Ho Wai Nam v. R.

CACC000036/1993

1993, No. 36
(Criminal)

HEADNOTE

Majority verdict direction.

IN THE COURT OF APPEAL

1993, No. 36
(Criminal)

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Coram: Sir T.L. Yang CJ, Macdougall VP and Bokhary JA

Date of hearing: 26 April 1994

Date of judgment: 26 April 1994

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J U D G M E N T

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Bokhary JA (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction.

2. The applicant faced two counts. The first count was of possession of dangerous drugs for the purpose of unlawful trafficking. The second count was of simple possession. In respect of the first count, the dangerous drugs consisted of 676.63 grammes of a mixture containing 321.21 grammes of salts of esters of morphine. A much smaller quantity was involved under the second count, namely, 1.61 grammes of a mixture containing 0.91 grammes of salts of esters of morphine.

3. Appearing in the High Court before Deputy Judge J. Chan and a jury, the applicant pleaded not guilty to both counts. But, on January 26 last year, the jury convicted him on both counts. And, passing sentence on the same day, the judge sentenced him to 12 years' imprisonment, giving him a term of that duration on the first count and a concurrent term of 9 months' imprisonment on the second count.

4. The broad circumstances of the case were these. On March 26, 1992, along Temple Street in Kowloon, the police intercepted a car belonging to a friend of the applicant but driven by him at the time. In a men's handbag on the front passenger seat were the dangerous drugs the subject-matter of the first count. The arresting officers also said in evidence that when the applicant was searched after stepping out of the car, he was holding two small packets of dangerous drugs, being those the subject-matter of the second count.

5. In addition to all of that, there was a statement to the police in which the applicant said that he had bought the dangerous drugs in the car for resale. The applicant suggested through counsel that he had been forced by threats and violence to sign that statement. As was his right, the applicant chose not to give evidence before the jury. But the issue was left to the jury fairly and squarely nevertheless.

6. The perfected grounds of appeal are three in number. The first one reads as follows:-

"The Learned Judge erred in law in directing the Jury in the following terms, namely, 'Your function is to decide on the evidence whether the charge has been proved to the extent that you are sure that the defendant is guilty or not guilty of the offence.'"

7. That was said in peculiar circumstances to which we will come in a moment. When the judge was directing the jury in the ordinary way on the burden and standard of proof, his directions were correct. The direction the subject-matter of the first ground of appeal was really part of what the judge said to the jury when they displayed some curiosity as to why trafficking was not brought into the second count. Rightly, he told them that it was for them to consider the count as framed and not to speculate on how a count might have been framed. The emphasis of what he said was on the charge and the offence: in other words, the offence charged.

8. The judge was not there giving the jury a direction on the burden or standard of proof. The jury could not have been misled. Indeed, what was said is wrong only because the judge added the words "or not guilty". No reasonable juror could have thought that those words were put in for any purposes other than to emphasise that they might not convict. There is in this first ground absolutely nothing at all.

9. The second ground reads as follows:-

"The Learned Judge misdirected the Jury in respect of majority verdicts by stating: 'And you must reach, if you can, a unanimous verdict. Now the law allows me, as you may know already, in some circumstances to accept a majority verdict upon which not each one of you is agreed. Those circumstances have not arisen yet, so I would not direct you on a majority verdict now. I would ask you to retire and consider returning a unanimous verdict. If you cannot, then I will give you further directions as regards a majority verdict. If those circumstances arise, then I would give you further directions on that.'"

10. In putting forward this ground, what Mr Matthews for the applicant had in mind is the statement by Silke VP in The Queen v. Wong Kim Wah & Ma Kim Fung, Criminal Appeal No. 258 of 1993, December 14, 1993 (unreported). What the Vice-President said there was that directions such as the one in the present case were appropriate to the situation in Britain where the legislative scheme was different, and that:-

"The practice here has always been that the jury is informed of what is required of it; unanimous if they can but, if they cannot, then a verdict of a majority is acceptable."

And the Vice-President continued that:-

"This is the better practice and is the one which should be followed in the future."

We reiterate that.

11. It is a pity that in the present case the judge did not direct in the way in which juries are normally direct in Hong Kong in this regard. What happened was that when the jury came to return their verdicts, the foreman announced the verdict on the first count as "five guilty, two not guilty". And it is clear that the jury thought, wrongly, that that was in law a verdict of not guilty because only a unanimous verdict could convict and any failure to reach one resulted in an acquittal.

12. That was an unfortunate piece of confusion springing from the direction in the present case. But that confusion was, in the result, eliminated in the course an exchange between the judge and the foreman. In the course of that exchange, it became clear that the jury maintained their vote of five to two for convicting, maintaining it in the knowledge that that was a guilty verdict, and maintaining it so as to bring in such a verdict. For completeness, we should mention that the guilty verdict on the second count was unanimous.

Therefore, although there was some initial confusion over the first count, ultimately the verdict thereon was one free of confusion. In those circumstances, there is nothing in the second ground of appeal either.

13. The third ground of appeal reads simply:-

"In all the circumstances of the case the said convictions are unsafe and unsatisfactory."

14. No particulars whatsoever are given. When he came to develop the ground, Mr Matthews sought to refer to two matters which form no part of the perfected grounds of appeal. Neither of those matters provide any basis for questioning the convictions. If they had, then perhaps some amendment of the grounds might have been advisable in order that the position be made perfectly plain for the Crown adequately to deal with the same. But that course is unnecessary because, proceeding on the footing that those unparticularized matters can be brought into play in this fashion, it is still perfectly plain that there is nothing in them. The third ground of appeal also fails. With it, the whole of the application fails. Leave is refused.

Representation:

Mr Jerome Matthews (instructed by Tang, Wong & Cheung) for the applicant

Mr S.R. Bailey (of the Attorney General's Chambers) for the Crown