HKSAR v. Mak Wing Cheung and Another

cacC 437/2003

in the high court of the

hong kong special administrative region

court of appeal

CRIMINAL APPEAL NO . 437 of 2003

(on appeal from HCCC NO. 423 of 2002)

BETWEEN

Before: Hon Ma CJHC, Stock JA and Beeson J in Court

Date s of Hearing: 21 November 2006

Date of Judgment: 21 November 2006

____________________

J U D G M E N T

____________________

Hon Stock JA (giving the judgment of the Court):

1.This is another case in which a summing-up has drawn an analogy between the deliberative function of a jury with that of a board of directors.

The evidence

2.The first applicant was charged upon one count on an indictment with conspiracy to traffic in 4,760 grammes of methamphetamine hydrochloride, the drug commonly known as “ice”.  He was convicted on 23 September 2003 after trial before Nguyen J and a jury, by a majority of 6-1.  He was sentenced to 27 years’ imprisonment.  He has abandoned his application for leave to appeal against sentence and that, accordingly, stands dismissed.

3.The allegation at trial was that the first applicant was the head of a syndicate assisted by the second applicant, who in turn recruited somebody called Wo.  Wo testified under an immunity and was a key prosecution witness at the first applicant’s trial.  The second applicant pleaded guilty.  There was another defendant named Yim who was acquitted.  His role was said to be assisting in the arrangement for the exportation of the drugs and in assisting in packing the drugs.

4.Wo gave evidence of several meetings in which he was given drugs to test with a view to exportation.  Then he and the second applicant helped to strap the drugs onto two couriers with the intention that the drugs were to be taken to Guam for onward exportation to the United States mainland.  The first applicant was said by Wo to have been directly involved in asking him to test the drugs and in asking him to fetch the drugs from the Mainland and in arranging for the couriers to travel to Guam with the drugs.

5.The first applicant did not give evidence at trial but, through the matters put on his behalf, he denied some of the meetings of which Wo gave evidence and denied asking for drugs to be tested or handing over material to Wo and to others in furtherance of the conspiracy.  There was other evidence against the first applicant which took the form of observation of him driving a person, who was not identified, to a travel agency where a booking was made in the name of one of the couriers for a trip to Guam; and also of a visit to a clothes shop from which, it was said, clothing suitable for wearing with the hidden drugs was taken and handed to the couriers.

Directions and deliberations

6.The summing-up in this case commenced on the morning of 22 September 2003 and adjourned at 1 p.m.  For reasons that are not apparent from the transcript, it was not resumed that afternoon, but the next morning.  The jury retired at 11:39 a.m. on 23 September in order to deliberate.

7.Towards the very end of the summing-up, the judge said that following to the jury:

“Now, in relation to the unanimous verdict, members of the jury, you are encouraged to try your best to arrive at a unanimous verdict, in other words, a verdict upon which all seven of you are agreed, one way or the other – guilty or not guilty.  But if after long and careful and conscientious deliberations, you find that all seven of you cannot agree, then in law I can accept from you what we call a majority verdict and that is a verdict upon which at least five of you are agreed, one way or the other.  So it could be 6-1, guilty or not guilty; or 5-2, guilty or not guilty.  That would be acceptable if you cannot arrive at a unanimous verdict.  Anything less, like 4-3, will not be acceptable.  So 4-3 is not an acceptable verdict.  It has to be at least 5-2.  All right?  And you will be asked those same questions about the 3rd accused.

As I told you earlier on, once you start your deliberation, you will have to stay together until such time as you return with your verdicts, and during the time that you are in deliberation, you will be kept in the room upstairs or you can come down here to discuss it if you like, without communication with the outside world.  So before you start your deliberations, my usher will ask you to surrender your mobile phones and pagers to her.  If you have any calls to make, you should make them before you start your deliberation.  If, during your deliberation, you remember that you have to make a particular phone call which is important, then please write it out for my usher and she will make the phone call on your behalf.

If you have any questions or any request to make, for instance, if you have a question to ask me about the law or if you have a request to make of me, for instance, if you want a certain part of the evidence to be read back to you, then Madam Foreman, please write out your request or question on a piece of paper.  The piece of paper will be delivered to me in my chambers and the procedure is, I will have to get all counsel to come back from wherever they may be, discuss the question or the request with them, agree with them how I should assist you, before inviting you to come back to court.  And the point about all that is, if you send me a question or a request, you may have to wait half an hour or 45 minutes for me to get counsel to come back.

Now, members of the jury, I do not know whether you have served on a jury before but serving on a jury – when you have your deliberations – that is, in a sense, very much like a board of directors of a company having a meeting.  In other words, you have to make up your own minds, but you should also listen to the views of your colleagues.  If after you have listened to their views, you feel that you can change your mind – change your original decision – then you should do so, but it does not mean that you have to follow what your colleagues say.  You are entitled to stick by your own opinion but do listen to what they have to say and take them into consideration before making your final decision.

This case, members of the jury, is obviously very important both for the prosecution on behalf of the public of Hong Kong and for the two accused persons themselves so please do not feel that there is any pressure on you to return a quick verdict or to return a verdict by a particular time.  Take all the time that you require.  We will all be here and we will be ready when you are ready with your verdicts.

You may or may not know that if it becomes necessary, sometimes juries stay overnight.  Of course, when they stay overnight, they do not discuss the case the whole night.  They will be asked to retire by a certain hour and we actually have rooms upstairs where juries can retire.  So the point is, do not feel that you have to return a quick verdict.  Take all the time you require.” (Pages 57O-59J).

8.Nothing happened for another ten and a half hours.  At 10:16 p.m. that evening, the judge told counsel that he intended to ask the jury whether there was any possibility of their reaching agreement soon.  There was some discussion as to whether, if they had reached agreement in respect of one of the defendants that verdict should then be taken, the judge expressing the view that “even if they had reached agreement on one, they are quite at liberty to change their minds.”  Counsel seem to have agreed with that.  When the jury returned, at 10:20 p.m., the judge said that there was no pressure on them to return a verdict soon:

“It’s just that you have been out since about 11.40 this morning, so excluding breaks for meals you have been deliberating for about 11 hours, which is quite a long time.  Normally at this time of the evening I would ask the jury (a) whether they have reached agreements and if they haven’t reached agreement I will ask them whether there is any possibility of their reaching agreement soon.

If the answer to both questions is ‘No’, then I would usually at this hour ask them to retire and not over exert yourself and continue with your deliberations tomorrow after breakfast.  But if you say to me, ‘We haven’t reached agreement, but we are hoping to reach agreement soon’, then we will be quite happy to wait, I mean the ‘soon’ can be one hour, or even one and a half hours, but if that is what you tell us then we will be quite happy to wait.

I have actually waited for a jury once up to 1 am because they had said that they would be reaching agreement soon and I didn’t want them to have to spend the evening here.”  (Appeal bundle page 127).

9.The jury intimated that given another hour and a half or so, they thought they could reach agreement but that they had already reached agreement in respect of one of the defendants.  The judge told them that they could go out to discuss whether they would like to deliver a verdict in respect of that one accused or whether they preferred to deliver both verdicts at the same time.  “In other words,” he said “if you tell me, ‘We have reached agreement on’, for example, ‘the 1^st accused and there is no chance of our changing our minds, we have agreed on that’, if you are happy to give us your verdict in respect of that one accused now, we will be happy to accept it.  But if you say to me, ‘No, we don’t want to give it now, there’s just a chance we may want to change our minds’, then we won’t force you to give it and we will take the verdicts on both accused when you are ready.”

10.In the event, the answer to that question was not given, but the jury indicated that they were likely to reach agreement in about an hour and a half and, in their presence, there was further discussion, with one counsel saying that he was a great believer in letting adults make judgments about how tired they were and the judge commenting: “We all know how uncomfortable the rooms upstairs can be …”.  Then, again in the presence of the jury the judge said this:

“All right, Madam Foreman, if you think you will reach agreement in an hour and a half’s time, I won’t ask you about the one defendant who you have reached agreement on.  But please don’t feel that you have to return a verdict, or reach agreement in respect of the remaining defendant in an hour and a half’s time, that’s not a factor at all.  We will wait until 12 o’clock, if by that time you haven’t reached agreement then the simplest thing is we adjourn until tomorrow and you spend the evening here.” (Appeal bundle page 130).

The law

11.Directions drawing the inappropriate analogy between the function of the jury and the boardroom function have been the subject of a number of recent judgments: HKSAR v Chan Ka Man [2005] 1 HKC 162 (Court of Appeal); Tam King Hon v HKSAR [2006] 2 HKLRD 143 (Court of Final Appeal) and Chan Kar Leung v HKSAR FACC Nos. 5 & 6 of 2006, 6 November 2006 (Court of Final Appeal) as yet unreported.  The effect of those cases was to abjure the use of the analogy, on the basis that it detracts from the principle that no juror should come to a decision for the sake of conformity or in submission to pressure by other jurors.  In Tam King Hon, the summing-up was attacked also on the basis of the judge’s use of the phrase “give and take” and reference to collective decision-making.  In that judgment, the Chief Justice whilst saying that the analogy with the function of a board of directors was inappropriate and should be avoided, added at p. 149:

“Whether the use of such an analogy in a particular case renders the conviction liable to be quashed would depend on an examination of the relevant passages in the context of the summing-up as a whole.”

He said as well that the use of the phrase “give and take” on its own was inappropriate, and that a phrase telling the jury that they had responsibility to act collectively was a phrase best avoided.

12.In that case, the Chief Justice also referred to the direction by the judge that a verdict of four to three would not be acceptable and that he could not accept a verdict other than a unanimous one, or one by a majority of six to one or five to two.  The Chief Justice accepted the view expressed in Chan Ka Man that such a direction, without any intimation that it was open to them to disagree, might create a risk of leaving the jury with the impression that disagreement was in no circumstances permissible.

13.In that case, Tam King Hon, the trial judge had also directed the jury along lines that we find in the present summing-up, about the case being important for the public of Hong Kong.  The Chief Justice concluded at p. 155 that in that case:

“… the reference to the case being important for the public and also the defendant does not give rise to the same risk of pressure on the jury as a phrase such as public inconvenience and/or expense.  In the context of the directions in this case, that reference could not be regarded as objectionable.  However, every case in the criminal courts may be regarded as important for the public.  A judge’s reference to a case being important for the public is not of any material assistance to the jury.  And a jury may be puzzled by such a reference as to the particular significance of the case before them and whether the interests of the public may require a conviction.  References to the case being important for the public are best avoided.”

14.In Chan Kar Leung, the most recent of the Court of Final Appeal decisions on these points, the trial judge had delivered himself of the board of directors analogy and had included reference to “a lot of give and take” and to the duty to consider matters “collectively”.  In that case, the Court of Appeal, whilst disapproving of the board of directors analogy, took the view that the analogy was so counter-balanced by sufficient references to individual responsibility as to allow the application of the proviso.  The Court of Final Appeal however pointed out that was not how the proviso operated and that the test was the overall effect of the directions to the jury.  The Court concluded that the directions did not convey the right message and that the errors were serious, and at para. [14] said that:

“Those parts which were right cannot be taken to have cured those parts which were wrong, for the bad was as capable of polluting the good as the good was capable of cleansing the bad.  The wrong parts and the right parts combined to produce a contradictory amalgam apt to confuse the jury in regard to how they should go about their deliberations.  On that vitally important matter, therefore, the jury had been misdirected.”

This case

15.Mr Zervos for the respondent asserts that in the context of the summing-up as a whole, the reference to the board of directors in this case did not amount to a misdirection, noting in particular that there was no reference to “give and take” or to a collective approach, and he suggests that the particular direction as a whole is satisfactory not least because told the jury that they did not have to follow what their colleagues said. 

16.We do not, with respect, agree.  We note, in particular, that having referred to the function of the jury as being “very much like a board of directors of a company having a meeting”, the judge did tell them that they were not obliged to follow their colleagues but, that said, he added: “you are entitled to stick by your own opinion.”  It was not, with respect, a question of entitlement , but one of duty: in other words if, having listened to the views of others, a juror was not persuaded to change his mind, then he was duty-bound to stick to his own conclusion.

17.In addition to this misdirection, there are other unsatisfactory aspects of the summing-up and of the deliberation procedure.  This jury returned a majority verdict having deliberated for about thirteen hours, until midnight, having been told that only a unanimous verdict or a majority of at least 5-2 would do.  In Chan Kar Leung, the court held that in that case, there was no danger of the jury getting the impression that they had to go on deliberating indefinitely.  The question must be sensitive to the case and in this case, although we agree that the direction was not in itself fatal, it was not satisfactory.  Furthermore, we do find it particularly difficult to understand why – even without apparent objection by counsel – this jury was allowed to remain ensconced in the jury room for so very long without any consideration given to an earlier break for the night.  This was, within our experience, highly unusual and we note in particular that when the jury was brought back at about 10.30 p.m. and told of the possibility of staying in the building overnight, the comment was made by the judge as to how uncomfortable the rooms were and, further, that the judge had once waited up for a jury until 1 a.m.  Comments of this kind should simply not be made for they are too redolent of pressure, and accompanying suggestions that the jury are not under pressure will not necessarily cure the pressure that is in fact created.  It may be that the fact that counsel in the case were overtly content for the jury to continue would render this ground not of itself sufficient to warrant overturning the conviction, but we nonetheless disapprove of the fact that a jury was left for ten and a half hours with no inquiry whatsoever as to progress, and with no hint to them as to when they might find any relief from their deliberations, and the comments to which we refer were singularly inappropriate. 

18.As a general rule of thumb, juries should not be deliberating after 8 p.m.: see paragraph 15 of Chan Kar Leung.  What steps a judge must take, and when, is case and situation sensitive, but we are satisfied that in this case nothing justified simply leaving this jury sitting without a break for so long without any inquiry being made of them, or any indication to them as to how matters might progress.  Added to that was the comment by the judge that the case was “very important both for the prosecution on behalf of the public of Hong Kong and for the two accused themselves.”  In Tam King Hon at page 154, para. [37] the Chief Justice said that comments about a case being important for the public ought to be avoided, though in that case the reference was not objectionable.  We note in that case that the comment was directed to the case being important to the public, as well as to the defendants, whilst in this case (“The case … is obviously very important for the prosecution on behalf of the public of Hong Kong and for the two accused themselves”) the judge’s comment was to equate the public interest with the prosecution, almost as if the interests of the defendants were something apart.  We are sure that that was not intended by the judge, but it was nonetheless loose language which can have that implication.  The public interest is as much served by the proper presentation and consideration of a defence as it is by proper consideration of the prosecution case.

First applicant’s conviction: conclusion

19.There were, in our judgment, several misdirections and inappropriate comments in the summing-up, the central one being the analogy with the function of a board of directors; and they combine to render the conviction unsafe and unsatisfactory.  We have been invited by the respondent to apply the proviso.  We do not think it appropriate to do so and, accordingly, we grant the first applicant leave to appeal against conviction and, treating the hearing of the application as the appeal, the appeal is allowed and the conviction and sentence is quashed.  We shall hear counsel on the question of a retrial.

20.We would only add a comment as to the time suggested to the jury for securing the return of counsel in the event of a question being raised by the jury in the course of deliberations.  It was suggested by the judge that it might take half an hour or 45 minutes to secure the return of counsel to the court in the event of a question from the jury.  That, with respect, is not an acceptable time to keep a jury waiting for the return of counsel.  It must be assumed, if a jury submits a question, that the question is important for the furtherance of their deliberations, and counsel should either be in the court precincts or within short time reach in case matters need to be canvassed.

The second applicant and sentence

21.The second applicant is unrepresented and he seeks leave to appeal against sentence.  At the time of sentencing he was aged 36 years and had a string of previous convictions although none related to drugs.  He played a leading role in the conspiracy, not quite as prominent as that of the first applicant but, as the judge found, “he was certainly at a higher level than the other defendants.”  He was instrumental in booking the passage to Guam for the two couriers.  He was given samples of the drugs by the first applicant so that they could be tested for quality and some of the consignment was stored in his flat.  He helped package the drugs into smaller packets and on 3 August 2002, he went to the hotel where the couriers were and he brought them clothes.

22.The judge adopted a starting point of 25 years’ imprisonment and giving a one-third discount for his plea of guilty, sentenced him to a term of 16 years and eight months’ imprisonment.  The starting point is to be contrasted with one of 27 years’ imprisonment in the case of the first applicant.

23.This applicant prays in aid his early admission to the police of his complicity and the fact that on the first day of trial he pleaded guilty.  These are factors that were taken into account in the substantial reduction afforded from the starting point.  He complains in particular that the third defendant pleaded guilty only on the ninth day of trial, yet the judge took a starting point in his case of 23 years’ imprisonment.  What the applicant does not refer to is the ultimate sentence imposed on the third defendant, which was one of 16 years and four months’ imprisonment, thus reflecting a reduction of less than one-third on account of the plea of guilty, the judge giving due recognition to the fact that the plea came late.

24.Given the enormous quantity of drugs involved, and the international aspect of the offence, as well as the key role played by this applicant, the starting point of 25 years’ imprisonment was not excessive.  The reduction on account of the plea of guilty was appropriate, and there is no basis upon which we could properly interfere with the sentence.  Accordingly, his application for leave to appeal against sentence is dismissed.

Mr Kevin P Zervos, SC SADPP & Mr Chiu Wai-tin, GC of Department of Justice for Respondent

Mr E C Mumford, SC and Ms Valerie Lim instructed by Messrs Jal N. Karbhari & Co. for D1(Mak Wing Cheung)

D2 (LING Kai-man), in person