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Does Summing-up of a Case to the Jury Do More Harm Than Good?

2017-05-01

Introduction

In the recent case of HKSAR v Lo Shing Lok [2017] HKEC 341, the Court of Appeal quashed the applicant’s conviction, set aside the applicant’s sentence and ordered the applicant to be retried on a fresh indictment before a different judge. The Court of Appeal came to this decision as they found that the trial judge had inaccurately portrayed the defence case to the jury and employed a demeaning and dismissive manner towards the applicant, resulting in an unfair and unbalanced summing-up of the facts.

Background

On 1 November 2013, two police officers intercepted the applicant and his friend and found that the applicant carried three photo albums containing 41 laminated photographs which were later found to contain cocaine. The applicant and his friend were taken to a police station where the applicant signed against a post-record, and was kept in a conference room for more than an hour. Conversely, the applicant’s friend was taken straight to a video recording interview room (“VRI room”).

At trial, the applicant’s case was that he only signed the post-record after the police officers threatened him and that the content of the post-record was false. Moreover, the applicant was led to believe that his friend would be released if he cooperated and recounted a fictitious story in his interview. Doubts were also raised as to the credibility of one of the police officer’s testimony regarding the fact that the applicant was put in a conference room as none of the VRI rooms were available.

Despite the applicant’s arguments, the applicant was convicted after trial for trafficking in a dangerous drug on 23 December 2014.

Court of Appeal’s Decision

The Court of Appeal found that the trial judge had inaccurately described the applicant’s case to the jury and misunderstood certain elements of the applicant’s case. Some examples of the trial judge’s errors include the following:

  • In relation to the applicant’s claim that a VRI room was in fact available when the applicant arrived at the police station, the trial judge failed to understand the reason behind such a claim and instead asked why there was such a “big fuss” about the conference room and the VRI room. In doing so, the trial judge confused the jury as to the real defence contention that the delay in interviewing the applicant was unjustified, lending weight to the applicant’s assertion that the delay gave the police officers opportunity to coerce and coach the applicant for his interview;
  • The trial judge failed to mention an important point in the applicant’s case concerning the improbability of the police officer’s evidence. The police officer claimed that in arresting and cautioning the applicant, he gave the statement that “there were a total of 41 laminated photographs containing suspected dangerous drugs”. It was dubious that the police officer could have immediately known the precise number of photographs at the moment of cautioning the applicant; hence, this was relevant to the jury’s assessment of the police officer’s credibility; and
  • While the applicant’s case is that the police officer’s evidence against him was untrue, the trial judge misrepresented the applicant’s case as one that boils down to an allegation that the entire police team conspired to frame the applicant to enable his friend, the true culprit, to be exonerated.

However, it should be noted that the Court of Appeal emphasised that they do not wish to discourage judges from making comments which reasonably raise legitimate questions about the defence case. Context should be taken into account, and it is a combination of inaccurate portrayals, adverse comments, and errors which led to the applicant’s conviction being quashed.

Summing-up: a harmful or beneficial exercise?

This case broaches the larger and often contested question of whether judges should be allowed to sum-up facts of the case. Some argue that summing-up is a futile exercise and is a chance for the judge to show bias – in fact, if the purpose of summing-up is to give the jury a lead, why have a jury at all?[1] Comparison is often drawn with the United States of America, where, in a majority of state jurisdictions, the judge in a criminal trial must express no opinion on the weight or credibility of the testimony of a witness or on the merits of either side.[2] On the other hand, it can be argued that the Court of Appeal is a safeguard against the dangers of unfair comments by judges, and allowing judges to sum up facts affords the opportunity of salvaging a case from “false glosses” of powerful advocates.[3] In Hong Kong, directions as to summing-up can be seen in HKSAR v Umali [2011] 3 HKLRD 55, which stipulates that comments made in the course of the summing-up should not give the impression that the judge was directing the jury to accept his views on the facts or that the judge was making another speech for the prosecution.

Conclusion

This case reminds us that there is a fine line between raising legitimate comments and overall condemnation of the defence case by judges when summing-up the evidence. While there is no doubt that a judge’s expertise is invaluable when directing the jury on the relevant law and giving the jury an agenda for their discussions, it should be remembered that summing-up should only provide a “light to jurors to open their eyes, not a guide to lead them by the noses”.[4]


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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.


[1]     Wolchover, David “Should judges sum up on the facts?” Crim. L.R. 1989, Nov, 781-792, 3

[2]     Ibid, 2

[3]     Ibid, 4

[4]     Ibid, 3


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