HKSAR v. Chrilline Christine and Another

HCCC 198/2019

[2021] HKCFI 99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 198 OF 2019

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BETWEEN

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Before:  Deputy High Court Judge D Yau in Court

Dates of Hearing:  1 December 2020 to 5 January 2021

Date of D1’s application for costs:  6 January 2021

Date of Ruling on Costs:  6 January 2021

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RULING ON COSTS

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1.The defendants were jointly charged with one count of trafficking in dangerous drugs and tried by a jury.

2.D1 was acquitted and applies for costs of the trial under section 5 of the Costs in Criminal Cases Ordinance, Cap 492.

Summary of facts

3.On 7 June 2018, Customs and Excise Officers intercepted an incoming air mail parcel posted from Mexico.  The waybill attached to the outside of the parcel was addressed to one “Alpha Sesay”, with the address of “Flat A1, 6/F Mirador Mansion, 56-64 Nathan Road, Tsim Sha Tsui, Kowloon, Hong Kong”.  The telephone number “+852 5231 9040” was also written on the waybill.

4.Inside the parcel were a number of household and personal items including three boxes each containing a metal thermos flask.  A delivery note was inside the parcel which bore the same particulars as those on the waybill.

5.X-rays revealed suspicious images in each of the thermos flasks and they were examined.  A total of 720 grammes of a crystalline solid comprising 720 grammes of methamphetamine hydrochloride (also known as ‘Ice’), being the dangerous drugs referred to in the indictment, were discovered concealed in the base of the thermos flasks.

6.The parcel and its contents were repacked as they had been when intercepted.  A SpeedPost notification card for collection was placed in the letterbox of the recipient’s address as part of a controlled delivery operation.

7.At about 12:38 pm on 11 June 2018, D1 showed up at the post office with the notification card, handed over an application for a Hong Kong Permanent Identification Card and a photocopy of a passport in the name of Sesay Alpha to collect the parcel.  She told the Customs Officer who was pretending to be a postal staff that she was collecting the parcel for a friend.

8.Upon leaving the post office, D1 was immediately arrested Under caution, D1 said that the parcel was not hers, that a friend of hers had asked her to make the collection the night before.  She met up with the friend in the morning and there was a “black man wearing black and purple stripe top” who handed the SpeedPost notification card and the passport copy to her.  The black man then walked with her to the vicinity of the post office and she entered the post office to make the collection.  The black man said he would wait for her outside the post office around the corner.  She said she did not know the name of the black man nor what was inside the parcel, her guess was that after she collected the parcel and met up with the black man, they will go back to find her friend.

9.The description of the black man was sent out over the beat radios to the Customs Officers in the operation.  D2 was subsequently apprehended and arrested.  At around 1:45 pm the same day, D1 was brought in front of D2 for identification. D1 said under caution that D2 was the black man who gave her the notification card and passport copy.

10.D1 later on took part voluntarily in a video recorded interview, where she repeated what she said at scene and added that she had met the black man once before the day of the arrest but they were not introduced.  She gave the name of her friend as “Prince” and said she had known him for about a month. Prince asked her to make the collection for him, telling her that he could not do so himself because he was not a holder of a Hong Kong Identity Card.  D1 said she trusted him as a friend and just thought to help out a friend.  There is no evidence that D1 was ever offered or received any form of reward for her effort.

11.D1 had repeatedly asked if the Customs Officer wanted her to call Prince but the evidence suggest that no such call was ever made.

12.The video recorded interview of D1 had one unusual feature in that a social worker was allowed to sit in as a support person for D1.  The Inspector who conducted the video recorded interview said the arrangement was based on their observation of D1 after her arrest.  They found her to be nervous and wanted her to be settled and be able to express herself freely.

13.During trial, five psychiatric reports were produced as evidence under section 65B of the Criminal Procedure Ordinance, Cap 221.  In gist, D1 was diagnosed as suffering from paranoid schizophrenia in 2016, and that from 18 February to 2 March 2018 D1 had been admitted into hospital for not taking her medications.  As at 14 October 2020, D1 was still suffering from schizophrenia, although in remission.

Discussion

14.The leading authority in relation to costs in criminal cases is the Court of Final Appeal case of Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531.

15.In the case of Tsang Wai Ping v HKSAR [2005] 1 HKLRD 825; (2005) 8 HKCFAR 80, the Court of Final Appeal confirmed that section 5 of the Costs in Criminal Cases Ordinance conferred a wide discretion on a trial judge to award costs to an accused person who was acquitted after trial.

16.An acquitted accused can only be deprived of costs if the acquittal is based on a technicality; or if the accused had brought suspicion upon himself.  In the present case, there is no question of the acquittal of D1 being on a technicality.

17.Sir Gerard Brennan NPJ in Tsang Wai Ping referred to the passage in the judgment of Litton PJ in Tong Cun Lin under the heading “the governing principle” and confirmed that, when considering whether the defendant had brought suspicion upon himself, “the discretion (to award costs or not) is to be exercised having regard to the defendant’s conduct ‘during the investigation and at the trial’ but the judge must not take a view of the facts ‘palpably different from that taken by the jury’.”

18.In the present case, by reason of their unanimous verdict, the jury must have accepted the explanations put forward by D1 as true or maybe true.  This must be the factual basis that I consider her application for costs.

19.D1 had from the very moment of her arrest given a full explanation of how she came to be collecting the parcel.  She never wavered from her position.  A man matching the description she gave was apprehended shortly after D1’s arrest and D1 confirmed under caution that it was the man who had handed her the collection card and the passport copy.  The man was eventually charged and convicted.

20.D1 maintained her story in her later video recorded interview, providing slightly more details. She offered to call her friend “Prince” a few times. This offer was never taken up.

21.On the basis that the jury must have found that D1 was telling the truth, or maybe telling truth, when she said that she did not know what was inside the parcel; that she was just helping out a friend in making the collection; and her cooperation with the Customs Officers throughout the investigation, I find that it cannot be said that D1 had brought suspicion upon herself.  I find that she must, therefore, not be deprived of costs upon her acquittal and I exercise my discretion accordingly.

Order

22.Costs of the trial and proceedings below be to D1, to be taxed if not agreed.

Mr John Charles Wright, counsel-on-fiat, for the Respondent

Mr Danny KK Chan, leading Mr Tommy Cheung, instructed by Francis Kong & Co, for the 1^st Defendant

Mr James HM McGowan, instructed by Littlewoods, assigned by Director of Legal Aid, for the 2^nd Defendant