Tam King Hon v. HKSAR

FAMC No. 68 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 68 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 31 OF 2001)

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Between:

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing:16 November 2005

Date of Determination:16 November 2005

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.If one were to accept the correctness of everything said by the Court of Appeal in HKSAR v. Chan Ka Man [2005] 1 HKC 162, then the present case could be dealt with by the Court of Final Appeal under the “substantial and grave injustice” limb of s.32(2) of the Court’s statute.  But in our view a point arises under the “point of law of great and general importance” limb of that subsection.  In Chan Ka Man’s case the Court of Appeal endorsed the statement in the Judicial Studies Board’s specimen direction that jurors “have a duty not only as individuals but also collectively”.  And they expressly (although of course respectfully) disagreed with the view taken on the point by the Mason Court in Black v. R (1993) 179 CLR 44.  One sees that at p.166 of the report of Chan Ka Man’s case.  In Black’s case this is said (at p.51) in the joint judgment of Mason CJ and Brennan, Dawson and McHugh JJ:

“Jurors do have a responsibility to act collectively but only in the sense that individual jurors should participate in the collective consideration and discussion of issues in the jury room.  There is a risk that references to a collective responsibility or duty may be understood more broadly by the jury and as an invitation to an individual juror to subordinate his or her views to those of a majority of jurors.  Consequently references to ‘give and take and adjustment’ and collective duty or responsibility should be avoided.”

Deane J agreed with that in a separate judgment which adds further arguments against speaking of a collective duty.

2.Proceeding under the “point of law of great and general importance” limb of s.32(2), we certify that the appeal involves a point of law of great and general importance.  It is the point raised by the question of what directions jurors should be given on how they should go about deliberating as a jury.  We grant leave to appeal to the Court of Final Appeal to pursue that point. 

Mr Gerard McCoy SC (instructed by Messrs Tang, Wong & Cheung and assigned by the Legal Aid Department) for the applicant

Mr Cheung Wai-sun and Ms Peggy Lo (of the Department of Justice) for the respondent