Cheung Chi Keung v. HKSAR

FACC No. 9 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 OF 2008 (CRIMINAL)

(ON APPEAL FROM CACC NO. 365 OF 2000)

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Hearing and Decision: 9 March 2009

Handing Down of Reasons: 12 March 2009

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J U D G M E N T

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Mr Justice Bokhary PJ :

1.At the conclusion of the hearing, we dismissed this appeal for reasons to be handed down in due course, and we now hand down those reasons.

Issues

2.This appeal against a conviction for murder is brought upon a complaint that the jury had been misdirected 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.  Conceding that the jury had been misdirected on the first of those two matters, the prosecution asked that the appeal be dismissed by an application of the proviso to s.83(1) of the Criminal Procedure Ordinance, Cap.221.  It was submitted on the appellant’s behalf that it would not be appropriate to apply the proviso and that the appeal should be allowed to quash his conviction.

Circumstances

3.The circumstances of this tragic case are shortly stated as follows.  On 21 April 1999 a 13-year-old boy was kidnapped and killed.  By the time his family received a ransom demand, the victim was dead.  In the summer of 2000 the appellant and a man named Wu Wai Fung, who was a distant relative of the victim’s, stood trial in the High Court (Nguyen J and a jury) for kidnapping the victim and murdering him.  It is convenient to use the term “kidnapping” even though the charge was of forcibly taking away a person with intent to procure a ransom for his liberation, contrary to s.42 of the Offences Against the Person Ordinance, Cap.212.  Wu, who was the 1st accused, pleaded not guilty to both counts, kidnapping being the first and murder the second.  The appellant, who was the 2nd accused, pleaded guilty to kidnapping but not guilty to murder.

4.Wu did not give evidence.  The appellant did.  As to the kidnapping, he said that the idea, as he understood it, had been to demand a ransom but to release the victim even if the demand was not met. 

5.His account of the killing was along these lines.  He and Wu went to the victim’s school during the lunch-break.  As the victim was returning to school from a nearby playground, they lured him into a van.  Wu drove the van.  During the journey, the victim struggled and shouted.  To stop the victim, he i.e. the appellant punched the victim and struck him on the head with a hammer but, he said, without great force.  Wu asked him to hit the victim’s head again, but he declined.  Then he and Wu changed places.  While he i.e. the appellant was driving the van, he heard the victim’s shouts and banging noises.  Then Wu told him that the hammer had broken while it was being used to scare the victim, and asked him for a bar or wooden pole.  He stopped the van, picked up a stone and – not knowing what it was for, he said – handed it to Wu and resumed driving.  Then he again heard the victim’s shouts and banging noises.  He also heard the victim saying to Wu, “I recognise you, uncle”.  Eventually Wu announced that the victim was dead.

6.According to the appellant’s evidence, he did not intend at any stage – not even when he struck the victim on the head with a hammer or when he handed Wu a stone after the hammer broke – that the victim would be killed or even suffer really serious injury.

7.By unanimous verdicts returned on 10 August 2000, the jury convicted Wu of kidnapping and murder and the appellant of murder, he having pleaded guilty to kidnapping.  Wu was sentenced to 21 years’ imprisonment for kidnapping and to life imprisonment for murder.  The appellant received a one-third reduction on the kidnapping count for his plea of guilty to it.  He was sentenced to 14 years’ imprisonment for kidnapping and to life imprisonment for murder.

8.On 9 September 2003 the Court of Appeal (Ma CJHC, Stuart-Moore VP and Stock JA) quashed Wu’s convictions on both counts, ordered that he be retried on them and affirmed the appellant’s conviction for murder.  Unlike the appellant who has been represented by counsel and solicitors throughout, Wu was not legally represented at the trial.  As the trial judge in a murder case, Nguyen J had power under rule 13 of the Legal Aid in Criminal Cases Rules to order legal aid for Wu.  Wu’s conviction was quashed on the ground that Nguyen J’s failure to order legal aid for Wu had deprived him of a fair trial.  Obviously there was no question of applying the proviso to affirm Wu’s conviction since there was no telling what the evidence might have been if Wu had been legally represented.

9.Wu’s retrial, at which he was represented by counsel and solicitors, took place before V. Bokhary J and a jury in the winter of 2004.  On 3 December 2004 Wu was again unanimously convicted of kidnapping and murder, for which he was again sentenced to 21 years’ imprisonment and life imprisonment respectively.  And on 9 December 2005, the Court of Appeal (Stuart-Moore VP, Stock JA and McMahon J) affirmed Wu’s convictions.  There ended this case as far as Wu is concerned.

10.But in May 2008 the appellant learnt from fellow prisoners of the cases in which convictions had been quashed by this Court on the grounds of misdirections by Nguyen J on (i) how jurors should go about their deliberations and on (ii) the position if they were unable to achieve the requisite majority.  He promptly applied for legal aid, and legal aid was granted to him in July 2008.  In August 2008 he filed his notice of application for leave to appeal out of time to us.  Such leave was granted by the Appeal Committee on 30 October 2008.

Deliberations directions

11.Turning to the directions complained of, the directions which Nguyen J gave the jury on how they should go about their deliberations (“the deliberations directions”) were as follows :

“ Now, members of the jury, when you retire to consider your verdicts, the workings of a jury are in a sense very much like the directors of a company, having a meeting.  In other words, you have to make up your own minds but at the same time, you should consider the views of your colleagues in the jury.  You should not – after you have made up your own minds – close yourself to the views of your other colleagues, you should consider them and then decide whether you wish to change your views or whether you stay by your original conclusion about either guilty or not guilty.

There is a lot of give and take, members of the jury, because with seven people, it is not always easy to come to one conclusion.  What the law encourages is for you to have a unanimous verdict in respect of each count in respect of each accused.  In other words, a verdict upon which all seven of you agree, either guilty or not guilty.  But if you, after having considered a particular matter or a particular verdict against a particular defendant, very carefully and seriously, with a lot of give and take, and after spending some time on it, you feel that you still cannot agree on all seven saying either guilty or not guilty, then the law allows you to return a majority verdict.”

Directions on the position if the requisite majority is not achieved

12.As to the position if the requisite majority is not achieved (“the position directions”), these are the directions which Nguyen J gave the jury :

“ A majority verdict, members of the jury, is either six to one or five to two, one way or the other.  Guilty or not guilty, but nothing less.  So four three and anything less will not be acceptable.  So it is hoped that you can be unanimous but if you cannot be unanimous, then five two or six one, all right?”

13.The jury in the present case consisted, as is usual in Hong Kong, of seven jurors.  As provided by s.24 of Jury Ordinance, Cap.3, 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. 

Telling the jury that the case is important

14.There is a matter to be mentioned even if only in passing.  One of the things which Nguyen J said to the jury is that the present case was “a very important case, both for the prosecution and for the particular defendants themselves”.  While a conviction is not vitiated merely because that sort of thing was said to the jury, it is to be remembered that, as the Chief Justice said in Tam King Hon v. HKSAR (2006) 9 HKCFAR 206 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.”

Authorities

15.This is the sixth case to reach this Court in regard to the directions that a jury should receive (i) on how they should go about their deliberations or (ii) on the position if they are unable to achieve the requisite majority or (iii) on both of those matters.  The other five (in the first four of which Nguyen J was the trial judge and in the last of which Mr R Wong, SC sitting as a recorder was the trial judge) 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;

(iii)    the kidnapping case of Pun Luen Pan v. HKSAR [2008] 2 HKLRD 404; and

(iv)   the murder case of Lam Chi Kwong v. HKSAR, FACC No.2 of 2008, 5 December 2008; and

(v) the drug trafficking cases of Cai Zong Gang v. HKSAR, FACC No. 4 of 2008, 9 March 2009.

16.Among the propositions established by those five cases are the following three propositions relevant to the present case :-

(a)  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.

(b) The phrase “give and take” is on its own an inappropriate one to use when directing a jury on how they should go about their deliberations.

(c) Telling the jury that anything less than the requisite majority is unacceptable is not necessarily fatal to a conviction.  But it is fatal to a conviction if there is a real danger that the jury were put under undue pressure to reach a verdict.  That happened in Pun’s case because the jury were told that they must continue their deliberations until they achieved the requisite majority.  And it happened as in Cai’s case because of special circumstances contributing to the creation of such a danger.

Position directions not fatally flawed

17.Unlike the jury in Pun’s case, the jury in the present case were not told that they must continue their deliberations until they reached the requisite majority.  The jury in Cai’s case had, prior to convicting by the acceptable majority of 6 to 1, purported to acquit by the inoperative majority of 4 to 3.  Nothing like that or equivalent to it happened in the present case.  The position directions in the present case, while not ideal, were not fatally flawed in themselves.  Nor were there in this case any particular circumstances which combined with them to create a real danger that the jury were under undue pressure to reach a verdict. 

Jury misdirected on how they should deliberate

18.When directing the jurors in the present case on how they should go about their deliberations, Nguyen J used the inappropriate phrase “give and take”.  More seriously, he employed the board of directors analogy which is inconsistent with the duties of a juror.  Although it was contended otherwise in the respondent’s printed case, Mr John Reading SC for the respondent conceded at the hearing that these jurors were misdirected on how they should go about their deliberations.  In our view, that concession was correctly made.  These jurors were misdirected on that matter.  Should the proviso be applied to dismiss this appeal notwithstanding such misdirection?

Proviso

19.Neither in Pun’s case nor in Cai’s case were we invited to apply the proviso.  But we were so invited in Tam’s case, Chan’s case and Lam’s case.  The proviso was not applied in Tam’s case or Chan’s case.  But it was applied in Lam’s case.  The reason why it was not applied in Tam’s case is that the most that could be said was that the prosecution’s evidence was strong.  And the reason why it was not applied in Chan’s case is that there was an issue as to dishonesty which it could not be said that a reasonable and properly directed jury would inevitably have resolved against the defence. 

20.As for Lam’s case, in which the proviso was applied, the issues were whether the prosecution had (i) proved intent at least to cause really serious injury and (ii) negatived provocation.  And the reason why the proviso was applied was that a reasonable and properly directed jury would inevitably have concluded that the prosecution had done both of those things.

21.When an appellate court considers whether to apply the proviso, it asks itself the question referred to by Sir Anthony Mason NPJ in Ewan Quayle Launder v. HKSAR (2001) 4 HKCFAR 457 at p.471D-H and the Chief Justice in Tam’s case at p.220A-B.  This question is whether a reasonable hypothetical jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion. 

22.There can be no doubt that the victim died from injuries received in an attack upon him.  On the murder count, it was the prosecution’s case that the attack was in pursuance of a joint enterprise on the part of Wu and the appellant.  As we said in Sze Kwan Lung v. HKSAR (2004) 7 HKCFAR 475 at p.488F-G, each participant in a joint enterprise

“is criminally liable for all the acts done in pursuance of the joint enterprise.  And whether or not he intended it, he will be criminally liable for any such act if it was of a type which he foresaw as a possible incident of the execution of the joint enterprise and he participated in the joint enterprise with such foresight.”

23.What are the material facts as they emerge from the appellant’s own evidence?  He handed Wu a stone after Wu had told him that the hammer had broken and asked him for a bar or wooden pole.  And that was after he himself had punched the victim, hit his head with a hammer and changed places with Wu after Wu had asked him to hit the victim’s head again.  After he handed Wu the stone, he continued to drive the van in which the victim was being abducted.  He continued to drive the van even when he heard the victim’s shouts, banging noises and the victim saying to Wu, “I recognise you, uncle”.

24.The proviso’s reasonable hypothetical jurors are taken to possess the realism and common sense with which jurors are expected to approach their task.  Wu’s use of the hammer on the victim followed the appellant’s use of it to hit the victim on the head.  No reasonable juror approaching his or her task with realism and common sense could, in the circumstances, have attached any credence whatsoever to the notion that the appellant believed that the hammer had broken while being used by Wu merely to scare the victim rather than while it was being used by Wu to hit the victim.  Nor, in the circumstances, could any reasonable juror so approaching his or her task have attached any credence whatsoever to the notion that the appellant did not know when he handed the stone to Wu that it was meant as weapon with which to resume the assault on the victim.  Let it not be forgotten that he handed the stone to Wu after the hammer had broken and Wu had asked him for a bar or wooden pole.

25.Such were the material facts which emerged from the appellant’s own evidence that it is difficult to imagine that the attack on the victim, who had recognised Wu, could possibly have been carried out otherwise than with intent to kill the victim so as to silence him forever.  But even leaving that aside, it is fanciful to imagine that an attack such as this one could possibly have been carried out with anything less than at least intent to cause the victim really serious injury.

26.In any case, the appellant and Wu were acting pursuant to a joint enterprise to kidnap the victim and obviously to use considerable, repeated and escalating violence to stop him, a frightened and desperate boy of 13, from struggling and shouting while he was being abducted by them, a pair of grown men.  At the very least, the appellant must have foreseen, as a possible incident of that joint enterprise, a lethal attack by Wu on the victim after he, having himself attacked the victim, changed places with Wu and handed Wu a stone when Wu announced that the hammer had broken and asked him for a bar or wooden pole.  Such foresight would suffice to make him guilty of murder under the doctrine of joint enterprise. 

27.A reasonable and properly directed jury would inevitably have convicted the appellant of murder. 

Conclusion

28.For the foregoing reasons, we dismissed the appeal by applying the proviso.

Mr Richard Wong (instructed by Messrs Haldanes and assigned by the Legal Aid Department) for the appellant

Mr John Reading SC and Miss Teresa Kam (of the Department of Justice) for the respondent