Nawab Hussain and Another v. The Queen
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1. The appellants in this case are husband and wife. They were both convicted in the District Court upon the 20th of July 1970 under sec.4(1)(a) of the Dangerous Drugs Ordinance of trafficking in dangerous drugs. The learned District Judge imposed a sentence of three and a half years' imprisonment upon the first appellant, the husband, and of two years' imprisonment on the second appellant, his wife. The 1st appellant appealed against conviction and sentence and the 2nd against conviction only.
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CACC000401A/1970 CRIMINAL APPEAL NO. 401 OF 1970 -----------------
----------------- Coram: Full Court. (Mills-Owens, Euggins, and McMullin JJ.) Date of Judgment: 23rd December, 1970. ----------------- JUDGMENT ----------------- 1. The appellants in this case are husband and wife. They were both convicted in the District Court upon the 20th of July 1970 under sec.4(1)(a) of the Dangerous Drugs Ordinance of trafficking in dangerous drugs. The learned District Judge imposed a sentence of three and a half years' imprisonment upon the first appellant, the husband, and of two years' imprisonment on the second appellant, his wife. The 1st appellant appealed against conviction and sentence and the 2nd against conviction only. The appeals of both appellants were set down for hearing before the Full Court in a list including several other cases to be heard upon the 17th of November, 1970. Neither of them had been legally represented at any time prior to that date since their arrest at Kai Tak Airport on the 2nd of June 1970. Prior to the 17th of November, however, a document, written in English, and addressed to the learned Chief Justice, was brought to our attention. This document was in effect a letter to the Court by the 2nd appellant, Nadira Perven, in which she besought the Court to deal with her appeal separately and in the absence of her husband. The reason given for this request was that she was in fear of her husband and wished to put certain matters before the Court relating to her appeal which she would fear to do if he were present. When the appeal came on for hearing both husband and wife were in the dock and the husband's appeal against conviction and sentence were dealt with first. Those appeals were summarily dismissed and the husband was then removed from the dock. The 2nd appellant when called upon began to read in English from a lengthy document which she had prepared for the purpose of presenting her own appeal. When she had read a little way, the complaint, foreshadowed by her extra-curial request to the Chief Justice, began to appear more clearly. It became evident that she was alleging that the defence put forward by her to the charge before the District Judge was not her true defence and that she had been coerced by her husband to support his allegation that, at the time of their arrest at the airport, they had been falsely accused by the officers of the Preventive Services on duty there of being in possession of drugs but that no drugs had been discovered in their belongings nor had they been shown any drugs alleged to have been found therein. At this point we suggested that she might seek legal aid but Mr. Martin Lee of counsel, who was present in court in connection with another appeal, volunteered to shoulder the responsibility of presenting her appeal on a dock-brief basis and at no cost to the appellant who had professed to be without funds. This generous offer, was at once accepted by the appellant. We are indebted to Mr. Lee both for his gesture in itself and for the degree of care which he clearly expended upon the case of his adopted client during the adjournment which ensued and later at the hearing of her appeal. The argument advanced by him on her behalf was of considerable assistance to us in coming to our conclusion upon a matter which raises an issue of some concern and delicacy. 2. The case of the 2nd appellant came on for hearing afresh on the 23rd of December. By then a further document had been filed by counsel on behalf of the 2nd appellant in the form of an application to the Full Court to permit fresh evidence to be adduced coupled with an application to set aside the conviction and to order a new trial. The nature of the evidence sought to be adduced was adumbrated in a schedule annexed to that document. In effect the court was asked to permit the appellant to go into the box and, upon oath, to deny the truth of what she had said in the lower court when she had alleged that she had never been shown any of the drugs at the time of her arrest. It was intimated that, if the application was granted, she would tell the court that she had seen the drugs at the time of her seizure and had then, for the first time, become aware that that her husband was trafficking in drugs. Further, that she had begged her husband to plead guilty to the charge but that he had refused to do so and forced her to support his false story at the trial by threatening that if she refused to do so, and if they were convicted and imprisoned, he would, when he was liberated, take some unspecified revenge upon her and upon her relatives. It was also alleged that she was prepared to give evidence that her husband had threatened her with physical violence and that there were witnesses who could be called to substantiate that fact. 3. Mr. Lee and counsel for the Crown were alike unable to refer us to any authorities for guidance in this somewhat novel situation. Mr. Lee however, relied upon the provisions of section 81 of the Criminal Procedure Ordinance Cap. 221, and in particular upon paragraph (c) of sub-section 9 of that section. The provisions of that section, insofar as they are relevant to the present considerations read as follows:-
There follows a proviso which is immaterial. 4. Mr. Lee concedes that, even if these provisions cover the present circumstances, it is incumbent upon the appellant to show: (a) that the evidence was not available in the first instance; (b) that it is evidence of a credible nature; and (c) that, if it had been called in the first instance, it might have influenced a jury to return a different verdict. His main hurdle here is, of course, the first of these conditions. As to this, however, he says that, in effect, the evidence which he now seeks to lead, although strictly speaking available at the time of the trial, was not, in truth, available because the appellant feared to give it at that time. He conceded that one possible course of action for her to have taken at the commencement of the trial (assuming that what she now wishes to say is the truth) was to have asked for a separate trial. He asked us, however, to consider that her husband showed himself to be a person of intractable and even violent character when presenting his own appeal and to take the view that an Indian wife, moreover a devout Muslim, is more likely to be subject to the will of her husband than might be the case with wives of other nationalities. 5. Mr. Evans, for the Crown, although suggesting that the evidence sought now to be introduced was strictly speaking available at the trial, did not strongly oppose the application upon that basis. He seemed, indeed, to some extent, to concede that if a genuine element of duress did exist that might be a matter which the Court would find itself obliged to enquire into. His main concern was to secure that if evidence were taken it should be limited to such matters as the alleged threats and that the appellant, if called to give evidence on the appeal, should not be permitted to put once again into debate issues of fact bearing upon the general issue of guilt or innocence which had been disposed of at the trial. He explained that he took this view because, once the allegation of duress had been raised, he felt that it was something that the Court must take notice of and that it could not do so without evidence of some sort being put before it on that issue. 6. A court cannot but he concerned when an allegation of this sort is made. Nevertheless, we are not yet persuaded that section 81(9) ...(illegible) the Full Court to receive evidence from the appellant directed not to the issue of guilt but to establishing that, by reason of duress, an appellant was unable, at the trial, to put forward his or her real defence but was, on the contrary, compelled to give false evidence unwillingly and as a result of fear. Prima facie, it appears to us, that the wording of paragraph (c) of sub-section (9) is intended to cover the case of an appellant who did not give evidence at all at the trial or who gave evidence at the trial and who seeks, upon appeal, to amplify it or support it with evidence of the same tendancy but that it is doubtful whether this provision can apply to the case of an appellant who seeks directly to contradict what he said at the trial. 7. It is not without significance that counsel were unable to advance authorities dealing with an application of this sort before the courts in England or elsewhere. The commentary in Halsbury Statues, upon the very similar provision from which the local provision was modelled (sec.9 para.(c) of the Criminal Appeal Act 1907), states bluntly that the court will not receive evidence which was available at the trial save in the most exceptional circumstances. One of the two cases cited in that commentary is of some interest in this connection. In R. v. Dashwood (1942) 2 All E.R. 586, the appellant was charged with murder and counsel were assigned to him under the provisions of the Poor Prisoners' Defence Act 1930. At the trial he pleaded not guilty and, after the formal opening of the case, objected to the counsel who had been assigned to him and who, thereupon, withdrew from the case. He cross-examined witnesses but neither called nor gave evidence and would not allow the issue of insanity to be raised. On the appeal application was made for leave to call certain witnesses as to his sanity and it was held that the application to call witnesses on an issue and plea which had been deliberately withheld at the trial amounted to an application to the court to substitute itself for the jury as a tribunal of fact and to embark upon the trial of an entirely new issue and plea. It was said that the Court of Criminal Appeal had no power to do so. The editorial note which immediately succeeds the headnote from which the above facts are taken says that an application in the appeal to give further evidence is necessarily restricted to evidence upon a point which has been raised at the trial and that it is not possible upon an appeal to raise a new issue altogether for this requires to be supported by additional evidence. The case while not on all fours with our present circumstances is nevertheless a striking illustration of the principle that the Courts will not normally permit the introduction of fresh evidence to affect a complete alteration, upon appeal, of the story put forward by the defence at the trial. 8. A case which, in some respects, comes closer to the present circumstances is briefly reported at page 494 of the Criminal Law Review for 1963, R. v. Irvine and Wharton. In that case the two defendants called a witness in their defence. He refused to give evidence on the ground of possible self-incrimination and they were convicted of store breaking and larceny and maliciously putting explosives in a building with intent. On appeal an application was made for leave to call the same person on the ground that he had not been truly available at the trial and that, having since been dealt with and sentenced for a number of offences, he might now be willing to answer the questions originally put to him. The Court of Criminal Appeal consisting of Lord Parker, C.J. and Havers and Edmund Davies JJ. held that the witness had been available at the trial within the meaning of the established authorities and leave would not be given to call him on the appeal. In a critical commentary upon this decision the editors of the Criminal Law Review suggest that this evidence was strictly speaking not available at the trial because privilege had been rightly claimed and that it was therefore beyond the power of the appellants to extract from the witness the answers which they desired in the presence of the Court. In this connection the commentary refers to the case of Hullett (1922) 17 Cr. App. R. 8 a case in which a witness for the prosecution at the trial was called on the appeal to say that evidence she had given at the trial was untrue. Reference was also made to the case of Allaway (1922) 17 Cr. App. R. 15 where a witness, who, at the trial, was in a state of hysterics and unable to give evidence, was permitted to give evidence upon appeal. It is to be noted, however, that the authors of the commentary in the Cr. L.R. are careful to make reference to the remark of the Lord Chief Justice in the latter case to the effect that this must not be taken as a precedent. They go on to say, however:
(i.e. R. v. Irvine & Wharton)
9. It will be observed that in none of these cases was the Court of Appeal confronted with the suggestion that the defendant himself be permitted to give evidence contradicting what he had said upon the trial. In the Canadian case of R. v. Popovich (1947) 87 Canadian Criminal Cases 191 two accused persons upon an indictment charging them with murder put forward a defence of alibi at the trial. On appeal they admitted the falsity of their defence and admitted inflicting the injuries which led to the deceased's death, but they sought to adduce evidence which, if believed by a jury, would reduce their offence to manslaughter. The Court refused to receive such evidence. 10. None of these decisions deals with a change of testimony deriving from force majeure. The delicacy in the present case derives from the fact firstly, that we are now moved upon a ground which seeks to invoke the principle that the Courts are especially charged with the duty of correcting an injustice if such can be said to exist and to be conceivably within the Courts' power to correct; secondly, from the fact that this Court does possess the power to order a retrial in a fitting case, a power which, at the date of all the decisions to which I have already made reference, was lacking to the Court of Appeal in England; thirdly, that there is no legislative provision in Hong Kong comparable with sec.19 of the Criminal Appeal Act 1907 which empowers the Secretary of State in England, on application to him by a person convicted on indictment, or without any such application, to refer the whole case to the Court of Appeal and which provides that thereupon the Court of Appeal should treat the matter for all purposes as an appeal to that Court by the person convicted (although this procedure would not assist the appellant in establishing her claim to give evidence contrary to that which she gave at the trial). 11. While, therefore, we doubt that this Court has power to admit the kind of evidence which it is now sought to adduce either under the provisions of para.(c) of sec.81 of the Criminal Procedure Ordinance, or ex debit justitisae in virtue of the inherent power of the Court to prevent a miscarriage of justice, we are of the opinion that, in any event, the circumstances under which such an application might be considered and acceded to, even upon grounds of duress, must be so clear and so exceptional that the Court would feel constrained to interfere, even of its own motion: it would require circumstances of a kind that any reasonable man would be bound to say "I myself would have felt constrained to act as the appellant did if that was what happened and had I been in his shoes. It would be a denial of justice to refuse leave to him to prove, if he can, that he perjured himself under threat of such ...(illegible)nent , certain and extreme damage". 12. We think, also, that should such a situation ever arise the question whether the Court has even in such exceptional circumstances, the power to admit such additional evidence is a question of such fundamental importance that a bench of five judges might well be convened to deliberate upon it. It is scarcely necessary to enlarge upon the danger of admitting such evidence and the threat it might pose to the whole judicial process, particularly in relation to jury cases, should any such instance, however exceptional, come to be regarded as a precedent available to the defence in less deserving cases. 13. So far as the present case is concerned we are satisfied that what has been urged before us here falls far short of such extreme circumstances as might call for such special consideration. The fear under which this appellant is alleged to have been labouring at the trial, even as particularize in the schedule to the application, is, in our view inherently incredible. It is impossible to believe that a mature woman of some education, such as this appellant clearly is, could have been prevailed upon by vague threats of a distant vengeance against her and her relatives or by fear of personal violence on the part of her husband at a time when both she and her husband were in the custody of the officers of the law, to parrot an unlikely story in the face of the Court when all the time there was available to her a true, and greatly more convincing, ground of defence which she could have disclosed either upon a joint trial or else upon a separate trial, had at her instance. We cannot believe that the fear which is said to have inhibited her while before the District Judge from asking for a separate trial or from petitioning the District Court for such a trial before her appearance therein, should suddently have evaporated following upon her conviction so that she acquired, for no apparent reason, courage to make just such a petition to this Court and to pursue it in the presence of her husband when the Court convened to deal with the appeal. The applications are dismissed.
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