Shaw Brothers (Hong Kong) Ltd v. Golden Harvest (HK) Ltd
|
IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO.16 OF 1971 (On appeal from O.J. Action No.165/71) ________________________ BETWEEN
________________________
________________________ JUDGMENT ________________________ Pickering, J.: 1. Having regard to the clarity and lucidity with which the facts and arguments in this case have been set out by my Lord, the President, it would be superogatory for me here to outline them and I turn immediately to the issues of law arising in this appeal. 2. The necessary starting point would appear to be a consideration of whether the jury’s answers to certain of the questions posed to them were in fact, as the appellants claim “perverse, unreasonable, unjust, against the weight of the evidence and arrived at without due performance of [the jury’s] judicial function so that they ought not to be sustained.” Although I have referred to this as the apparent necessary starting point, there is perhaps an initial question which it would be well to pose before embarking upon an examination, in the light of the evidence, of the jury’s answers to questions 1, 2, 5 and 6 of the first set of questions put to them. That initial question is whether the learned judge ought to have taken a verdict from the jury at all at the stage at which he did, or whether he ought to have declined so to do and adjured them to give the matter further consideration. The question is born of s.24(1) of the Jury Ordinance (Cap.3); the doubt which the question implies, of the action of the jury in returning answers to the questions addressed to them after a retirement of a mere half-hour or less. 3. The first paragraph of s.24(1), which is the only relevant part of the sub-section, reads as follows:–
4. The trial had lasted for some three weeks and the jury had heard oral evidence over the course of some six days and seen visual evidence in the form of films over a period of a day and a half. In addition they had listened to lengthy addresses from counsel and to two rulings on law and a meticulous summing-up, on a highly technical subject, by the learned judge. In the course of the summing-up some thirteen questions were directed to the jury for their consideration, to eight of which they found it necessary to provide answers. The time spent by the jury upon their deliberations was said by Mr. Wright, for the Respondents, to be “at least 20 minutes and possibly 30”; Mr. Zimmern, for the Appellants, puts it at “not more than 20 to 25 minutes”, and urges that this period was insufficient for any adequate deliberation. Mr. Wright argues that the speedy answers of the jury demonstrate the alertness of its members who had heard and seen the evidence at length and had the issues carefully canvassed before them. 5. Had the jury been unanimous in their answers to all the questions put to them, the brevity of their period of deliberation would have been of no moment for the phrase “after reasonable consultation” in s.24(1) of the Jury Ordinance relates only to the taking of a majority verdict. However, that the jury were not so unanimous is demonstrated by the foreman’s comment, after returning the jury’s answers, “I have listed the majorities.” He was instructed that it was unnecessary to disclose these but it had then become apparent that the answers to some at any rate of the questions, were not the unanimous answers of the jury. 6. The question, therefore, remains for this Court whether there had in fact been time for “reasonable consultation” before the jury returned their answers. To argue as Mr. Wright did, that because the jury had suffered three weeks exposure to evidence, the addresses of counsel and the summing-up, they required little time for consultation, comes dangerously close in my view to saying that the more the jury hears, the less time it requires to consider what it has heard and it has to be remembered that although the principles involved – and they were complicated principles of law – may have become apparent to the jury as the trial progressed, the actual questions which they were required to answer only emerged in the course of the summing-up. For my part I have no hesitation in saying that after a three-week trial, a period of approximately 25 minutes was inadequate for reasonable consultation, based upon the evidence, the submissions and the summing-up, as to the thirteen questions put before the seven-member jury. I would agree with the learned President that the speed with which the jury arrived at its conclusions suggests that they so arrived “without due performance of their judicial function.” Indeed I would go further and say that the haste was such as not merely to “suggest” but to demonstrate that fact. 7. It is true that the learned judge was of the conclusion that further deliberation would not have resulted in any change in the answers which the jury gave to the various questions. It is also true, however, that he has said quite frankly that he was unaware of the requirement of “reasonable consultation” in s.24 of the Jury Ordinance; that is to say, unaware of it as a statutory requirement as opposed to a matter of common-sense. I make this observation in no spirit of criticism. Four counsel were engaged in the court below, three of them local counsel, and none of them were aware at the trial of the existence of these words, nor, until they were brought to our attention, were any of the members of this Court aware of those words. It seems to me, however, axiomatic that had the learned trial judge been aware of the statutory requirement he would have felt impelled to give the jury further time and opportunity for considering their answers to the questions posed. To have done otherwise, with knowledge of the statutory requirement and in the light of a twenty-five minute “deliberation” by the jury, would have been to invite an appeal upon this very ground. 8. In this connection I am unable to agree with my learned brother Leonard, whose judgment I have had the benefit of perusing, that these words “reasonable consultation” appear in s.24 as something of a “side-wind”. In my respectful view, the words mean exactly what they say and by no stretch of imagination am I able to agree that consultation lasting for some twenty-five minutes or so was “reasonable consultation” in the context of six days of oral evidence, a day and a half of visual evidence, lengthy addresses from counsel and some thirteen questions to be considered. 10. In my view the learned trial judge, in exercising his discretion to take the verdict of the jury at the stage at which he did, instead of urging further consideration upon them, exercised that discretion wrongly. I agree with the learned President that it is only in “the most exceptional circumstances” that a court of appeal will interfere with the discretion of a trial judge in this matter but, as I see it, “the most exceptional circumstances” are precisely what face us. 10. Because under s.24 a majority verdict shall be taken to be the verdict of the jury only after the reasonable consultation, it seems to me that there was no power in the learned judge to take the jury’s verdict at the stage at which he so did. Mr. Zimmern complains, with what appears to me to be justification, that there was a non-direction on the subject of reasonable consultation. Had the jury been out for a period of hours, the non-direction would not have mattered since it would have been apparent that there had at least been opportunity for reasonable consultation; but the non-direction, coupled with what happened – or failed to happen – in the jury-room, resulted in a situation in which a so-called verdict was taken prematurely. The condition precedent of reasonable consultation, not having been satisfied as it seems to me, the learned judge had no jurisdiction to take the jury’s verdict when he did. 11. I have asked myself whether there can be said to exist any verdict at all. It must, I think, be conceded that a verdict did exist in the sense that had there been no appeal, the legal effect of the judgment based upon the jury’s answers would stand. However there is an appeal and it has demonstrated that the verdict was premature. To borrow phraseology from another field of law, the true position is that the verdict was not void, but voidable and by the merit of their appeal upon this point the appellants have voided it. 12. I am not unduly perturbed by the failure to comply with the requirements of s.26 of the Jury Ordinance (Cap.3) by enquiring, before the verdict was taken, if the jury were all or by what majority, agreed. I would agree that such non-observance was no more than an irregularity which did not, of itself, nullify the verdict. That has been done by the manifest inadequacy of the jury’s consultation, irrespective of whether it be the judge or the jury who is the arbiter of what amounts to “reasonable consultation”. 13. I have given anxious consideration to the question whether, since in my view no verdict of the jury remains, I can concur in giving judgment for the appellant company as opposed to ordering a new trial before another jury. Is it justifiable to impose the judgment of this Court upon the respondent company, without any intervention of a jury, that company having elected for a trial by jury? I have come to the conclusion that it is justifiable and that the filing of what is now a vacuum by the judgment of this Court is no more illogical and no more prejudicial to the respondent company than is the substitution of the judgment of an appellate court for the verdict of a jury reversed by such judgment. I am fortified in that view by the case of Pacquin v. Beauclerk([1]) where, although there was no verdict of the jury, the Court of Appeal entered judgment for the Respondent. 14. My reasons for holding that judgment should be entered for the appellant company emerge from the exhaustive review of the evidence in the trial court and the arguments in this Court, contained in the judgment of the learned President. I am happy to have been able to reach the conclusion that it is open to this Court to give judgment for the appellants rather than to order a new trial, for the reason that in my view the latter course would be an exercise in futility for, if the evidence in any new trial followed the course of that in the original trial, no reasonable jury could possibly come to any other conclusion but that the appellant company should have judgment. The ill-considered, hasty answers of the jury to some of the questions put to them flew so blatantly and patently in the face of the evidence as to be divorced from reality and reason and the finding that Shaw Brothers’ character was not well-known in Hong Kong whereas the two films dominated by that character were well-known, bordered upon farce. 15. I agree that the appellant company should have judgment on prayers 2 and 3 of its claim. A Zimmern (Deacons) for appellants. Wright & P. Yu (Stephen Lo) for respondents. |