R. v. CHAN TUNG

IN THE COURT OF APPEAL

1996, No 257

(Criminal)

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J U D G M E N T

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Liu JA:

1. The applicant faced one charge of unlawful trafficking in a dangerous drug. The prosecution led evidence to show that on 19 April 1994, outside Inkeen Garden, Phase II, Kung Um Road, Yuen Long, New Territories, the applicant had in his possession 1,731.28 gms of a mixture containing 1,262.53 gms of salts of esters of morphine. A full confession to the unlawful trafficking charge was given to the police. On 15 April 1996, the applicant was convicted as charged and sentenced to 22 years' imprisonment by Mrs Justice Bokhary, then a Deputy Judge of the High Court.

2. The applicant sought leave to appeal against his conviction and he was represented by counsel. The applicant himself sought leave to appeal against sentence.

3. In the Notice of Appeal and before us, counsel mounted a two-pronged attack: first, it was complained that the Deputy Judge placed before the jury two alternatives bases upon which they could convict, each upon its own to the exclusion of the other. There were two broad issues for the jury, evidence of possession and the applicant's confession to trafficking. The question for our consideration was: did the Deputy Judge put either of these two alternative bases into a water-tight compartment for the jury's deliberations? The other criticism was that the judge failed to make any enquiry in a complaint raised by the applicant that two of the jurors had fallen asleep during the course of the evidence.

4. We will deal first with counsel's submission that the Deputy Judge addressed the jury in terms of two bases on which they could return a guilty verdict, one exclusive of the other. The Deputy Judge instructed the jury that they were the sole judges of fact. In essence, she invited them to consider all the evidence they would accept in the case, including the defence evidence. She explained to the jury that "evidence [was] not confined to what the witnesses [said]. It [included] documents, photographs and objects produced". She directed the jury on evaluation and weight. Then the Deputy Judge said:

"There are two bases on which the prosecution puts his case against the accused. Either one on its own would be enough, if you are sure of it, for the purpose of finding the accused guilty". (Emphasis added).

5. In the Deputy Judge's summation of the evidence, time and again and on each basis, she reminded the jury that they had to be sure or to be satisfied beyond a reasonable doubt. Moreover, before she closely examined the evidence with the jury, she said:

"Ladies and Gentlemen of the jury, I have now dealt with the two bases on which prosecution puts his case against the accused. Either one on its own would be enough to convict. If you are sure of both and (sic) at least of one, then you would be entitled to convict". (Emphasis supplied)

6. It is inconceivable that the Deputy Judge could be taken as having instructed the jury to deliberate on either of these two bases exclusively or exclusively of relevant evidence they accepted on the other basis. There is no substance in this Ground of Appeal. We did not find it necessary to call upon Mr Bruce, leading counsel for the respondent. This ground fails.

7. We turn then to the remaining complaint. It is always necessary for a trial judge to see to it that no juror has materially incapacitated himself from hearing or evaluating the evidence or from assessing the demeanour of a witness for such an unduly long period as would render him incompetent to return a true verdict according to the evidence and to his oath. This elementary concept was highlighted by Kempster, J.A. in the R. v. Tam Chung-shing and Others, (1990) 1 HKLR 718 at p. 722 F - G. Be it for inattention or somnolence or any other cause, a trial judge must ensure that the jury are not in any way disabled from discharging their bounden duty to deliver a true verdict according to the evidence.

8. In the case of a complaint made against a juror for having fallen asleep in the course of evidence, it does not always follow that some enquiry or a full enquiry would have to be made. The trial judge must first be satisfied that in the complaint there is a prima facie case for investigation.

9. In this appeal, we admitted the affidavit of Ms. Linda C Tenedero, the co-habitee of the applicant. She attended court daily and deposed to the fact that on the first day of trial, a female juror in the front row "dropped off into a doze". She described what she saw:

"I saw her using her right hand to touch her forehead while her left hand was placed under the elbow of the right hand giving support to his (sic) raised right hand. Before long, I saw her head moving up and down slightly. I believe that she dozed off at that time. Several minutes later, she woke up. She looked round. Then, she dozed off again. She repeated the process for four to five times. In addition, she often yawned."

10. Ms Tenedero also described the demeanour of the Foreman as follows:

"Several days after the first day's hearing (perhaps, it was in the middle of the trial), I discovered the foreman of the jurors and the same female juror dropped off into a doze again. On this occasion, I saw the foreman close his eyes with his both hands being placed on the desk. He moved his head up and down very slightly. He wore spectacles. He put his fingers onto his eyelids from under the spectacles so as to apply massage to his eyes. He repeated the process for several times."

11. During a recess, Ms Tenedero was told by the applicant that some jurors had fallen asleep and she reported what she had seen to the applicant. When the court resumed through counsel, the applicant raised his complaint with the court. The Deputy Judge's response was resolute:

"I certainly did not notice".

12. Neither of the counsel in the case noticed anything untoward. The applicant identified the two jurors to the court with a claim that the Correctional Services Officers on duty on the day in question made an observation to the similar effect. The applicant also informed the Deputy Judge that he had discussed the matter with his "wife". Thereupon, Mr Mackay, counsel for the applicant, reminded the court of the power to discharge the jury after a "proper enquiry". The Deputy Judge's decision was justifiably confident. The Deputy Judge said:

"Let me say it at once, as far as the allegation that ... made by the accused is concerned about the juror falling asleep, I see no reason to believe that the juror has failed to discharge their duty and I am not going to entertain the accused's application to discharge the jury."

13. At that juncture, counsel for the prosecution, Miss Milla, found it prudent to disclose to the court that she had spoken to Mr Mackay in jest that the lady sitting from the left closed her eyes at one point. Counsel made it perfectly clear that it was a jocular comment made the day before after court but that there was no suggestion that she was asleep. Following upon that disclosure, the judge explained that she was constantly looking at the jury because she had had a previously similar experience. She then affirmed her decision rejecting the applicant's complaint in these terms:

"I really see no reason to believe that - that the jury has failed to discharge their duty. So in those circumstances, I don't think I need to hold any enquiries at all. And I - I am not prepared to discharge the jury as applied for by the accused."

14. It is clear that the Deputy Judge was very firm on her view in the awareness that Correctional Services Officers and the applicant's "wife" were available to give evidence if she had felt the need for an enquiry.

15. Almost following that, the applicant queried as to why witnesses had not been called. He said:

"I wish to know one point, he said, as I have said there is ... there are witnesses, then why are these witnesses not called to prove that they were sleeping?"

The Deputy Judge was emphatic. She told the accused that she had been "keeping a very close eye at the jury throughout and (she saw) no reason to believe that they (had) failed to discharge their duty".

16. The Deputy Judge had before her all the material for exercising her discretion and she concluded that there was no risk of the jurors' collective deliberations being adversely affected. The Deputy Judge did not find it necessary to hold an enquiry or call the Correctional Services Officers or the co-habitee of the applicant. In the circumstances, we are unable to say that the Deputy Judge was wrong or that her discretion was wrongly exercised. We cannot interfere. The exercise of her discretion in not holding an enquiry cannot be vitiated. For the reasons we have given, in our judgment, the decision of the Deputy Judge cannot be faulted. The Deputy Judge did not call for Ms Tenedero, and we cannot take her affidavit which merely rehearsed the same complaint, any further. We, therefore, do not accede to the prosecution's request to cross examine her, for which there is no need. The remaining complaint is also without substance.

17. The application for leave to appeal against conviction is accordingly dismissed. We will now hear the applicant's own application for leave to appeal against his sentence.