Read the full judgment text of CACC 000119/1985 on BabelCite. This Court of Appeal judgment was delivered on 10 July 1986 before Roberts, C.J., Macdougall, J. & Barnes, J..
Criminal law – armed robbery – shooting with intent – manslaughter – intervention by trial judge – fair trial – tired jury – discharge of counsel – admissibility of evidence – retrial – Criminal Procedure Ordinance s.83E – Jury Ordinance s.24 – Whether trial judge's extensive questioning of D1 at end of his evidence deprived him of a fair trial – Whether jury's retirement of 12 hours 47 minutes rendered verdict unsafe – Whether mid-trial discharge of counsel justified adjournment – Whether evidence of D5's identification was admissible to support D4's denial of presence – Whether retrial could be ordered for murder or only manslaughter – Whether Crown could re-charge murder after manslaughter verdict by majority – Five defendants convicted of armed robbery of Po Sang Bank cash box containing Y138,400,000 in foreign currency on 31 January 1984, followed by prolonged shootout through crowded streets of Hong Kong in which innocent bystander Miss Li was killed, caretaker Mr Chong was shot in the stomach and approximately 32 rounds were fired – Court applied Jones v. National Coal Board and R v Hamilton in quashing D1's convictions, finding that the judge's 150-question intervention, though extensive, displayed disbelief in duress defence and breached appearance of impartiality required in adversarial system – Court rejected tired jury argument following R v Cheung and Yeung, holding that length of retirement alone does not vitiate verdict and issuing non-binding guidance on jury management – Court upheld trial judge's discretion to continue trial without adjournment after D3 baselessly discharged counsel 32 days into trial – Court found judge erred in ruling evidence of D5's identification irrelevant but applied the proviso given overwhelming evidence including star fruit bearing D4's teeth marks found in hijacked BMW – On retrial power, court construed s.83E(2) Cap 221 strictly, holding retrial for murder not available where jury had convicted of manslaughter – Following Chan Charn-kau v R, court held that jury's majority finding of guilty of manslaughter constituted the verdict on the murder charge under s.24 Jury Ordinance, barring re-charge of murder – D1's convictions quashed and retrial ordered on manslaughter only; other appellants' applications refused.
Legal issues: Judge's interventions during D1's evidence and fair trial · Tired jury as ground for unsafe conviction · D3's discharge of counsel mid-trial · Admissibility of cross-examination on D5's identification · Scope of retrial power under s.83E Criminal Procedure Ordinance · Whether Crown may charge D1 with murder on retrial
Outcome: D1's convictions quashed as unsafe and a retrial ordered on a charge of manslaughter only. Applications for leave to appeal against conviction refused for D2, D3, D4 and D5. Applications for leave to appeal against sentence withdrawn by D2, D3, D4 and D5.