HKSAR v. Clifford James

HCCC 259/2015

[2021] HKCFI 1498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 259 OF 2015

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Before: Hon Zervos J in Chambers

Dates of Hearing: 31 May, 5 and 7 June 2017

Date of Ruling: 7 June 2017

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RULING ON DISCLOSURE

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1.The defendant was arrested and charged for the offence of trafficking in a dangerous drug on 12 November 2014. He is due to stand trial for this offence on 30 August 2017. He and other related defendants have been involved in an ongoing saga with the prosecution over the issue of disclosure of unused material. There have been many hearings primarily on this issue, resulting in this Court handing down decisions on 24 September 2015, 12 August 2016 and 17 January 2017.

2.The defence case has always been that the defendant was tricked by members of a drug syndicate, who have similarly tricked other defendants, into coming to Hong Kong on the basis that he was to receive an inheritance.  His case is different from that of the other defendants to the extent that he was stopped before he left Australia and warned that he may be the victim of a scam and that he should not accept luggage from any other person.  He did not think he was the victim of a scam at the time and believed that he was to receive the inheritance as claimed. 

3.The defence initially sought disclosure on behalf of the defendants generally because of the public comments made by the relevant authorities in Hong Kong and Australia that a drug syndicate or syndicates were recruiting drug couriers by tricking them to come to Hong Kong and then dispatching them back to their home with drugs contained in luggage given to them.  The defence wished to have whatever information was in possession of the prosecution that would go to show that the defendants were tricked or deceived.  In the defendant’s case, the defence wished to have not only this information but also any other information that led the Australian authorities to stop and warn the defendant before he left Australia.

4.The slow and unsatisfactory progress in addressing the issue of disclosure by the prosecution resulted in an application for a permanent stay of proceedings by the defendant.  The stay application has been truncated by the staggered and sometimes incomplete disclosure of materials by the prosecution in an effort to address the defence complaints.  This was highlighted when on a previous occasion the prosecution indicated there had been full and proper disclosure which was shown not to be the case by the defence producing materials it had obtained through the freedom of information legislation in Australia.  The consistent failure by the prosecution to fulfil its obligations of disclosure has resulted in a series of adjourned hearings and finally in an application that I examine the relevant files in this case.

5.At the hearing on 31 May 2017, Mr James McGowan, counsel for the prosecution, produced an affirmation by the prosecution which enclosed a detailed response to various matters relating to this case from the Australian authorities dated 29 May 2017.  On the face of the material supplied, it appeared to deal with the various issues that have been the subject of dispute between the parties on the issue of disclosure.  The defence were nevertheless concerned as to whether they had been given full and proper disclosure, and why the material supplied had taken so long to be produced.  In light of the circumstances of the case, it was agreed by the parties that the relevant files be produced to me for my examination to determine whether there was anything contained in the files that would be categorised as unused material and therefore disclosable.

6.It was agreed that the prosecution would formally produce the relevant files on 5 June 2017.  At the hearing Mr McGowan produced five lever arch folders which I understood I had previously examined when dealing with a similar application in the case of HKSAR v UN Mark William, HCCC 10/2015, 21 January 2016, unreported.  When I inquired as to whether I had been provided with all the relevant files, I was informed by Mr McGowan that there were others.  Arrangements were then made for the other files to be formally produced.  I have had formally produced to me for the purpose of this application, 5 black lever arch folders, 5 blue lever arch folders and a case file.  Each of the black and blue folders has been marked 1 to 5.

7.I have examined the files bearing in mind the facts and issues so far disclosed in relation to this case and to the nature and basis of the stay application under the first limb and also under the second limb as recently mentioned by Mr Gerrard McCoy, SC, for the defendant, at the hearing on 31 May 2017.  This includes the most recent material disclosed in the form of a letter from the Australian authorities dated 29 May 2017. 

8.I have borne in mind the relevant legal principles as to disclosure which in general terms required that the files be examined to see if they contained information or material that may in some way advance the defence case or weaken the prosecution case either in relation to the defendant’s trial or the stay application.

9.The information and material contained in the files as pertaining to this case are either known to the defence or not relevant to this case except there is information and material relating to others or generally with respect to the operations of a West African syndicate that may be or is involved in this case.  To some extent, although I am not completely sure, this information and material has been provided or is known to the defence.  By way of general comment and consistent with what I have said previously in my ruling of UN Mark William, the contents of the files appeared to mainly consist of the record and dissemination of information and intelligence between relevant law enforcement agencies and communications in addressing the issue of disclosure.  Although I should add that in addressing the issue of disclosure with regard to this case, the process has been at times repetitious, circuitous and unproductive. 

Mr James McGowan, counsel on fiat, for HKSAR

Mr Gerard McCoy, SC, Mr Michael Arthur and Ms Nisha Mohamed, instructed by Robinsons, Lawyers, assigned by Director of Legal Aid, for the defendant