(Ruling 11)
HCCC 41/2016
[2018] HKCFI 315
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 41 OF 2016
_______________
| | HKSAR | |
| | v | |
| | CHAN Yiu-shing | 1st Defendant |
| | CHENG Wai-shing | 2nd Defendant |
| | PENNELLI Rizzy | 3rd Defendant |
| | WU Kai-fu | 4th Defendant |
| | MAN Ting-lock | 5th Defendant |
_______________
| Before: Hon Zervos J in Court |
| Dates of Hearing: 17 and 20 February 2017 |
| Date of Ruling: 28 February 2017 |
_____________________________________________________________
RULING ON THE APPLICATION TO PERMANENTLY STAY THE PROCEEDINGS
_____________________________________________________________
1. Despite the requirements of Practice Directions 9.71, I received from Mr D Kwok, for the 2nd defendant, an application to permanently stay the proceedings on the ground of pre-trial publicity concerning adverse publicity generally about the case and specifically about the 2nd defendant’s conviction together with the 1st defendant in the case of TMCC 601/2015. Mr Kwok adds that the issue of adverse publicity is exacerbated by the admissions made by the 5th defendant in his out of court statements which have been ruled admissible.
2. The main ground in support of the application concerns articles published and posted online, and discussions on social networking sites, which mainly occurred in 2015 and 2016. In other words, the material relied upon to make this application has been available for some time but it is only now that the application is made. Counsel for the other defendants join in making the application.
3. Mr Kwok argues that no direction to a jury could cure the likelihood of actual or apparent bias with a potential juror, as it is possible that a potential juror may have been the publisher of adverse comments about the case which have been made on certain social networking sites. He further argues that no adjournment could satisfactorily resolve any issue of actual or apparent bias with a potential juror.
The prejudicial materials
4. In support of the stay application, the defence have variously filed copies of articles published in print media and online media and copies of downloaded images from social networking sites. The materials were variously marked as Exhibits W1 to W6. The materials were formally produced by way of Admitted Facts dated 20 February 2017. Admitted Facts were separately agreed between the prosecution and the 1st defendant dated 20 February 2017. These were in addition to the other Admitted Facts.
5. The Admitted Facts addressed three subject areas. First, copies of publications in question. Secondly, the results of a Google search relating to the case and to the 1st and 2nd defendants. Thirdly, Facebook notification system in relation to two Facebook pages where posts or discussions had taken place in relation to the case. In relation to the two Facebook pages, it is fair to say that the number of users who have shared or liked a relevant post was not large. It is agreed that the posts are accessible to any internet users, including any users of Facebook. It is hard to determine to what extent users, beyond those who have “Liked”, “Commented” or “Shared” the posts, have accessed or been notified of them.
6. Exhibit W1 is an article published in the Standard newspaper on 8 February 2017. Mr John Haynes, for the 3rd defendant, complains that the article gives an inaccurate and exaggerated description of the case against the defendants. The article brought about a direction and warning dated 9 February 2017 from me to media outlets.
7. Exhibit W2 is a newspaper article in the Apple Daily published on 18 June 2015 but accessible online as at 8 February 2017. Mr Randy Shek, for the 1st defendant, complains that the article makes reference to the 1st defendant’s four prior convictions which includes a conviction for a similar offence that he faces of possession of explosives and also to another case where the 1st and 2nd defendants were before the court in relation to possession of offensive weapons.
8. Exhibit W3 consists of the Facebook pages of “OMouth.org” and “Silent Majority” where there are posts on these pages directed at the 1st and 2nd defendants concerning their involvement in this case and the other case in which they were both charged with possession of offensive weapons. The language used is extreme and inflammatory, describing them, amongst other things, as dangerous terrorists.
9. Exhibit W4 are online articles of the South China Morning Post that were recently accessed on 1 February 2017. The articles were originally published in June 2015. Mr Haynes repeats his complaint that the articles which discuss the case and the involvement of the defendants, are inaccurate and exaggerated.
10. Exhibits W5 and W5A are a number of articles that were variously published in 2015 and 2016 in relation to this case and also in relation to the other case involving the 1st and 2nd defendants where they were convicted of possession of offensive weapons. The articles did not only associate the two cases together but also identified the convictions and sentence and also the prior criminal record of the 1st defendant. Mr Shek also complains of the inaccurate and extreme language that was used in the reports.
The relevant legal principles
11. As a fundamental proposition, every court has implied power to protect the integrity of its own process and this includes to stay proceedings to prevent an abuse of it.[1]
12. When an abuse of process application is made, the burden of proof lies on the party alleging the abuse and the standard of proof is the balance of probabilities.[2]
13. There are two categories of stay applications which were succinctly described by Sir John Dyson JSC in R v Maxwell [2011] 2 Cr App R 31 as follows:
“13. It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will ‘offend the court’s sense of justice and propriety’ (per Lord Lowry in R v Horseferry Road Magistrates’ Court Ex p Bennett (1993) 98 Cr App R 114 at 135; [1994] 1 AC 42 at 74) or will ‘undermine public confidence in the criminal justice system and bring it into disrepute’ (per Lord Steyn in R v Latif [1996] 2 Cr App R 92 at 100; [1996] 1 WLR 104 at 112).”
14. The two categories of stay applications are commonly referred to as the fair trial limb and the affront limb respectively.
15. The legal principles relating to pre-trial publicity in the context of an application to permanently stay the proceedings are well settled, but as is usually the case such application will very much depend upon the facts and circumstances of the particular case.
16. An obvious starting point in understanding the relevant legal principles in an application of this type is the case of HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133 (Lee Ming Tee (No.1)). In that case, Ribeiro PJ, with whom the other judges agreed, discussed in some detail the jurisdiction to stay criminal proceedings. While acknowledging the unquestionable jurisdiction to stay criminal proceedings in order to prevent abuse of its own process, Ribeiro PJ noted that such a course would only be justified in highly exceptional circumstances. He said:
“In most such cases, the court only grants the stay because, notwithstanding the range of remedial measures available at the trial, a fair trial for the accused is found to be impossible and continuing the prosecution would amount to an abuse of process. In Jago v District Court of New South Wales (1989) 168 CLR 23 at p.30, Mason CJ put it as follows:
The continuation of processes which will culminate in an unfair trial can be seen as a “misuse of the Court process” which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.”[3]
17. Upon a review of the authorities, Ribeiro PJ explained that the common thread under the first limb is the requirement that a fair trial has become impossible, making continuance of the prosecution an abuse of the court’s process.
18. According to Ribeiro PJ, it is only in very unusual circumstances that a court can properly be satisfied that a fair trial is “impossible”. He said:
“…The “fairness” achievable is judged in practical and not absolute terms. As Brennan J pointed out in Jago v District Court of New South Wales (1989) 168 CLR 23 at p.49:
If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.
More importantly, the court’s primary endeavour is to ensure that a fair trial takes place, employing the law’s available resources, and not to abort it on the ground that fairness cannot be attained, save as a last resort. To quote Brennan J again:
A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimise prejudice to either party. (Jago v District Court of New South Wales (1989) 168 CLR 23 at p.46)
His Honour continued:
Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v The Queen (1989) 63 ALJR 422; 86 ALR 35), adverse revelations in a public inquiry (Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25), absence of competent representation (McInnis v The Queen (1979) 143 CLR 575; MacPherson v The Queen (1981) 147 CLR 512), or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer. (at p.47)”[4]
19. It seems clear to me that Ribeiro PJ was stressing the important proposition that fairness is judged in practical and not absolute terms, given the array of remedial measures that are available to a court to ensure as practical as possible that a defendant receives a fair trial.
20. Of course, if a fair trial is not achievable, then that would constitute an abuse of the court’s process. As also observed in Lee Ming Tee (No.1) the public interest in holding a trial does not warrant the holding of an unfair trial.
21. Ribeiro PJ makes the point that the court will only consider granting a permanent stay as a last resort and approaches such applications where a fair trial is said to be impossible regarding “fairness” in practical rather than absolute terms, and placing its faith primarily in the efficacy of measures available to overcome any potential unfairness.[5]
22. Ribeiro PJ went on to emphasise that such an approach very much applies to stay applications based on prejudicial pre-trial publicity. He said:
“…In a society where the press is free it is inevitable that the reporting of crime will, in some sections of the media, be lurid and sensationalist, sometimes even at the risk of punishment for contempt. The more heinous or shocking a particular crime, the more it is likely to be given notoriety and to receive potentially prejudicial reporting. Jurors will therefore almost certainly have been exposed to some degree to such media coverage, prejudicial to the accused. Plainly, it is not in the public interest to permit this in itself to abort the prosecution of a person accused of such serious crimes.”[6]
23. Ribeiro PJ observed that it was exceedingly rare for adverse publicity to lead to a permanent stay. He said that in most cases, while acknowledging that special care must be taken to counteract possible effects of prejudicial publicity, the court places its faith in the jury, properly directed, to secure a fair trial for the accused.[7] He went on to explain:
“This was the approach of the Court of Appeal in R v West [1996] 2 Cr App R 374 (at p.386) and also the approach adopted by the Australian High Court in The Queen v Glennon (1992) 173 CLR 592:
The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. (Mason CJ and Toohey J at p.603)
In the Scottish case of Stuurman v HM Advocate [1980] JC 111, a trial was allowed to continue and leave to appeal against that ruling refused, notwithstanding the fact that a newspaper and a radio station had pleaded guilty to and been punished for contempt of the “gravest character” in relation to their prejudicial reporting of the case. The test applied, similar to that applied in many of the cases and in many jurisdictions, was as follows:
…whether the risk of prejudice is so grave that no direction of the trial Judge, however careful, could reasonably be expected to remove it. (Lord Justice-General Emslie at p.122)
Reliance on the integrity of the jury and its ability to try the case fairly on the evidence, to put aside extraneous prejudice and to follow the directions of the judge is fundamental to the jury system itself. This was emphasised by Mason CJ and Toohey J in The Queen v Glennon (1992) 173 CLR 592:
In Murphy v The Queen (1989) 167 CLR 94 at p.99, we stated: “But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury”. The matter was put this way by the Ontario Court of Appeal in Reg v Hubbert (1875) 29 CCC (2d) 279 at p.291: “In this era of rapid dissemination of news by the various media, it would be naïve to think that in the case of a crime involving considerable notoriety, it would be possible to select twelve jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.” To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge. (at p.603)
This also reflected Lord Avonside’s views in Stuurman v HM Advocate [1980] JC 111 (at p.117):
It must be assumed that jurors will behave with propriety and that they will exclude from their deliberations all matters which were not given in evidence in court in the course of a trial. If this assumption is not made then trial by jury would be meaningless in this sense, that if it were accepted that directions in law might be disregarded or disobeyed the justification for trial by jury in indictment proceedings would collapse.”[8]
24. Ribeiro PJ explained that there is good sense in regarding the jury, properly directed, is able to overcome prejudicial publicity in the vast majority of cases. He gave two important reasons. First, with the passage of time, any recollection that a juror may have of adverse publicity can be expected to fade, lessening its prejudicial effect. Secondly, the jury may sensibly be credited with the ability to overcome any pre-trial prejudice because of the nature and atmosphere of the trial process. He endorsed the following remarks of Lord Hope in Montgomery v HM Advocate [2000] 2 WLR 779:
“The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict. (Internet transcript at pp.34-35 of 42)”[9]
25. More recently, the issue of prejudicial pre-trial publicity was addressed in HKSAR v Kissel [2011] 3 HKLRD 1, [2014] 1 HKLRD 480.
26. I found the judgment of Macrae J (now Macrae JA), which was endorsed by the Court of Appeal,[10] particularly helpful in considering the present application. He followed the principles as summarised in Lee Ming Tee (No.1) and went on to note that however careful or prudent the judge might be in his conduct of proceedings and judicial direction, there might be other types of prejudicial material or evidence, which should never ordinarily be disclosed to a jury, such as the prejudicial pre-trial reporting of a defendant’s confession, and which by virtue of the scale and quality of the publicity, so compromise a fair trial that a permanent stay should be ordered. He noted that whatever the circumstances, the test to be applied was whether the risk of prejudice of pre-trial publicity was so great that no direction of the trial judge, however careful, could reasonably be expected to remove it. Applying Stuurman v HM Advocate [1980] JC 111, he said this required a trial judge to assess the risk of prejudice and evaluate the effectiveness of the means to prevent it.
27. An important, and not to be underestimated, means to address any prejudice arising from pre-trial publicity is the use of proper and emphatic directions to the jury at the beginning and end of the trial, as well as on any other suitable occasions during the trial, that they should be directed to concentrate, as a matter of sworn duty, only on the evidence produced in court, to disregard emotive considerations and to based their findings of fact and their verdict on an objective appraisal of the evidence present in court, uninfluenced by anything else.
28. As is now a standard direction, a jury should also be told not to search or discuss the case specifically by using the internet, as to do so would be to confound the objective of ensuring a fair trial for the defendant by considering only the evidence adduced in court. They should be further told that such research may affect their decision, whether consciously or unconsciously, yet neither side at trial would know what consideration might be entering into their deliberations and would therefore not be able to address arguments about them.
29. The Court of Appeal[11] in endorsing the judgment of Macrae J, also emphasised:
“115. In our system of the administration of justice, the court must act on the assumption that the jury will act in good faith, on the evidence and in accordance with the directions of the judge. “[T]he entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.” (per Lord Hope of Craighhead in Montgomery v HM Advocate [2003] 1 AC 641 at 674B) “Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court.” (per Lord Phillips CJ in R v Abu Hamza [2007] QB 659 at 684E).
30. The Court cited with approval[12] the comments of Sir Anthony Mason CJ in R v Glennon (1992) 173 CLR 592 at 603:
“The possibility that a juror might acquire irrelevant and prejudiced information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.”
31. The Court also cited with approval[13] the following comments from R v Abu Hamza [2007] QB 659:
“For what it is worth, this judge’s experience leads him to endorse the conclusion that lawyers are occasionally unwisely dismissive of juries. Almost universally, they approach their task and their oath with conspicuous conscientiousness. They are often unavoidably faced with inadmissible evidence which they must discount, especially in the case of several defendants, and experience strongly suggests that, whilst desirable, it is not necessary for them to be kept wholly ignorant of such evidence in order to be able to reach a careful decision which takes no account of it. Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding the allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof.”
32. I have been referred to the South Australian Court of Appeal decision of R v Simpson [1999] SASC 348 where Doyle CJ set out the relevant principles in relation to a stay application on the ground of prejudicial pre-trial publicity. Doyle CJ observed that:
“23 Criminal justice is always administered in the public gaze. There is considerable public interest in the administration of criminal justice. Judges are mindful of the fact that the print medium, radio and television regularly feature items relating to particular cases, to the administration of criminal justice generally, and to crime in the community. All sorts of information and attitudes are communicated in this manner. It is pointless and impossible to attempt to isolate a jury from this material. Indeed, it would seem counterproductive to do so, because the jury is drawn from the community and should represent the community. Jurors come to their task with information and attitudes about crime and criminal justice that are influenced by the sources to which I have referred, and the administration of criminal justice must accommodate that fact. It is at that point that the assessment by the trial judge of the impact on a jury of the relevant prejudicial material becomes critical, as does the trial judge’s assessment of his or her ability to deal with the situation by directions to the jury, and the trial judge’s assessment of the ability of the jury to put prejudicial material out of their minds. There is nothing new in this, but I make these points because it is important that the courts take a realistic approach to claims that a fair trial has become impossible because of prejudicial publicity, but at the same time not lose sight of the importance of securing a fair trial to the extent that a court can. …
24 The courts have stressed time and again that in considering the course that should be followed in the face of prejudicial publicity, trial judges and courts of appeal must and do proceed on the basis that jurors are able to and will act in conformity with instructions given by the trial judge to ignore extraneous prejudicial material, and to act only on the evidence given at the trial. …”
33. The test in relation to pre-trial publicity is “whether it would be oppressive for the trial to proceed because the likely effect of prejudice is so grave that no direction by a trial judge, however careful, could reasonably expect to remove it”.[14]
34. Where an application to stay proceedings is made on the basis of prejudicial pre-trial publicity, the defendant has to show on the balance of probabilities that there is a real risk that a fair trial is not possible.[15]
The 2nd defendant’s argument
35. In a rather unusual submission, Mr Kwok argues that the prejudicial pre-trial publicity is incurable by any direction to the jury because a juror may have been the publisher of the prejudicial publicity, constituting actual or apparent bias. His argument continues along the line that even if the Court permitted the 2nd defendant to challenge a juror by cross-examining him or her for cause, pursuant to section 29 of the Jury Ordinance, Cap 3, this would involve him in identifying the prejudicial pre-trial publicity and referring to the social mediums where the case has been discussed in extreme and adverse terms which would then alert the challenged juror of the subject matter, causing prejudice to the 2nd defendant.
36. I found no substance to this argument. It presupposes that a potential juror has engaged in publishing extreme and adverse comments about the case and the defendants, and that he would be entitled to cross-examine a potential juror about the matter which by doing so would then influence them adversely against the 2nd defendant. The two social mediums that he has referred to involved only a small number of participants and there is little, if any, evidence to indicate that there has been any widespread and significant coverage beyond what has been said in the social mediums concerned. The argument also ignores the relevant authorities that I have already referred to in relation to the role of a jury in our criminal justice system and the faith that is placed in the jury to abide by directions and fulfil their oath to ensure a fair trial for a defendant.
Conclusion
37. I dismiss the application as it seems clear to me that on an appraisal of the contents of the articles, and the discussions on the social mediums, by reference to when and how they occurred, and the scale of their audience or participants, that the passage of time will mitigate against any serious or lasting prejudice. But the principal basis for dismissing this application is the courts’ faith in the jury system, and that there is good reason in regarding the jury, properly directed, to be able to overcome prejudicial publicity in the vast majority of cases. In my opinion, a jury properly directed can overcome the issue of any adverse publicity as claimed to have occurred in the present case. I should also add that the case has been adjourned for the trial to take place in September 2017 and therefore any recollection that a juror may have of the adverse publicity can be expected to fade considerably, if not totally.
38. For the foregoing reasons, I do not consider to the requisite standard that the risk of prejudice is so grave that no direction from the Court could reasonably be expected to remove it.
39. To ensure that the jury is properly directed, I attach a proposed direction that I will give to the jury panel and which, with appropriate changes or amendments, will be repeated throughout the trial.
| | (Kevin Zervos) |
| | Judge of the Court of First Instance |
| | High Court |
Mr Jonathan Man, SADPP, and Mr Gary Leung, SPP of Department of Justice, for HKSAR
Mr Douglas Kwok, instructed JCC Cheung & Co., assigned by Director of Legal Aid, for the 2nd defendant
Proposed Direction to the Jury Panel
I understand that there may have been newspaper reports and other commentary that have also been posted online relating to this case and to the defendants. It appears that the reports and other commentary may have gone into some detail. If you have read or heard anything about this case or the defendants in such a way that it has left a remaining impression on you, please let me know at the time when your name is called out. In other words, it is a matter that you can recall and remember. I should add that I may ask you to inform me in writing what it is that you recall or remember about the case or the defendants.
This case concerns five defendants. They are Chan Yiu Shing, Cheng Wai Shing, Rizzy Pennelli, Wu Kai Fu, and Man Ting Lock. They are to stand trial on an indictment containing five counts or charges. The first count alleges that they conspired to make explosives between 28 May 2015 and 14 June 2015. The second count alleges that Cheng Wai Shing possessed explosives on 14 June 2015 at the ex ATV building, Ho Chung, Sai Kung. The third and fifth counts allege that Rizzy Pennelli possessed explosives on 14 June 2015 at the ex ATV building and on 14 June 2015 at Flat B, Second floor, Block 6, Costa Bello, Sai Kung, respectively. The fourth count alleges that Chan Yiu Shing possessed explosives on 14 June 2015 at an outside room H, second floor, Kwong Wing building, 18 Shan Tung Street Mong Kok.
If you know or are familiar with this case or any of the persons involved, then you should indicate that to me at the time when your name is called out.
Those of you who will be selected as the jury, will swear an oath, or take an affirmation, that is, that you will solemnly, sincerely declare and affirm, that you will give a true verdict in the case according to the evidence.
As I told you earlier, there may have been newspaper reports and other commentary that have also been posted online relating to this case and to the defendants. You must ignore any report or social medium discussion of that sort. Your duty in this trial is to return a verdict upon the evidence that you have heard in this court room. It is most important that you put out of your minds, when considering your verdicts, anything which you may have read or heard or seen in the media or elsewhere concerning this case or any of the defendants.
Your role as a jury if you are selected in this trial will be that of a judge. You will by taking the oath or making an affirmation become a judge in this trial, namely, a judge of fact. You as a jury alone have the role of returning the verdicts in this trial. You listen to the evidence and consider closely the evidence in the trial and to give a true verdict according to the evidence. You must have some of the understanding of the qualities that you must bring in your role as the judge of fact. As a judge of fact you will decide the issues based only on the evidence led in this trial, not on what someone else might have said elsewhere, for example in a newspaper or other media report or through the Internet. As a judge of fact you must act fairly and impartially.
You are reminded to arrive at your verdict solely based on the evidence presented to you in the courtroom and upon the basis of my legal directions, otherwise it will contradict your oath or affirmation and the central principle of our legal system. Hence, you should disregard anything from other sources, including rumours, articles, reports in newspapers, radio and television, because such reports might be incomplete or possibly out of context.
In addition, you must not be tempted to investigate the incident, visit or inspect any place connected with the incident giving rise to the charges or obtain information elsewhere about the case in general or about other matters that are raised during the trial, including persons or issues connected with the case. Do not use the Internet, for example, Google, to find out something which you think might assist you in coming to a decision or simply out of curiosity. The reason for this is that if you were, unknown to the prosecution and defence, to conduct your own research, inquiry or investigation, they would not be in a position to comment on or otherwise deal with it and that would not be fair. You are reminded that your function is to make a decision based only on the evidence that is placed before you.
[1] Yeung Chun Pong v Secretary for Justice (2006) 9 HKCFAR 836, [40].
[2] See HKSAR v Chan Kong On [2011] 2 HKRD 1085, [54] (CA); Attorney General v Charles Cheung Wai-Bun [1993] HKCLR 249, 253 (PC). See also Secretary of State for the Home Department v CC [2013] 1 WLR, 2171, [82]-[87].
[3] At 148I-149A.
[4] At 150D-151C.
[5] At 189D-E.
[6] At 189E-G.
[7] At 190A-B.
[8] At 190B-191C.
[9] At 192C-E.
[10] [2014] 1 HKLRD 480.
[11] [2014] 1 HKLRD 480.
[12] At [116].
[13] At [119] and [120].
[14] See Lee Ming Tee (No.1).
[15] See HKSAR v Yip Kai-foon [1999] 1 HKLRD 277; R v Taylor & Taylor (1994) 98 Cr App R 361.