Chan Ka Man v. HKSAR

FACC No. 9 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 of 2007 (CRIMINAL)

(On appeal from CACc No. 254 of 2005)

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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 Lord Woolf NPJ.

Mr Justice Bokhary PJ :

2.Was the trial fair?  That depends on whether the jury should be trusted not to have speculated about the incidents which were not the subject-matter of the counts on which they were trying the appellant.  In my view, they should be so trusted.  It is true that they did not receive a specific warning not to speculate about those incidents.  But the tenor of the summing-up in this case, like that of summings-up in general, was against speculation.  And the jury were told in terms that they had to decide according to the evidence which they had received.  Such a direction to a jury on their duty is a direction of law.  And, as Lord Woolf NPJ points out, trial by jury proceeds on the basis that jurors decide by applying the judge’s directions on the law.  Trial judges are often faced with choices as to what they should or should not say to jurors.  In my view, the judge in the present case acted within his range of choices.  I would dismiss the appeal.

Mr Justice Chan PJ :

3.I agree with the judgment of Lord Woolf NPJ.

Mr Justice Ribeiro PJ :

4.I agree with the judgment of Lord Woolf NPJ.

Lord Woolf NPJ :

The Issue

5.This appellant, Chan Ka Man, appealed with the leave of this Court given on 12 December 2007 on “the ground that it is reasonably arguable that substantial and grave injustice has been done” to the appellant.  His appeal involves considering the situation where a defendant is acquitted of some but not all the counts and a retrial is ordered of the counts on which he was convicted.  In the appellant’s case, the retrial resulted in his conviction of four counts, two counts being of indecent assault, one count being of attempted rape and one count of rape.  Leave to appeal was granted to enable this Court to consider the correctness of the decision of the trial Judge on the retrial, Deputy High Court Judge Line, not to allow the jury to be informed at the retrial that the appellant at his original trial had been charged, tried and acquitted of five additional counts, involving the same complainant and conduct of a similar nature. 

The Background

6.The decision of the Court of Appeal to order a retrial was given on 7 January 2005 and is reported as HKSAR v. Chan Ka Man [2005] 1 HKC 162.  The Court of Appeal set aside the four convictions of the appellant at his original trial because of a misdirection during the summing up by the trial Judge.  The misdirection involved comparing the jury to a Board of Directors of a company and suggesting that there could be “give and take” among the members of the jury in the same way as there could be by directors at a board meeting if they were having difficulties in reaching a decision.  It follows that the decision to quash the four convictions had nothing to do with the credibility of the evidence given at the original trial by the alleged victim.

The Facts

7.For the purpose of deciding this appeal, the facts of the nine offences on which the nine counts at the original trial were based are of a limited significance.  They can be summarized shortly.  The victim was an Indonesian domestic helper who worked at the appellant’s home.  At the time of the alleged offences, she was 21 years of age.  She alleged that between July and September 2002 when the appellant’s wife was not present, the appellant sexually mistreated the victim.  The counts on which the appellant was convicted at the retrial included the earliest offence alleged, which occurred on 15 July 2002 and the last offence of the 16 September 2002.  It was after the final offence that the complainant went to the police.  This resulted in the appellant’s arrest the following day.  After his arrest, the appellant made two written statements which were relied upon both at the trial and the retrial by the appellant as setting out his account of what had happened.  The appellant gave evidence at the original trial but did not do so at the retrial.  The complainant explained her failure to complain to the police earlier by saying that she had been threatened by the appellant, that she should not tell anyone what had happened and, if she did so, he would send her back to Indonesia together with a film of what had happened.  If this occurred, not only would the complainant be disgraced, she would not be able to pay the agency which had sent her to Hong Kong the wages from her first five months in employment and the cost of her airfare.

8.At the retrial, Deputy High Court Judge Line would have preferred the jury not to be told that it was a retrial.  However, counsel, appearing for the appellant before the judge, said that his client wanted the jury to be informed that it was a retrial, that at the first trial there had been nine counts and the appellant had been found guilty of four and acquitted of five counts.  At the retrial, a series of discussions took place between counsel and the trial Judge.  As a result, the jury learnt it was a retrial and that originally, there had been eight or nine incidents but the jury were not told of the number of counts, the convictions and acquittals. 

9.In these circumstances when summing up, the trial Judge included a direction to the jury in these terms:

“You know this is a retrial.  In other words, there has been a previous trial of this case.  It took place in 2003.  For some reason, it has been ordered that it take place again now before you.  You do not know the reason and it is not necessary for you to do so and I direct you not to speculate about it.  Do not try and guess what the reason was.  Your job is to return a true verdict or verdicts according to the evidence that you have heard.  Looking back into the history of the case does not help you do that job properly and, indeed, it may actually distract you from doing it properly.  That is why you are not told about it.  It is just irrelevant.

So the fact that this is a retrial does not make the case against the defendant stronger or weaker.  Other than explaining the delay and informing you that [PW1] had given evidence in a previous trial, the fact that this is a retrial is irrelevant.”

10.Before the Court of Appeal, on the appeal after the retrial, the grounds of appeal read as follows:

“1.        The learned judge erred by

(a)        directing the applicant not to adduce evidence of his acquittals of 4 sexual offences alleged by PW1 on her when, for the purpose of undermining PW1’s credibility, the applicant adduced in evidence details of those offences

(b)        failing to secure to the applicant the full benefit of his acquittals by not directing the jury that

(i)      the jury was bound to accept the verdict of the acquittals as the only possible view of the evidence relating to those 4 offences

(ii)     the applicant was to be taken to be entirely innocent of those 4 offences

(iii)     the jury that acquitted the applicant found that at least a reasonable doubt existed as to at least one element of each of those 4 offences. 

2.         The learned judge erred in failing to direct the jury that they could not rely on evidence of 4 sexual offences alleged by PW1 on her but not contained in the indictment as showing a propensity to commit 4 sexual offences for which the applicant was indicted and convicted.

3.         The learned judged erred in failing to direct the jury not to make use of the evidence of complaints by PW1 of [9] sexual offences as evidence of the facts complained of or as evidence to support the creditworthiness of PW1.”

The Law

11.It was clear from the appellant’s case and from the submissions of Mr Phillip Ross, who appeared before us and before the Court of Appeal on behalf of the appellant, that those grounds of appeal were inspired by the statement of Lord MacDermott in Sambasivam v. Public Prosecutor, Federation of Malaya [1950] AC 458 at p.479.  The statement was that:

“The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence.  To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.  The maxim “Res judicata pro veritate accipitur” is no less applicable to criminal than to civil proceedings.  Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial.  And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence.  That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other.”

12.This statement of Lord MacDermott has to be approached with caution.  In many situations, it undoubtedly reflects the law but it cannot be applied generally.  It is undoubtedly true that if a person has been acquitted of an offence, he has been found not guilty of that offence and it is never right to suggest that he has been found guilty and convicted of the offence.  However, there can be situations where it would be quite contrary to the reality of the situation to suggest that he could not, because of the acquittal, in fact have committed the offence.  Take as an example a situation where he is acquitted on appeal because at the trial there was a misdirection by the judge and the Court of Appeal therefore quashed the conviction and substituted for that verdict an acquittal.  The acquittal in those circumstances would not necessarily mean that the jury had not accepted the evidence of the prosecution.  They could have done so but because of the misdirection, it would be unsafe to uphold the conviction.  This was recognized by the House of Lords in the case of R v. Z [2000] 2 AC 483.  It was also made clear by this Court in HKSAR v. Wong Sau Ming (2003) 6 HKCFAR 135 in which Chief Justice Li gave the leading judgment.  He developed what had been said in Z as to the effect of an acquittal.  He drew attention to the degree of licence given to a counsel on cross-examining witness as to the witness’s veracity.  He indicated that the court should, in its discretion, usually permit questions as to the credit if the acquittal would affect the court’s opinion as to the witness’s veracity on the subject matter of his or her testimony.  However, he also indicated that usually questions were not permissible if the truth of the imputation conveyed would not have any material impact on the witness’s credit.  The Chief Justice also dealt specifically with the relevance of an earlier acquittal and said this should be only permitted to be relied on where it was clearly established that two threshold requirements were met.  Those requirements were that:

“(1)      The verdict of acquittal in the previous case involved a finding by the court that the witness in question had lied (or which amounts to the same thing, that the court had disbelieved the witness); and

(2)        The circumstances of the previous case are of such a kind when compared to those in the instant case [that] the previous finding is not so remote in time that the finding of lying in the previous case would materially affect the court’s assessment of the witness’s veracity in the instant case.  Unless these requirements are satisfied, cross-examination by reference to the acquittal in the previous case should not be permitted.”

13.The Chief Justice added whether “the first threshold requirement is met depends on the examination of the verdict of acquittal in the context of the issues in the earlier case” (p.151 A-B).  The Chief Justice also noted that ordinarily it is not possible to ascertain the respective reasoning of the several jurors because the verdict is not a speaking verdict but opaque.  In view of this, it would only be “in very exceptional circumstances that a jury verdict would be able to meet the first requirement” (p.151 B).  The Chief Justice stressed that it is necessary to come to a judgment on “all the circumstances” (p.151 para.35).

14.The approach adopted by the Chief Justice is in accord with the approach set out in Blackstone’s Criminal Practice 2008 (at 11.12 et. sequ.) and in Archbold, Criminal Pleading, Evidence and Practice 2008 Edition – 331, et. sequ. and R v. H (J.R.) (1990) 90 Cr. App. R. 440.  There are many possible reasons for the previous acquittal.  Lord Lane LCJ in R v. H (J.R.) (1990) 90 Cr. App. R. 440 emphasized fairness to both sides, rather than any remote, obstruse legal principle should actuate the judge’s reasoning as to admissibility.  He stressed that, coupled with fairness, was the necessity for the judge to ensure that the jury whom he was assisting did not have their minds clouded by issues which were not the issues they had to determine.  The dangers were that the jury would spend their time, not in determining what they believed to be true from the evidence they had heard and that they would be deflected from that course to a consideration of what had actually actuated the first jury to reach the conclusion it did.  In the case of Wong Sau Ming, Bokhary PJ dissented.  But before turning in his judgment to the question how the appeal ought to be decided, Bokhary PJ said “All things considered, I concur in the approach articulated by the Chief Justice” (at p.158 C).  He dissented because of his view as to the critical facts giving rise to the jury’s decision to acquit. 

Conclusions

15.On the present appeal, it is impossible to discern why the jury at the first trial convicted of some counts and acquitted on other counts.  On the material before us to seek to explain this, would involve the process of which Lord Lane LCJ disapproved in R v. H.  Any explanation put forward would amount to mere speculation.  All that you can say, with any degree of confidence, is that as the jury brought in verdicts of guilty on four counts on the basis of her evidence, the jury could not have come to the conclusion that the complainant’s account of what generally happened was untrue and one on which they could not rely.  It has not been suggested that to have found the appellant guilty of some counts and not guilty of others was perverse and in the absence of any suggestion that this was the case, the verdicts must be due to some process which enabled the jury, rationally, to distinguish between the different counts.  In addition, the decision could not be explained by the passage of time between the alleged offences and the complaint since the appellant was found guilty of the earliest and latest incidents. 

16.A danger, which it was suggested in argument, could arise if the jury were not told at the second trial of the appellant’s acquittal of five counts, is that they could wrongly assume the appellant’s guilt of counts about which they had not heard.  However, if the jury came to such a conclusion it would involve them ignoring the admirably clear directions which the trial Judge commendably gave them which are set out earlier in this judgment.  For them to do this would be in breach of their oath and one of the cardinal principles which is behind our reliance on jury trial; that juries will decide cases by applying the directions of the trial Judge as to the law.

17.Furthermore, the same possibility arises with regard to the offences which the first jury found the appellant had committed.  Counsel for the appellant appeared to accept that if the jury were to be told about the acquittals, they would also have to be told about the findings of guilt and to have been told why those findings were set aside.  I agree, otherwise, the situation would be very unfair to the prosecution and the victim.  But absent an appropriate direction of the Judge, this additional knowledge could mislead them into being prejudiced against the appellant on the retrial.

18.The more the various possibilities are examined, the more it becomes clear, that the approach which the trial Judge adopted at the second trial was the correct one.  It certainly was a course which cannot be criticized and well within the discretion of a trial Judge.  In the circumstances of this case, what happened at the first trial was irrelevant.  It may have been necessary for the jury to know that it was a retrial, but they had no need to know of the verdicts at the first trial and the reason for the convictions being set aside.

19.My view, like that of the Court of Appeal, is that this is not a case where the appeal should be allowed.  If there is a lesson to be learnt from this case, it is that trial Judges, unless there is a clear justification for taking a different course, should not allow material which is not relevant to go before a jury.  The danger of allowing this to happen is that it will, without justification, make both the task of the jury and the task of the judge more difficult.  It can divert the jury from their primary task of deciding whether the defendant is or is not guilty of the offences with which he is charged.  An outcome that is to be avoided if possible.

20.I would dismiss this appeal.

Chief Justice Li :

21.The Court unanimously dismisses the appeal.

Mr Phillip Ross (instructed by Messrs Lo, Wong & Tsui and assigned by the Legal Aid Department) for the appellant

Mr Kevin P. Zervos, SC and Mr Simon Tam (of the Department of Justice) for the respondent