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Chan Kar Leung And Others v Hksar

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date06 November 2006
Citation(2006) 9 HKCFAR 827
Judgement NumberFACC6/2006
CourtCourt of Final Appeal (Hong Kong)
Subject MatterFinal Appeal (Criminal)
FACC000005/2006 CHAN KAR LEUNG AND OTHERS v. HKSAR

FACC Nos. 5 & 6 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS. 5 & 6 OF 2006 (CRIMINAL)

(ON APPEAL FROM CACC NO. 287 OF 2004)

_____________________

Between:

CHAN KAR LEUNG

1st Appellant
KU CHAU WAN, BONNIE 2nd Appellant
KU PUI WAN, FREDA 3rd Appellant
and

HONG KONG SPECIAL ADMINISTRATIVE REGION

 Respondent

_____________________

Court : Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ

Date of Hearing : 1 November 2006

Date of Decision : 1 November 2006

Date of Handing Down of Reasons : 6 November 2006

_____________________

J U D G M E N T

_____________________

Chief Justice Li :

1. At the conclusion of the hearing we : allowed the appeals; quashed the convictions; ordered that the 1st appellant be retried for false accounting under the 2nd, 4th and 6th counts; admitted him to bail pending retrial; and declined to award any of the appellants any of their costs here or in the courts below. We now hand down our reasons. They are given by Mr Justice Bokhary PJ for the Court.

Mr Justice Bokhary PJ :

2. This appeal concerns the directions to be given to a jury on two matters. One is how they should go about their deliberations. The other is the position if they cannot achieve the majority that constitutes a verdict. Each is of vital importance to our system of trial by jury. And the principles governing each are to be found in the recent decision of this Court in the case of Tam King Hon v. HKSAR [2006] 2 HKLRD 143. It is necessary to say something about the background before stating those principles and applying them to the directions complained of in the present case.

3. In the summer of 2004 these three appellants stood trial in the High Court before Nguyen J and a jury of nine members on an indictment containing eight counts. The counts were based on four letter of credit transactions. Each transaction formed the subject-matter of a pair of alternative counts. Procuring the making of an entry in the record of a bank by deception contrary to s.18D of the Theft Ordinance, Cap.210, was charged under the 1st, 3rd, 5th and 7th counts. False accounting contrary to s.19(1)(b) of that Ordinance was charged under the 2nd, 4th, 6th and 8th counts. In respect of each transaction, false accounting was charged in the alternative to procuring the making of an entry in the record of a bank. Thus the 2nd, 4th, 6th and 8th counts were brought in the alternative to the 1st, 3rd, 5th and 7th counts respectively.

4. At the trial the 1st, 2nd and 3rd appellants were the 1st, 2nd and 3rd accused respectively. The 1st accused faced every count; the 2nd accused faced the 1st and 2nd counts together with the 1st accused; and the 3rd accused faced the 3rd and 4th counts together with the 1st accused. By a majority of 7 to 2 the jury acquitted on all the procuring counts. They were unanimous in convicting the 1st accused of false accounting under the 2nd, 4th and 6th counts and in acquitting him of false accounting under the 8th count. The 2nd accused was unanimously convicted of false accounting under the 2nd count. And the 3rd accused was unanimously convicted of false accounting under the 4th count. All the convictions were affirmed by the Court of Appeal (Stuart-Moore VP, Stock JA and Suffiad J). The Appeal Committee granted the appellants leave to appeal to us on the substantial and grave injustice ground. Such leave was limited to the complaints made against the trial judge’s directions to the jury on the two matters identified at the beginning of this judgment, namely (i) how a jury should go about their deliberations and (ii) the position if they cannot achieve the majority that constitutes a verdict.

5. With that statement of the background, we can turn now to state the principles laid down in Tam’s case. These are to be found in the judgment of the Chief Justice with which the other members of the Court agreed.

If the jury cannot achieve the majority that constitutes a verdict

6. We deal first with the position if the jury cannot achieve the majority that constitutes a verdict. In Tam’s case at p.154 C – F the Chief Justice said that for a jury of seven members the appropriate approach is contained in the Judicial Studies Board’s specimen directions which read :

“You should strive to reach a unanimous verdict, that is, a verdict upon which you all agreed; whether guilty or not guilty. If however you are unable to do so, then I am entitled in law to accept from you a verdict upon which at least five of you are agreed, in other words, a verdict of six-one, or five-two. A verdict of four-three either way does not constitute a verdict, and should that position arise I shall direct you further.”

Then at lines F – G of the same page the Chief Justice said :

“At the stage of a summing-up, at which time a jury has not begun to deliberate, it is usually not appropriate to refer to discharge of the jury in the event of a verdict of four to three. When a verdict of four to three does arise, the judge can then deal with the matter as may be considered appropriate in the circumstances.”

For the sake of completeness, it should be noted that 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. All of that is laid down in s.24 of the Jury Ordinance, Cap.3.

7. In the present case the Court of Appeal considered – and then rejected – the argument that the trial judge’s statement to the jury that “anything less than 7 – 2 would not be acceptable” would or might have given them the impression that they had to go on deliberating indefinitely. In our view, there was no real danger of the jury getting that impression. While not ideal, the trial judge’s directions to the jury on the position if they could not achieve the majority that constitutes a verdict were not fatally flawed.

How a jury should go about their deliberations

8. We turn now to how a jury should go about their deliberations. As to that the Chief Justice said this in Tam’s case at pp 148 J – 149 D :

“First, jurors have a duty to give a true verdict according to the evidence. Each juror has this responsibility. Each juror has sworn or affirmed to do so. It is a responsibility which rests on each juror. Secondly, deliberating together when views are exchanged is an essential process for the jury in reaching a decision. This deliberative process has rightly been regarded as the strength of the jury system. This process enables jurors to pool their experience and wisdom. Jurors should not only put their views but should listen to and consider the views of others. As a result, a juror may be persuaded to accept the views of others and views initially held may be changed. In deliberating, jurors must of course approach their task objectively. Thirdly, no juror should come to a decision for the sake of conformity or out of submission to pressure by other jurors. Ultimately, each juror must honour the oath or affirmation he has taken to give a true verdict according to the evidence. No juror should compromise, or go against his own view based on the evidence which is conscientiously held after the deliberative process has been gone through. See R v Accused [1988]2 NZLR 46 at p.58 lines 15-45.”

9. From there the Chief Justice went on to say (at p.149 E – I) that drawing an analogy between the way in which a jury should function and the way in which a board of directors functions is “inconsistent...

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