Fong Chun-wai v. The Queen
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CACC000198/1982 Criminal law - jury - judge gave leave to jurors to make telephone calls, after they had been put in charge of jury bailiff, to cancel engagements - uncertain whether calls made and, if so, what wets said - rule against separation of jury to be strictly applied - no evident necessity for such calls - leave wrongly granted - irregularity possibly causing miscarriage of justice - appeal allowed.
----- Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A. Date of hearing: 16 December 1982 ______________ JUDGMENT ______________ Sir Alan Huggins, V.-P. : 1. We heard argument on only one point and thereupon allowed the appeal. That point was one which was not raised in the Notice of Appeal as it stood at the time leave to appeal was refused by the single judge. 2. The Applicant was tried upon indictment before a judge and jury. The judge's summing-up ended shortly after noon and it was apparent that the jury might not be able to return a verdict before the usual hour for the luncheon adjournment. Several jurors who had not appreciated that they might not be available to keep luncheon appointments sought leave from the judge to make telephone calls to cancel their engagements. The judge replied:
The jury then retired. We did not know for certain whether any juror did make a telephone call nor, of course, if he did, what was said. The court usher was unable to remember even whether this particular jury was put in his charge. The court clerk testified that on one occasion, which may or may not have been during this trial, the usher sought from him confirmation that it was in order that the jury should be allowed to make telephone calls after they had retired and that he replied, after consultation with the judge, that the jury could do so in accordance with leave granted by the judge. We accordingly assumed that telephone calls were made pursuant to the leave granted on this occasion. 3. Mr. Mayne contended that this was contrary to the provisions of s.22 of the Jury Ordinance and constituted a fatal irregularity. Mr. Longley submitted that, although there had been an irregularity, this court could nevertheless conclude that no injustice had resulted and could apply the proviso. 4. Mr. Longley argued that the rule against separation of jurors was far less strict than it used to be and that there was authority for trusting jurors to obey any injunction given to them not to discuss their case with anyone else. The trial judge did give such a warning, although not at the beginning of the trial, and a note of it is to be found at the foot of page 82 of the record. It is true that the rule is less strictly applied up to the time when the jurors are put into the custody of the jury bailiff, but thereafter the court still insists that the jury shall be kept incommunicado. Thus in Neal (1949) 33 Cr. App. R. 189 a conviction was quashed where the jury had been allowed to leave the place appointed for their deliberations in order that they might take luncheon. The basis of the decision was that during their absence the jury was not under the control of the court. Where, despite an irregularity, the court can be certain that there has been no communication with other persons, the proviso may be applied: see Reg. v Alexander 1974 1 W.L.R. 422, where one juror went back to the court-room to fetch an exhibit and it was shown that nobody spoke to him. 5. Use of the telephone introduces a further complication, for, even if the usher had been able to say that he was present when the telephone calls were made and was further able to state precisely what was said by the jurors whom he accompanied, he would almost certainly have been unable to hear what was said by the distant parties. To that extent the jurors were not under his control. The only case cited to us in which a telephone call had been made by a juror was decided upon another principle: in Reg. v Goodson 1975 1 W.L.R. 549 the offending juror never regained contact with the other jurors and he was discharged by the judge, a procedure by which "the defendant was deprived of the voice of one juror in the jury room in the consideration of the verdict from which the appeal [was] made". 6. The position here was, we think, that there was an irregularity which might in some circumstances have been held to amount to a miscarriage of justice. Had only one juror been involved, we might have taken evidence from him as to what happened, but it was possible that all seven jurors made telephone calls. We would have had to call each of them to establish, first, whether he did make a call and, secondly, what was said. Even if we could have been sure that all of them would have a clear recollection, the inquiry would have constituted a substantial trial in itself and that was a matter upon which we were reluctant to embark in this court. 7. The point was made that no objection was taken at the time that the judge gave leave for the telephone calls to be made. Even had that leave been couched in terms which made it certain that any calls would be made by the jurors themselves and not by the usher, we were not persuaded that this was a case where counsel deliberately kept silent with intent to make the irregularity a ground of appeal, even if that be a good reason for not allowing a point to be taken: it is to be observed that this ground was raised by amendment several months after Notice of Appeal was given. 8. Not without reluctance, therefore, we concluded that the proper course was for us to give leave to appeal, to allow the appeal and to quash the conviction. This was a case where the maintenance of the legal principle was more important than the possibility that the Appellant, if guilty, should wrongly escape conviction. He had already been retried once and we did not think it would be right to inflict a third trial upon him. 16th December 1982. Representation: O'Reilly Mayne, Q.C. & A. Souyave (Kwan and Kwan) for Appellant. Longley for Crown/Respondent. |