Shaw Brothers (Hong Kong) Ltd v. Golden Harvest (HK) Ltd
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IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 16 OF 1971 (On appeal from O.J. Action No. 165 of 1971) ________________________ BETWEEN
________________________ Coram: Full Court (Blair-Kerr, S.P.J., Pickering & Leonard, JJ.) ________________________ JUDGMENT ________________________ Leonard J.: 1. I have had the advantage of reading the judgment of the learned President and am in entire agreement with his conclusion that the verdict of the jury was perverse. In the words of Swinfen Eady L.J. in Winterbotham Gurney & Co. v. Sibthorp & Cox ([1918] 1 K.B. 625 at 632) “The evidence is such that only one conclusion can properly be drawn from it”. Once that is said I would need the most compelling argument to persuade me that judgment should not now be entered for the appellant. 2. Such difficulty as there is arises from the arguments advanced by counsel in support of the first ground of appeal insofar as these suggest that the verdict of the jury because it was reached without reasonable consultation was a nullity. It appears from the record that the clerk of the Court did not, before taking the verdict of the jury ask if they were all, or by what majority, they were agreed. This omission resulted from an agreement between counsel, of which the judge was informed in Chambers, and which is not, therefore, on record, that the jury should not be asked these questions. Apparently no one at the time adverted to section 26 of the Jury Ordinance (Cap.3) which requires the questions to be asked. Section 26 is purely procedural and I agree that its non-observance was no more than an irregularity. But the matter does not end there because of the requirement as to “reasonable consultation” in section 24 of the Jury Ordinance. 3. Section 24 of the Jury Ordinance prescribes the majorities, in the event of dissent among the jurors, by which a verdict must be arrived at before it may be “taken to be the verdict of the jury”. In a civil case that majority is a simple one and, in a jury of seven, there must, of necessity, be at least a simple majority one way or the other. In a criminal case the majority is required to be one of five and in a capital case there must be unanimity. The essential purpose of the section is to provide for those majorities and that unanimity. The reference to “reasonable consultation” is no more than a side-wind as it were. 4. It is a truism to say that a Judge at trial or a Court of Appeal cannot enter into the jury room. The reasonableness or otherwise of the consultation mentioned in section 24, if is to be determined otherwise than by the jurors themselves, cannot be as to content; it can only be as to duration. No time is prescribed nor does the section indicate who shall be the arbiter as to what is a reasonable time for consultation. Certainly a Court of Appeal is in no good position to adopt this role. The trial judge is in a much better position to do so than is a Court of Appeal; but an assessment by him may also be eroneous since he cannot know the purport of such consultation as has taken place as the trial continued. Because subsection 2 of section 24 specifically empowers the trial judge to direct the jury to consider their verdict further “if in any case it seems for any cause to be desirable”, I incline to the view that the jurors themselves are intended to decide on this question subject to the overriding power of the judge mentioned in the subsection. 5. I respectfully agree with the learned President that the effect of the present legislation is that it is possible for a jury to have this reasonable consultation even if they do not retire, but consider that the phrase “reasonable consultation” indicates that this shall vary from case to case. Without doing violence to the intention of section 24(1) I consider that it may be paraphrased to read as follows:
In such circumstances in England, having regard to section 39 of the Courts Act 1971 it is for the Court to decide whether the jury have had such period of time for deliberation as the Court thinks reasonable but few would quarrel with a trial judge who asked the views of the jury (as to whether they had had sufficient time) to assist him in reaching his decision. I am not satisfied that there was in the summing up any failure by the learned trial judge properly to direct the jury as to their duty to consult. It was implicit in his summing up that the jurors should have reasonable consultation with one another. His opening paragraph, in which he pointed out that the jury are the sole judges of fact, and the very putting to them of the agreed questions, presuppose that they will act reasonably in the matter of consultation as do his final remarks to them when he said:
I consider then that at that stage the learned trial judge had sufficiently directed the jury as to the duty of consultation imposed on them. I do not consider that section 24 requires the trial judge to give in his summing up a specific direction as to what further consultation they must have if any when they find that they are not unanimous. I do not consider that we are under a duty to conclude that the jury ignored the directions of the learned trial judge as to consultation solely because of the shortness of time they spent in consultation. So to conclude would be to speculate. 6. The respondents elected to have a trial by jury. If the verdict cannot be taken to be the verdict of the jury the respondents have not had the forum to which they were entitled. It is not they who complain; it is the appellants. Since we are not obliged as I see it, to conclude that the jury refused to engage in reasonable consultation we may, I consider, properly regard the failure to obey section 26 and all that flowed from it as giving rise to a irregularity and not as rendering the verdict returned a nullity. The brevity of the period spent by the jury in consultation, I would regard, as part and parcel of the perversity of their verdict and not as proof that they had not returned one. I therefore agree with the learned President that the verdict given should be set aside and that judgment should be entered for the appellant as regards paragraphs 2 and 3 of the claim for relief. A. Zimmern (Deacons) for Appellant L. Wright & P. Yu (Stephen Lo & Co.) for Respondent |