THE QUEEN v. TAM CHUNG SHING AND OTHERS

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J U D G M E N T

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Yang, C.J.:

1. I have had the advantage of reading my brethren judgments in draft. I agree with the orders proposed and with the reasons given. There is nothing further that I can usefully add.

Silke, V.-P.:

2. Seven defendants appeared for trial before Bewley J and a jury upon an indictment which contained two counts of conspiracy to defraud, contrary to Common Law.

3. The Particulars of the first count alleged that, between 1st August 1983 and 1st June 1984, the 1st, 2nd; 3rd, 4th and 7th named defendants conspired together and with Alex Au Yan Din, Simon Tam Hon Kong, Philip So Kai Hung and Edmund Chu Sau Yan to defraud the shareholders and potential shareholders and creditors of Conic investments Co. Ltd. There were six particulars of the dishonesty - the Cony and Lucky Chain conspiracy.

4. The second count involved the 5th, 6th and 7th named defendants and alleged conspiracy between the same dates to defraud Conic Investments Co. Ltd. with conspirators named as Alex Au Yan Din, Simon Tam Hon Kong, Lam Pal: Wing, Philip So Kai Hung and David Liu Chor Keung - to that count, there were also six particulars of dishonesty - the Far East United Electronics and Sunshine Garden conspiracy.

5. On the first count Tam Chung Shing - "D1" - was found guilty unanimously; William Chan Yuk Shu - "D2" - was found guilty unanimously; David Lo Tai Wai - "D4" - was found guilty by a majority of five to two. On the second count, Lam Chung Kiu - "D5 - was found guilty by a majority of five to two Chambers Wong Toe Yeung - "DG" - was found guilty unanimously, Alex Wong Ngok Chung - "D7"- was found guilty on both the first and the second counts by a majority of six to one The 3rd named defendant at trial was acquitted.

6. The trial judge gave a Certificate under the provisions of section 82(2) of the Ordinance on several points which arose at trial; the final one being

"Whether the, fifth accused was convicted by a incompetent jury, in that up to three of their number were found to have been asleep during parts of the defence case,"

7. A certificate in similar terms was given to the other. convicted persons. They all now appeal against convicticn and, should it be necessary seek leave to appeal against their respective sentences.

8. The trial, involving a multitude of witnesses and a plethora of documents, went on for a very long time. It started on 2nd February 1937 and concluded, with some minor breaks, on lst October 1.9"07. On 9th August 1987 counsel attended upon the judge in Chambers and Mr. Ford who appeared for D7 raised the matter which has come to be known as the "sleeping jurors" issue. When the Court resumed, the -trial judge warned the jury to listen to the evidence.

9. On 13th August; again in the absence of the jury, Mr. Sedgwick, who with Mr. Suffiad appeared for D6, raised the issue of one particular juror - referred to as "number 7" - being asleep. When the Court resumed with the jury present; the judge referred to the.problem the jury seemed to have of staying awake and spoke directly to number 7. In reply number 7 said "I am sorry, my Lord, just recently I just have too much to do and indeed I am preparing for my examination. I must say that I will try to do my best." The Court asked him was he saying, in effect, that he was not getting enough sleep to which the juror replied in the affirmative. He was asked to stay awake.

10. On 28th August; the final day of the final prosecution witness, Mr. Loughran who represented D5 raised the issue again in terms of the jurors' capacity to understand the proceedings were they in fact asleep and: consequent upon that, their competency to render a verdict.. Counsel explained that while sleeping jurors had been noticed during the course of the trial, the legal significance had not been realised until this late stage. This had particular reference to juror No.7.

11. Mr. Loughran first asked that further enquiries be made. He suggested having typed the relevant portions of the transcript when objection arose. The judge felt that he could recall that which had taken place and did not therefore think this course to be necessary.

12. Mr. Loughran -then suggested that the form the enquiry should take would be the calling of evidence. The other counsel either. supported in part, or not at all, Mr. Loughran's suggestion. This particular episode concluded when the judge informed counsel that he was not going to say anything to the jurors that particular morning but he proposed to observe them and to consider the matter, and the authorities, over the weekend.

13. When the Court -resumed on 1st September, Mr. Matthews, who appeared for D4, asked to be heard before the judge gave any ruling on Mr. Loughran's application. He referred to the other two jurors, number 5 and number 6, and -requested that the whole panel of jurors be discharged. That application was supported by Mr. Ford: Mr.. Loughran reserving his position but continuing to urge that evidence be heard. Mr. Lunn, who appeared for D2, wished the trial to continue. Mr. Adams who appeared for D3 supported Mr. Lunn and expressed his view that number 5 had seemed to him to be taking a very active part in the case. Mr. Bokhary, with Mr. Davies, who appeared for D1, sought suggestions from other counsel as to what course should be taken. Mr. Loughran came back with the suggestion that evidence ought to be taken from, as far as he was concerned, his instructing solicitor, Mr. Ford, Mr. Sedgwick and D5. Mr. Matthews adopted Mr. Loughran's approach and added D4 to the list of prospective witnesses. Mr. Suffiad reserved his position, Mr. Sedgwick then not being in Court.

14. Mr. Cagney who appeared for the Crown accepted that there was some force in that which Mr. Loughran had said but could see no particular point in the calling of opinion evidence as to whether a juror was or was not asleep. He thought the problem could only be resolved by examining the actual juror. The time when a juror was apparently asleep was not specifically on record as there was an understandable reluctance on the part of counsel throughout the trial to stand up in public to make observations as to the.inattention of jurors.

15. Their reluctance, in the light of the ground of appeal which lies for consideration, was somewhat unfortunate.

16. It was also Mr. Cagney's view that it would be difficult to see how the interest of the accused could be served by aborting the trial on its 113th day and, as he put it, on the very last moment of the very last witness". Mr. Matthews in reply reiterated the necessity to hear evidence.

17. Bewley J. ruled that it was not necessary to hear evidence. He stated himself to have accepted that which counsel had told him and that he himself had made his own observations. He went shortly through the history of the matter, accepted that number 7 was in a somewhat different position to numbers 5 and 6 and said that,as a result of that which occurred on 28th August, he had kept observation upon the jury and stated that he had seen number 7 was fast asleep soon after the :trial resumed on that day. He concluded:

"Having regard to the length of -his case and the expense that would be involved in a -retrial, I do not think it would be right at this stage to discharge the jury, I have considered whether I should dispense with the services of No.7, but I think there is nothing to be gained by such a course. He is not a liability or danger to the rest of the jury. On the contrary; even if he has missed a small portion of the case; he will be able to make a contribution. For these reasons, I intend, on the jury's return, to deliver a further homily of the subject but take no further action.

The trial continued with the result as already set out.

18. There is now for hearing before us a summons, issued with leave, entitled ''Summons Inter Partes", brought on behalf of D5. This makes application for orders pursuant to sections 83V(1)(b) of the Criminal Procedure Ordinance, Cap.221 - "the Ordinance" - that witnesses attend the hearing of the appeal for examination and be examined before the Court of Appeal. The witnesses are itemised as (a) Anthony Sedgwick, 4.C.; (b) Michael Edward Aston Ford; (c) Jerome Joseph Matthews; (d) Uriah Tse Chak Tong (solicitor for D5 at trial); (e) Jackson Cheung (article clerk to the solicitors acting for D5) and (f) D5.

19. This summons was brought under the single judge procedure as set out in section 83Y(1) and.in particular 83Y(2)(d). Because of its nature and importance I directed that it be heard before a bench of three Justices of Appeal.

20. Before the hearing date, a document entitled Notice of Application was filed on behalf of D5.which made application that, at the hearing of the Appeal, the Court do receive; under section 83V(1) (c) or alternatively section 83V(2) the evidence of those itemised witnesses. There was also filed a Notice of Motion on behalf of D4 and D7 for leave to be joined as parties to the summons and the Notice of Application..

21. On the morning of the hearing, because of events which had occurred, the Court sat with two Justices of Appeal. Counsel were asked if they had any objections and replied in the negative. The representation then was Mr. Keane, with him Mr. Loughran for D5. Mr. Michael Ozorio for D5 and D7 - he also held a watching'brief for Mr. Ford; Mr. Matthews and Mr. Sedgwick -; Mr. Suffiad for D6; and Mr. Findlay, with him Mr. Bruce for the Crown.. There was present Mr. Andrew Li, with him Mr. Martin Liao, for the Committee of the Hong Kong Bar Association After the lunch adjournment a point of jurisdiction was taken. The Court rose and the following morning sat, reconstituted, with three Justices of Appeal and reheard the matter. This is in effect the commencement of the hearing of the Appeal, for the Notice of Application, with which the Summons is bound up, is a matter fit to be heard in the appeal proper.

22. But this hearing is in the nature of a preliminary canter for the appeal proper, in which it will be necessary to consider matters additional to the "sleeping jurors" issue; cannot come on until a full transcript is available. That the provision of the transcript will take a very long time became apparent during the hearing of bail applications brought by the several appellants. This is not intended as any criticism of those whose duty it is to prepare such transcript but it is necessary to make mention of it to first explain the delay in having the appeal listed and, second, and more important, to illustrate the difficulties this Court has in determining at this stage the applications before it.

23. We have certain passages:of the -transcript reflecting that which occurred on the dates to which 1 have already made mention. Mr. Ozorio doubts if there is before us extracts from the transcript showing all the occasions when the matter was -raised.

24. The passages we do have are not before us in their full context in that we are not fully advised as to what was going on in -the trial at relevant moments.

25. It is Mr. Keane's submission that the transcript is not evidence. It simply sets out statements of counsel made in Chambers after the events which gave rise to them. Mr. Sedgwick, for example, refers to a juror being "habitually" asleep. Further Mr. Keane says that there is no likelihood of any agreement being reached between himself and the Crown on what factually took place. He needs evidence.

26. I agree that in a matter so serious as this evidence is needed.

27. Section 83V(1) of the Ordinance empowers the Court of Appeal, if it thinks it necessary or expedient in the interests of justice, to:

"(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be exaimed before the Court of Appeal whether or not he was called in those proceedings;

28. Paragraph (c) of subsection (1), which provides that the Court may receive the evidence, if tendered, of any witness applies also to a witness who is competent . but not compellable. This paragraph read with subsection (3) is clearly intended to widen the scope of the nature of the witness whose evidence may be tendered but who cannot be ordered to attend.

29. Section 33V(2) reads.

"Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if -

(a)it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b)it is satisfied that it was not adduced in the proceedings from which the appeal lies but there is a -reasonable explanation for the failure to adduce it,"

30. In my judgment the scheme of the section is first to provide for an order to be made, if the Court thinks it necessary. in the.interests of justice so to do, for the attendance of witness and their examination. This examination can take place - ss.(4) - before a judge of the Court of Appeal or a person appointed by the Court of Appeal or it may take place before the full Court.

31. The examination having concluded there is then power to receive that evidence when it is tendered,

32. Subsection (2) imposes a duty upon the Court to receive further evidence, if the condition of, the subsection are met, but, of itself, does not restrict the discretionary power of the Court under subsection (1) to receive further evidence if the interests of justice require. The conditions in subsection (2) are not imported into subsection (1) but a Court should, in the exercise of its discretion, have regard to them without treating them as decisive in that exercise. The Court will not receive inadmissible evidence nor will it receive evidence under subsection (1) if it is satisfied that it "would not afford any ground for allowing the appeal" or it is unlikely to be credible for there must be some curb on the reception of fresh evidence to avoid the indefinite prolongation of the legal process, (Lattimore⁽¹⁾, Parkes⁽²⁾; Stafford and Luvaglio (No.1)⁽³⁾).

33. If an order is made for examination, and further for the reception of the evidence; the question this Court will have to ask itself is: Under all the circumstances of this case as it now stands in the light of the additional evidence, are we satisfied that the verdict of the jury was safe and satisfactory? (R. v. Lee (Bruce)⁽⁴⁾).

34. I would not therefore be now prepared to make any order as to the reception of evidence in these present proceedings though I might add that, as at present advised, the witnesses sought to be brought before the Court are competent and, with the exception of D5, compellable; the evidence would have been admissible at trial upon an issue in that trial which is also an issue in this appeal; the reason why it was not adduced in the trial is adequately explained by the trial judge's refusal to hear evidence; and I doubt if the issue of credibility would arise in respect of the majority of the named witnesses.

35. I do not think this Court to be in a position, until it is aware in full of what the evidence. is and its context, to say whether it would or would not afford a ground for allowing the appeal. The evidence must be enfolded into the context of the trial when, and if, it particularises on precisely when a juror had "temporarily withdrawn" from the proceedings. As Mr. Findlay rightly says a complex commercial fraud trial may have many and interminable pauses while documentation is sorted out or matters of procedure discussed. The "withdrawal" must be material and real for appearances may be deceptive

36. The issue for determination now is can it be proper in the light of all the circumstances to have examined as witnesses the counsel and the legal advisers who appeared for the appellants at trial?

37. Before going on to this which involves consideration of the needs of the administration of justice 1 note that the evidence of Mr. Tse and of Mr. Leung, whose respective affirmations indicate the nature of the evidence it is sought for there to give, is to an extent peripheral and that which they will seek to say merely supportive of the evidence it is suggested counsel can give in greater detail. The evidence of D5, and again we have before us an affirmation of his, must be viewed with care for there is a danger that an element of "self serving" may creep into it.

38. I concentrate therefore on the application concerning counsel though the generality of that which I am about to say in -respect of them has application to the solicitor and the articled clerk concerned.

39. A complication of some magnitude here is that the named counsel are also the retained counsel for the appellants upon the appeal. Mr. Loughran, whom it is not presently sought to call but who played a significant role in the matter arising below, is, as I understand it, retained counsel for D5 in the appeal. The interests of justice generally require that, after a lengthy trial, an appellant and this-Court be provided with the services and the assistance of counsel who attended at that. trial.

40. Rule 61 of the Code of Conduct of the Bar of Hong Kong has been drawn to our attention. It prohibits a barrister from accepting instructions in a case in which he has reason to believe that he is likely to be a witness, if, being already engaged in a case, it becomes apparent to him that he is likely to be a witness on a material question of fact (my emphasis) he should not continue to appear as counsel if he can retire without jeopardising his client's interests.

41. While the latter half of this Rule might be thought to apply to counsel who finds himself in the invidious position of a person who can give evidence at a trialion one of the material facts in issue in that trial, the possibility, as envisaged here, of counsel at one moment in the witness box and at another arguing his client is case before the bar of this Court raises the possibility of an unedifying and undesirable spectacle which is not conducive to the good administration of justice. I accept that neither affidavit evidence nor a statement from the bar would constitute fresh evidence for the whole tenor of the section is the consideration of oral evidence.

42. While Mr. Ford and Mr. Matthews are we are told, prepared to attend and to be examined Mr Sedgwick is not without this Court making a specific order to that effect - they must find themselves between, as I suggested in the course of the hearing, the upper and the nether millstone. The suggestion that the appeal of D5 be heard separately from the appeals of his co-appellants is not a solution, if indeed it be one at all, which commends itself to me.

43. It is an extraordinary aspect of these proceedings that in the long devolution of the system of trial by jury there is not to be found in the Law Reports a case precisely on point with the issue here. It is true that. there exists the apparently sleeping chairman of quarter sessions (R. v. VSeston-Super-Mlare-Justice)⁽⁵⁾; the juror ignorant of English and thus incompetent (Ras Bahari Lal)⁽⁶⁾ and, in this jurisdiction, Wong Wai Bor⁽⁷⁾. None of these give guidance on the procedures to be adopted for the ventilation of the issue before this Court. In Ras Bahari Lal⁽⁶⁾ the Privy Council thought. that an enquiry should have been held by the High Court at Patna when hearing the appeal and ordered that one take place before the determination of the matter by His Majesty in Council. However there the juror's knowledge or lack of it of English was something which could have been simply and objectively ascertained. Not so the question whether a juror is specifically, or indeed inferentially, asleep during material aspects of the evidence. I, of course, express no opinion on how far, if established, the evidence will take the appellants. This is a matter for another day

44. I am most reluctant to accede to an application to call counsel as witnesses but recognise that this case is exceptional and that their evidence is, in the circumstances, necessary.

45. I fully understand why those advising D5 thought it right to make this application at an early stage. I note the application is supported with reluctance by D4, D6 and D7. We have not been made aware of the attitudes adopted by D1 and D. nor indeed that of D3, the acquitted one, and whether he wishes to play any part in these proceedings thought the instructing solicitors for D5 have undertaken to have him informed.

46. In the, possibly pious, hope that, by making an examination order now some of the difficulties inherent in our taking that course will fall away, I am persuaded that it is the proper order to make.

47. I consider that, once it has been decided to have counsel attend and be examined, an order is necessary whether they be willing or not.  I would therefore order those persons named in the application who would have been compellable witness at trial do attend for examination and be examined; that is all those named in the application except D5. The examination should take place before this Court starting on the first day when this appeal is relisted for hearing.

48. I would refuse at this stage to make an order for the reception of the evidence resulting from that examination and adjourn that part of the application with liberty to restore.

Kempster, J.A.

49. "Trial by jury", wrote Lord Devlin in 1956, "is the lamp that shows that freedom lives". In the application deriving from six appeals against conviction on one or more counts of conspiracy to defraud shareholders, potential shareholders and creditors of Conic Investments Co Ltd with which we are presently concerned it has been suggested on the one side that sleeping by jurors has caused this lamp to flicker somewhat and on the other that in such long cases of commercial fraud it was only to be expected. Dearth of direct authority on the point during the centuries since trial by jury replaced compurgation and trial by ordeal, wager of law and battle may be explicable on the basis that only recently have jurors been required to give rapt attention over many months to evidence about sophisticated commercial practices and interlocking company structures and also to assimilate the contents of huge bundles of documents and accounts. Concern at the difficulties involved was one of the factors prompting, during, 1985, the Fraud Trials Committee Report (the Roskill Report) in England and the Report of the Select Committee,on the problems involved in the prosecution and trial of complex commercial crimes in Hong Kong.

50. The "Conic" trial lasted some 128 days, mostly in the presence of the jury between 2nd February and 2nd October 1987. At its conclusion the reference on the flyleaf of the Roskill Report to verse 10 of psalm 84 "For a day in Thy courts is better than a thousand" would probably have reflected their attitude. Up to three of them, it is alleged, specifically or inferentially, had slept while material evidence was being given.

"Every person .... being of sound mind and not afflicted with deafness, blindness or other such infirmity .... Who has a knowledge of the English language .... shall be qualified and liable to serve as a juror ....

Once sworn, however,

"no such want of qualification .... shall afterwards be accepted as a ground for impeaching any verdict given by the jury on which such person has' served".

A juror swears to give a true verdict according to the evidence and, being appropriately qualified, implicitly to "harken to the evidence" as expressly stated in the form of affirmation prescribed. Jury Ordinance (Cap 3) sections 4, 6 and 36. No want of qualification is or could be suggested here Failure to harken to the evidence by one or more jurors is.

51. A failure by a juror to harken to or heed the evidence occurred at a trial resulting in convictions for murder held in India during June 1932. The reason was not somnolence but inability to follow those parts of the proceedings conducted in the English language. It was not suggested that the Indian Criminal Procedure Code or other relevant legislation contained any provision equivalent to section 6 of our Jury Ordinance. The Judicial Committee held that the convictions should be set aside. Giving the opinion of the Board Lord Atkin said

".. the effect of the incompetence of a juror is to deny to the accused an essential part of the protection accorded to him by law ....,the result of the trial .... was a clear miscarriage of justice".

Ras Rahari Lal v The Kin- Emperor⁽¹⁾.

52. Reference was made by Lord Atkin to the judgment of Lord Campbell' in Mansell v The Queen⁽²⁾ at 80 :

".. we cannot doubt that there may be cases as if a juryman were completely deaf or blind .... or were insane or drunk or with his mind so occupied by the impending death of a near relation that he could not duly attend to the evidence in which ..... it would be the duty of the judge to prevent the scandal and the perversion of justice which would arise, from compelling, or permitting such a juryman .... to join in a verdict

53. On 13th August 1987 the juror in the "Conic" trial who is alleged to. have had the greatest difficulty in keeping, awake said, to Bewley J.

"I. am sorry, my Lord. Just recently I just have too much to do and indeed I am preparing for my examination .......

Asked by the judge whether he was saying that he was not getting enough sleep in other words he agreed.

54. Subject to the de minimis principle and consideration of what evidence may have been missed I respectfully agree with the view expressed on behalf of another division of this Court by Hunter J (as he then was) in R v Wong Wai Bor⁽³⁾:

"It takes little to convince us that a sleeping juror is disqualifying himself from giving a true verdict according to the evidence".

In that appeal, which was dismissed, no application for a voir dire or discharge of the juror or the 'jury had been made to the trial judge and there was no evidence as to the juror's condition save insofar as the judge's own observations could so be regarded. As to that question I need express no view.

55. Now, with the less than enthusiastic support of his fellow appellants or applicants, the fifth defendant, convicted on the second count of the indictment by a majority verdict of 5 to 2, seeks orders pursuant to section 83v of the Criminal Procedure Ordinance (Cap 221), the equivalent of section 23 of the Criminal Appeal Act 1968, whereby the material facts, at least as to the. apparent state of jurors during the trial, may be established. R v Leggatt & Ors⁽⁴⁾ at p 55. In the absence of findings in this regard it will indeed be difficult to deal with the ground certified pursuant to section 82(2) of the Ordinance as fit for appeal. The certificate reads:

"Whether the fifth accused was convicted by an incompetent jury in that up to three of their number were found to have been asleep during parts of the defence case".

The certificate given in relation to the first defendant is differently worded but to like effect.

56. Bewley J made no specific findings in relation to the jury stating on 4th August, before warning the jury to keep awake, that  here was one juror in particular who almost at the beginning was dozing a bit and on the 28th, when Mr Loughran for the fifth defendant suggested that transpired in the Ras Bahari Lal ⁽¹⁾ case,

".. he certainly has been closing his eyes .... I do not really think he has been asleep since he. had the warning". .

On 1st September, when Mr. Matthews for the first defendant not only supported Mr. Loughran's earlier call for evidence but applied for the discharge of the jury, the judge said that he accepted what counsel had told him about the jurors and had made his own observations.

"I must confess I myself have observed (No 7, the juror with examination worries) with his eyes closed on two occasions but as I was about to say something he has reopended them .... on Friday (28th August) within thirty minutes of the jury's return to court .... It was apparent that No 7 was fast asleep. I intend on the jury's return to deliver a further homily on the subject but take no further action".

His stated reluctance to abort a long and expensive trial at that juncture is readily to be understood.

57. In the premises I am satisfied that this Court can reach no satisfactory conclusion based on the transcript and must look elsewhere for evidence upon which to determine the ground of appeal in question; particularly as little has been forthcoming from the Crown to the contrary. Vague forebodings, as to the prospects of similar appeals and to the situation of a defendant who was acquitted, in the event of this ground of appeal succeeding, were not persuasive. Solicitors for the fifth defendant have undertaken to keep that defendant informed about this application.

58. It is the manner in which Mr. Keane, for. the fifth defendant, seeks relief under section 83v(1)(b) that has caused hackles to rise. He asks for an order that counsel who represented the defendant at trial and, as the transcript demonstrates, kept a close watch on the jury, be examined by this court in order to elicit evidence which, he hopes, will validate the material ground of appeal. Such an order, or election to offer evidence, could inhibit their appearance on the appeals. The instruction of other counsel in their stead would deprive this court of the assistance which only those who appeared at trial can afford, be more costly and be counter to the. wishes of the respective defendants. It may be said that defendants cannot necessarily expect both to maintain this ground of appeal and to be represented by counsel of their choice.

59. At the conclusion of the judgments of the Divisional Court in R, v Secretary of State for India⁽⁵⁾ at p 175 Humphreys J said on his own behalf and that of Singleton and Tucker JJ.

"It was brought to the attention of the court that on the hearing at Row Street police court, junior counsel on one side was called as witness to prove certain aspects of Indian law and continued thereafter to act as counsel in this case. No objection was taken to this by counsel on the other side. We think it right to point out that this is irregular and contrary to practice. A barrister may be briefed as counsel in a case or he may be a witness in the case: He should not act as counsel and witness in the same case".

This pronouncement has been adopted by the English Bar Council and by the Hong Kong Bar Association. It is not, however, exhaustive. Both bodies recognise that. a barrister already engaged in "a case", which I believe must include retainer for an appeal, may continue to appear even though he is to be called as a witness if his withdrawal would jeopardise his client's interests. Having regard to the predicament of Mr. Sedgwick, which I shall shortly describe, this may be significant. Albeit "such statements although they have strong persuasive force, do not bind the courts", per James LJ, in R v McFadden & Ors⁽⁶⁾ at p 190, I would not for a moment suggest that a barrister should depart from the rules to which he is professionally subject. No more would I presume to advise individual counsel as to the course to be adopted in the light of the rules and of the outcome to this application.

60. The propriety of a barrister giving evidence during a trial in which he is not engaged as to what transpired in court when he was, usually in the context of compromise, is not in question. In Wilding v Sanderson⁽⁷⁾ at p 347 counsel gave such evidence on oath

    "..standing in their roles in their places at the bar ...."

Byrne J had expressed himself willing to hear them unsworn. In Schwartz v Clements⁽⁸⁾ Wallington J gave evidence, sworn, in relation to a case in which he had appealed as counsel.

61. Mr. Keane's real concern is to obtain an order in relation to Mr. Sedgwick since he now anticipates that he will be in a position to tender the evidence of the other members of the Bar, solicitors, solicitors' clerks and lay witnesses named in the Summons dated 7th March 1988, for reception by this Court pursuant to section 83v(1)(c) and (2). Without going into the relationship between these subsections, explained in R v Lattimore⁽⁹⁾ I am satisfied that such evidence is likely to be credible, would have been admissible at trial in the context of sleeping jurors and was not then adduced because of the trial judge's ruling.

62. On 28th March 1988, without prior consultation, solicitors for the fifth .defendant wrote to Mr. Sedgwick enclosing a copy of the Summons stated 7th March and asking whether he was prepared to attend the hearing of the appeals as a witness. By his reply dated 8th April Mr. Sedgwick intimated that he had already been retained on behalf of 'the sixth defendant, for whom he had appeared at trial, on his appeal and, in the absence of an order of the Court, was not prepared to attend in the capacity suggested.

63. Before considering the exercise of our discretion to order the attendance of Mr. Sedgwick or any of the compellable prospective witnesses named in the application for examination we must be satisfied that such an order is necessary or expedient in the interests of justice having taken into account not only the potential advantage to the fifth defendant in securing evidence about sleeping jurors but potential disadvantage to the sixth defendant- if, in the exercise of his own judgment, Mr Sedgwick thinks it appropriate to determine his retainer. Again it must not be overlooked that evidence as to sleeping jurors may redound to the advantage of the sixth' defendant.

64. The availability of alternative means of ascertaining the material fact's is of some importance.

65. I am not impressed with the suggestion that the application is premature. Parties and solicitors must know where they stand in relation to counsel well before these appeals come on for hearing early next year. Further, I agree with Mr. Keane that there seems no real prospect of agreement as to facts even if that could assist us since agreement might be determinate of the outcome of the appeals. Section 83v, which is within part IV of the Criminal Procedure Ordinance "Appeals ...,", makes no provision for proof of fact by 'formal admissions and sections 65b and 65c ate within part III "Proceedings at Trial",

66. Bewley J is entitled to refuse to give evidence in relation to the trial.

"With respect to those who fill the office of Judge it has been felt, that there are grave objections to their conduct being, made the subject of cross-examination and comment, (to which hardly any limit could be put) In relation to proceedings before them : and, as everything which they can properly prove can be proved by others, the Courts of law discountenance, and I think I may say prevent them being examined".

per Baton Cleasby in Duke of Buccleuch v Mettopolitan Board of Works⁽¹⁰⁾ at p 433 though in Appleby v Errington "Times" 18th October 1952 Hodson LJ gave evidence as to proceedings he had tried from the bench unrobed and unsworn. I would not expect a judge who is not also responsible for the record to give evidence, if justice could otherwise he served.

67. The evidence of the jurors or some or one of them would not reveal what. transpired in the jury-room, might be helpful and would be admissible. Ras Bahari Lal v King, Emperor^(l)(supra); Tickner v Tickner(No 2)⁽¹¹⁾ at p 805. It may he thought fitting that any approach to a juror should be made jointly by solicitors for the appellants or applicants and the Crown.

68. There is no reason to think that any of the persons present in court throughout or from time to time will have observed the behaviour of particular members of the jury with greater attention than did the counsel from whom the fifth defendant asks for testimony. In the light of the considerations canvassed I have come to the conclusion that it is necessary and expedient in the interests of justice that an order be made for all the persons named in the application who would have been compellable witnesses at the trial, which includes Mr. Sedgwick but excludes the fifth defendant, to attend for examination and be examined before us on the first day that these appeals are listed for hearing. I 'would exercise my discretion accordingly but make no other order at this juncture save that' a shorthand writer attend on that day. I favour neither the alternative procedure provided by section 83v(4) nor an order for the separate hearing of any of the appeals. The outcome of them all could turn on evidence as to sleeping jurors

(1) [1976] 62 Cr. App. Rep. 53

(2) [1962] 46 Cr. App. Rep. 29

(3) [1969] 53 Cr. App. Rep. 1

(4) [1984] 1 W.L.R. 573, 585

(5) [1981] Cr. L. Rev. 179

(6) (1933) 50 R.L.R. 1

(7) Criminal Appeal No. 465 of 1986 (unreported)

(1) [1933] 50 TLR 1

(2) [1857] 8 E1 & B1 54

(3) Criminal Appeal No 465 of 1986 (unreported)

(4) [1968] 53 Cr App R 51

(5) [1941] 2 KB 169

(6) [1976] 62 Cr App R 187

(7) [1897] 2 Ch 534; 76 LT 346

(8) [1944] 171 LT 346

(9) [1975] 62 Cr App R 53

(10) [1872] LR V HL 418

(11) [1937] NZLR 802