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Attorney General v Pan Chi Keung And Others

Judgment Cited authorities 14 Cited in Precedent Map Related
Vincent
Judgment Date13 May 1988
Subject MatterCivil Appeal
Judgement NumberCACV132/1987
CourtCourt of Appeal (Hong Kong)
CACV000132/1987 ATTORNEY GENERAL v. PAN CHI KEUNG AND OTHERS

IN THE COURT OF APPEAL

1987, No. 132
(Civil)

BETWEEN

ATTORNEY GENERAL OF HONG KONG Appellant
and
PAN CHI KEUNG Respondents
WONG YIU LUN
CHAN KWOK FAI

______________

Coram: Silke, V.-P., Clough, J. A. & Penlington, J.

Dates of Hearing: 20th -22nd, 26th January 1988

Date of Judgment: 13th May 1988

_______________

J U D G M E N T

_______________

Silke,V.P.:

1. This is an appeal by the Attorney General and the Commissioner of the Royal Hong Kong Police Force against the Order of de Basto J. dated 24th August l987. The Appellants seek to set aside the Judge's Order directing the release of the Respondents to this appeal; second they seek an order that the Indictment filed against the Respondents in Criminal Case No. 201 of 1986 - "201" - be proceeded with until its final and lawfu1 determination; third they seek warrants of arrest to issue to each of the Respondents to secure their attendance at the further hearing of the Indictment in 201; fourth they seek to set aside the costs order made in favour of the Respondents and they seek an order that costs be in favour of the Appellants both here and below.

2. They originally sought that an order be made for the issue of a Writ of Venire de Novo against the Respondents in 201. This is also the subject of a Respondent's Notice.

3. Such an order is no longer sought though the principles applicable to the issue of this writ do impinge on the general issues here.

4. The history of the matter is this.

5. Nine accused were named in a severed Indictment containing a single count of murder. At the conclusion of the trial before O'Dea J. and a jury, D1 and D9 were found guilty of manslaughter; D2, D4 and D7 were acquitted there being no case for them to answer; D8 was found not guilty by a unanimous verdict; D3, Pan Chi Keung, was found not guilty by a majority verdict of six to one; D5, Wong Yiu Lun, was found not guilty by a majority verdict of five to two; and D6, Chan Kwok Fai, was found not guilty by a majority verdict of six to one. These last three named Defendants are the Respondents to this appeal and I shall continue to refer to them as D3, D5 and D6.

6. The manner in which the verdict was taken bears repetition:

"Clerk: Now on the count of Murder against the 3rd Accused, PAN Chi-keung, have you reached a verdict? Please answer yes or no.

Foreman: Yes.

Clerk : Are you unanimous? Please answer yes or no.

Foreman: No.

Clerk: By what majority?

Foreman: 6 to 1.

Clerk: What is your verdict?

Foreman : Not guilty.

Clerk: Now, on the count of Murder against the 5th accused, WONG Yiu-lun, have you reached a verdict? please answer yes or no.

Foreman: Yes.

Clerk: Are you unanimous?

Foreman: No, we are not.

Clerk : By what majority?

Foreman : 5 to 2.

Clerk : What is your verdict?

Foreman : Not guilty.

Clerk. : Now, on the count of Murder against the 6th Accused, CHAN kwok-fai, have you reached a verdict? Please answer yes or no.

Foreman : Yes.

Clerk : Are you unanimous? Please answer Yes or no.

Foreman: No.

Clerk : By what majority?

Foreman: 6 to 1.

Clerk : What is your verdict?

Foreman : Not guilty."

7. There then came, in what we are told was an emotional and highly charged atmosphere, a request by counsel representing Dl that the jury be directed to return a formal verdict of not guilty of murder. They were so directed and did so.

8. They were also asked to return a formal verdict of not guilty in respect of D9. The matter of sentence was discussed. Mr. Hemmings for D8 interposed to ask whether those defendants who had been acquitted could be "released from the dock".

9. To this the judge replied:

"Yes. Well, I'll make that formal order. The 3rd, the 5th, the 6th and the 8th accused having been found not guilty of any offence are released and may be discharged from the dock.....".

10. The formal order.

11. Mr. Dale who represented the Crown at the trial told the judge that both D5 and D6 were subject to another charge and asked for their detention and their remand to a future date to permit the Crown to make its decision in respect of the remaining charge. The judge then remanded them to come up again before him on 26th May.

12. Later in the morning successful applications for bail were made on behalf of D5 and D6.

13. On 8th June, the Deputy Crown Prosector wrote to the Registrar Supreme Court enclosing a copy of the Indictment in 201, stated that the Crown contended the count in the Indictment "had not been lawfully determined" and applied for the count to be relisted for hearing in the High Court. He undertook to file an amended Indictment restricted to one count of murder against D3, D5 and D6.

14. By letter dated 12th June, the Registrar informed the Director of Public Prosecutions that 201 was listed before O'Dea J. on 22nd June. Both of these letters were copied to the Director of Legal Aid.

15. When O'Dea J. sat on 22nd June counsel for the Respondents applied for an adjournment. This application was contested by the Crown. The jurisdiction of the trial judge was called into question. The issue of his being functus officio was raised. The Crown submitted that the trial was a nullity and that the judge was not therefore functus for the purpose of ordering a new trial.

16. O'Dea J. adjourned the Crown's application and directed that it be set down before another judge of the High Court after 14th August.

17. On 15th July, D3, D5 and D6 attended by arrangement at the Regional Crime Unit, Yaumati where they were arrested and taken into custody on a charge of murder - the count in 201. They made immediate application for leave to issue a Writ of Habeas Corpus which application was heard by Garcia J. who granted leave and made a bail order. He directed that the Writ be served on the Attorney General and upon the Commissioner for Police and further that the matter be adjourned into the Chief Justice's list for directions.

18. On 22nd July Garcia J. himself gave directions. He ordered that the Writ be returnable before de Basto J. on 10th August and further that the matter of the Writ of Habeas Corpus be heard and determined before the application by the Crown for a re-trial of 20l.

19. On 11th August the Commissioner of Police filed a return to the Writ. This was amended on 13th August. The amended return stated that D3, D5 and D6 had, on 15th July, been arrested "on the basis that they were reasonably suspected of being guilty of an offence of murder" and further stated that the cause and purpose of the arrest was to secure their attendance at the hearing of an application by the Crown in 201 "for the disposal of a count of murder against each of the Respondents".

20. The nature and content of the return became a matter of much controversy.

21. De Basto J. conceived it as his first duty to determine whether the order of O'Dea J. was a valid one and, alternatively, were it voidable, had he any jurisdiction to review, set aside or interfere with it and, in the further alternative, if he had jurisdiction whether he was functus officio.

22. He held that once a High Court judge made a final order such an order is valid until it is set aside: that one judge of co-ordinate jurisdiction does not exercise a supervisory jurisdiction over another: therefore he had no jurisdiction to interfere in any way with the order of O'Dea J.

23. On the issue of functus officio he held O'Dea J. was functus in respect of 201 and so therefore was he, even assuming that he had the jurisdiction which he denied himself.

24. The consequence was that the arrests of D3, D5 and D6 were unlawful. He ordered them to be unconditionally discharged and further that their bail monies be returned to themselves and to their sureties.

25. It is from these findings and the orders made consequent upon them that the Attorney General now appeals.

26. The first issue for consideration is this: Was the verdict of the jury an imperfect one for, if it were, then the Respondents have never in fact been tried: " trial" meaning a complete and finished trial. Without a valid verdict there has been in law no trial.

27. Germane to this issue is the debate which took place at trial between O'Dea J. and counsel which involved the consideration of the obscurely worded subsection (4) of section 24 of the Jury Ordinance, Cap.2. This reads:

"If any person is arraigned for any offence punishable with death the jury must be unanimous in their verdict of guilty or not guilty unless a majority ...

(a) ...

(b) ...

find such person guilty of a lesser offence in which case the finding of any such majority shall be the verdict and sentence shall follow accordingly."

28. The debate started when Mr. Hemmings in the absence of the jury sought guidance from O'Dea J. on the directions the judge intended to give "in relation to the question of unanimity."

29. O'Dea J. initially was of the view, being aware of divided opinions held by his brother judges, that the law required a unanimous verdict of either guilty or not guilty of murder and that a manslaughter verdict, and it should be emphasised that manslaughter was a verdict which lay for the jury in respect of all those in their charge, could not be considered until there existed an unanimous verdict of not guilty of murder.

30. Mr. Dale was of the view that, it having recently been argued before this Court, while the jury must be unanimous to convict of murder, unanimity was not require to acquit. The issue was at this point left in the air as both the judge and counsel wished to consider authorities. The judge commenced his summing up.

31. As the summing up drew to its...

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