Man Ching-ip and Others v. The Queen

Case No.

Court

Date—

Judge—

Case Document

100%Judiciary

CACC000543A/1980

1.	Trial by jury - secret communication between judge and jury - extent of communication not known - fatal irregularity.
2.	Criminal law - confession to police - jury directed that they must decide whether statement was true and then what weight they would attach to it - misdirection.
3.	Speeches of counsel - right of prosecution to open the facts - right of prosecution to sum up evidence although Criminal Procedure Act 1865 not applicable in Hong Kong - s.9(3) of Criminal Procedure Ordinance - meaning of "practice and procedure".

IN THE COURT OF APPEAL

	1980 No. 543
	(Criminal)

BETWEEN
	MAN Ching-ip	1st Appellant
		(1st Defendant)
	CHEUNG Kwong-tat	2nd Appellant
		(2nd Defendant)
	CHAN Chit-shun	3rd Appellant
		(5th Defendant)
	CHOW Kai-sun	4th Appellant
		(7th Defendant)
	and
	THE QUEEN	Respondent

-----------------

Coram: Sir Alan Huggins, V.-P., Li, J.A. and Silke, J.

Date of Judgment: 23rd December 1980.

-----------------

JUDGMENT

-----------------

Sir Alan Huggins, V.-P.:

1. We allowed the appeals of the 1st and 2nd Defendants and quashed their convictions, but in the case of the 1st Defendant we ordered a retrial for reasons which we gave at the time. We said we would give in writing our reasons for quashing the convictions and also indicate our views on some of the other matters raised in argument.

2. The charge against both these Defendants was one of unlawful possession of forged banknotes. After the jury had retired they sent a message to the judge asking for a copy of s.76(1) of the Crimes Ordinance and, without consulting counsel, the learned judge sent them a book containing that section. What else the book contained we do not know. When counsel for the Crown learned what had happened he asked the judge to reconvene the court. This was done. In the course of the proceedings which followed the foreman of the jury indicated that the purpose of asking for the subsection was "to see it in black and white". He added:

"Although we asked for s.76(1), what I think we were most interested in was to check up on the definition of 'possession' which was covered by a separate clause, by s.78. It was really just to remind ourselves of what you had already told us, and we, I think, are quite happy now about that and the interpretation of that".

Section 78 did not relate to "possession" but to "aiding and abetting" and it is clear that what the jury really wanted to see was s.80. In a further direction the learned judge read that section again.

3. It is a general principle that there should be no secret communication between the judge and the jury: if there is any communication between them after the jury has retired that communication ought to be read out in open court in the presence of the prisoner, so that both the prosecution and the defence may be aware of their contents: Green (1950) 34 Cr. App. R. 33. In that case a breach of the principle led to the quashing of the conviction in spite of the fact that the evidence of the appellant's guilt was overwhelming. As in that case, we do not know precisely what was communicated to the jury. If only s.76(1) had been sent, we might have been able to apply the proviso, but, as in Flower (1956) 40 Cr. App. R. 189, we have to assume that the jury did not confine themselves to the only matter which was relevant in the document before them. There the jury were handed an indictment on the back of which the defendant's previous convictions had been endorsed. Although the court was quite sure that there was no miscarriage of justice it held that

"It would be safer and in the interests of the law to quash the conviction".

Where there is an irregularity of this kind

"the question is not whether in such a case anything was in fact done or can be shown to have been done which was in the circumstances actually prejudicial to the accused": Davis (1960) 44 Cr. App. R. 235, 239.

The reason for that is

"that the duty of a court is not only to ensure, as far as possible, the due administration of justice in the individual case, but also to preserve the due course of procedure in general": Rex v Taylor 1950 N.I.L.R. 57, 80.

In the course of argument it was suggested that the only prejudice which could conceivably have arisen here might have arisen in other ways which the court could not have prevented. That is so. Human justice is not perfect, but that is not sufficient reason for our failing to supervise where we can and

"It is often better that one guilty man should escape than that the general rules evolved by the dictates of justice for the conduct of criminal prosecutions should be disregarded and discredited": Maxwell v The Director of Public Prosecutions (1934) 24 Cr. App. R. 152, 176.

In Reg. v McNeil 1967 Crim. L.R. 540 the irregularity was that the jury bailiffs retired with the jury. They took no part in the deliberations and no harm was done, but the court thought that the accused might feel that he had not had a fair trial. We find ourselves in just that position. It was suggested on behalf of the Crown that, even if the jury looked at something which they ought not to have seen in the book, this irregularity was cured by the redirection given by the learned judge. We do not think it was. The judge did not make it clear to the jury that he agreed with the criticism which he told them had been made. He did not even tell them to disregard anything they had read other than the provisions which had been read to them in open court. We thought the accused might feel that they had not had a fair trial and that it would be safer in the interests of the law to quash the convictions.

4. In the course of his summing-up the learned judge referred to the statements which Defendants had given to the police, and in the case of the 2nd Defendant his statement was the substantial evidence against him. The judge said

	"Now, counsel did raise the question about whether these statements were voluntarily made. But that is not the main consideration for you. For your main consideration is to decide whether the statements are true and, of course, the statement can be true, whether or not it is voluntary. If you think a statement is not true or may not be true, well then, you just reject it and give it no further consideration. But if you think a statement is true, there is then the further question as to the weight you should attach to it.
	Well, here again it is purely a matter for you to decide how much weight to attach to an individual statement or part of a statement. If you think a statement is true and was voluntarily given, well then, I expect you wish to attach the fullest weight to it. But on the other hand if you thought the statement might have been obtained by force or threats or other pressures or inducements, well, no doubt that would reduce its value in your minds, and that would be to a greater or lesser extent according to the amount of pressure brought to bear on the accused. Anyway when considering the statements, the main point is (1) whether or not they are true and (2) what weight you would wish to attach to them. Those are both points entirely for you."

Counsel submitted that this could not be right, for it suggests that the jury should first consider whether a statement was true and then decide what weight they would attach to it, the possibility of inducement being relevant only to the latter issue. We think the jury must have been confused by this. The judge was right to say that the main consideration for them was whether the statements were true, but once they were satisfied a statement was true no question remained as to the weight they should attach to it: it would be perverse not to give the fullest possible weight to any true evidence. The possibility of inducement goes to the truth of the statement and, again, it would be wrong for a jury to be satisfied that a statement was true, and, consequently, to attach weight to it, if they thought there was a possibility that it had been obtained as a result of improper inducement.

5. Again, we think counsel justifiably criticised the absence of a sufficient direction as to the meaning of possession. Counsel had read out s.80 of the Crimes Ordinance, which does not, as the judge suggested, define possession but deems possession to exist in specified circumstances, and in the first instance the judge briefly commented upon it. When the jury were recalled for further direction, the section was read again, but at no time was any attempt made to explain possession in relation to the evidence in the case. That was a serious omission. On the other hand, we think that a slip made by the judge in his direction as to the elements of aiding and abetting was unlikely to have misled the jury in the context of the overall direction.

6. A matter which has apparently caused considerable doubts in the profession is the question whether counsel for the prosecution should be permitted to address the court at the close of the case if the defendant has not himself given evidence and has adduced no other evidence. It is contended that the judge was wrong to allow such an address in the present case. It may not be out of place to mention here that counsel for the prosecution has an undoubted right to open his case to the jury on the facts. There has been an unfortunate tendency during the present century for this right to be abused. The sole purpose of the opening should be to outline the evidence which it is hoped to place before the jury, in order that the jury may be able to appreciate the significance of each piece of evidence as it is given by the witnesses. All too often the opportunity is made to discourse at length upon matters which are within the province of the judge. Judges should discourage such abuse, which adds unnecessarily to the length of trials.

7. Just as counsel for the prosecution has a right to open the evidence, so, we think, he has a right in every case to sum up the evidence at the end unless the defendant is unrepresented and calls no witnesses to the facts except himself. The speech may properly include comment upon the evidence. In England this right was expressly conferred by the Criminal Procedure Act 1865 ("Denman's Act"). That Act does not apply to Hong Kong: Teng Chan-cheung v Reg. Crim. App. 1978 No. 888. In Tong Yuk-tin v Reg. Crim. App. 1979 No. 552 the court was apparently not referred to the earlier decision and came to the conclusion that, although the Act "has not been specifically applied ... since the ... Act is part of the practice and procedure in force in England, it therefore applies to Hong Kong" by reason of s.9(3) of the Criminal Procedure Ordinance. As to that there is, perhaps, no conflict between these decisions, because we think what the court meant in Tong Yuk-tin v Reg. was not that the Act applied but that the practice and procedure which it introduced was applicable in Hong Kong. It was argued before us that that could not be correct because the right to make a speech is not a matter of practice and procedure. Reliance was placed on Reg. v Chu Kwan-kong 1977 H.K.L.R. 371, 373, where the learned Commissioner said:

"In my view the phrase 'practice and procedure' relates to the means by which a legal right or duty is enforced or a legal rule applied as distinguished from the law which establishes or defines that right, duty or rule. I agree with the words of Kingsmill Moore J. in State (O'Flaherty) v O'Flynn (1956) 90 I.L.T.R. 179 at p.184:-

'What is meant by the words "practice and procedure?" Broadly I would answer the manner in which, or the machinery whereby, effect is given to a substantive power which is either conferred on a court by statute or inherent in its jurisdiction.'"

Counsel for the Respondent also cited Poyser v Minors (1881) 7 Q.B.D. 329, where the question was whether the County Court Rules Committee had made a rule relating to a matter which was not a matter of practice. Lush, L.J. said at p.333:

"'Practice' in its larger sense - the sense in which it was obviously used in that Act, like 'procedure' which is used in the Judicature Acts, denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the Court is to administer the machinery as distinguished from its product."

What in effect is said on behalf of the 2nd Appellant is that any right conferred by statute must be "a substantive right" and, ipso facto, not a matter of practice and procedure. We do not think that necessarily follows. From time to time it happens that a rule of practice becomes so well established that it is regarded as a rule of law and will not be changed otherwise than by statute. In our view it is impossible to hold that the right to make a speech in the course of judicial proceedings is not a matter of practice and procedure. The existence of s.9(3) of the Criminal Procedure Ordinance therefore raises this difficulty, that an English statute which alters a matter of practice and procedure may not be applicable in Hong Kong and yet the practice and procedure in Hong Kong may prima facie be changed by it. That was the view taken in Tong Yuk-tin v Reg. and it is here that there is conflict between that case and Teng Chen-cheung v Reg. In the earlier case the court doubted whether the Legislature ever intended by s.9(3) that English statutes not applicable in Hong Kong should nevertheless operate in Hong Kong by a side wind. It is not necessary so to hold in order to permit prosecuting counsel a closing speech, because there can be no doubt that such a speech has in fact been allowed here long enough for it to be said that it is an established practice and should not be a ground for quashing a conviction. As was pointed out in argument, other statutory changes in the English practice and procedure might be made hereafter which were inappropriate to, although not impossible of application in, Hong Kong and the difficulty which would then result from a strict application of s.9(3) could be avoided by limiting its application to non statutory rules of practice and procedure. Indeed, it may well be that the time has come when consideration should be given to the repeal of s.9(3), and also of s.17 of the Supreme Court Ordinance, the courts in Hong Kong being left to adopt such practice and procedure as may seem appropriate in the few cases where express provision has not been made by ordinance or rules of court.

8. Whatever the correct approach we are satisfied that the judge was not wrong to allow a closing speech to the prosecution here. It may be noted that the term "closing speech" replaces two elements which formerly were distinguished - the right to sum up the evidence and the right to reply to the speech of counsel for the defence: see Reg. v Bryant (1978) 67 Cr. App. R. 157, 163/4. By virtue of s.56 of the Criminal Procedure Ordinance the true right of reply has been abolished and counsel for the defence is, in all cases, entitled to the last word.

23rd December 1980.

Representation: