Lam Chi Kwong v. HKSAR

FACC No. 2 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2008 (CRIMINAL)

(ON APPEAL FROM CACC NO. 394 OF 2000)

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Between:

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J U D G M E N T

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Chief Justice Li :

1.I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ :

Issues

2.Had the jury been misdirected?  If they had, should the proviso to s.83(1) of the Criminal Procedure Ordinance, Cap.221, be applied to dismiss the appeal nevertheless?  Those are the issues in this appeal against a murder conviction.  The appellant complains that the jury had been misdirected.  His complaints are against the directions to the jury on (i) how they should go about their deliberations and on (ii) the position if they were unable to achieve the requisite majority i.e. a majority that constitutes a verdict.  The prosecution contends that the jury had been properly directed on both of those matters, so that there is no misdirection on the basis of which to allow the appeal. 

3.Alternatively, the prosecution submits that the appeal should be dismissed even if the jury had been misdirected on either or both of those matters.  It should then be dismissed, the prosecution asks, by applying the proviso.  The appellant submits that it would not be appropriate to apply the proviso.  He asks us to allow the appeal, quash his conviction and order a retrial.

Circumstances

4.Shortly stated, the circumstances of this tragic case are these.  On 20 November 1999, when he was in his early twenties, the appellant stabbed his former girlfriend to death.  At his trial in the High Court (Nguyen J and a jury) for her murder, the appellant testified that he had sought her out and, displaying a knife, threatened to stab himself to death unless she took him back.  In the result, still on his own testimony, he did not stab himself at all and, instead, stabbed her to death.  He accepted that he had killed the victim unlawfully.  But he denied that he had done so with intent to kill or cause really serious injury.  And he raised the issue of provocation.

5.So it was for the prosecution to prove intent to kill or cause really serious injury and to negative provocation.  If the prosecution failed to prove such intent, the appellant’s offence would be manslaughter only rather than murder, being manslaughter of the kind commonly called unlawful act manslaughter.  And even if the prosecution proved such intent, the appellant’s offence would still be manslaughter only rather than murder if the prosecution failed to negative provocation.  For what would otherwise be murder would then be reduced to manslaughter only by the operation of the doctrine of provocation.

6.At 12:40 in the afternoon on 12 September 2000, the jury (which consisted of 7 members) retired to consider their verdict.  They returned at 5:50 that afternoon and unanimously convicted the appellant of murder.  As prescribed by law, he was sentenced to life imprisonment.

7.On 1 August 2001 his conviction for murder was affirmed by the Court of Appeal (Stuart-Moore Ag CJHC and Keith and Woo JJA).  At the hearing in that court, the appellant’s then counsel felt unable to advance any grounds of appeal on his behalf.  Delivering the judgment of that court, Keith JA said that they had carefully read the whole of the summing-up to satisfy themselves that there were no grounds of appeal, and that they had not been able to discern any.

8.Some 7 years passed.  And then, on 14 January 2008, the appellant took out a notice of motion seeking leave, out of time, to appeal to the Court of Final Appeal against his conviction.  By his affirmation in support of that application, he said that it was in July 2007 that he first learnt of the then recent cases on the sort of directions of which he now complains, learning of them from a fellow prisoner.  He also said in that affirmation that he applied for legal aid on the 20th of that month and was granted legal aid on 6 December 2007.

9.On 28 April 2008 the Appeal Committee granted the appellant leave to appeal to the Court of Final Appeal against his conviction.  Such leave was granted under the “substantial and grave injustice” limb of s.32(2) of our statute.  It was granted to enable the appellant to challenge his conviction on the grounds that the trial judge had misdirected the jury on (i) how they should go about their deliberations and on (ii) the position if they were unable to achieve the requisite majority.

Deliberations directions

10.The directions which the trial judge gave the jury on how they should go about their deliberations (“the deliberations directions”) were as follows :

“  The workings of a jury are quite similar to, for instance, the directors of a company having a meeting.  In other words, each of you will have to make up your own minds, but you should also listen to the views of the other members of the jury and see after you have listened to their views whether you are prepared to change your own view. There is a lot of give and take, members of the jury. You should consider the views of other people, but you should not just blindly follow their views because you should make up your own minds.  So, as I said, if after careful and conscientious discussion you cannot be unanimous, then we can accept a majority of 6:1 or 5:2.  So that is the second question you will be asked, is the verdict unanimous? The answer will be either yes or no.”

Directions on the position if the requisite majority is not achieved

11.Some of the directions which the trial judge gave the jury on the position if they were unable to achieve the requisite majority (“the position directions”) were given immediately before the deliberations directions, and were as follows :

“ When you return with your verdict, Mr Foreman, you will be asked certain questions by my clerk which I have set out on the form which my clerk will now let you have a copy of.  I am letting all members of the jury have a copy of this, so that you know what questions the foreman will be asked when you come to court, so that you can agree on what the answers to these questions should be.

Question 1 : On the count of murder against the accused, have you reached a verdict?  The answer will be either yes or no.  If no, then I will deal with the matter.  If yes, then you will be asked, is the verdict unanimous?

Now, members of the jury, before we carry on with this I should tell you this : that the law encourages you to be unanimous, in other words, all seven of you are agreed either way, guilty or not guilty, of murder or manslaughter.  If after very careful and long and conscientious discussion all seven of you cannot agree, then the law will accept a majority verdict from you.  A majority verdict, members of the jury, is either a majority of 6:1 or 5:2. A verdict of 4:3 is not acceptable, so it has to be either unanimous, or 6:1 or 5:2.”

12.After that the trial judge gave the jury the deliberations directions (which I have already quoted).  Immediately after having done so, he gave them the remainder of the position directions, saying this to them :

“ If no, you will be asked by what majority, and then you will be asked what is your verdict.  If the verdict is not guilty of murder, then the foreman will be asked, have you reached a verdict on the alternative count open to you, that is manslaughter?  Again, you will be asked, is the verdict on manslaughter unanimous? The answer will be either yes or no, if no, then by what majority.  Then you will be asked, what is your verdict.  If you say that the verdict is he is guilty of manslaughter, you will be asked the last question, do you find the defendant guilty of manslaughter because (1) he did not have the intent to kill or to cause really serious bodily harm, or because (2) provocation.

…

If you have any questions to ask me in the course of your deliberations, then please write it down on a piece of paper.  For instance, if you wish to be reminded of a piece of evidence that you consider to be important and which you have forgotten or there is some legal matter that you want to ask me about, then please write it down on a piece of paper and hand it to my usher.  She will then deliver it to me. I will then have to get counsel to come back to court and discuss with them how I should answer the question or how I should assist you, and then only after that will I call you back into court to deal with the question.  The point about all that, members of the jury, is if you should write a question or a request to do something, it may have to take some time, about half an hour or even more before we can invite you to come back to court, so please do not think that anything is strange if you have to wait a while.

As I said to you yesterday, once you retire you will have to be kept together and you cannot have any communications with the outside world, so I will ask you, please, to surrender your mobile phones and your paging machines to my usher.  If you wish to make any telephone calls while you are deliberating which is important, please write it down on a piece of paper and my usher will make the telephone call for you.

…

So please take all the time that you require, members of the jury, which is why I am asking you to go out today instead of on Thursday, because on Thursday Mr Lui has to go to Beijing and so you will not have all the time that you require. 

This case is obviously very important, even though it has not lasted very long.  It is important to the prosecution who says that this defendant is guilty of murder, it is important to the defendant because he says that he did not murder this girl and, at worst, he is only guilty of manslaughter.  It is very important for him and so please do not feel that you are under any pressure of time to arrive at a verdict quickly.  Please take all the time that you require to discuss all relevant matters before you arrive at your verdict.”

Authorities

13.On the question of whether this jury had been misdirected, there are three authorities to consider.  Each is a decision of this Court.  They are (i) the drug trafficking case of Tam King Hon v. HKSAR (2006) 9 HKCFAR 206, (ii) the false accounting case of Chan Kar Leung v. HKSAR (2006) 9 HKCFAR 827 and (iii) the kidnapping case of Pun Luen Pan v. HKSAR [2008] 2 HKLRD 404.  The trial judge in the present case was the trial judge in each of those cases.

14.As is usual in Hong Kong, the jury in the present case consisted of seven jurors.  So did the jury in Tam’s case and the jury in Pun’s case.  In Chan’s case the jury consisted of nine jurors.  The majority that constitutes a verdict is not less then seven if there are nine jurors, not less than six if there are eight jurors and not less than five if there are seven jurors or six jurors.  If there are only five jurors the verdict must be unanimous.  All of that is laid down in s.24 of Jury Ordinance, Cap.3.

Tam King Hon v. HKSAR (2006) 9 HKCFAR 206

15.This line of authority begins with Tam’s case in which the Chief Justice, with whose judgment the other members of the Court agreed, dealt with how a jury should deliberate and the position if the requisite majority is not achieved.  As to how a jury should deliberate, he said at pp 213E-216A :

(i)  that drawing an analogy between the way in which a jury should function and the way in which a board of directors functions is “inconsistent with the duties of a juror”;

(ii)  that “[t]he use of the phrase ‘give and take’ on its own is inappropriate”; and

(iii)  that “phrases using the word ‘collective’ are best avoided”.

16.The directions which the jury in Tam’s case received on those matters were these :

“... Now, members of the jury, when you retire to consider your verdict, I do not know whether any of you has ever served on a jury before, but if you have not, then I can tell you that when a jury works together, it is very much like a board of directors of a company having a meeting.  And the foreman will chair the meeting and guide the direction that discussions should take.

The thing about working as a part of a jury is, you have to make up your own mind about the guilt or innocence of the defendant. But it does not mean that you should not listen to the views of your other colleagues. Now, you should listen to the views of your other colleagues, and after you have listened to their views, if you feel that you can change your original opinion, because you have been persuaded by your colleagues, then by all means, do so. But if you feel that you still want to maintain your original decision, you do not want to change your view, you would be quite entitled to do that.

So it is very much a question of give and take. You are not obliged to follow the rest of the jury, you are entitled to maintain your own view of things.  Now, what we hope that you will be able toaccomplish is, to return unanimous verdicts.  In other words, verdicts on which all seven of you are agreed, either guilty or not guilty.  But if, after careful and long and serious and conscientious discussion, you find that all seven of you cannot agree despite many hours or many minutes of careful discussion, then the law allows me to accept from you what we call majority verdicts.

A majority verdict, members of the jury, is either six to one, one way or another, or five to two one way or another. Anything less would not be acceptable; so four to three will not be acceptable. So I would ask you to firstly try if you can be unanimous; if you cannot, then I can accept six to one or five to two, either way, guilty or not guilty, from you.”

17.As to the directions which the jury in Tam’s case received on the position if the requisite majority were not achieved, this is what they were told :

“ Now, what we hope that you will be able to accomplish is, to return unanimous verdicts.  In other words, verdicts on which all seven of you are agreed, either guilty or not guilty.  But if, after careful and long and serious and conscientious discussion, you find that all seven of you cannot agree despite many hours or many minutes of careful discussion, then the law allows me to accept from you what we call majority verdicts.

A majority verdict, members of the jury, is either six to one, one way or another, or five to two one way or another.  Anything less would not be acceptable; so four to three will not be acceptable.  So I would ask you to firstly try if you can be unanimous; if you cannot, then I can accept six to one or five to two, either way, guilty or not guilty, from you.”

18.In holding that the jury in Tam’s case had been misdirected, the Chief Justice said this at p.219F-I :

“ The use of the analogy of the board of directors in describing how a jury functions was inappropriate.  Later on, the judge stated that : ‘So it is very much a question of give and take’, although it was followed by the reminder that a juror is not obliged to follow the rest of the jury and is entitled to maintain his own view.  In the circumstances of this case, even taking into account that reminder, there was a risk that the jury may have tied the reference to ‘give and take’ to the board of directors analogy and as a result, may have approached their task like a board of directors with give and take, believing that it was permissible to defer to the majority view for the sake of conformity.  There then followed the unsatisfactory direction of the unacceptability of a four to three split.  Considering the summing-up in the present case as a whole, it should be concluded that the jury was misdirected as to how they should go about deliberating as a jury.”

The convictions were quashed and a retrial was ordered.

19.As appears from what I have quoted from the summing-up in the present case, the judge told the jury that the case which they were trying was “very important”.  Therefore, before turning to the next authority, it should be mentioned that what the judge had told the jury in Tam’s case also included telling them that it was “an important case, important for the public of Hong Kong and also very important for the defendant”.  As to that, the Chief Justice said this at p.219D-E :

“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.”

Chan Kar Leung v. HKSAR (2006) 9 HKCFAR 827

20.All of the principles laid down in Tam’s case were applied in Chan’s case.  At the conclusion of the hearing, we quashed the convictions and ordered a retrial.  We reserved our reasons, which were later handed down in a judgment given by me for the Court.  As I have already mentioned, the jury in Chan’s case consisted of nine members.  On the position if the requisite majority were not achieved, they were told that “anything less than 7-2 would not be acceptable”.  Dealing with that (at p.831G-H), we said (i) that there was no real danger of the jury getting the impression that they had to go on deliberating indefinitely and (ii) that, while not ideal, the direction in question was not fatally flawed.

21.The fatal flaw in the summing-up lay in the directions which the jury received on how they should deliberate.  As to this, they were told :

“ Now, members of the jury, when you retire to consider your verdict you will of course, be discussing the evidence amongst yourselves and then deciding on what the verdict should be.  If you have never served on a jury before, members of the jury, it is like, I suppose, the board of directors of a company meeting.  In other words, you have to make up your own mind but you will also have to listen to the views of your colleagues to see whether after you have heard their views, you want to change your original decision.  You are not bound to follow what your colleagues say.  You should make up your own mind but you should also listen to the views of your colleagues.  There is, of course, a lot of give and take in these discussions before you arrive at your verdict.

Each of you 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, and 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 your colleagues and if an individual is persuaded that there has been a flaw, a mistake in your own thinking you must be prepared to concede that there is such a flaw. That 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, you cannot reach agreement, then you must say so.”

22.Having quoted those directions to the jury, we said this at p.833B-D :

“ As can be seen, those directions are open to the threefold criticism that they (i) draw the board of directors analogy which is inconsistent with the duties of a juror, (ii) use the inappropriate phrase ‘give and take’; and (iii) use the best avoided word ‘collectively’.”

And then we said this at p.834D-F :

“ Did the overall effect of the trial judge’s directions to the jury on how they should go about their deliberations convey the right message to them in that regard?  In our view, those directions did not do so.  The errors which those directions contained were serious.  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.”

Pun Luen Pan v. HKSAR [2008] 2 HKLRD 404

23.At the conclusion of the hearing in Pun’s case, we quashed the convictions and ordered a retrial.  We reserved our reasons, which were later handed down in a judgment given by Sir Noel Power NPJ for the Court.  There was no misdirection on how the jury should deliberate.  But the directions on the position if the requisite majority is not achieved went beyond those in Tam’s case and Chan’s case, for what the jury in Pun’s case were told included this :

“ A verdict of four : three is not good enough so if you are locked in at four : three, then you must continue your discussion until you reach at least five : two.  But as I said, you must try to reach a unanimous verdict if you can.”

At p.415 we said this :

“ The judge’s statement to the jury that they must continue their deliberations until they reached at least five : two should not have been made.  It was of such a nature as to put jurors under undue pressure to agree, was not cured by anything else said in the summing-up and gave rise to a substantial and grave injustice.  The conviction had therefore to be quashed.”

Position directions not fatally flawed

24.Unlike the jurors in Pun’s case, the jurors in the present case were not told that they must continue their deliberations until they reached the requisite majority.  The position directions in the present case, while not ideal, were not fatally flawed.

Jury misdirected on how they should deliberate

25.The expression “very much like” was the one which the judge used in Tam’s case when drawing an analogy between how company directors function at a board meeting and how jurors should deliberate.  In Chan’s case he used the expression “like, I suppose”.  And in the present case he used the expression “quite similar to”.  In the present context, those are fine distinctions without a difference.  The fundamental point is that, whether expressed in one form of words or another, the analogy complained of is, as the Chief Justice said in Tam’s case at p.213H, “inconsistent with the duties of a juror”. 

26.Like the jurors in Tam’s case, the jurors in the present case were told that there is “a lot of give and take” in their deliberations.  The jurors in Chan’s case were told that that “it is very much a question of give and take”.  As the Chief Justice said in Tam’s case at p.214C, “[t]he use of the phrase ‘give and take’ on its own is inappropriate”. 

27.Unlike the jurors in Chan’s case, the jurors in the present case were not told that their duty was collective as well as individual.  Nor had the jurors in Tam’s case been told that.  As the Chief Justice made it clear in Tam’s case at pp 215D-216A, it was the use of the word “collectively” in the Judicial Studies Board specimen directions which prompted him to say that phrases using the word “collective” are best avoided.

28.Taking the summing-up in the present case as a whole but with the board of directors analogy particularly in mind, I feel driven to the conclusion that these jurors had been misdirected on how they should deliberate.

Proviso

29.Like the basis on which convictions are to be quashed unless the proviso ought to be applied, the proviso itself is an instrument of justice.  There is no reason in principle why the proviso cannot be applied to affirm a conviction even though there has been a misdirection on how the jury should deliberate.  As always, the test is the one which Sir Anthony Mason NPJ referred to in Ewan Quayle Launder v. HKSAR (2001) 4 HKCFAR 457 at p.471D-H and the Chief Justice referred to in Tam’s case at p.220A-B.  It is whether a reasonable hypothetical jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion.  This test conforms with the right to trial by jury.

30.In Tam’s case the proviso was not applied because the most that could be said was that the evidence against Mr Tam was “strong”.  Why the proviso was not applied in Chan’s case was explained thus at p.835A-B :

“There was a live issue as to dishonesty.  This jury had not been properly directed on how they should go about their deliberations.  And we feel unable to go so far as to say that a reasonable jury properly directed on that vitally important matter would inevitably have resolved the issue of dishonesty against the appellants so as to convict them.”

31.On the evidence in the present case, would a reasonable and properly directed jury inevitably have concluded that the prosecution had (i) proved intent to kill or at least cause really serious injury and (ii) negatived provocation?

32.As to intent, the evidence was that the appellant, using a knife, killed the victim by stabbing her in the torso three times with substantial force, twice from the back and once from the front.  Each time the blade entered the chest cavity.  The wound from the front was 3 cm deep.  One of the wounds from the back was 7 cm deep, and the other was 9 cm deep.  On that evidence, a reasonable and properly directed jury would, in my view, inevitably have concluded that the prosecution had proved at least intent to cause really serious injury.

33.That leaves provocation.  On the appellant’s own testimony, what ultimately caused him to lose his self-control was the victim’s statement to the effect that he was useless, worthless and inferior in all respects to her new boyfriend.  The last question and answer in the appellant’s examination-in-chief were :

“Q:  Would you have stabbed her if she didn’t say those words to you?

A:  Absolutely not.”

Also on the appellant’s own testimony, the victim had said those words in response to his having asked her repeatedly what was so good about her new boyfriend.  There is nothing unnatural about a woman blurting out something of that sort when pressed like that.  Quite simply, I do not see how a reasonable jury could possibly feel otherwise than sure that no man possessed of ordinary self-control, whether of the appellant’s age or indeed any age, would have reacted to such a response by doing as the appellant did.  After all, the realism and common sense with which jurors are expected to approach their task must be attributed to the proviso’s reasonable hypothetical jury.  On the evidence, a reasonable and properly directed jury would, in my view, inevitably have concluded that the prosecution had negatived provocation.

Conclusion

34.For the reasons given above, I would dismiss the appeal by applying the proviso.  

Mr Justice Chan PJ :

35.I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Ribeiro PJ :

36.I agree with the judgment of Mr Justice Bokhary PJ.

Lord Woolf NPJ :

37.For the reasons given by Mr Justice Bokhary PJ, I would apply the proviso and dismiss the appeal.

Chief Justice Li :

38.The Court unanimously dismisses the appeal.

Mr Benjamin Chain (instructed by Messrs Tang Tso & Lau and assigned by the Legal Aid Department) for the appellant

Mr John Reading SC and Mr Vincent Wong (of the Department of Justice) for the respondent