HKSAR v. Shek Wai Chiu

CACC 445/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 445 OF 2004

(ON APPEAL FROM HCCC NO. 238 of 2003)

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BETWEEN

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Before : Hon Stuart-Moore Ag CJHC, Woo VP and Yeung JA

Date of Hearing : 16 August 2005

Date of Judgment : 16 August 2005

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

Introduction

1.On 28 September 2004, the appellant was convicted after a trial before Nguyen J and a jury of indecent assault (count 1) and attempted rape (count 3).  On the 1^st count, the appellant was convicted unanimously and, on the 3^rd count, he was convicted by a majority of 5 to 2.  On the 2^nd count of indecent assault, the appellant was acquitted by a 5 to 2 majority.  He was sentenced to 12 months on the 1^st count and to a consecutive term of 6 years’ imprisonment on the 3^rd count. 

2.Mr Donald has raised a single ground of appeal against conviction which he has rightly indicated requires no examination of the evidence.  As the question to be resolved involves a question of law alone, leave to appeal is not required and we shall proceed on the basis of an appeal against conviction.  There is a separate application for leave to appeal against sentence in which Mr Donald is not instructed.

The appeal against conviction

3.Mr Donald submitted that the judge fell into error by failing to explain sufficiently to the jury what he meant by a direction to the effect that it was:

“	not open to them to come to individual determinations which would lead to a 4-3 split”,

and that:

“a requirement that there should be … ‘give and take’ in the context used, was a misdirection giving rise to a danger that one or more jurors may have thought it was incumbent upon [them], for some greater good, to concur with a view [they] did not truly hold”.

4.In short, it was Mr Donald’s submission that as almost the same directions on this aspect of the summing up were given in HKSAR v Chan Ka-man [2005] 1 HKC 162 where the verdicts were found on this account to be unsafe, they should be similarly viewed in the context of the case we are now considering.

5.It is to be noted in fairness to the judge that the judgment in Chan Ka-man, which was also an appeal arising from a trial in which Nguyen J presided, was given on 7 January 2005, about 3 months after the summing up in the matter presently before us.  The directions which are now criticised are contained in the following passages:

“Each of you, members of the jury, took an oath to return a true verdict according to the evidence. No one must be false to that oath but you have a duty, not only as individuals but also collectively; that is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. Your task is to pool that experience and wisdom and you do that by giving your views and listening to the views of others. There must necessarily be discussion and argument and a willingness to give full consideration to the suggested logic of your colleagues in the jury, and if an individual juror is persuaded that there is a flaw in his own thinking, he must be prepared to concede that there is a flaw. This is how agreement is reached. But of course, you must at all times be true to your oath or affirmation and if, after full discussion, you cannot reach agreement, you must say so.

So that really means, members of the jury, that you should make up your own minds but, at the same time, you should listen to the views of your colleagues and see, after you have listened to their views, whether you are prepared to change your original view or whether you are not going to change your original view. So there has to be give and take.

I would ask you to try and reach a unanimous verdict; in other words, a verdict upon which all seven of you are agreed, guilty or not guilty. But if after long, careful and conscientious discussion, you find that you cannot all be agreed, then in law I can take from you what we call a majority verdict. A majority verdict has to be either six-one or five-two, either way, guilty or not guilty. Anything less than five-two would not be acceptable, so four-three would not be acceptable. The minimum is five-two or six-one; better still, unanimous.” (Appeal bundle pp. 39-40)

6.Shortly after these directions, the judge went on to explain the procedure for receiving the verdicts from the jury and, to emphasise that they were not to regard themselves as being under any pressure of time, he added:

“Please take all the time you require, members of the jury. There is no pressure on you to return a quick verdict. There is no time limit on how long you should take. This is obviously a very important case, both for the prosecution on behalf of the public and also for the defendant who is facing these serious charges. So please take all the time that you require.” (Appeal bundle p. 41)

7.The directions given by the judge (set out in paragraph 5 above) amounted to what is usually referred to as a ‘Watson’ direction.  This is set out in Archbold Hong Kong 2005 at para 4-235 to which we shall turn later where, in reference to what the English Court of Appeal said in R v Watson and Ors [1988] 87 Cr App R 1 at 7, it is suggested that “there will usually be no need” to give such a direction to the jury at all and, in our experience, a summing up in Hong Kong will seldom contain such a direction.  Here, for no reason which is apparent to us, it was given. 

8.Although we do not wish to lend any form of encouragement to a Watson direction being given as a matter of routine, the fact that it is given where no good reason is shown will not in itself be a sufficient basis on which to mount a ground of appeal.  Here, of course, Mr Donald’s complaint is not that a Watson direction was given but that the wording chosen by the judge was similar to the wording of the directions given in Chan Ka-man where this court held that the phraseology used by the same judge was an “unwarranted” and “unsafe departure” from the standard Judicial Studies Board (JSB) direction which slightly qualifies the Watson direction in its pure form. 

9.In Chan Ka-man, the appellant was convicted by a jury of sexual offences on majority verdicts of 5 to 2 and 6 to 1.  The judge had directed the jury towards the end of the summing, in the terms set out at page 165, as follows:

“You should discuss the case amongst yourselves and try to arrive at what we call unanimous verdicts, in other words, verdicts upon which you are all agreed – all seven of you – either guilty or not guilty. Now, I do not know whether any of you have served on a jury before, but serving on a jury is very much like a board of directors of a company having a meeting. In other words, there is a lot of give and take.

You should make up your own mind about the verdicts, but you should also listen to the views of your colleagues and see whether, after you have listened to their views, whether you want to stick to your own decision or whether you are prepared to change your decision and be persuaded by them that your decision should be different. So there is a lot of give and take. You should make up your own mind, but you should also listen to the views of your colleagues.

However, after careful and conscientious and long deliberations, if you find that all seven of you cannot be agreed on any one charge, then in law I can accept from you what we call a majority verdict – in other words, a verdict upon which not all of you are agreed. But the majority has to be either six-one or five-two. Anything less would not be acceptable, so four-three would not be acceptable.  So it should be a unanimous verdict, but failing that, it can be a majority verdict of six-one or five-two. (Emphasis added).”

10.The jury in that case duly retired at about 11:00 am for consideration of their verdicts and during the afternoon they submitted 3 written questions.  These and the replies given to them are set out by Stock JA (also at page 165) in these terms:

“	1.	If the jury reach 4:3, can it be defined as reached a verdict?
	2.	Can any one of us abstain from voting?
	3.	If we think the evidence is not strong enough, we should assume the defendant is being not guilty?”

Stock JA continued:

“	6.	Having discussed the matter with counsel, the judge then gave the jury further directions which we repeat only in so far as is relevant to this appeal:
		‘	… the answer to question 1 is quite clearly, no. If it’s four three, it is not an acceptable verdict. It has to be six one or five two, either way, guilty or not guilty on all the counts, all right?
			So, four three is not acceptable, which means that you have to carry on discussing until you reach either unanimous verdict or a verdict of six one or five two. If, after a very long discussion, you are still, as it were, deadlocked and it is still four three, then you will have to report the progress to me and I will have to decide what to do, all right?
			But for the time being, since you only went out at about 11, I would urge you to carry on discussing until you arrive at six one or five two, or unanimous, all right? (Emphasis added).’”

11.When the court in Chan Ka-man went on to consider the gravamen of the complaint it used similar terminology to that which has now been adopted by Mr Donald in his grounds of appeal, saying (at page 166):

“

7.

The gravamen of the complaint is that in delivering these directions, the judge inappropriately conveyed to the jury the message that it was not open to them to come to individual determinations which would lead to a four-three split; and further, that the effect of his analogy with decisions by a board of directors and of his reference to a requirement that there be ‘a lot of give and take’ was, in context and in the absence of any accompanying exhortation nonetheless to stay true to the individual oaths, a misdirection giving rise to a danger that one (or more) jurors may have thought that it was incumbent upon him or her, for some greater good, to concur with a view which he or she did not truly hold.”

12.The court then went on to state the appropriate form of words, assuming this was needed at all, in the following passage (also at page 166):

“	8.	Assuming that there was good reason for the judge to say anything at all about the methodology of the jury’s decision-making process, we do not understand why the judge departed from the recognised formula. The standard specimen direction offered by the Judicial Studies Board, which follows after a comment that there will rarely be a need for such a direction, is this:
		Each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but also collectively. That is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of others. There must necessarily be discussion and argument, and a willingness to give full consideration to the suggested logic of others, and if an individual is persuaded that there is a flaw in his own thinking, a preparedness to concede the flaw. This is how agreement is reached. But of course you must at all times stay true to your oath or affirmation and if after full discussion cannot reach agreement, you must say so.”

13.It is apparent, both in Chan Ka-man and in the present case, that the judge had unfortunately chosen to depart from the JSB’s form of words.  It is noticeable that the JSB formula does not contain any reference to the phrase “give and take” used by the judge in both cases.  In fact, this phrase is taken from a passage in Watson which is reproduced in Archbold Hong Kong 2005 at para 4-235 as follows:

“Each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but collectively. That is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of the others. There must necessarily be discussion, argument and give and take within the scope of your oath. That is the way in which agreement is reached. If unhappily, [five of] you cannot reach agreement you must say so.”

14.In Chan Ka-man, it was not the use of the phrase ‘give and take’ which led to the overturning of the convictions, although in our view it is the JSB direction (omitting this reference) which ought to be followed if it is to be given at all, but the context in which it was put, with which Stock JA dealt (at page 167) in the judgment as follows:

“It is a cardinal principle that ‘no juror should change his or her mind merely for the sake of conformity or out of submission to pressure by other jurors; in the end no juror should vote against his or her conscientious view based on the evidence. This is an elementary and the central bulwark of the jury system’. See R v Accused [1988] 2 NZLR 46, 58.
10.	It is this cardinal principle that the judge has, in our judgment, offended by the effect of the directions given in this case. The analogy with boards of directors was entirely inappropriate and could have served only to confuse. The boardroom often consists of directors representing quite separate interests and functions which will trigger manoeuvres, tactics and compromises wholly alien to the duties of a juror. In the jury setting there can be no question of compromise for some perceived common good or individual interest; no bargain struck in relation to one count in exchange for another. The language of ‘a lot of give and take’ – twice used – and of ‘whether you want to stick to your own decision’ is loose language of a kind that may indeed apply to the boardroom function; but in the context of the jurors’ function was an unwarranted and, in our view, unsafe departure from the standard direction. That judges should stick to the standard direction, if they give one at all along the Watson line, and add nothing to it, was an injunction sounded in R v Buono (1992) 95 Cr App R 338, 344; and the danger of not doing so is well illustrated by the present case. The ‘give and take’ to which Watson referred was a give and take only in the sense of giving one’s views and harkening to the views of others; it was not a give and take in the sense of compromising for the sake of conformity. It is this latter sense that, in our judgment, was clearly left open by these directions, and it does not require an analysis of the motives behind the second question posed by the jury – as to the right to abstain – to lead us to that conclusion. We do not think that the message thus conveyed was in effect altered or corrected by the judge’s comment that ‘you should make up your own mind’. As we intimated in HKSAR v Kwok Chi Wai [2004] 3 HKLRD 185, 190, issues such as these are determined not by picking out a phrase here and there, as if in a statutory instrument, as curing a defect; it is the sense of it as gleaned from context and experience that counts most; and the sense of these directions was altogether too loose and susceptible to impermissible application by the jury. Viewed thus, the use of the phrase ‘you should make up your own mind’ was in full context a mantra the import of which was not brought home to this jury.”

15.The court in Chan Ka-man also considered the effect of the majority direction the judge had given, saying (at pages 167-169):

“11.	In relation to unanimity, majority verdicts and a failure to agree, the effect of the directions given in the main body of the summing-up in the morning was that anything other than a unanimous verdict or a verdict by a majority of at least five-to-two ‘would not be acceptable’; and in particular that ‘four-three would not be acceptable’. In the sense that a four-three decision does not constitute a verdict, and was not acceptable as a verdict, the judge was correct. But by leaving the matter as he did the judge created a risk of leaving the jury with the impression that disagreement was in no circumstances permissible. There is no need to hide from the jury the fact that it is open to them, at the end of the day, to disagree; which does not, however, preclude a judge from encouraging, though not improperly pressurizing, a jury to arrive at a unanimous or majority verdict. The specimen direction suggested by the Judicial Studies Board is as follows:
	‘	You should strive to reach a unanimous verdict, that is, a verdict upon which you all agreed; whether guilty or not guilty. If however you are unable to do so, then I am entitled in law to accept from you a verdict upon which at least five of you are agreed, in other words, a verdict of six-one, or five-two. A verdict of four-three either way does not constitute a verdict, and should that position arise I shall direct you further.’
12.	In this instance as well, we do not understand why the judge chose to depart from the standard formula. We do not say that a judge may not exhort a jury to seek conscientiously to reach agreement. But what in effect has happened here went further than that. The continued insistence on anything other than a disagreement is evident in the directions given in answer to the jury questions, with the comment that ‘it has to be six-one or five-two’ that ‘you have to carry on discussing until you reach either unanimous verdict or a verdict of six-one or five-two’. We simply do not know why the judge continued to be so markedly and unusually coy about any possibility of a disagreement, and we fail to see why he found it necessary to tell the jury, at a time when they had already been out for over four hours, that a disagreement was reportable, and then only as a matter of progress, only after ‘very long discussion’. Unqualified, unexplained, and without the sort of assistance we see suggested in Black [v The Queen (1993) 179 CLR 44 at] 51, this was in our judgment unsatisfactory. In such circumstances and given in particular the encouragement to approach matters as a board of directors with ‘lots of’ give and take, we find it impossible to be satisfied that the bare majorities by which three of the four verdicts were reached represent the product of conscientious decisions in respect of which each individual juror was faithful to his or her oath.
13.	We do not hereby suggest that the judge should by his initial direction wave before a jury or highlight in any way the prospect of disagreement. The initial direction need contain no more than the passing reference to the option of disagreement that we see in the standard direction. If, however, the issue later arises because there appears to be difficulty in reaching an agreement, or because of a question such as that raised in this particular case, then it must be made clear, preferably in the form of the standard direction, that if after full discussion agreement cannot be reached, the jury is not only entitled to say so, but must say so. This was a message which the judge seemed reluctant to convey at a stage that required it; and the manner of his answer and the text of his other directions created, we think, too great a risk that the jury was left with the impression that they really had little choice but to agree upon a verdict.”

16.The extensive references to Stock JA’s judgment in Chan Ka-man have been made necessary in order to make a proper comparison with the judge’s directions in the present case (set out in paragraph 5 above).  Here, it is apparent that the judge did not refer to any need on the jury’s part for a “lot of give and take” as he had in Chan Ka-man.  He merely stated that “there has to be give and take”, as the court stated in Watson and in the sense described in Chan Ka-man, by a juror giving views of his own and listening to the views of others.  Significantly, no mention of a “board of directors” was made by way of analogy.

17.More importantly, perhaps, having retired at about 11:00 a.m. and having asked a question purely related to count 2, the jury returned at 4:00 p.m. with their verdicts.  There was nothing, as Mr Zervos SC observed on the respondent’s behalf, to suggest that the jury had been unable to reach at least majority agreement on any count.  Furthermore, the judge had correctly informed the jury as to the nature of a majority verdict and had told them that if they were unable to reach a verdict they should say so.

18.Although Mr Donald rightly did not seek to argue that the circumstances which arose in HKSAR v Kwok Chi-wai [2004] 3 HKLRD 185 (at 190-191) might have applicability to the present case, we have at Mr Zervos’ invitation been reminded of what occurred in that case and we agree with him that the facts are easily distinguished.  In the particular circumstances of that case, the jury were left with the impression that a disagreement, taking the form of a 4 to 3 split, was not even an option which was open to them.

19.We are satisfied that there is nothing in the circumstances of this case which could give rise to the suggestion either that the jury were split 4 to 3 on their verdicts or that a juror may have felt compelled by anything said by the judge in the summing up to reach a verdict which did not truly reflect his or her view.  Although the Watson direction was not something which the jury needed to be given, no injustice has resulted from the fact, and in the form, that it was given.

20.Accordingly, the appeal against conviction is dismissed.

Sentence

21.Turning finally to the application for leave to appeal against sentence, the applicant, in his homemade grounds of appeal, has raised nothing which could affect the integrity of the 7-year sentence imposed upon him for indecently assaulting and attempting to rape the complainant who was a 12-year-old girl at the material time.  The applicant was cohabiting with the complainant’s divorced mother.  In this sense, the applicant, who was then aged about 41, held a position of trust towards the complainant who regarded him as her stepfather.  Had he been able to complete the act of rape, which was not possible because of the timely arrival of the domestic helper, no doubt his sentence would have been appreciably longer.  The judge, when passing sentence, having earlier remarked on the applicant’s considerable influence over the complainant’s mother which resulted in no report being made to the police for over a year, rightly described the applicant as having shown “not a modicum of remorse”.

22.The application for leave to appeal against sentence is dismissed.

Mr K P Zervos, SC, SADPP and Ms Winnie Lam, GC, of the Department of Justice, for the Respondent.

Mr Richard D Donald, assigned by Director of Legal Aid, for the Appellant (re: conviction)

The Applicant, in person (re: sentence)