The decision in HKSAR v Chan Huandai highlighted the problems of running jury trials in the Internet age. In this article, Morley Chow Seto examines the decision and the possible solutions.
In HKSAR v Chan Huandai (CACC 114/2014), the Appellant had been previously convicted in the High Court of trafficking in dangerous drugs. Her conviction was appealed and a retrial was ordered. At the re-trial, the jury found her guilty by a 5–2 majority. The Judge discharged the jury and adjourned sentencing for eight days. Three days before the sentencing hearing, a juror telephoned the Judge’s clerk informing him that after commencement of the trial, but before the verdict, that juror and other jurors had searched the Internet and through their searches had come to know that the case was a re-trial. The juror was concerned that some members of the jury might have a pre-conceived idea about the case to the prejudice of the Appellant. The clerk reported the matter to the Judge. At the sentencing three days later, the Appellant was sentenced to 20 years and eight months imprisonment. The Judge then informed the parties of the telephone call from the juror, pointing out that after the jury’s verdict he was functus officio and could not do anything but inform the parties.
The Court of Appeal, through the Registrar, conducted an investigation by questionnaire sent to the jurors. According to the answers provided (one questionnaire was returned unclaimed) all of them knew that the case was a re-trial; five of them knew of this during the trial; one did not say when; two jurors learned of it through their own internet search; and two from other jurors. In allowing the appeal, the Court of Appeal found that the conduct of the jurors rendered the trial unfair to the prejudice of the Appellant, rendering the verdict unsafe.
This decision brings into focus the threat the Internet poses to the integrity of the jury system. Courts in jurisdictions across the world are increasingly grappling with jury misuse of the Internet during court proceedings. Jurors take an oath when they assume duty. They must act impartially and in good faith, follow the directions of the trial judge, base their deliberations and return their verdict on the evidence alone. The Court of Appeal in Chan Huandai (citing R v Mirza 1 AC 1118, Montgomery v H.M. Advocate  1 AC 641, HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133, and HKSAR v Kissel  1HKLRD 460) said that it is axiomatic that the integrity of jury trials depends on the jury acting in accordance with these judicial attributes. If it does not, the very foundation of our criminal justice system is jeopardized.
It is estimated that there are 5.75 million internet users in Hong Kong, representing 80.5 percent of the population. According to the Office of the Communications Authority, the household broadband penetration rate stood at 83.8 percent as at November 2015. The combination of fast Internet speeds, smartphone penetration, extensive wi-fi, Internet usage and awareness make Hong Kong the most Internet connected place in Asia.
In Hong Kong, juries are segregated during each day’s hearings. Yet, juries go home at the end of the day, making their behaviour outside the court room difficult to monitor. And smartphones can be used almost anywhere in Hong Kong (including the courts). In Chan Huandai, the Court of Appeal referred to the Judgment of Lord Judge CJ in R v Thompson  2 All ER 85:
“Jurors need to understand that although the internet is part of their daily lives, the case must not be researched there, or discussed there (for example, on social networking sites), any more than it can be researched with, or discussed amongst friends or family, and for the same reason. The reason is easy for jurors to understand. Research of this kind may affect their decision, whether consciously or unconsciously, yet at the same time, neither side at trial will know what consideration might be entering into their deliberations and will therefore not be able to address arguments about it. This would represent a departure from the basic principle which requires that the defendant be tried on the evidence admitted and heard by them in court.”
England & Wales
In England & Wales similar problems have arisen. In R v Karakaya  EWCA Crim 346, a jury had found Karakaya guilty of rape and indecent assault on his 17 year old daughter. After the verdict, a jury bailiff had found internet printouts in the jury room including several concerning the difficulty of obtaining rape convictions. In Attorney General v Dallas  1 WLR 991, Dallas, a university lecturer, was jailed for six months for telling fellow jurors at Luton Crown Court that a defendant accused of assault had been previously charged with rape. Similarly, in Attorney General v Beard  All ER (D) 391, Beard was jailed for two months for using Google to find out further information about the number of investors affected in a fraud trial where he was performing jury service. Research in England has also found evidence of jurors using sites such as Google Earth to visit crime scenes.
Many judges explain the reason for the prohibition but this is typically done at the outset when jurors are familiarising themselves with an unusual and perhaps daunting court process. It may be more effective to continuously remind jurors throughout the trial. In Chan Huandai, the Court of Appeal set out suggested directions to the jury after empanelment. The directions emphasise that the verdict must be based on the evidence in Court; remind the jury of their oath; direct the jury to disregard extraneous material from the press or television; and not to communicate about the case on the phone, by email, by text or Twitter. Specifically, they state:
“You should not conduct research about the case or about any person or issue connected with the case. That includes keeping away from the Internet (for example Google) to find out something which you think might assist you in coming to a decision.”
It is also recommended that the directions be re-iterated in the summing-up with a warning of prosecution for contempt for failure to follow the direction. The Court of Appeal also endorsed Lord Judge’s recommendation (in Thompson) that the principle not be explained as a polite request but as an order necessary for the fair conduct of the trial. In 2013, the Law Commission of England & Wales examined the problem of “orders” as opposed to “directions”, making recommendations for legislation, noting that many judges have adopted the practice not only of warning the jury but also of handing the jury a notice setting out what they must and must not do and the penal consequences of any breach. They have done this so that no juror can subsequently claim that he or she did not understand what they should not do and what the consequences might be.
In Chan Huandai, the trial judge had given express instructions to the jurors regarding conducting their own research. The Court of Appeal did not pursue the matter further because this was the first case where jury conduct of this kind had been brought to the attention of the Court. However the Court of Appeal warned that if, in future, jurors did not heed the judge’s directions, the Court will refer the matter to the Department of Justice for consideration of prosecution for contempt.
In Dallas, Lord Judge CJ set out four elements which would establish the elements of contempt in cases where there had been deliberate disobedience to a judge’s direction/order:
- the juror knew that the judge had directed that the jury should not do a certain act;
- the juror appreciated that that was an order;
- the juror deliberately disobeyed the order; and
- by doing so the juror risked prejudicing the due administration of justice.
Accordingly, the scope of the criminal contempt that could be prosecuted depends on the exact wording that each judge adopts in warning the jurors at the start of the trial. In consequence, the scope of the contempt varies from court to court and from case to case. The message may be clearer for jurors if they could be told that such conduct is a crime – a matter which is likely to have resonance for those who may have limited understanding of legal terminology.
Court Orders or Legislation?
Some judges in England & Wales have said that it puts them in a difficult position to issue orders at the start of a trial. The determination of whether a juror has committed contempt depends on the precise form of words used by the judge in directing the jury. It is unusual to characterise a judicial direction to the jury as a “court order”. The consequence of doing so is that it places a significant burden on trial judges to set out in full the precise boundaries of legitimate juror conduct in their opening words to the jury. The Law Commission of England & Wales recommended legislation to tackle the problem for a number of reasons, including:
- A prohibition on searching for extraneous material explained to jurors as forbidden as “a contempt of court” is difficult to explain.
- Judges with whom they met explained that their main focus on empanelling a jury is attempting to develop a rapport with the new jurors. Many judges were aware that the early moments when a jury is empanelled can be crucial to establishing the relationship between them and the court. Establishing that rapport does not sit easily with judges issuing “orders” about what jurors can and cannot do, and threatening to imprison them for breaching the order.
The introduction of a statutory criminal offence in Hong Kong may help judges avoid these conflicting tensions. Instead of having to issue an order to jurors, with sanctions of imprisonment for contempt, judges will be able to explain that it is LegCo that has made this conduct criminal.
As against that, there could be concerns that creating such an offence would make jurors more reluctant to admit their misconduct – questionnaires such as those sent to the jurors in Chan Huandai would raise issues of the right to silence. Fellow jurors may be more reluctant to report concerns, which would actively work against uncovering cases of miscarriages of justice. In Hong Kong, it can be problematic to empanel a jury willing to sit for long periods of time away from their employment, unable to discuss their day’s activities with family and friends. A threat of jeopardy for their actions as jurors would surely add to their concerns and lead to increased juror reluctance.
Notice to Jurors
In England & Wales, many judges have adopted the practice not only of warning the jury in terms similar to those recommended in Chan Huandai, but also handing the jury a notice setting out what they must and must not do and the penal consequences of any breach. They have done this so that no juror can subsequently claim that he or she did not understand what they should not do and what the consequences might be. Recent research from University College London has also suggested that jurors’ ability to understand the judge’s legal directions increased markedly when written instructions were provided.
In the United States, some judges require jurors to sign a pledge stating that they will refrain from conducting outside research on the case before them. This has the effect of solemnising the oath by jurors.
Sequestration and Surveillance
Sequestration would dramatically increase costs; is impractical for trials lasting longer than a day; could put pressure on jurors to reach a decision in undue haste in order to return home; and is likely to discourage potential jurors from their duty to sit on a jury. Likewise, surveillance is expensive, intrusive, offends the principle that a jury should confer and consider the evidence privately and can never be 100 percent effective.
Magna Carta enshrined the right for a man to be punished only pursuant to the “lawful judgement of his equals”. The problems posed by the Internet to the administration of justice are cogent, contemporary, and concerning and may need to be addressed further in future.
This article by MCS originally featured in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: http://www.hk-lawyer.org/content/jury-and-internet
The following article appeared in the South China Morning Post on 25th July 2016 following our featured article: http://www.scmp.com/news/hong-kong/law-crime/article/1994202/hong-kong-government-take-no-action-against-internet-using