HKSAR v. LHOUVUM NEMBOI

CACC 327/2018

[2019] HKCA 953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 327 OF 2018

(ON APPEAL FROM HCCC NO 102 OF 2016)

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J U D G M E N T

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1.  The applicant faced an indictment alleging a single count of trafficking in a dangerous drug, namely 2,089.5 grammes of a powder containing 1,414.5 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She stood trial in the Court of First Instance before Deputy Judge Lee (as Lee J then was) and a jury. On 12 October 2018, she was convicted of the count and, on 22 October 2018, sentenced to 24 years and 3 months’ imprisonment.

2.  By a Notice of Application for leave to appeal filed on 8 November 2018, the applicant has sought leave to appeal against her conviction only.

Prosecution case

3.  On 13 September 2015, the applicant was intercepted at the Customs Arrival Hall of Hong Kong International Airport, having arrived in Hong Kong from India.  At the time, she was carrying a suitcase and a handbag, the former containing 14 packets of soap and two boxes of “OLAY” cosmetics^[1].  Subsequent examination revealed that inside the 14 packets of soap were 14 sealed packets, in which there were 1,990 grammes of a powder containing 1,340 grammes of cocaine; whilst in the two boxes of cosmetics were 99.5 grammes of a powder containing 74.5 grammes of cocaine^[2]. The cocaine, which constituted the subject matter of the count on the indictment, had a retail value of $2,206,512^[3].

4.  Upon arrest and caution, the applicant exercised her right to remain silent.  In two video records of interview (“VRI”) conducted between 8:59 and 11:06 am on 14 September 2015, and between 12:07 and 12:26 am on 15 September 2015 respectively, she claimed that a person called “Mercy” had offered her a free trip to Hong Kong and paid her US$500 to deliver the soaps and other cosmetic products^[4]. Whilst she denied knowing that she was carrying dangerous drugs, she felt that there was something illegal about the arrangement^[5].  Nevertheless, when she received the goods, she checked them^[6], and found that they smelt of soap^[7].

Defence case

5.  The applicant did not give evidence herself or call any witnesses on her behalf.  Her defence was essentially based on the exculpatory parts of her two VRIs.

Summing-up and the jury’s questions

6.  Since no complaint is levelled against the way the case was summed up for the jury by the judge, it is not necessary to focus on the summing-up save to point out that, having received the first part of the summing-up on 11 October 2018, the jury requested on the following morning further directions from the judge.  At 9:33 am, the jury sent a note to the judge through the jury usher, raising three questions.  The note was written in English and was as follows:

“A few questions for Judge’s help:

1. Please explain circumstantial evidence again.

2. Any guidance principles on deciding believe or not believe evidence given by witness or defendant.

3. After deliberation, how should we vote, by showing hands, secret ballot, or …

Many thanks.”

7.  After discussing the jury’s questions with counsel, the judge gave the jury some directions or answers which are again not the subject of any complaint.  Rather, the complaint is against the jury’s language ability in understanding the judge’s answers and directions.

The verdict

8.  After the judge had completed the second part of the summing‑up, the jury retired to deliberate at 10:29 am on 12 October 2018, and reached a verdict at 4:10 pm.  Before they retired, the judge reminded them that they were under no pressure to reach a verdict^[8]:

“There is no time constraint. Do not feel rushed. Take your time in your deliberation.”

9.  To assist the jury in delivering its verdict, the judge provided them with a sample of written questions as follows^[9]:

Question 1    On the sole count of Trafficking in a dangerous drug against LHOUVUM Nemboi, have you reached a verdict?

[Yes] à go to Question 2

or

[No] à Judge will deal with the matter

Question 2    Is your verdict unanimous?

[Yes] à go to Question 3

or

[No] à go to Question 2A

Question 2A   By what majority?

[6 to 1] à go to Question 3

or

[5 to 2] à go to Question 3

Question 3    What is your verdict?

[Guilty]

or

[Not Guilty]

10.  For the purpose of addressing the present complaint, it is relevant to note that, when the foreman was delivering the verdict^[10], there was a slight hiatus, which required the judge to clarify the verdict with him.  The transcript records the following exchange between the judge’s clerk, the foreman and the judge^[11]:

“CLERK: Mr Foreman, please stand up. On the sole count of trafficking in dangerous drug against Lhouvum Nemboi, have you reached your verdict?

FOREMAN: Yes.

CLERK: Is your verdict unanimous?

FOREMAN: Yes.

CLERK: What is your verdict?

FOREMAN: Sorry, sorry, no.

COURT: Sorry, no.

CLERK: No. By what majority?

FOREMAN: 5 out of 2 are non-guilty.

CLERK: 5 to 2.

COURT: 5 to 2.

FOREMAN: 2 out of 5.

COURT: 2...

FOREMAN: Out of 5...

COURT: ...5 to 2. You mean 5 to 2.

FOREMAN: Non-guilty.

COURT: Not guilty.

FOREMAN: Not guilty.

COURT: All right. 5 to 2, not guilty.

JURORS: Guilty. Guilty. Guilty.

COURT: Guilty. Sorry? Start again.

CLERK: What is...

COURT: Start all over again. So 5 to 2. Yes.

CLERK: What is your verdict?

FOREMAN: Guilty.

COURT: Guilty. All right. Now, in order to be absolutely sure because of the confusion, I think I need to ask you again personally. So you have reached a verdict, Mr Foreman?

FOREMAN: Yes, yes.

COURT: And your verdict is not unanimous.

FOREMAN: No.

COURT: So it’s a majority verdict of 5 to 2.

FOREMAN: Correct.

COURT: And it’s a verdict of guilty.

FOREMAN: Correct.” (Emphasis added)

11.  It would appear that, after matters were clarified by the judge with the foreman, both the prosecution and the defence accepted the verdict and no challenge to it was thereafter made.  The jury were duly discharged.

Grounds of appeal

12.  Mr James Tze, counsel for the applicant both here and below, originally advanced three grounds of appeal but now only pursues Ground 1 and Ground 3.

13.  By Ground 1, it is argued that there was a lurking doubt in respect of the conviction.  Mr Tze asserts, firstly, that the jury whose English ability was limited were unable fully to understand the proceedings, in particular the judge’s directions and summing-up, as demonstrated by their hand-written note and the confusion attending the delivery of the verdict; secondly, that the jury were pressured into reaching a verdict of guilt; and thirdly, that the “5 to 2, not guilty” verdict was the true verdict that the jury had in mind but the judge nevertheless unfairly led the foreman to say the applicant was “guilty”.

14.  Ground 2 is abandoned and not pursued by Mr Tze^[12].  By Ground 3, which may be described as a ‘catch-all’ ground, it is argued that the conviction was unsafe and unsatisfactory essentially on the basis of the arguments put forward in Ground 1.

Respondent’s submissions

15.  Mr Ira Lui, for the respondent, submits that it is clear from the transcript that the jury reached a “guilty” verdict by a majority of 5 to 2.  As for the purported language issue, he submits that, there is nothing to show that the English ability of the jury was insufficient for the purpose of the trial; instead, the jury’s note was written in clearly-expressed English. 

16.  Mr Lui contends that when a verdict is returned in the presence, sight and hearing of the other jurors without protest, it is presumed to be one to which all jurors assent: R v Roads [1967] 2 QB 108 and Lalchan Nanan v The State [1986] 1 AC 860.  He submits that the conviction is neither unsafe nor unsatisfactory.

Consideration

17.  Pursuant to section 29 of the Jury Ordinance, Cap 3, it is open to the defence to challenge not more than five jurors without cause, and to challenge any number of jurors for cause, prior to the juror entering the jury box.  Where there is a subsequent issue as to a juror’s qualification, section 6 of the same Ordinance provides that:

“If any person is summoned as a juror who is not qualified or liable to serve as a juror, or is exempt from service, such want of qualification or exemption shall be a good cause of challenge and the person so summoned shall be discharged on such challenge or on his own application, if the court is satisfied of the fact and so directs; but no such want of qualification or exemption, if not submitted to the court before such person is sworn, shall afterwards be accepted as a ground for impeaching any verdict given by the jury on which such person has served.”

18.  Having listened to the recorded proceedings in respect of the empanelment of the jury on 2 October 2018, I noted that ten potential jurors were called from the original jury panel.  Amongst them, two of the potential jurors called indicated to the court that they did not think their English language capabilities were good enough^[13]. The judge was satisfied with the explanations tendered and exempted both of them from sitting at the trial in question.  Notwithstanding that the issue of language capability was plainly ventilated during the process of jury selection with two jurors being exempted from service because of their claim that their English was not good enough, none of the selected jurors (including the foreman) at any stage of the trial indicated to the judge that he or she was, or might be, unable to speak or comprehend sufficient English so as to understand the proceedings or properly discharge his or her duties as a juror.  Instead, the selected jurors proceeded to take their oath or affirmation in English to return a true verdict according to the evidence. 

19.  In respect of a juror’s language capabilities, section 4 of the Jury Ordinance sets out the qualifications for a juror to sit on a jury in Hong Kong:

“(1) A person who has reached 21 years of age, but not 65 years of age, and is a resident of Hong Kong is, except as provided by this Ordinance, liable to serve as a juror in the proceedings in the court or in an inquest under the Coroners Ordinance (Cap. 504) if (but only if)—

(a) ….

(b) …; and

(c) the person has a sufficient knowledge of the language in which the proceedings are to be conducted to be able to understand the proceedings.

(2) In a trial before a jury, the court or a coroner may, on the court or the coroner’s own motion or on the application of the Registrar or of any interested party, discharge any person summoned to serve as a juror who is unable to satisfy the court or the coroner that the person’s knowledge of the language in which the proceedings are to be conducted is sufficient to enable the person to understand the proceedings.” (Emphasis supplied)

20.  Mr Tze essentially argues that the foreman’s language capabilities (if established) would have impeded both himself and the other jurors from competently discharging their duties.  However, there is no reasonable basis, or indeed any basis, for alleging, from the way the note is written, that the foreman did not have a sufficient knowledge or understanding of the proceedings in English.  Firstly, the note is plainly in intelligible English.  Secondly, neither the judge nor counsel indicated there was any difficulty in understanding or answering the questions posed.  Thirdly, it was made clear to the jury when the judge answered the questions that they could raise further questions at the end of the summing-up if they wished^[14]: they did not.  Fourthly, the standard is not one of fluency and perfection in the language of the court proceedings, but whether a juror has “a sufficient knowledge of the language … to be able to understand the proceedings”. 

21.  Based upon the jury note alone, it is not reasonably arguable that the language capabilities of the foreman, or any of the other jurors, fell below the standard expected of them.  It is the common experience of the courts that juries often ask for matters of law, which may well be alien to them, to be repeated for them.  In any event, section 6 of the Jury Ordinance makes it clear that want of qualification to sit as a juror shall not be accepted as a ground for impeaching a verdict after the juror has been sworn unchallenged: for an application of the law in this regard, see HKSAR v Kelsey Lord Michael Mudd (Unrep., CACC 411/2010, 28 December 2011), at paragraphs 133 to 145.

22.  As for the hiatus at the beginning of the announcement of the verdict, what happened needs to be looked at carefully.  It becomes clear, from an analysis of the transcript and the recording to which I have listened, that the foreman immediately corrected himself when he realised that he had confirmed that the verdict was unanimous when it was in fact by a majority of 5 to 2^[15].  Then, having corrected himself, he stumbled again by appearing to explain the majority the wrong way round, namely “5 out of 2 (sic) are not guilty”^[16].  The judge then intervened and it would seem that he and the foreman were at cross-purposes, with the foreman trying to explain that two jurors were for a not guilty verdict^[17], and the judge assuming that the foreman meant the verdict was one of “not guilty” by a majority of 5 to 2^[18]. When the judge put the matter as he understood it to be, namely “All right. 5 to 2, not guilty”, the other jurors immediately exclaimed “Guilty. Guilty. Guilty”^[19].

23.  Faced with this confusion, the judge wisely said “Sorry?  Start again … Start all over again.  So 5 to 2.  Yes”, and the verdict was then declared by the foreman to be a verdict of “guilty”^[20]. Just to make “absolutely sure” there had been no further misunderstanding, the judge clarified the various steps of the verdict with the foreman again and the foreman confirmed the fact of a majority verdict by 5:2, and that it was a verdict of “guilty”^[21].

24.  It is a common feature of human life that when anyone is required to speak a language, in which he may be perfectly comfortable and fluent but which is not his native tongue, in public and in solemn, formal proceedings – and few things could be more solemn and formal than announcing a verdict in a criminal trial -, he may well be nervous and not express himself as he might if the circumstances were private and less intimidating.  Mistakes, misunderstandings and slips of the tongue under the daunting eye of public scrutiny are to be expected even of fluent, native speakers; it certainly does not mean that the speaker has an insufficient knowledge and understanding of the language.

25.  It seems clear to me that the problem started when the jury foreman mistakenly confirmed that the verdict was unanimous, when it was in fact by a majority. He immediately corrected himself but, as so often happens when one is conscious of having made a mistake, particularly in a public arena, the attempt to explain or correct the error actually made things worse.  When the judge himself then tried to clarify the situation, he and the foreman were evidently at cross-purposes and the matter became even more confused.  However, when the other jurors made it clear what the verdict actually was, the judge sensibly asked the clerk to ask the foreman to return the verdict again and, the clerk and the foreman having done so, the judge then clarified the verdict himself with the foreman. 

26.  Mistakes do happen in court.  The important thing is how they are resolved and whether there is any residual concern about the accuracy and fairness of the result.  Looking at the series of exchanges between the clerk, the foreman, the jurors and the judge, it is not reasonably arguable that there can be any real doubt about the ultimate verdict of the jury.  What began as a stumble, which led to further confusion when the foreman tried to extricate himself and the judge attempted to clarify the situation, was ultimately resolved with the declaration of a verdict of “guilty” by the foreman and the judge’s subsequent confirmation of that verdict with the foreman.

27.  In respect of the allegation that the jury may have felt pressured into reaching a verdict, there is no basis for this assertion at all.  Not only were the jury explicitly told that they should not rush themselves in reaching a verdict, they must have followed that advice because it took them some 5½ hours to reach their verdict. 

28.  In my judgment, none of the arguments advanced by Mr Tze is reasonably arguable.  Accordingly, I refuse leave to appeal.

29.  The applicant is duly advised that she has the right to renew her application for leave to appeal to the Court of Appeal, but she is also warned that one of the consequences of so doing may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.