Re Crown

In Re: Attorney General's
Reference No. 2 of 1986

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HEADNOTE

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(i) There is a right in a jury to acquit an accused at any time after the close of the Crown's case on the whole or any of the accounts in the indictment.

(ii) After the close of the Crown's case the judge must first consider whether there is a case to answer. If he concludes that there is he has no duty to advise the jury of this right, though he retains the power to do so. The power should be exercised only in the rarest cases and after receiving submissions from counsel.

(iii) On the fact in the present case the course taken was not a proper exercise of the power and the procedure adopted was in error.

(D.S. Punter)

IN THE COURT OF APPEAL

In Re: The Attorney General's
Reference No. 2 of 1986
(Section 81D Criminal
Procedure Ordinance)

Coram: Silke, V.-P. , Hunter & Power, JJ.A.

Date of Hearing: 12th May 1987

Date of Judgment: 22nd June 1987

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J U D G M E N T

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Silke, V.-P.:

1. By reference under Section 81D of the Criminal Procedure Ordinance, Cap.221, - “the Ordinance" - the Attorney General seeks the opinion of this Court on three points of law. These are:

(a) Does the jury in Hong Kong have the right to acquit an accused at any time after the close of the case for the Crown on the whole or any of the counts in the indictment?

(b) If so, in what circumstances does the Trial Judge have, the power or duty to advise the jury of this right, and in what manner should it properly be exercised?

(c) On the facts of the present case, and in the light of the procedure adopted, was it a proper exercise of that power?

The facts

2. The Respondent, who did not wish either to appear or to be represented upon this reference, stood trial before Barnes J. and a jury on a single count of robbery.

3. On the 23rd February 1986, four men, each of them hooded with a brown paper bag, entered the premises of the Kwong Chen Goldsmith and Jewellery Company, Castle Peak Road. One of the men had a pistol and the others variously had hammers and screwdrivers. They stole from the company jewellery to the value of $900,000. Outside the premises was a stolen car. One man had remained in that vehicle. The robbers left the shop, got into the car and departed. Very soon, in the course of their journey, they ran into the back of a bus. After the crash, the car went on and entered, at high speed, the car park of a building at Telford Gardens. Three men were seen to leave the car and escape.

4. The police arrived rapidly upon the scene both at the jewellery company and at the Telford Gardens' car park.

5. The car was detained and searched. Inside it were found some of the trays of jewellery which had been taken from the company, bloodstained seat covers, which contained some fiber material, and paper bags. Those bags were in reality large envelopes with eyeholes made in them. One was torn into two halves. One half was recovered from the nearside rear seat, the other from the rear offside seat.

6. On the 24th March, the Respondent was arrested in a flat. That flat consisted of two bedrooms, a living room and the usual offices. The Respondent and a woman were found asleep in one of the bedrooms and two men were found asleep in the second bedroom. Yet another man was found asleep in the living room.

7. A sweater was found in the bedroom in which the two males were asleep.

8. Forensic evidence was called to show that one half of the torn paper bag contained a thumb print. That thumb print was the Respondent's. The evidence further showed that fibers from the sweater matched fibers left upon the car seat covers of the front passenger seat.

9. Upon arrest, the Respondent made statements denying any knowledge of the paper bag. He was, not then informed of the finding of his thumb print.

10. None of this evidence was in dispute. The trial was a short one, there being substantial areas of agreed fact in evidence under the provisions of Section 65C of the Criminal Procedure Ordinance. Where oral evidence was called the witnesses were generally, and by agreement, led. There was little cross-examination but the finger print expert agreed that the print here was such as could last for a long time, even years. Traces of other prints were found upon the paper bag but these were not of sufficient quantity or quality for identification purposes. The witness agreed that the fact of the impression being upon the bag did not mean that the person who made it was the last person to touch that bag.

11. This was the state of the evidence for the prosecution at the close of their case.

12. When the prosecution closed, the trial judge immediately addressed the jury at some length. He informed them that the prosecution case could “not get any better” from thereon. He indicated to them that the only real question which lay for their consideration was whether the evidence established that the Respondent was one of the robbers. He drew their attention to the evidence relating to the thumb print and the sweater and, in particular, to the place where the sweater had been found. He then went on:

"Now in this particular case, since the woolen garment on the evidence does not appear to have been his, was, not found in his room but was found in a part of the flat which was occupied by somebody else, then there is evidence which suggests that one of the robbers may have been living in that flat. If that was so, is it or could it be a reasonable explanation for the presence of the thumbprint on that paper bag that he was in fact living in the place where one of the robbers was, and that therefore the finding of his fingerprint on that paper bag doesn't necessarily mean that he must have been in that car that day committing or helping to commit that robbery."

13. He accepted that it was most unusual to address the jury in that way and at that time but he told them that, if they took the view that the evidence as it stood:

"(it) could not convince you beyond a reasonable doubt that he was one of the robbers, then you are entitled to stand up and say to me ‘We do not want the case to continue any further, we find the defendant not guilty.’"

14. He gave them general directions upon their duty - this was a form of mini summing up - and he went on that they could interrupt the trial to find the Respondent not guilty but they could not at that point interrupt the trial to find him guilty.

15. The Court then took the mid-morning break and when the jury left, there was discussion between counsel and the judge on the course he had taken, stigmatized by counsel then appearing for the Crown as being "a most unfortunate procedure". It clearly emerged from that which transpired in the absence of the jury that the trial judge was of the view that the evidence disclosed a prima facie case albeit a weak one.

16. When the jury returned, the foreman informed the judge that:

"On the evidence we have heard we cannot find the defendant guilty."

The Respondent was then discharged.

17. Mr. Findlay, with him Mr. Bruce - and we have had the able assistance of Miss Fi-lan Chua appointed as Amicus Curiae by direction of this Court under Section 81D(2)(c) of the Ordinance – asks us to find that there is no apparent power or duty given to a judge in Hong Kong after the close of the Crown's case to inform the jury of its right to acquit an accused, or to invite or encourage them to do so, unless he has first held that there is no case to answer.

18. Mr. Findlay has found himself in some difficulty in providing us with the provenance of a judge's right to invite a jury to stop a case. There are few authorities on the matter, possibly because, prior to the enactment of legislation such as that giving-the right to the Attorney General to refer questions of law to a Court of Appeal for its opinion, few cases of this nature would ever have come before the Court for discussion.

19. The first reported reference is in Ramsden v. Ramsden[1] where Lord Merriman, P. – and this was a matrimonial proceeding originally heard before Justices - said at p.624:

"Although I cannot put my hand on any authority, counsel for the husband is able, from his own experience, to support my recollection, and I am prepared to say on my certain knowledge that this court on more than one occasion has laid down, in similar circumstances, that justices, like a judge or a jury, are perfectly entitled to say: 'We have had enough of this case, and we do not think anything of it', without being said to have misdirected themselves in law. But I am confident that at the same time we have coupled with that the advice that it is usually better to wait to hear both sides in matrimonial cases before coming to a conclusion."

20. In R. v. Young[2] Lord Parker, at p.720. had this to say:

"Before leaving the case, the court would like to say that this appears to be yet another case where difficulties have arisen through a practice whereby judges invite juries to stop a case if they feel the prosecution case has not been proved. "

Young² was a case where, at the conclusion of all the evidence, the trial judge invited the jury to return a verdict of not guilty without waiting for the speeches of counsel or his summing up. In response to the invitation; the foreman indicated that the jury were not minded to take that view. The trial continued. Counsel addressed the jury and the judge began his summing up. The trial was then adjourned over a weekend. On the following Monday when the summing up was completed the foreman, without consulting the other members of the jury, stated that they had agreed upon a verdict and that they found the defendant guilty. When asked if they had made their minds up before coming into Court, the foreman applied in the affirmative.

21. Lord Parker went on:

"It may be that the time has come - the court does not desire to rule on it - when this practice should be only rarely if ever used, and that judges should more often take the responsibility themselves of saying to the jury that it is not satisfactory evidence upon which they could convict, and accordingly direct an acquittal."

22. In Mansfield[3] at p.281, Lawton L.J. set out the history of the practice. He made reference to Young² and its disapproval of that practice and then spoke of the repeal in 1966 of the 1907 Criminal Appeal Act. The 1966 Act brought into existence a new basis for allowing an appeal in a criminal case, the issue being whether the verdict was unsafe or unsatisfactory. He went on to say that it was only after this enactment that the practice began at the Bar of inviting the judge at the end of the prosecution's case to say that, on the prosecution’s evidence, it would be unsafe for the jury to convict and accordingly the judge ought to withdraw the case from the jury.

23. In Falconer-Atlee[4] , Roskill L.J., in a passage criticised as being per incuriam in paragraph 4-389 of the 42th Edition of Archbold, accepted that there was such a practice for he made reference to the Court of Appeal having repeatedly said in recent years that the practice should not be followed. He went on at p.357:

"If a judge thinks that the case is tenuous, then, even though there is some evidence against the accused person, the judge, if he, thinks it would be unsafe or unsatisfactory to allow the case to go to the jury even with a proper direction, should take upon himself the responsibility of stopping it there and then. If the judge is not prepared to stop the case on his own responsibility, it is wrong for him to try and cast the responsibility of stopping it on the jury. "

24. With great respect we are of the view that what Roskill L.J. said tends to confuse two propositions: the invitation to the jury to acquit, which can only arise when the judge is of the view that he cannot properly stop the case and the direction by the judge to them to acquit.

25. In Attorney General v. Kwan Ngan Chung[5] - a Magisterial Appeal - O'Connor J. was considering the stopping of a case by a magistrate at the conclusion of the prosecution evidence.

26. Having considered Young[2] and Ramsden v. Ramsden[1] he concluded his judgment on this aspect by saying:

“A magistrate should be slow to stop a case as judge of fact as distinct from finding no case as judge of law. The exercise of the power is liable to give the impression of an arbitrary decision. Its exercise is only rarely, if ever, an appropriate method of bringing a prosecution to an end.”

While the questions upon which the Attorney General seeks the opinion of this Court relate to trials by jury, trials before a single judge, be he a Judge of the District Court or a magistrate, have relevance and we would, with respect, adopt the pass age from the judgment of O'Connor, J. just cited as setting out the correct principles.

27. The principles applicable to finding no case to answer are now well settled. In England Galbraith[6] and Haw Tua Tau[7] are the leading authorities and in our jurisdiction, Attorney General v. Li Nai Ho[8] and The Queen v. Ho Kam Sun[9] are relevant.

28. Lord Diplock’s speech in Haw Tua Tau7 at p.151 is particularly relevant both to the issues here and to the no case principles generally.

29. He said:

"The proper attitude of mind that the decider of fact ought to adopt towards the prosecution’s evidence at the conclusion of the prosecution’s case is most easily identified by considering a criminal trial before a judge and jury, such as occurs in England and occurred in Singapore until its final abolition in capital cases in 1969. Here the decision-making function is divided; questions of law are for the judge, questions of fact are for the jury. It is well established that in a jury trial at the conclusion of the prosecution's case it is the judge's function to decide for himself whether evidence has been adduced which, if it were to be accepted by the jury as accurate, would establish each essential, element in the a11eged offence: for what are the essential elements in any criminal offence is a question of law. If there is no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove any one or more of those essential elements, it is the judge's duty to direct an acquittal, for it is only upon evidence that juries are entitled to convict; but, if there is some evidence, the judge must let the case go on. It is not the function of the jurors, as sole deciders of fact, to make up their minds at that stage of the trial whether they are so convinced of the accuracy of the only evidence that is then before them that they have no reasonable doubt as to-the guilt of the accused. If this were indeed their function, since any decision that they reach must be a collective one, it would be necessary for them to retire, consult together and bring in what in effect would be a conditional verdict of guilty before the accused had any opportunity of putting before them any evidence in his defence. On the question of the accuracy of the evidence of any witness, jurors would be instructed that it was their duty to suspend judgment until all the evidence of fact that either party wished to put before the court had been presented. Then and then only should they direct their minds to the question whether the guilt of the accused had been proved beyond reasonable doubt."

30. The position in Australia is somewhat different for there in Prasad[10], the majority of the Court of Criminal Appeal accepted that a judge has a discretion to invite the jury to acquit at any time after the close of the prosecution's case. If this ruling is followed, it can lead, as indeed it did in Young[2], to a very compicated situation. It should however be bore in mind that also in Prasad[10] it was clearly stated that once a Court determines as a matter of law that the evidence has sustained the sufficiency to constitute a case to answer, the Court should go on with the case, King C.J. saying at p.47:

"If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the facts. That, as it seems to me, would be contrary to law.": and see Ling[11].

31. While Mr. Findlay would dearly like, for he finds it conceptually abhorrent, to have us hold that there is no right in a judge to invite a jury to stop a case, he cannot bring himself to go to that extreme. If having found that a prima facie case exists, and it must be remembered that the basis for this is that a properly directed jury could, not would, convict, and a defendant gives no evidence there is nothing to inhibit a jury from acquitting him for the onus of proof positive remains upon the prosecution. Equally there is nothing to prevent a trial judge from making strong comment and indicating to the jury the course that is open to them though of course it will be entirely a matter for the jury as to whether they take that course or not.

32. A jury retains the right to inform a judge that it wishes to hear no more of the evidence and acquit after the prosecution's case has closed.

33. We think the effect of the authorities can be summarised thus:-

(1) any system which entrusts the fact finding function to a particular group of persons, e.g. a jury or lay justices, has difficulty in denying that, body the right to say at the conclusion of one side's case, in Lord Merriman's words:-

"We have had enough of this case, and we do not think anything of it."

(2) This right of the jury to stop the case on the facts is quite different from the right or duty of a judge to stop the case-as a matter of law

"If there is no evidence on which a jury properly directed could properly convict."

per Lord Lane C.J. in R. v. Galbraith[6]. It follows that the question whether a judge should remind a jury of its right can only arise after he has decided or ruled as a matter of law that there is a case to answer because there is some evidence fit to go to the jury.

(3) Notwithstanding the hazards and the trenchant criticisms of the practice in England, we do not think it correct to say that a trial judge should never take this course: but that he should only do so in the most exceptional case. For example he might we think consider it where the prosecution case is almost in ruins; where the evidence is close to but has not quite reached what Lord Diplock called the “inherently incredible", How Tua Tau[7] and where the point is very short and simple and could be put to the jury in a few sentences. Conversely if it cannot be so put, and a fortiori if anything approaching a mini summing up would be necessary, it is clearly not an appropriate case.

34. Given that a discretion to remind the jury of its power exists, and given that their discretion should be exercised "not never but hardly ever", how then should a judge set about its exercise?

35. We are firmly of the view that if a trial judge contemplates taking such a course then he should and must give the parties before him an opportunity to be heard before he proceeds along it. It is clear that this should be done in the absence of the jury - if the defence decide to make a submission of no case, the hearing of that is in the absence of the jury, so much the more so should be any discussion relating to an invitation to a jury to acquit. Only if prosecuting counsel is then unable to advance cogent reasons against the course would it normally be wise for the judge to pursue it.

36. These propositions we think to be self-evident and to require no authority.

37. To turn now to the final question, that is on the facts of the present case and in the light of the procedure adopted, was it a proper exercise of the power to invite the jury to stop the case? The answer in out view is no, it was not. First, there was a prima facie case. The evidence in relation to the sweater was ambivalent but the fact of the thumb print on the bag was something which called for an explanation. It may be that the Respondent would have been in a position to offer an explanation which would have satisfied the jury. It may be that, had he remained silent, the jury would have come to a verdict of acquittal on their consideration of the quality of the prosecution's evidence having been firmly directed upon the burden of proof. But the opportunity should have been vouchsafed to them. If the trial judge wished to indicate to the defence that he was receptive to a no case submission that would have been in order and the opportunity to be heard would have been given to both sides. For the trial judge to address the jury as he did without giving either the prosecution or the defence an opportunity to be heard cannot be right.

38. Our answers to the questions asked are:

(a) Yes, there is a right in a jury to acquit an accused at any time after the close of the Crown's case on the whole or any of the counts in the indictment.

(b) After the close of the Crown’s case the judge must first consider whether there is a case to answer. If he concludes that there is he has no duty to advise the jury of this right though he retains the power to do so. The power should be exercised only in the rarest cases and after receiving submissions from counsel.

(c) In the light of the facts of the present case the course taken was not a proper exercise of the power and the procedure adopted was in error.

J.K. Findlay Esq., Q.C. with A.A. Bruce, Esq. for Attorney General.

Miss Fi-lan Chua, Amicus Curiae.

[1]  [1954] 2 All E.R. 623

[2]  [1964] 1 W.L.R. 717

[3]  [1977] 65 Cr. App. R. 276

[4]  [1974] 58 Cr. App. R. 348

[5]  Criminal Appeal No. 1158 of 1981 (unreported)

[6]  [1981] 2 All E.R. 1068

[7]  [1982] A.C. 136

[8]  [1980] H.K.L.R. 792

[9]  Criminal Appeal No. 695 of 1983 (unreported)

[10]  (1979) 2 A. Crim. R. 45

[11]  (1981-1983) 6 A. Crim. R. 429