The Queen v. Lam Kong Shan

CACC000031/1990

BETWEEN

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Coram: Hon. Sir Derek Cons, Ag. C.J., Macdougall, J.A. & Jones, J.

Date of hearing: 7 August 1990

Date of delivery of judgment: 7 August 1990

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JUDGMENT

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Sir Derek Cons, Ag. C.J., delivered the judgment of the Court:

1. This is an application for leave to appeal from convictions of false imprisonment and the use of a firearm to resist arrest.

2. The Crown's case at the trial was that the Defendant was chased by police into the concourse of the Kowloon Bay Mass Transit Railway Station. There, in order to hold at bay the pursuing officers and in an apparent attempt to find escape via the platform to one of the trains, the Defendant took hostage a young boy aged 11 or 12 years. His attempt to escape failed and he was arrested on the platform. The small boy was fortunately unharmed except for shock.

3. The Defendant's explanation of his innocent presence upon the platform and what he alleged to be false arrest by the police must have been rejected by the jury.

4. The trial, which lasted 24 days, was presided over by Judge Saied (as he then was) sitting as a Deputy Judge of the High Court. No complaint is made of his careful summing-up but criticism is levelled at his opening remarks to the jury and the effect they produced during the course of the trial. These are said to amount to a material irregularity which would warrant our quashing the convictions.

5. After the jury was empanelled the judge gave a short introduction to the proceedings, which included the passage:

"At the end of each witnesses's evidence, he or she will be cross-examined by defence counsel and I may put some questions myself. You are perfectly entitled also to put questions to a witness if you think it's a matter that has not been cleared up and something in which you have some doubt."

A little later, after referring to the possibility of the Defendant giving evidence, he said:

"Again, in that case, the Crown will be entitled to cross-examine and if you wish to ask any questions you may do so."

His final remark was in these words:

"During the break, I will ask you to put your heads together and choose your foreman. The foreman's duty is not very onerous. It is he or she who will channel any questions which are asked during the course of the trial"

And then in the course of the trial itself there was one occasion when the judge actually invited the jury to ask questions of a witness. The jury then did not ask any question, but following the opening remarks of the judge the foreman put questions to three of the sixteen witnesses, and then finally informed the judge that the jury wished to put questions to the Defendant himself, who had given evidence.

6. At that stage objection was taken by defence counsel. Following interchanges between counsel and the judge and then some indication of the questions which the jury wished to put, the judge allowed only one question to be put to the Defendant.

7. We take it to be settled law that a judge may allow a jury to raise points during the course of a trial. The numerous Commonwealth authorities and textbooks, to which Mr. Sedgwick for the Defendant has drawn our attention, confirm our own experience and we note that the position was acknowledged in England almost 100 years ago: R. v. Lillyman [1896] 2 Q.B. 167. Save to say that it seems to us undesirable that the jury should put questions directly to a witness, we think the latitude which they may be allowed and the manner in which the questions raised should be dealt with, e.g. whether they should first be put in writing, can be safely left to the trial judge in the particular circumstances of the individual case.

8. At the same time we must say that we do not think it desirable that juries should at the outset be directed as they were in the present instance, nor should the judge issue specific invitations during the course of the trial. The task of a jury is to listen impartially to the evidence that is adduced before them, and then to give their verdict based on that evidence. Encouragement by the judge to act of their own accord is likely to lead the jury to enter themselves into the adversarial process, which may not only appear to, but may well indeed actually, albeit subconsciously, detract from their impartiality. We are confident that in this day and age juries will, without any specific direction, readily bring to the notice of the judge any matters which are puzzling them or upon which they need clarification. Further than that they do not need to go.

9. The only questions from the jury in the present instance upon which Mr. Sedgwick has placed significant reliance were those directed to the young boy who was taken hostage. The questions related to matters on which the boy had based his identification of the Defendant, matters which were not elicited earlier by counsel. In our view those questions did not evince anything other than a genuine desire for information on the part of the jury nor do they indicate that the jury had in any way abandoned its impartiality. For these reasons we are satisfied that there was no material irregularity which prejudiced the Defendant and we refuse the application.

Representation:

C. Coghlan, Crown Prosecutor for the Respondent

Anthony Sedgwick, Q.C., & Linda Ng (D.L.A.) for the Applicant