HKSAR v. Fung Ting Wai

[English Translation - 英譯本]

CACC 17/2017

[2018] HKCA 49

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL CASE NO 17 OF 2017

(ON APPEAL FROM HCCC 181/2016)

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REASONS FOR JUDGMENT

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

1.This is an appeal from the Court of First Instance of the High Court. The applicant was convicted after trial of one count of trafficking in dangerous drugs involving 1,008 grammes of a crystalline solid containing 997 grammes of ICE, 95 tablets containing 1.38 grammes of methamphetamine and 3.31 grammes of herbal cannabis. He was sentenced to 22 years’ imprisonment by the trial judge (Deputy High Court Judge D Yau). He applied for leave to appeal against conviction.

The Facts

2.The detailed facts of this case are of little significance. Broadly speaking, on the night of 7 August 2015, the applicant returned to Hong Kong from the Mainland, and at Lo Wu Control Point, Customs officers found in his underpants and his sling bag the dangerous drugs in question. Under caution, he admitted that he delivered ICE for others for a reward of $500, and that he would telephone a person called “Wong Sam” upon his return to Hong Kong. On the night of 8 August of the same year, the applicant made further admissions under caution.

Prosecution and defence cases

3.The prosecution submitted that the applicant brought dangerous drugs into Hong Kong without lawful authority. Such an act constituted trafficking. His admission that he would be handing over the dangerous drugs to others made this more so. The mentioning of ICE, in particular, in his cautioned statement, proved that he knew he was conveying dangerous drugs.

4.The applicant testified that he thought he was “travelling with parallel goods” or “carrying electronic parts across checkpoints” for Wong Sam, and he would return the stuff to that man upon his return to Hong Kong. He testified that when being searched, he only said, “Got busted this time”, but he never mentioned carrying ICE for others for a reward. Conversely, he claimed that he had asked the Customs officer what had been found and the latter answered, “It might be ICE”.

5.The applicant went on to explain in court that Wong Sam and he were parallel goods traders. They had known each other for some time. He, on this occasion, at the request of Wong Sam, went to meet with the latter in Shenzhen. During this time, Wong Sam made him drink a canned drink. After that, the applicant became confused and felt someone tying something underneath his underpants. In confusion, he was then taken to the entrance of the checkpoint and was told to take the sling bag in question to Hong Kong.

6.The applicant said that he did unzip the sling bag to take a look but only saw melon seeds for human consumption. He had put his hand over his underpants briefly but felt nothing different from the usual electronic parts. As regards his admissions under further caution (in the video-recorded interview) and all the details relating to the actual smuggling of ICE, they were fabricated by the Customs officer(s) and forced on him by various improper means. In any case, he was still confused then and did not recover until two days later in Lai Chi Kok Reception Centre.

Course of the trial

7.Given the simple facts of this case, though the prosecution called eight prosecution witnesses (who were all Customs officers) and the applicant elected to give evidence, the entire course of the trial proper (from empanelment of the jury to the completion of the trial judge’s summing-up[1]) [2] only lasted for about two and a half days (from 10 am on 14 December to 11:30 am on 16 December 2016).

8.As for the jury, they did not reach a verdict the day they retired. They retired at 11:34 am on 16 December 2016 (Friday) and stopped at 8:03 pm the same day; they resumed deliberation at 9:38 am on 17 December (Saturday) and returned a guilty verdict against the applicant at 12:19 pm the same day. The guilty verdict was by a majority of five to two.

Ground of appeal

9.Mr Ng, who acted for the applicant in the trial, only put forward one ground of appeal which reads:

“ The applicant seeking leave to appeal was found guilty of one charge of trafficking in dangerous drugs by the jury who reached a majority verdict of five to two. The jury took a long time to deliberate. The trial judge did not enquire of the jury at an appropriate time as to any prospect of their reaching any verdict, nor did he remind them to inform the judge if they failed to reach a verdict. In all the circumstances, the trial judge did not exercise his discretion appropriately to inform the jury of the time control of the court and that they were not to deliberate indefinitely until a verdict was returned. There was a real risk that the conviction was reached by the jury being put under pressure of time.

10.Mr Ng contended that in this case, the evidence took a total of eight and a half hours, and the prosecution and defence’s closing submissions and the trial judge’s summing-up another three hours. Minus the time for meals and rest at night, the jury still spent about ten hours in deliberating their verdict and finally only brought in a barely sufficient result of five to two. Therefore, they must have encountered difficulties in the course of their discussions. Nevertheless, the trial judge did not provide them with prompt and/or appropriate assistance or guidance.

11.For instance, as Lord Lane CJ said in R v Rose [1982] 1 WLR 614, 620 (which the Court of Appeal of the United Kingdom quoted in R v Payne [2001] EWCA Crim 274), depending on the circumstances of the case and the time spent in discussions, the judge should re-assemble the court in due course to make enquiry of the jury as to whether there is any chance of their reaching an agreement in considering whether it is necessary to discharge the jury or to ask them to continue with their discussions on the case.[3] Nevertheless, the trial judge in the present case did not do so.

12.The Court of Appeal in the United Kingdom expressed the view in Payne that without making the aforesaid enquiry, the jury might have mistakenly thought that they were left to discuss the case indefinitely and felt under pressure which they ought not to have[4]. Also, in the opinion of Mr Ng, this was more than likely to have happened in the present case.

13.Mr Ng further contended that the Court of Appeal in the United Kingdom pointed out in R v Court [1995] Crim LR 310 that as a matter of general observation, the judge should keep the jury informed about the timetable and possible implications of the procedures[5]. This principle applies when the jury’s verdict is pending and the judge should intervene in due course.

14.Taking Lincoln De Four v The State [1999] 1 WLR 1731 (PC) as another example, Mr Ng contended that the jury should be explicitly told that in the event of an irreconcilable disagreement over the case, it was their duty to inform the court of it [6].

15.Finally, by citing a case of the Court of Appeal of Hong Kong R v Tam Chi Pang [1986] HKLR 1122, Mr Ng contended that the long period of retirement of the jury is clearly not, of itself, a ground for upsetting a conviction, though there clearly must come a time when this by itself may be sufficient[7].

16.To conclude, Mr Ng submitted that the indifference of the trial judge in the present case left the jury, who were not able to return a valid verdict after long deliberations, unsure of what to do, rendering their verdict of five to two, which was not reached until the following day, unsafe and unsatisfactory.

Discussion

17.The authorities cited by Mr Ng are of no material assistance to the applicant.

18.For example, the background of Court was that after the jury had deliberated for one day, the defendant was late the following day, causing one of the jurors to worry about whether she could leave the court at midday to attend a wedding. Nevertheless, it was only according to a certain member of the court staff that a juror was in a hurry. The judge was then told about it by defence counsel. The judge himself had never received any request for assistance from the jurors. That being the case, in addition to the fact that before the court adjourned for the first day, the foreman had indicated that an agreement might be reached, and the verdict was reached as early as at 10:02 am the following day, the Court of Appeal in the United Kingdom was therefore of the view that there was no evidence that in the result the majority guilty verdict was reached under pressure of time. This is our understanding of that case. As regards the sentence Mr Ng relied on (see paragraph 13 above), it ought to be interpreted in the context of its whole text, with its main point on “the judge was entitled to expect that jurors will raise any personal difficulties they may have”, namely relating to whether or not there was evidence:

“ As a matter of general observation, the judge should keep the jury informed about the timetable and possible implications of the procedures, but he was entitled to expect that jurors will raise any personal difficulties they may have.”

Of course, the Court of Appeal stated at the same time that if there seemed to be a likelihood that there was pressure on reaching the verdict, then the position would have been wholly different.

19.Lincole De Four was a case from Trinidad and Tobago. One of the issues in the case[8] was that the jury, having retired for three hours, were asked about their progress by the judge, and the latter indicated that they would be given an additional 30 minutes. The Privy Council of the United Kingdom was of the view that it was more than likely that the jurors, having heard this, felt under pressure, although it would not have been the intention of the judge. Moreover, in the aforesaid conversation, the foreman referred to some matters which troubled some members of the jury due to insufficient prosecution evidence and certain incredible witnesses, and the judge ought to have but nonetheless did not instantly state that in the event of an irreconcilable disagreement it was the jury’s duty to inform the judge. To conclude, the Privy Council quashed that conviction due to obvious mistakes in that case, including the one referred to in Footnote 8. The support Mr Ng wished to seek from that case (see paragraph 14 above) was only an observation made by the Privy Council on one of the mistakes. That observation has its factual background. Whether or not it is necessary for a judge to raise the same in all cases involving lengthy deliberations on his own initiative and repeatedly cannot be generalised.

20.An observation cannot be generalized. That can be seen from the results of Tam Chi Pang and Payne as well. For example in Tam,  although the jury retired at 3:50 pm and reached their verdict at 4:37 am the following day, the then Court of Appeal of Hong Kong did not consider there was any impact on the conviction[9]. The reason being that although it was late at night, the jury had not shown any sign of undue fatigue or unwillingness to continue, and even their verdict (of not guilty on murder but guilty of manslaughter) fully reflected their deliberations. Accordingly, as to the length of retirement, the Court of Appeal’s observations in Tam (see paragraph 15 above) cited by Mr Ng are, in fact, of little use even to that case.

21.The circumstances of Payne were more extreme than those of Tam. When the jury returned a guilty verdict against Payne and another defendant, they had retired for deliberation for five and a half days[10]. Furthermore, the jury sent a note to the judge on the fifth day indicating they were in deadlock (“we have reached deadlock”). On the morning of the sixth day, it was said that they had a dilemma which all reasonable arguments have failed to resolve, namely a nine to one majority with one jury member undecided[11] (“we are in a dilemma – we have reached nine to one with one jury member decided [sic] – all reasonable arguments have failed to help the member reached (sic) a decision”). Nonetheless, it was only after the judge had received the first note that he gave the jury a majority direction[12]. Following the receipt of the second note, the judge did not deal with it as he was engaged in a trial in another court. In the result, at 1 pm on the sixth day, the jury themselves indicated that they had reached a verdict. After the court was reconvened, they delivered a guilty verdict in the case of Payne by a majority of ten to one[13].

22.Broadly speaking, in that case, the Court of Appeal in the United Kingdom was of the view that the facts were complex and the entire trial lasted over seven months. The judge said at the end of his summing-up that there was no pressure of time on the jury. He also said in his summing-up that if he did not respond to the jury’s note about not being able to reach a verdict, it only meant that it was not yet necessary to deal with the problem, and his silence in itself had no significance. Given the background of that case,  the jury must have known that they were to carefully deliberate their verdict; they must have known that their deliberations would be long. The last but most important point was that the Court of Appeal did not consider that the judgment of Lord Lane in Rose should be regarded as an inflexible principle which required the judge in Payne, following receipt of the second note, to re-assemble the court to ascertain whether or not the jury should be discharged. In the view of the Court of Appeal, it depended on the case itself.

23.Coming back to the present case, the trial judge, basically following the directions of the Court of Final Appeal in Tam King Hon v HKSAR (2006) 9 HKCFAR 206[14], explained clearly at the end of his summing-up how the jury were to reach their verdict in the case, including a majority verdict and how to deal with it in the event of disagreement. As far as this case is concerned, the crux of these directions was to raise the matter with the judge when they reached deadlock, and seek further assistance. The trial judge said as follows[15]:

“ What was said above is the summing-up of this case and it is over. Now each of you has taken an oath or affirmation to return a true verdict according to the evidence at the earliest stage of the trial. This is a responsibility you must fulfil. Each of you takes into the jury box your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening and giving due consideration to the views of others. There must necessarily be discussion and debate, as a result of which a person may be persuaded to accept a view which he or she did not previously hold. But of course you must at all times stay true to your oath and affirmation and give a true verdict according to the evidence.

You should strive to reach a unanimous verdict, that is, a verdict upon which you are all agreed, whether guilty or not guilty. If, however, you are unable to do so, then I am entitled in law to accept a verdict upon which at least five of you are agreed, namely a verdict of six to one, or five to two, guilty or not guilty. A verdict of four to three either way does not constitute a verdict. Should that positon arise, foreman, please inform the court, by way of a note, that it is four to three without saying how you are divided on a verdict. You need not to say how many are agreed or disagreed. You don’t have to say it. All that is needed is “four to three” and it would be understood. When the time comes, I will direct you further.”

24.After the jury had retired, apart from their requesting to review the applicant’s cautioned video-recorded interview, there was no further note, demand or request for assistance from them. Such position remained the same regardless of whether they were ordered to suspend their discussions and rest at the court at about 8 pm the same day or they were directed by the trial judge to continue discussions at about 9:30 am the following day. The jury eventually reached a verdict at 12:19 pm on the 17^th, and nothing happened prior to that. In other words, in this case, unlike in Court, there was no evidence or likelihood of pressure on the jury. As the trial judge, in making an order for the jury to stay overnight, mentioned that they might spend any time they considered necessary in the deliberation of verdict, we can only presuppose that the jury were acting in accordance with what the judge said (note the underlined below):

“ Right, members of the jury, justice presupposes that you, jurors, may spend as much time as you need in deliberating your verdict – and deliberating your verdict conscientiously. For deliberating your verdict conscientiously, it also includes that when you are tired, you should not continue -- you should not continue. And therefore, now, to ensure that you are not tired, as you may have got tired physically without much exercise -- but you have got tired mentally in any event – you -- from 11:37, that I have been working out, from 11:37 onwards, except when having lunch -- you did not deliberate while having lunch, but for a time you could not help it and you might be thinking about it, so you would get tired. I think that would be the case. And therefore, I believe – and there are authorities in which there is a guide or there are some suggestions that when it comes to about 8 pm, the judge should direct the jury to rest, rest the mind to ensure that you are at your clearest and most conscientious when you return your verdict. Of course, I will ask you – we, we ask you to rest. As adults, you may not necessarily fall asleep that soon shortly after 8 pm. But even when you cannot sleep, you are not allowed to discuss; you are not allowed to discuss; you are not allowed to read documents; you are not allowed to bring with you documents for reading; you are not allowed to think about it – sorry, it is quite difficult to control. You are not allowed to discuss among yourselves, no discussions, in particular, and this is very important, no discussions. Then, this is understandable, that is, a few hours’ consideration, for a conscientious jury, may not necessarily be sufficient; there may not necessarily be sufficient time…”

25.This Court appreciates that Mr Ng in fact argued the contrary that there was pressure on the jury. What he meant was that the indifference of the trial judge caused the jury, who were unable to reach a valid verdict, to give in as a result of suffering over a long period of time, and reluctantly made a decision against the applicant. The problem is that what has been put forward, as a matter of fact, is not consistent with what is shown in the bundle. In our view, the directions given by the trial judge in his summing-up were entirely sufficient to inform the jury that they were to inform the court of any difficulties. The fact that the jury did not do so is proof that they had no such need. Mr Ng asserted that the issue concerned was simple, and if there were no problem, the jury could not possibly have spent about ten hours discussing the verdict. However, this is his speculation. As the defence counsel in the trial, he never made submissions on this point to the judge while the verdict was pending. In the experience of the three members of this Court, there is simply no concrete yardstick on the length of retirement of a jury. Whilst a discussion of about ten hours in this case, in our view, is quite long on the face of it, it is not sufficient to raise doubt in view of the situation as a whole.

26.The applicant’s ground of appeal was not established. We dismissed his application.

Alex Ng, instructed by C O Yu & Co, Solicitors, assigned by the Legal Aid Department, for the applicant

Anthony Chau, 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.