HKSAR v Don Amarasinghalage Don Chandra Janaka

Court of Appeal
Criminal Appeal No. 283 of 2015
Hon Lunn VP, Macrae and McWalters JJA
Criminal Procedure
20 June 2016

Trial – jury – jury required by trial judge to deliberate overnight – whether lack of appropriate direction from judge gave rise to risk of placing jury under unacceptable pressure to deliver verdict that court could accept – whether conviction rendered unsafe

D was tried before a judge and jury on a 3-count indictment of possession of a stunning device (Count 1); trafficking in dangerous drugs (Count 2); and possession of dangerous drugs (Count 3). The evidence lasted approximately three days. After the judge’s summing up, at around mid-day, the jury retired to consider its verdicts. At around 4:25 pm on the same day the jury sent the judge a written note as follows:

“For Count 3 and Count 2 (possession of dangerous drug) (it) is 4 to 3, we cannot reach a verdict. Please kindly give some additional directions.”

After discussions with Counsel the judge directed the jury to retire again and deliberate further. At about 7:30 pm the judge directed the jury to deliberate no longer for the evening and to resume deliberations in the morning. In the meantime, the jury were sequestered overnight in the court building. The following morning the jury were directed to deliberate further. Mid-morning, the jury returned a not guilty verdict (by a majority of 6:1) on Count 1, a guilty verdict (by a majority of 5:2) on Count 2 and a unanimous guilty verdict on Count 3. D applied for leave to appeal against conviction on the ground that the judge erred in not informing the jury that it was permissible to disagree in the ratio of 4:3.

Held, granting the application, treating the hearing as the appeal and allowing the appeal but ordering a retrial, that if the judge was of the view that it was too late (at 7:30 pm) to enquire of the jury whether they were unable to reach a verdict, it was necessary that the jury be told the following morning, before they retired to consider their verdicts, that they must inform the court if they are unable to reach verdicts which the court could receive. The jury could also have been informed at that stage of their possible discharge under s. 27 of the Jury Ordinance if they could not agree upon a verdict. The failure to do so was to risk placing the jury under unacceptable pressure to deliver a verdict that the court could accept.

Jurisdictions