HKSAR v. Garcia Aristizabal Maria Alejandra

HCCC 110/2019

[2019] HKCFI 2109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 110 OF 2019

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COURT: This is an application brought under the terms of section 16(1) of the Criminal Procedure Ordinance, Cap 221, that there is insufficient evidence revealed in the case papers to establish a prima facie case against the 5th defendant on the 2nd charge of trafficking in a dangerous drug. It is argued that I should direct she be discharged.

The facts are as follows:

On 4 April 2018, a residential unit in Sai Ying Pun, Hong Kong was raided by the police holding a search warrant in an anti-dangerous-drug operation. The unit had two bedrooms and one bathroom. It was approximately 300 square feet in size. In total, five people were arrested.

The 1st defendant was intercepted as he was leaving the unit. He resisted arrest and shouted out “Police”. The 2nd defendant was arrested in the dining room with two keys to the unit found on him. In the bathroom, the police found the 3rd defendant attempting to flush bags of cocaine down the toilet and the 4th and 5th defendants with their hands stuck out of open windows.

It is the 5th defendant who makes this application today.

At the same time as PW4 saw the 5th defendant with her hand stretched out of the open window, PW6 who was on the ground below the open windows saw two hands stretched out of open windows of that unit disposing of objects which she watched fall to the ground. In total, seven packets of cocaine were found on the ground below those open windows.

The police found a total of 150 packets containing a total of 80.86 grammes of cocaine, a packet of 3.31 grammes of cannabis, an electronic scale, a cannabis grinder, a pipe containing traces of cannabis, 28 transparent resealable plastic bags and a significant amount of cash in the unit.

The 1st defendant was charged with possession of the drugs found on him when he left the unit. The 2nd, 3rd, 4th and 5th defendants were jointly charged with Charge 2 - with trafficking in dangerous drugs seized inside the unit and those found outside the unit on the ground. The 2nd to the 4th defendants have already pleaded guilty to Charge 2. The 5th defendant has pleaded not guilty and her trial set down for November later this year.

Under caution in her video-recorded interview, the 5th defendant told the police she had come to Hong Kong travelling and that the 3rd defendant was her boyfriend. They had moved into that unit and were paying rent. The police did find the 3rd and 5th defendants’ passports in a wardrobe in a bedroom. They also found five toothbrushes in the bathroom.

Mr Boyton on behalf of the 5th defendant submits that the evidence against her at its highest is that she was seen throwing a small amount of dangerous drugs out of the window. He submits that there is no admissible evidence to prove that the other defendants had jointly possessed all of the dangerous drugs with the 5th defendant. There is no admissible evidence that she had custody and/or control of the drugs found inside the premises. Apart from the drugs found on the ground below the bathroom windows, the case in relation to the drugs found inside the premises would not make it pass the no-case-submission stage after the prosecution closes its case. It is submitted that there is insufficient evidence to establish a prima facie case against the 5th defendant for the trafficking offence.

Mr Boyton has referred me to paragraphs 17 to 20 of HKSAR v Siu Mo Nor, Isis [2005] 3 HKC 130 to support his submission that even if the 5th defendant knew there were dangerous drugs in the flat, which is not admitted, it would be insufficient to prove her possession, custody or control. He does concede that the evidence could support a possession-of-dangerous-drugs charge in relation to the cocaine thrown out of the window.

The respondent sets out the evidence in support of its case against the 5th defendant. They rely on her admission in her video-recorded interview that she was living at the unit. The respondent relies on the evidence of PW4 who said that when he entered the bathroom, the 5th defendant had already stuck her left hand out of the first window from the right side of the bathroom. The respondent also relies on the evidence of PW6 who saw hands sticking out from both the left and the right windows of that bathroom. She saw the hand opening and saw palms throwing something down. She saw and heard black pellets hitting the ground. Later, seven packets of cocaine were found on the ground below the window. They are Exhibits 14 and 15.

The respondent also submits that the 5th defendant was assisting in the urgent disposal of dangerous drugs because the police had arrived at the unit. It is submitted that her assistance is active assistance in disposing of some drugs out of the window. This meant that she knew there were dangerous drugs in the unit and she was in joint possession of dangerous drugs subsequently seized for the purposes of unlawfully trafficking in them. Her physical actions of disposing of drugs at the same time as other defendants is what distinguishes these facts from those in the authority of Siu Mo Nor, Isis. I agree with that submission.

The respondent relies on the test to be applied and one which is applicable to this kind of application referred to in the Secretary for Justice v Tang Sau Ling [2013] 2 HKLRD 174:

“The court hearing this application must not be concerned with what finding of fact it would make or even with what finding of fact a jury would make, but rather with what finding a jury could, may or might make.”

A jury properly directed could, may or might conclude that the only reasonable inference to be drawn on all the evidence relied upon is that the 5th defendant was in joint possession of all the dangerous drugs seized for the purposes of trafficking in them. Alternatively, a jury could, may or might conclude that the evidence supports a conviction of alternative verdicts, such as trafficking in a lesser amount of dangerous drugs, those seized from the ground below the bathroom windows or possession of dangerous drugs. Therefore, the respondent submits this application is without merit and should be dismissed.

I have had the opportunity of reading counsel’s written submissions and hearing from them today. I have obviously to be very careful in my approach not to usurp the functions of a jury. I do quote from paragraph 19 of the Tang Sau Ling authority. I quote:

“The appropriate approach to section 16 applications may usefully be gleaned from the judgment of Silke VP in Attorney General v Phung Van Toan [1992] 1 HKCLR 56, adopting for the purpose of section 16 the test applied by Kempster JA in Attorney General v Li Fook Shiu Ronald [1990] 1 HKC 1 in relation to section 22 of the Complex Commercial Crimes Ordinance, Cap 394 which empowers an accused at any time before the empanelment of the jury to apply to the judge for his discharge on the ground that the evidence disclosed is insufficient to establish a prima facie case against him for the offence with which he is charged. Kempster JA said of a judge hearing a section 22 application that:

‘In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are ‘matters generally speaking within the provenance(province?) of the jury’ in the language of R v Galbraith. Both can critically be affected by later evidence or a lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, is(and?) still less he, must conclude at that moment, but what a jury could, may or might properly conclude in the future.’”

Paragraph 20:

“Importantly for present purposes, Silke VP added this:

‘At the time of this application, no word of oral evidence has yet been heard. A court faced with such an application is not enjoined to consider the quality of the evidence. To do so would be to usurp the function of the jury.’”

The prosecution is relying on circumstantial evidence, in particular the evidence of the defendant’s active assistance in disposing of dangerous drugs with others when the police arrived to raid the unit. Circumstantial evidence can be more powerful than direct evidence. The jury, if properly directed, could, may or might find the only inference to be drawn on all the evidence is that the 5th defendant was trafficking in those dangerous drugs with others. They could, may or might find all the elements of the charge proven by the prosecution. There is also the possibility of the alternative of possession of dangerous drugs.

I have decided after consideration of the written and oral submissions that this is a matter for the jury and accordingly, this application is dismissed.

(Proceedings from 3.20 pm not required)

Court adjourns - 3.21 pm

16 July 2019