DE BRUIN, MICHELLE ROSY v. HKSAR

CACC 409/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 409 OF 2009

(ON APPEAL FROM HCCC157/2009)

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BETWEEN

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JUDGMENT

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Hon Wright J (giving the judgment of the Court):

1.  On 15 September we dismissed the applicant’s applications to adduce evidence on appeal pursuant to the provisions of s. 83V(1)(c) of the Criminal Procedure Ordinance, Cap. 221 and for leave to appeal her conviction. We indicated that we would provide the reasons for our decisions: these are they.

2.  On 5 November 2008 the applicant and another female arrived at Hong Kong International Airport having travelled from South Africa via Turkey. After being intercepted, the applicant either excreted or there were removed from her bodily orifices over the ensuing days 105 pellets which contained 398.44 gm of monoacetylmorphine hydrochloride and 353.46 gm of heroin hydrochloride. The applicant was convicted of a single count of trafficking in a dangerous drug by a majority of 6:1 after a trial before Line J and a jury on 4 November 2009. She was sentenced to undergo imprisonment for a period of 20 years.

3.  There was one issue at trial, in which she was represented by Mr. Shaun Kelly of counsel, which was whether the applicant knew that what she had been carrying was drugs, she having asserted that she believed the contents of the pellets to be diamonds.

4.  The applicant gave notice of her application for leave to appeal the conviction in the prescribed form to which she annexed a hand-written document in which she set out four reasons. One of those reasons asserted that "... one of the jurie fell asleep while I was in the witness box and I don't think it was also faire to bring his judgement concerning my case" (sic). This became the only ground advanced in the perfected grounds of appeal against conviction which now asserts:

1. That there was material irregularity in the trial in that a juror, by reason of falling asleep and/or being significantly inattentive, incapacitated himself from hearing and/or assessing evidence such as to render him incompetent to give a true verdict (according to the evidence and his oath).

5.  Mr. Loughran, who now appears for the applicant, accepts that the first indication of this allegation is to be found in her handwritten document. It is said that the events occurred during the applicant's own testimony on 3 November 2009 although, as will be seen, there are conflicts as to the stage at which it took place.

6.  Even though it is now claimed that the juror was observed by a clerk of the solicitors instructing Mr. Kelly; by the interpreter who was sitting next to the applicant during her testimony; and, as a consequence of a comment passed by the interpreter, by the applicant herself and even though the event was invited to the attention of Mr. Kelly that day after the applicant had finished testifying, not one word was said about it to the judge during the course of the trial.

Is the applicant precluded from raising this issue on appeal?

7.  The first question which arises is whether, given the failure of the applicant or her representatives to draw this matter to the attention of the trial judge, she is now precluded from raising it as a ground of appeal. Our attention has been invited by counsel to the decision of the Privy Council in Ras Behari Lal v The King-Emperor (1933) 50 TLR 1 @ 2 to which reference was made in R v WONG Wai-bor CACC 465/1986 (unreported,19 March 1987) in these terms:

2. ...There are certainly dicta in the speech of Lord Atkin in the Privy Council case of Ras Behari Lal v The King-Emperor that suggest that if no application is made, that is fatal to the applicant’s point as a matter of law.

3. It seems to us equally fatal as a matter of fact because... [emphasis supplied]

8.  In Ras Behari Lal v The King-Emperor  Lord Atkin commented on the assistance to be derived from the earlier case of Mansell v The Queen 8 E. and B. 54, at 80, a decision which related to a lack of objection being taken to a manifestly incompetent juror being sworn, in which Lord Campbell, delivering the judgment of the Court of Queen's Bench, observed that:

... but we cannot doubt that... 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 be sworn, and to join in a verdict on the life or death of a fellow-creature.

9.  About this, Lord Atkin said:

This duty has later been held to be a continuous duty throughout the trial. It would be remarkable indeed if what may be a "scandal and the perversion of justice" may be prevented during the trial and after it has taken effect the Courts are powerless to interfere. Finality is a good thing, and justice is better. According to ordinary procedure in criminal trials the accused has a right to challenge, either peremptory or for cause; and it may very well be that if knowing the alleged defect he stands by and takes his chance of a verdict he is precluded from thereafter taking the objection. But if the cause of objection is in fact unknown to him, there appears to be no reason why the Court in a proper case should not give effect to it. [emphasis supplied]

10.  The emphasised passage is the passage which was contemplated in WONG Wai-bor: there is no other which would have given rise to the observation.

11.  It is clear that in Ras Behari Lal Lord Atkin contemplated a situation of a failure to object where a potential juror, known to be incompetent, was yet to be sworn - a situation very different to the present. Although the court in WONG Wai-bor, by use of the phrase "It seems to us equally fatal as a matter of fact...", may appear to be extending the dicta of Lord Atkin, in our judgment the court simply was seeking to emphasise the obvious pragmatic difficulty of persuading an appellate court of a factual situation sufficient to justify interference with the result in the trial court where no complaint has been made to the trial judge.

12.  Whether it is still open to raise on appeal the issue of a juror seemingly sleeping when it has not been raised before the judge apparently was not considered during the hearing of the appeal in HKSAR v Miller CACC 127/2000 (unreported, 22 February 2002). That was a matter which involved allegations by that applicant, ostensibly supported by a member of the public sitting in gallery, that a juror had been falling asleep on a regular basis in the afternoons.  There was a factual dispute in that matter in regard to whether counsel had been told of the allegation: the applicant asserted that he had been told whilst counsel said he had not but inevitably would have invited the matter to the court’s attention had he been told of it. The court there admitted evidence by way of affirmation and oral testimony without turning to consider whether that applicant was barred from raising the complaint. The court’s decision was factually based: it disbelieved the applicant and his witness.

13.  In our judgment, a convicted person would not be precluded as a matter of law from raising this issue on appeal. We have no hesitation in saying, however, that it would be the truly exceptional case where it may sensibly be anticipated that such a complaint could be established in the absence of anything being said to the trial judge.

The applicant's application to adduce additional evidence

14.  In anticipation of being entitled to raise the issue on appeal, the applicant made available three affirmations which she sought leave to use as additional evidence pursuant provisions of s. 83V(1)(c) of the Criminal Procedure Ordinance, Cap. 221. These were her own affirmation;  an affirmation by the solicitor assigned to the applicant at her trial, Mr. Simon Cleves;  and an affirmation by his clerk, Mr. Finn O'Neill. Annexed to the documents were also copies of correspondence, including a letter from trial counsel, Mr. Kelly, and a file note dated 13 January 2010 by Mr. O'Neill. The applicant also applied under s. 83V(1)(b) that she and Mr. O'Neill be examined before this court.

15.  When this matter first came before us on 20 August 2010 we heard argument in respect of the application. From the way that argument developed we became concerned as to whether we were able to properly deal with the matter without an affirmation from Mr. Kelly and simply by relying upon his letter. Consequently we adjourned the hearing of the application in order to request Mr. Kelly to provide an affirmation. That has now been done.

16.  The second question which we now need to address, therefore, is whether we are able to receive that evidence.

17.  Section 83V, Cap. 221, provides, in its relevant portions:

(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice-

(a) …
(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 examined before the Court of Appeal whether or not he was called in those proceedings; and
(c) subject to subsection (3), receive the evidence, if tendered, of any witness.

(2) 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 those proceedings but there is a reasonable explanation for the failure to adduce it.

18.  It is well settled that there are certain preconditions to the exercise of the court’s power. In the context of a juror or jurors alleged to have been sleeping we turn to The Queen v Tam Chung Shing and Others [1989] 1 HKLR 42 in which Silke VP said, at 47:

Subsection (2) imposes a duty upon the court to receive further evidence, if the conditions 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. (R v Lattimore (1976) 62 Cr App R 53; R v Parks (1962) 46 Cr App R 29; R v Stafford and Luvaglio (No. 1) (1969) 53 Cr App R 1.)

19.  We turn to the contents of the affirmations and supporting documents. We take those contents to encapsulate the applicant’s case for the appeal .

20.  First, the affirmation of the applicant herself. She says:

2.         I gave evidence in Afrikaans at my trial on the afternoon of 3^rd November 2009. While I was giving evidence, I was able to see the jury. I recall that, when I was being asked questions by my counsel, the court interpreter, who was sitting behind me, said softly or whispered, "Wow, look at how that man is sleeping". I looked in the direction of the jury and saw a male juror, sitting in the front row of the jury box at the left hand corner as I faced it, who had his eyes closed and appeared to be sleeping.

3.         Not long afterwards, during my cross-examination by the prosecuting Counsel, I glanced at the jury a few more times and each time again saw the same male juror dozing off with his eyes opening and closing.

4.         I did not discuss this with my legal representatives after I had given evidence because I was not thinking about it at that time but did remember about this myself when I put it in my Notice of Appeal.

21.  We note that the applicant singularly has failed to supply an affirmation from the court interpreter, the very person who, she says, attracted her attention to the sleeping juror. She has not sought to have that interpreter called to be examined.

22.  The applicant says that her attention was invited to the sleeping juror first when she was testifying in chief and that she, the applicant, kept him under observation during cross-examination.

23.  The second is the affirmation of Mr. O'Neill in which he says:

2.         I was in court sitting behind Counsel when the applicant was giving evidence on the afternoon of 3 November 2009.

3.         I had a good view of the jury who were sitting to the left of my position. During the course of the Applicant’s evidence, I glanced over at the jury on a number of occasions and saw that a male juror sitting in the front row of the jury box in the corner closest to me, (on my far left as I faced them), appeared to fall asleep or be sleeping. I first noticed this while our counsel, Mr. Shaun Kelly, was questioning the Applicant ‘in chief’ some time after 3 pm. From time to time during the questioning, I looked over at the jury and noticed the same juror seemed to be either falling asleep, i.e. slowly closing his eyes, or had his eyes already closed and appeared to be sleeping. This happened on 4 or 5 occasions.

4.         I cannot say for sure exactly for how long he fell asleep on each occasion because I was looking down and taking notes of the trial. I do recall that I glanced back 1 or 2 times after I had seen him with his eyes closed and they were open but, after a short time, I glanced back again and saw that his eyes were again closed.

5.         I was not able to inform Counsel at the time as he was on his feet and I was taking detailed notes of the evidence. During cross-examination, I glanced over a couple of times to look at the same juror but on those occasions, I did not observe him sleeping’ or with his eyes closed.

6.         When the Applicant’s evidence was finished, proceedings ended for the day and at that time I bought the matter to our counsel's attention.

24.  Annexed to Mr. Cleeves’s affirmation is the file note made by Mr. O'Neill. That note was not created, apparently, until 13 January 2010. It is largely consistent with the affirmation which Mr. O’Neill made for the purpose of this application save that, in the affirmation, he omits the significant fact that the longest period of time which he observed the juror with his eyes closed, as recorded in the note "... would not have been more than 5 seconds.".  It seems that Mr O’Neill specifically kept an eye on the juror concerned once he became aware of his closing his eyes.

25.  Mr Kelly's affirmation is more detailed than the letter he wrote to his instructing solicitors, which is exhibited to the affirmation of Mr Cleeves. It contains the following:

3.         Immediately after the court had adjourned on 3rd November Finn O’Neill a clerk with my instructing solicitor who had been assisting me throughout the trial spoke to me to the effect that a specific male juror had been asleep during my examination in chief.

4.         I sought clarification from him as to the basis for his statement and he confirmed that his observation and conclusion was solely on the basis of the juror having had his eyes closed.

5.         Experience in criminal jury trials has alerted me to the fact that on occasions in the course of trials jurors close their eyes and counsel is often alerted to this by those instructing counsel on the basis that the juror was asleep.

6.         When alerted observation of the juror will reveal that the juror simply had his or her eyes closed from time to time.

7.         In this trial the defence was seated next to the jury box. I had observed the jury members from time to time throughout the trial at times when I was not on my feet and had seen no evidence of inattention by any juror at any time.

8.         In all the circumstances I did not believe there was sufficient substance in the observation of Mr O’Neill to bring the matter to the attention of the court on the following morning when the court resumed.

9.         I spoke to the accused briefly dockside after the adjournment on 3 November 2009 to reassure her about her evidence and confirmed to her the procedure for the following day. This was after Mr O’Neill had told me about his observation. The accused made no mention of a sleeping juror.

10.       At no time after this dockside meeting or at the conclusion of the trial did the accused nor indeed the Court Interpreter make any mention to anyone in my presence that a juror had been seen to be asleep at any time during the trial.

26.  We recognise, in favour of the applicant, that the apparent conflict between Mr. O'Neill's observations of the juror not closing his eyes when the applicant was being cross-examined and the applicant’s assertions to the contrary might be due to them having looked at the juror at different times.

27.  The reality of the situation is that, taking the content of the affirmations at their highest, all that they show is that one juror was seen, on a very limited number of occasions, to have been sitting with his eyes closed and that he "seemed" or "appeared" to be sleeping for brief periods, not exceeding 5 seconds. In the circumstances, we are readily able to comprehend why Mr Kelly, a widely experienced jury trial advocate, arrived at his decision. We note that there is no suggestion of any protest by those instructing Mr Kelly over his failure to raise the matter with the judge the following morning.

28.  In WONG Wai-bor the Court noted that whether a sleeping juror disqualifies himself from giving a true verdict is:

... very much a matter of fact and degree, upon which the judge in the court below has to rule in the light of what he sees and hears in the course of that hearing. If no application is made to the judge to discharge that juror, it is extremely difficult for an applicant thereafter to invite this court to intervene.

29.  In Tam Chung Shing and Others, in the appeal proper, the court having examined witnesses pursuant to the decision referred to in §17 above Kempster JA said at 722E:

To allow the appeals on this ground we must be satisfied not merely that a juror, a fortiori several jurors, closed his eyes in the course of the 128 days of trial, as many so involved from time to time do, but that by reason of somnolence he may well have incapacitated himself from hearing significant evidence or from assessing the demeanour of witnesses for periods so appreciable as to render him incompetent to give a true verdict according to the evidence and to his oath. [Emphasis supplied.]

30.  There, the Court of Appeal appears to have accepted as a possibility that more than one juror may have incapacitated himself from hearing significant evidence but we note that that lasted some 128 days as opposed to this, which lasted one and a half days including the summing up and deliberation by the jury. There is no suggestion in this case that any juror was inattentive other than the one apparently seen, occasionally, to close his eyes for short periods.

31.  Our attention has been invited to the decision of the Court of Appeal for England and Wales in R v Tomar [1997] EWCA Crim 889: during the evidence at trial one of the jurors apparently fell asleep "... for a sufficient period to require the matter to be brought to the attention of the judge". That was satisfactorily dealt with but, later, a different juror appeared to fall asleep during the judge's summing up. The judge enquired of that juror how much of the summing up he had missed to which the juror’s response was “Very little”.

32.  The court said at 3, per Kennedy LJ:

It is relevant observe that no one at that stage suggested the jury should leave the court or still less that the judge should consider discharging any member of the jury or the jury itself. Nevertheless, before us Mr Williams submits that in the light of those two incidents we should come to the conclusion that the verdict of this jury which was arrived unanimously was one which we should regard as at any rate arguably unsafe.

In our judgement that is an impossible stance to take. If it appears to counsel who are conducting a case at trial that the jury are unable to keep awake, then he or she must bring that fact to the attention of the trial judge then and there. When the judge deals with it, if he is asked to discharge the jury he can consider whether or not that is an appropriate course to take. If he is asked to discharge a particular juror he can decide whether or not that is an appropriate course to take. And in certain circumstances it may subsequently be appropriate for this court to decide whether or not the decision of the trial judge is one which we ought to review. What is quite impossible is for us to take a decision which the trial judge was not even asked to consider. In this case the information which is before us, is simply that one juror appeared to have nodded during the course of the evidence and was roused. Another juror nodded during the course of the summing up and was roused. On neither occasion did any suggest that any more action was required. In those circumstances it seems to us to be quite impossible to come to this court and to say that the verdict is one with which this court ought to interfere.

33.  This was a brief trial. Almost all of the evidence had been agreed. The only issue before the jury, as the judge rightly noted, was whether she knew she was carrying dangerous drugs. It is inconceivable in the circumstances that the judge would have considered discharging the jury as a whole: we have no hesitation in saying such a course would have been unjustifiable. At most, the judge may have considered discharging the one juror.

34.  Even that course would have been readily avoidable. With the advent of modern recording technology now available in our courts it is of particular importance that counsel make known to the judge the suggestion that a juror is thought to be, or to have been, sleeping as that would enable the judge to make enquiries of the juror and, if there is any uncertainty on the issue, to replay the oral testimony of the witness concerned. In the instant matter the applicant’s total testimony occupied a comparatively short time, some 80 minutes in all: had the judge been satisfied that there might have been substance in any suggestion of inattentiveness, he would have been able to order that her entire evidence be replayed.

35.  We agree, further, with the observation of Kennedy LJ that:

Even if one were to take out of the reckoning the juror who nodded during the course of the evidence and the juror who nodded during the course of the summing up there were still ten jurors against whom no criticism is made. They arrived at a verdict which they were certainly entitled to reach on the evidence that was led before them. In those circumstances we can see no arguable ground of appeal…

36.  The verdict in this matter was a majority of 6:1. Taking the juror against whom complaint is now made out of the reckoning, and assuming in favour of the applicant that he was not the lone dissenter, there would still have been returned a competent verdict of 5:1.

37.  We are satisfied that the evidence contained in the affirmations, if received, would not afford any ground for allowing the appeal.  Nor do we consider that it should be received as necessary or expedient in the interests of justice. We decline to receive that evidence.

The result

38.  In the circumstances there is noting before us to support the applicant’s sole ground of appeal. The application for leave to appeal is dismissed.