THE QUEEN v. WONG WAI BOR

THE SUPREME COURT OF HONG KONG

CRIMINAL APPEAL NO. 465 OF 1986

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BETWEEN

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J U D G M E N T

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Hunter, J.

1. This application for leave to appeal is founded upon the basis that one of the jurors in the court below disqualified himself from giving a verdict according to the evidence by falling asleep.  What happened in the court below was this. On one occasion which cannot be identified, defending counsel thought the man might have fallen asleep. It is apparent to us it cannot have gone further than that because nothing was then said at the time by defending counsel. But he did have a word with the judge in chambers, at which he described as the first available opportunity. From that moment the judge tells us that he kept a particular eye on this juror. A time came a little later in the trial when the judge himself having observed the juror to have closed his eyes, intervened and spoke to that juror. He then says that he was keeping an eye on him both before that incident and thereafter and that he did not go to sleep again.

2. The first difficulty about this application in our judgment is this. If a juror behaves in this way and appears to be falling asleep, then it may be a matter upon which the judge would have to act. It takes little to convince us that a sleeping juror is disqualifying himself from giving a true verdict according to the evidence. But this 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. There are certainly dicta in the speech of Lord Atkin in the Privy Council case of Ras Behari Lal & Ors. v. The King-Emperor(1) that suggest that if no such 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 the judge simply was never asked to rule. In effect we now have evidence from the judge both from the transcript and by letter, to the effect that as a result of this incident, he kept a particular eye on this juror, and the man did not fall asleep. In those circumstances he felt it right to leave this verdict to the seven jurors and not to discharge that particular juror. Really what this application comes down to is this. We are asked to assume an application would have been made to the judge, but upon that evidence he had refused it and that this exercise of his discretion would have been wrong. For my part I can only say that on that evidence, that exercise of his discretion would have been totally correct.  In this circumstances this application is refused.

A.S. Hodge, Crown Counsel for Respondent/Crown

William Howard, Q.C. and Miss W. Tam (M/s Howell & Lo) for Applicant/ Defendant

(1)  (1933) 50 T.L.R. 1 at p.2