sentenced by the trial judge to a term of 18 years’ imprisonment. Aggrieved with the conviction, the Applicant applied for leave to appeal against conviction.

6.After a hearing held on 29^th July 2016, the Court allowed the Applicant leave to appeal against his conviction, and treating the hearing as the appeal proper, we allowed the appeal and quashed the conviction and the sentence against him. The Court also ordered the case to be remitted to the Court of First Instance for retrial.  Below are the reasons for judgment of the Court. 

Prosecution’s evidence

7.Besides the undisputed facts as stated in paragraphs 1-3 above, the Prosecution also alleged that the Applicant, after he has been arrested and under caution, admitted that he brought “K chai” (transliteration) to Hong Kong for others only because he was short of money and needed to make a living.  In the subsequent video interview taken with the police afterwards, he confirmed the admissions he had made and also made further admissions as stated below:

“He brought ‘K-chai’ from Futian of Shenzhen to Hong Kong for others. He came across a fellow he fussily called ‘old pal’ in the Kentucky restaurant in Shenzhen, whom he had come to know in his dealings as a ‘parallel goods trader’. When the Applicant told ‘old pal’ that he had had ‘no jobs in hand’, ‘old pal’ asked him if he wanted to make any money. Subsequently, the Applicant agreed to bring ‘K-chai’ for him back to Hong Kong for a remuneration of 2000 dollars. Eventually, old pal’ handed over a red backpack to the Applicant. ‘Old pal’ asked him to bring it to a bicycle storage place next to the Man On Shan line MTR station at Che Kung Temple in Shatin, and then return to Shenzhen to receive the remuneration. However, when the Applicant himself alone passed through the Control Point, he was intercepted by the police. According to the Applicant, ‘old pal’ was about 30 years old, ‘plump and of short build’ and ‘had black hair’.

Defence’s stance and the grounds of Defence

8.The Applicant did not elect to give evidence, nor did he call any witness to give evidence on his behalf.   The Defence’s stance which the Applicant established in cross-examining the Prosecution witnesses was that a person called big sis May had handed over the dangerous drugs in the material case to him, falsely claiming that the dangerous drugs were tea leaves and asking the Applicant to bring them back to Hong Kong.  The Applicant said that after arrest, he had indicated to the police that big sis May was together with him when passing through the Control Point, and also had at the scene pointed her out to the police and asked them to conduct enquiries on her.  The Applicant denied having made any admissions to the police.  He also alleged that the content of the video-interview was obtained as a result of the police inducing and coercing him into giving the statement.  Besides, before the commencement of the interview, the police had also coached him how to give succinct answers as well as the content of those answers.  According to the Defence’s stance, the contents of the video-interview were not given by the Applicant of his own volition and they were not true and accurate.

The trial judge’s direction to the jury

9.Before directing the jury, the trial judge had inquired counsel of both parties on whether he should direct the jury regarding the drawing of inference on whether the Applicant had knowledge of the presence of the dangerous drugs inside the backpack he was carrying.  At that point, the judge indicated that he had yet decided on whether or not to direct the jury on the issue of “drawing inference”.  He considered that he had to learn first how counsel of both parties would address the jury in their final submissions.  However, in the end, the trial judge did not give any direction at all to the jury regarding the drawing of inference on whether the Applicant had knowledge that the plastic bags inside the backpack he was carrying actually contained dangerous drugs.

10.The trial judge had explained to the jury the factual issues and the matters of law.  The trial judge also had referred the jury to the evidence of the case.  The trial judge had emphasized to the jury that they must be certain that the Applicant had committed the offence before they could convict him, otherwise they must find him not guilty.

11.The trial judge when summarizing the evidence adduced by the Prosecution said the following to the jury:

“… In the morning of 10^th October 2012, the Prosecution had got information, was tipped-off that the defendant would turn up at the spur line Control Point as well as inside the MTR station of Lok Ma Chau and engage in dangerous drugs activities. Hence, a team of officers, … arrived at that place, and found the defendant carrying the red backpack, then arrested him, … and found inside the red backpack dangerous drugs, opened one packet to take a look, and saw it was “k-chai”, so under cautioning, the defendant admitted to acting as courier to bring “ k-chai” into Hong Kong for others. ”

12.The trial judge when summing up the Defence’s stance to the jury had mentioned the following:

“The Defence’s account was that when the defendant was at the escalator, at the escalator in the lobby, coming up from the location of DIA, down below was that person, then pointing to that person, that was big sis May, pointing at that person, ie to show to the police, pointing to show to the police officers, so he said that one was big sis May, the one who gave the backpack to him. Hence, this contradicted with the story in the video-interview, P31, which said that the backpack was given to him by old pal, which was different, how come there it mentioned old pal, here it mentioned big sister May. If so, it conflicted with paras. 287 and 292 of P26. Besides, the Defence had put it that he and big sis May passed through the Control Point together, so here, this conflicted with what was mentioned in para. 233 of P26 that he passed through the Control Point alone, because it was mentioned at P26, in para.233 that he passed the Control Point alone, here was where the conflict lies, compared with his saying… what he, the Defence raised in cross-examination, the so-called means, the saying. According to the Defence, after the defendant was arrested, before getting onto the vehicle to proceed to Lok Ma Chau police station, he had asked the police officers repeatedly, 51516, also 503, asking why not arrested the female, ie why not arrested big sis May. So, this point was inconsistent with the saying that he had no knowledge of the presence of dangerous drugs inside the backpack, if he carried tea leaves for others, why on earth did he ask someone to arrest the female? To act as courier to bring tea leaves for the female, ie not in line with his saying that he did not know that the stuff was dangerous drug, because if he was carrying tea leaves for the female, at that point of time there was no mentioning by him that the Prosecution witness had torn open a packet, giving him the chance to see that that was dangerous drug, in that case why would he ask the police, why did they not arrest the female, what had it got to do with the female, bringing tea leaves, so what, so to speak.”

13.Subsequently, the trial judge realized that what he said above was erroneous, so on the following day when he went on to direct the jury, he rectified the error and said the following to the jury:

“Members of the jury, sorry to keep you waiting, because we need to clarify something, so have to keep you waiting, and now the issue has been clarified. Yesterday, I mentioned to you about the defendant’s case, the Defence’s account was that after the defendant’s arrest and before getting onto the vehicle to Lok Ma Chau, he had mentioned to the police officers, ie 51516, he said why on earth not arrested that female, big sis May, about this matter, I had erred when saying this. In actual fact, he was not asked at this point according to the evidence which we had heard. When 51516 was being asked, he was not asked that the defendant when spoke to him as to why not arrested big sis May, not the case, he didn’t say this, didn’t ask this, when he asked, it was as such… the defendant was requesting the police , requesting 51516 to make enquiry of big sis May, he did mention big sis May, just to enquire, not saying to arrest her, hence had no conflict with his account which said that he didn’t know dangerous drugs were being carried, instead he was merely carrying tea leaves, understand? You need to know clearly that I had erred when saying this, and so this matter on the evidence has to be rectified. Secondly, regarding what I mentioned yesterday, I said one of the weaknesses of the Defence was that according to the Defence’s account, there’s this person, big sis May, about this woman, pointing at her and said this person was big sis May who gave him the tea leaves to bring back to Hong Kong. There in the video-interview, at P31, which you had watched, had been played, or there in the transcript, ie P26, you will note the conflict, because in the video-interview, it was mentioned that it was given by old pal, the stuff was given by old pal.”

14.The trial judge once again drew the jury’s attention to two points of conflict existing between the Defence’s stance and the Applicant’s account noted in the record of interview:  (1) According to the Defence’s stance, the dangerous drugs involved in the case were given by big sis May, whereas in the record of interview, it was “old pal” who gave them to him; (2) According to the Defence’s stance, the Applicant and big sis May had passed through the Control Point together, whereas in the record of interview, the Applicant passed through the Control Point alone.

15.In making his comment when directing the jury, the trial judge had set out in detail those points which he considered to be the weaknesses of Defence’s case, and had repeatedly stressed that there were inconsistencies between the Defence’s stance and the account recorded in the interview between the Applicant and the police officer.

Grounds of Appeal

16.Mr. Andy Hung, the counsel for the Applicant, raised a series of grounds in supporting the Applicant’s application.

17.Mr Hung submitted that during the trial, the jury were aware of the fact that the police had received information indicating that the Applicant was involved in dangerous drugs activities and would turn up at the Lok Ma Chau Control Point and inside the MTR station, and also acting thereupon the police proceeded to intercept the Applicant.  The prejudice caused to the Applicant as a result of the jury’s awareness of this fact had outweighed the probative value of the said evidence in the trial. However, the trial judge had not instantly stopped the questioning, nor did he, when directing the jury, point out expressly to them that they could not form an adverse opinion against the Applicant on the ground that the Applicant was the target person of the police information.  Mr Hung was of the view that the trial judge’s approach in dealing with the matter constituted unfairness to the Applicant.

18.Mr Hung submitted that the trial judge’s direction to the jury, as a whole, had been unfair and unbalanced, thereby depriving the Applicant of the chance of a fair trial.

19.Mr Hung emphasized that on the matter of the Defence’s stance, the trial judge had made an error of fact.  Mr Hung submitted that the trial judge had mistakenly adopted the view that, the Applicant had questioned the police officer(s) many times why the female whom he had pointed out was not arrested, and used these matters to refute the Applicant’s account of his ignorance.  The rationale for that view was that if the Applicant had no knowledge that the backpack contained dangerous drugs, and that at that point of time, the police officer had not yet opened any packet of tea leaves, showing the suspected dangerous drugs contained therein, no ground would exist at all for the Applicant to request the police to arrest the female pointed out by him.

20.Mr Hung contended while the trial judge had, when he was directing the jury on the following day, rectified the said error, ie, the Applicant was only requesting the police to make enquiry of the said female, rather than to arrest her, as well as pointing out no conflict existed between this account and the Applicant’s case that he had no knowledge of the existence of the dangerous drugs, this was not sufficient to eliminate the preconceived notion of the jury that was formed previously.

21.Mr Hung submitted that the trial judge had repeatedly emphasized there were conflicts between the Defence’s stance and the content of the record of interview of the Applicant, but had not appropriately expressed to the jury that the basis of such conflicts was that the Applicant had made certain admissions of his own volition, and that those admissions were true and accurate admissions.   Mr Hung considered that the trial judge should have expressed to the jury that the according to the Defence’s stance, the Applicant had not made such admissions.  Mr Hung emphasized that if the jury were not satisfied that the content of the said record of interview was given by the Applicant of his own volition and that it was true and accurate, then the conflict raised by the trial judge through comparing the Defence’s stance and the record of interview did not exist at all.

22.Mr Hung was of the view that the comment which the trial judge made against the Defence’s stance in his direction to the jury was even more critical and severe than the submission by the Prosecution, therefore had been unfair to the Applicant.

23.Mr Hung also alleged that the Prosecution witness/es had, in the course of giving evidence, inappropriately disclosed that the Applicant might have previous convictions.  The trial judge, however, had not indicated to the jury that they must not speculate on whether or not the Applicant had any previous convictions, and also that even if he had previous convictions, that was not relevant to offence of the present case.

Discussion

(a)Previous Convictions

24.In a criminal trial, the matter of whether or not the defendant has any previous convictions should not be disclosed to the jury, the reason being making such disclosure would cause the jury to be biased against the defendant, thereby prejudicing to the defendant.

25.During the trial, the counsel for the Applicant requested the Prosecution witness to verify that according to the “antecedents” of the Applicant available to the police, the Applicant got married in 2005, and his wife was a mainlander, residing in Mainland China.

26.Below is a conversation that followed subsequently between the trial judge and the Prosecution witness on the aforementioned “antecedents”:

“Judge’s question: …. Is this document, your document what you called the antecedents?

Answer: Yes, in our department, the police department, this is the so-called the antecedents document.

Question: Antecedents, that is relating to the arrested person’s family circumstances, family condition?

Answer: Yes, that’s right, correct.

Question: Does that include, inter alia, previous convictions etc. uh, right?

Answer: Little bit… this document is to assist us when we have to produce the (antecedent statement) later in court, this document.

Question: Um, but when was this statement taken?

Answer: This statement ….

Question: Please. Can you take a look to see when this statement was taken?

…

Answer: 1:20 pm on 11^th October

Question: Was it in 2012?

Answer: Correct, My Lord.

…”

27.The Court did not understand why the trial judge at the said stage and in the presence of the jury asked the Prosecution witness about the antecedents of the Applicant.  We were also puzzled as to why the matter of “any previous conviction” was raised.  After going through the entire transcript of the trial, the Court could not ascertain any purpose or effect of raising these questions. Therefore, these questions raised by the trial judge were in fact unnecessary.

28.However, when the said conversation was understood properly, it can be seen that they did not support Mr Hung’s allegation that the conversation suggested that the Applicant might have previous convictions, thereby constituting unfairness to the Applicant.

29.The trial judge only pointed out that antecedents referred to matters such as the family condition, family background of the person under arrest, and “any previous convictions” etc.  The trial judge did not expressly or implicitly indicate that the Applicant had had any previous convictions.

30.The Court does not agree that the questions raised by the trial judge would constitute unfairness to the Applicant.  We did not accept either that the trial judge had to express to the jury that even if the Applicant had had any previous convictions, it would have no bearing on whether he had committed the offence in the charge.  The approach suggested by Mr Hung could even more likely predispose the jury to be biased against the Applicant.  The Court does not agree with the said suggestion.

(b)“Information”, “Target Person”

31.Matters such as the police arresting a defendant upon information received or the defendant being the police’s target person should not be disclosed to the jury.  The reason is that such evidence is hearsay evidence.  Not only is it irrelevant to whether the defendant is guilty or not, it may also cause the jury to be biased against the defendant.  Terms such as “information” and “target person” are likely to arouse in one’s mind the notion that information received by the police concerning illegal activities is related to the defendant.  Such kinds of information have substantial influence on the jury, who are lay people.  It would also easily tend to predispose them to be biased against the defendant and form the preconceived notion that he/she must be related to the illegal activities. (See R v Li Chun Choi [1990] 1 HKLR 665)

32.The Court of Appeal on page 10 of the judgment of R v Ko Po Kun [1989] 2 HKLR 8 expressly stated the following:

“The police officer clearly should not have used the term ‘target person’. Implicit in such a phrase is a suggestion that a defendant is, or is about to be, involved in the crime in respect of which the police operation had been mounted. Indeed we see no warrant of any sort for the use of any such term. If reference has to be made to the reason why a police party is at a certain place all that need be said in the ordinary case, and this was one, is that they were there ‘on instructions’.”

33.However, the Court need to point out that during the trial, the Prosecution did not proactively bring up the issue that the Applicant was the target person of the police or that the police arrested the Applicant upon information they had received.

34.PC 33410 was one of the police officers who arrested the Applicant.  During examination-in-chief, he said expressly that he proceeded to the arrival hall of Lok Ma Chau Control Point according to instructions.  However, Mr Yu, representing the Applicant, when cross-examining the said police officer, specifically requested the police officer to disclose the content of the instructions he had received, leading the said officer to admitting that due to the instructions received, he got to know about the name of the target person, his date of birth, identity card number, his appearance from photographs, build, hairstyle and that he frequently carried a red backpack.   These particulars matched those of the Applicant.

35.The approach of Mr Yu aroused the attention of the Prosecution counsel during the trial.  Although the focus of concern of the Prosecution counsel was that the questions put by Mr Yu could affect the investigation carried by the police.  Nevertheless, after deliberation between the trial judge and both parties in the absence of the jury, Mr Yu continued with his cross-examination, during which the police officer confirmed that the instructions which he received included, inter alia, that the Applicant would return to Hong Kong via Lok Ma Chau Control Point, and also he was involved in “trafficking” activities.

36.The approach of Mr Yu was not difficult to understand.  Apparently, he wanted to verify that the police right at the beginning had got information saying that the Applicant was going to return from Mainland China to Hong Kong via Lok Ma Chau Control Point with a red backpack to support the Defence’s stance, ie somebody who on one hand put the dangerous drugs involved in the case into tea leaves packaging and asked the Applicant to bring the said dangerous drugs inside the backpack back to Hong Kong, whilst on the other hand, informed the police to arrest the Applicant.

37.Although it was the Defence that proactively brought up the issue that the police acted upon information to proceed to Lok Ma Chau Control Point to arrest the Applicant, who was the target person of the police, with the express purpose to reinforce the Defence’s stance, the trial judge should proactively explain to the jury when he was directing them the reason for disclosing to them the Applicant’s identity as the police’s target person, in order to avoid causing the jury to be biased against the Applicant on the ground that the Applicant was the police’s target person.  He should also make it plain to them that they should not on that ground form the notion that the Applicant therefore must be related to the police’s anti-dangerous drugs activities, and that the Applicant had taken part with knowledge in the said offence.

38.The trial judge when directing the jury pointed out that the police from sources and information by informant learnt that the Applicant would appear at the Lok Ma Chau Control Point and engage in dangerous drugs activities.  However, the trial judge had not expressed to them that the said incident was irrelevant to whether the Applicant had with knowledge taken part in dangerous drugs activities, and also they may not because of this form a biased view of the Applicant.

39.The Court agree that the trial judge had in fact acted in a manner constituting unfairness to the Applicant.

(c) Lack of direction on inferring knowledge

40.The facts of this case was simple.  There was not much scope of dispute between the parties.  The allegation of the Prosecution was that when the Applicant was intercepted for enquiry, upon search in the backpack which he was carrying was found a large quantity of ketamine in tea leaves packaging, and under caution, the Applicant had made both verbal and written admissions.

41.The Defence accepted that the ketamine in the material case was found upon search in the backpack carried by the Applicant, but denied that any relevant verbal or written admissions had been made.  The Defence’s stance was that police officer(s) by way of coercion and inducement had made the Applicant sign on the document, and that under instigation and abetment of the police officer(s), he had made some untrue statements.  The Defence also claimed that the Applicant had had no knowledge of the fact that the plastic bag(s) which appeared to contain tea leaves contained ketamine.  The Applicant, however, did not go to the witness box to testify nor did he call any witness to support the Defence’s stance or account.

42.The jury needed to deliberate on issues including whether the relevant admissions were made by the Applicant of his own volition and whether their content were true and accurate.  If the jury decided that the Applicant had made such admissions, they had to further consider whether the Prosecution’s evidence as a whole was sufficient to cause them to be satisfied that the Applicant was in possession of the ketamine in the material case with knowledge for the purpose of trafficking.  Even if the jury were of the view that the Applicant had not made the said admissions or their content were not true and accurate, and that they would not include them in consideration in accordance with the direction of the trial judge, the jury still had to decide whether the Applicant had knowledge of the existence of the said ketamine in his possession based on other undisputed evidence, namely when the Applicant was entering Hong Kong from Mainland China, he was carrying with him a red backpack, inside of which were 12 brown sealed plastic bags with  characters “鐵觀音” (Tie Guan Yin) “茶” (tea) printed on the surface and containing large quantities of the ketamine in the material case.  In the absence of direct evidence, the jury had to rely on the Prosecution’s evidence to draw inference on whether the Applicant had knowledge of the existence of the dangerous drugs inside the backpack that he was carrying.

43.If the jury could draw on the basis of other undisputed evidence as the only reasonable inference that the Applicant had knowledge of the existence of ketamine or other kinds of “dangerous drugs” inside the backpack he was carrying, then it would not be difficult for them to be satisfied that the Applicant was in possession of the said batch of ketamine for the purpose of trafficking, in particular the undisputed evidence was that the Applicant had brought the said batch of ketamine from Mainland China into Hong Kong.

44.However, the trial judge did not direct the jury as to what approach they should adopt in the drawing of inference.  Nor had he reminded the jury that before drawing the inference that the Applicant was guilty or other inferences not in favour of the Applicant, they must be satisfied that based on the accepted evidence, such inference was the only reasonable and irresistible inference that could be drawn, otherwise the jury could not draw the inference that the Applicant was guilty or any other inferences adverse to him.  Although Mr Hung had not raised this point as a ground of appeal, the Court is of the view that the fact that the trial judge did not direct the jury on the matter of inference was fatal to verdict convicting the Applicant.

(d)Inadequacy of rectification on error in direction

45.The jury certainly were aware of the conflicts existing between the stance indicated by the Defence and the content of the relevant admissions.

46.The trial judge had repeatedly drawn attention to these conflicts, including whether the Applicant passed through the Control Point alone or he and big sis May passed through the Control Point together; and whether the backpack was given by “old pal” or given by big sis May.  In the course of directing the jury, the trial judge also misunderstood the Defence’s stance when he said that the Applicant had asked the police officer(s) why they did not arrest big sis May.  He also stressed that this account was inconsistent with the Defence’s stance that the Applicant had no knowledge of the existence of the dangerous drug inside his backpack.

47.Although on the following day, the trial judge did rectify the said error, and also had reminded the jury that if they could not be satisfied that the said video interview was not given by the Applicant, or that its content was not true and accurate, then they needed not consider those records of interview.  However, the trial judge had not reminded the jury that the basis of such contradiction and conflict was the Prosecution’s allegation that those verbal and written admissions had actually been made by the Applicant.   Nor did the trial judge alert the jury to the matter that when deliberating the said issue, besides the circumstances seen in the record of interview as alleged by the Defence, they also have to take into consideration the Defence’s account that the Applicant had not made the verbal admission.

48.When presiding over criminal cases sitting with a jury, the trial judge is entitled to make comments on the relevant evidence, and   when appropriate, use wordings that are persuasive.  However, because the summing-up of the trial judge to the jury is the last statement heard by the jury before retiring from court for deliberation, therefore, its influence on the jury would be even greater than that of the Defence’s submission.  Hence, the trial judge’s direction must be fair and take into consideration the interests of the Prosecution and the Defence.  If the directions of the trial judge to the jury are not fair, reiterating to the jury repeatedly “these issues are to be the decision of the jury” would be pointless in this regard. (HKSAR v Umali [2011] 3 HKC 146)

49.The Court of Appeal, in HKSAR v Yeung Chor Ming [2004] 1 HKLRD 136, having considered a series of cases concerned with whether the summing-up by the trial judge was delivered in a fair and just manner, set out the following two legal principles (see page 145 of the Judgment):

“(a) the judge should not usurp the jury’s function of being the sole arbiter of facts. Hence, in the summing-up, the expressions and comments made by the judge in the course of the summing-up should not give the impression that the judge was directing the jury to accept his views on the facts;

(b)  The expressions and comments made by the judge in the course of the summing-up should not give the impression that the judge was making another speech for the Prosecution.”

50.The Court has to emphasize that when a trial judge sits together with the jury in a criminal case, he must deliver his summing-up in an accurate, comprehensive and fair manner.  In this regard, the Court reiterates the following passages at paras. 29-33 of the judgment of HKSAR v Zhu Jinni [2012] 4 HKLRD 444:

“29.  As this Court has repeatedly stressed, in a criminal trial conducted in the High Court, the judge and the jury play different roles.  The judge is the sole arbiter of law, whereas the jury is the sole arbiter of facts.  The jury must regard the judge’s directions on matters of law as inviolable rules and strictly follow them.  On the other hand, the judge should as far as possible leave it to the jury to make such decisions on factual issues as they consider appropriate.

30.  When the judge sums up the facts of the case for the jury, he is certainly entitled to express his views on the facts, but in doing so he must exercise caution and restraint.  He must keep what he says in check as far as possible and avoid expressing too vigorously his own inclinations on factual issues.

31.  By reason of his function and position, the jury will very likely attach great importance to the views expressed by the judge.  If the judge expresses his strong inclinations on the factual issues, the effect on the jury is obvious.

32.  The merit of the jury system is that in a criminal trial, a certain number of lay citizens are able to make such collective decisions on factual issues as they consider appropriate, by drawing on their common sense and social experience.

33.  If the judge expresses to the jury his strong views and inclinations on factual issues, then not only he is usurping the function of the jury, but also he may cause a reasonable bystander to think that the defendant is not receiving a fair trial.”

51.The Court is of the view that as a whole, the summing-up of the trial judge had not met the standards of fairness and justice as required in law.

Conclusion

52.After considering the circumstances of the case as a whole, the Court has come to the view that the directions by the trial judge to the jury on the case had not been sufficiently comprehensive, nor did it meet the standards of fairness and justice.  Under the said circumstances, the verdict of conviction reached against the Applicant is unsafe.

53.Hence, the Court grants the Applicant leave to appeal against his conviction, and treating the hearing as the appeal proper, we allow the appeal and quash the conviction against him as well as the sentence.

54.In view of the fact that the offence of the present case was extremely serious, and the evidence against the Applicant was also very strong, the Court accepted the Prosecution’s application and ordered the case to be remitted to the Court of First Instance for retrial.   We also ordered that the Applicant shall continue to be remanded in custody, pending the retrial.

Andy Hung, instructed by Tang, Wong & Chow, assigned by the Director of Legal Aid, for the Applicant

Wong Chun Yin, Nicholas, Senior Public Prosecutor of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law