Hksar v Lam Tsz Ho

CACC 121/2021

[2022] HKCA 1618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 121 OF 2021

(ON APPEAL FROM HCCC NO 26 OF 2020)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

Introduction

1. On 8 June 2021, following a trial before Wong J (the judge) and a jury the appellant was unanimously convicted of trafficking in a dangerous drug, namely 5,006 grammes of a crystalline solid of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced to 26 years’ imprisonment.

2. The appellant attended a post office and collected a parcel that was found to contain dangerous drugs. The appellant claimed he collected the parcel on the instructions of a friend and did not know it contained dangerous drugs. The appellant did not give evidence or call any witnesses. He relied on his answers in his video recorded interview and his counsel’s cross-examination and submissions in putting his defence before the jury. The key issue at trial was whether the appellant knew the parcel contained the dangerous drugs. The jury by its verdict found that the appellant knew the parcel contained dangerous drugs when he collected it at the post office.

3. The appellant’s appeal against conviction is focused on a single ground, for which leave was granted by a Single Judge.[1] It is contended that the judge made “strong and inappropriate remarks” in his summing-up to the jury when he said:[2]

“If you do not follow any of my directions, it may amount to contempt of court, which is a criminal offence. And as I have told you earlier, if you do not follow my directions, your verdict will be set aside by the Appeal Court and your efforts will be wasted.”

It is complained that these remarks amounted to a form of pressure and threat upon the jury in the evaluation process of the verdict which deprived the appellant of a fair trial. It is further complained that the appellant’s conviction was therefore unsafe and unsatisfactory.

Discussion

4. As a fundamental principle care needs to be taken by a judge when summing up to the jury not to improperly pressure the jury to arrive at a verdict: Tam King Hon v HKSAR[3]. However, it is important that the jury are reminded of the need to follow faithfully the instructions of the trial judge and return their verdict based on the evidence. Sometimes firm language is required to ensure the jury does not engage in any impermissible conduct, such as doing their own research about the case on the Internet: HKSAR v Chan Huandai[4].

5. The Court of Final Appeal in Tam King Hon held that appropriate directions on the decision-making process of the jury must communicate adequately the following three relevant principles:[5]

“17. 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 the 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. ”

6. The Court of Final Appeal in Tam King Hon[6] cited with approval the principle stated in R v Watson and Others[7], namely:

“… a jury must be free to deliberate without any form of pressure being imposed upon them, whether by way of promise or of threat or otherwise. They must not be made to feel that it is incumbent upon them to express agreement with a view they do not truly hold simply because it might be inconvenient or tiresome or expensive for the prosecution, the defendant, the victim or the public in general if they do not do so.”

7. This is the cardinal principle that runs through the fabric of our jury system and must be adhered to at all times.

8. It is imperative when considering whether a summing-up contains material misdirections, the impugned remarks must not be looked at in isolation but must be examined in their proper context. The ultimate object is to assess the effect of the summing-up as a whole on the jury and ensure that in the circumstances of the case it is fair: Tam King Hon[8].

9. The judge commenced his summing-up on Friday, 4 June 2021. After briefly setting out the cases for the prosecution and defence, he explained to the jury their different functions, reminding them that:[9]

“It is my job to tell you what the relevant law is and how to apply it in the present case. As to the law, you must accept what I tell you and must follow the directions I give you. If in case what counsel told you about the law is different from what I am to tell you, my direction prevails. You must accept and follow what I tell you about the law.”

10. He then told the jury that as for the facts, they alone were the judges. He said:[10]

“… It is for you to decide what evidence you accept, what evidence you reject. It is also for you to decide whether or not you are sure. When you come to consider your verdict, you, and you alone, must make the decision. When I go along, something I say may make you think that I have expressed certain view of the evidence or certain issues on the facts of the case. This is something I do not intentionally do, but if you do think that I have expressed a view on the fact, it is important that you bear this in mind. It is your own views that matters. You are free to take into account my view of what I think or reject what I say in relation to the facts. If you do not agree to what I say about the facts, you are free to reject what I say. You can just simply ignore it.

You may take into account what counsel said in their speeches. You are also free to accept or reject whatever view that has been said by counsel. You are the sole judges of fact. Now, later, I will sum up the evidence. I am not going to repeat the whole of the evidence to you. In the course, if I appear to be emphasising certain evidence, and if you think such evidence as not important, you may just disregard it. There may be some evidence which you think is important but which I do not mention, follow your own view and take that evidence into account.”

11. The above quoted remarks followed Specimen Direction 1.1 contained in the Judicial Studies Board’s specimen directions on the functions of judge and jury.

12. Immediately thereafter, the judge gave the jury the standard directions on the burden and standard of proof and reminded them in strong terms that they had to be sure of guilt and not base their decision on suspicion or probability.[11]

13. The judge then took the jury very carefully through the elements of the offence of trafficking in a dangerous drug, giving in comprehensive terms the relevant legal directions.[12] At this juncture, the judge turned to address the relevant directions in respect of the appellant. He reminded the jury of the appellant’s right of silence, which he exercised during the course of his video recorded interview, as well as his right not to give evidence or call any witnesses.[13] He finished this part of the summing-up on Friday and continued the following Monday, 7 June 2021, having warned them that he proposed to send them out to deliberate on Tuesday, 8 June 2021.

14. On the Monday, the judge reiterated to the jury that they must decide the case only on the evidence received in court and not talk to other people about it. He then stressed that they were not to conduct any research or investigation, including doing so on the Internet. He made the point that they were not investigators, that they had to decide the case on the evidence presented to them, and that they must not speculate or guess.[14] It was at this stage of his summing-up that the judge made the impugned remarks. It seems he did so because he knew the jury would be returning home that night and retiring to consider its verdict the next morning. It is appropriate to set out in full the relevant passage of the judge’s summing-up where the impugned remarks are made:[15]

“Now, as I had told you earlier, you must decide the case only on the evidence that you have received in this court. Please remember that each of you has taken an oath that you are to give a true verdict in this case according to the evidence adduced to you in this trial. You may also recall that I have told you not to talk to other people about the case, by any means not to conduct any research or investigation, including doing so on the internet. You must not do any of these things even if you think it will help you in your...