HKSAR v. White Michael R

HCCC 70/2020

[2021] HKCFI 1824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 70 OF 2020

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BETWEEN

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R U L I N G

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1.At the end of the prosecution case Mr Ross, for the defendant, made a submission of no case to answer. In this trial the only issue is whether the defendant knew that the cocaine that is the subject of the charge, was concealed between the leather and the lining of the front and rear panels of the briefcase that was being carried by him in his suitcase.

2.There is no direct evidence, such as admissions by the defendant, that the defendant knew of the presence of the cocaine in the briefcase. The prosecution relies for proof of this crucial element of the offence on circumstantial evidence. This circumstantial evidence consists of the fact that the briefcase was located in the defendant’s suitcase and the defendant knew of its presence there. A mixed admission to this effect was qualified by his denial of knowledge of the presence of the cocaine together with an assertion that the briefcase had been given to him with the instruction that he was to hand it to another as a gift.

3.Also relevant is the fact that the briefcase was empty yet was obviously heavy and its unusual weight should have been clear to anyone who handled it.  Furthermore, what made Customs officers suspicious of the briefcase in the first instance, was that they could see that there appeared to be re-stitching of the edges of the briefcase panels. However, this may not have been apparent to anyone who did not closely examine the briefcase with a trained eye. Another relevant fact is that the cocaine had a street value of $1,974,044, as at the time of its seizure, and the prosecution say that it is unlikely that drug traffickers would entrust such a valuable package to a dupe.

4.The key piece of evidence in the prosecution case was the email history of the defendant with two persons over the preceding six months - from December 2018 to his arrest on 11 May 2019. The two persons were Mr Alex William and Mr William Greene. At this stage of the trial this email history must be read without the benefit of any evidence explaining it from the defendant. It shows that there was a relationship between the defendant and these two persons in which the defendant embarked on international travel on their behalf, and which they funded. The person with whom the defendant was primarily engaged and who seems to make all his travel and accommodation arrangements, was Mr William Greene.

5.The purpose of the international travel is not clear from the emails but it could be inferred that it had something to do with a fund of monies in a bank account and the release of the monies from that account. It could also be inferred from a photo that was found on the defendant’s phone that this was a fraudulent scheme and that the defendant was the victim of a Nigerian scam. The photo is of a document that purported to be issued by the Central bank of Nigeria authorising the release of US$10.5 million to the defendant. If this inference of the defendant being the victim of a fraudulent scheme was drawn, then it could be further inferred that the promise of these monies was being used as bait to entice the defendant into travelling around the world and unwittingly transporting drugs on their behalf.

6.There is nothing on the face of the emails to suggest that they are not genuine or that they have been fabricated to provide an exculpatory history on which the defendant could rely should he be intercepted by law enforcement agencies in the course of his travels. The prosecution do not suggest that they are not genuine and confine their submissions to an assertion that by a particular time the defendant can be inferred to have been aware that he was being used for the purpose of drug trafficking.

7.The submissions of counsel in the context of the factual matrix of this case raise an interesting legal point which appears not to have been addressed by appellate courts in Hong Kong. The legal point is the approach which a trial judge should take to a submission of no case to answer when there is no direct evidence of a key legal element of the offence and the prosecution ask that element to be inferred against the backdrop of evidence which may allow of a competing inference consistent with innocence.

8.The starting point for a consideration of this issue is the Court of Appeal’s judgment in Attorney General v Lee Fook Shiu Ronald [1990] 1 HKC 1 where it was said:

“If elaboration of the approach explained in Galbraith is called for we are of the opinion that a judge faced with a submission of ‘no case’ or an application for discharge in circumstances where the Crown’s case depends, as it usually does, upon an inference or inferences from primary facts, may ask himself:

(1) is there some evidence that the crime has been committed? If not, the judge will rule no case or discharge the count in question. If there is;

(2) is the evidence of primary facts of a quality permitting a jury to accept it? If not, the judge will stop the case or discharge the count. But, if such evidence is of appropriate quality;

(3)  could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established? If he concludes that a jury could, may or might so be satisfied, he will rule against the submission or application.”

9.I am concerned with the third question contained in the last subparagraph of this quotation. Paraphrasing that question to the issue I have to decide it becomes: “Could, may or might a jury properly directed be satisfied beyond reasonable doubt, by the drawing of an inference, that the defendant knew of the presence of a dangerous drug in the briefcase?”

10.Consequent upon the Court of Appeal’s decision in Lee Fook Shiu there was criticism by it of its earlier judgement in R v Tong Yuk Tim [1980] HKLR 140, where Leonard J, in giving the judgment of the Court of Appeal, had said at page 142:

“While it was justifiable for the judge to infer that both the equipment and the appellant were present at the same time in the premises, that is not the only inference which can reasonably be drawn from the prosecution evidence. For this reason we are satisfied that a submission of no case to answer which was made at the conclusion of the prosecution case should have succeeded and that the appellant should have been found at that stage of proceedings not guilty of the charge of manufacture.”

In Attorney General v Ng Yuk Tung [1992] 2 HKC 204 the Court of Appeal, after quoting this passage from Leonard J’s judgment, said of this earlier decision:

“This decision was before Galbraith. Having regard to the endorsement of the latter by this court in Lee Fook Shiu, we are satisfied that the dictum of Leonard J was per incuriam.”

11.Since that time the Privy Council and the English Court of Appeal have provided more detailed guidance on how the third question in Lee Fook Shiu should be answered by a judge when dealing with a case in which there are competing inferences available to be drawn.

12.The decision of the Privy Council is Director of Public Prosecutions v Varlack [2009] 4 LRC 392. In giving the judgement of the Board, Lord Carswell said:

“[21] The basic rule in deciding on a submission of no case at the end of the evidence adduced by the prosecution is that the judge should not withdraw the case if a reasonable jury properly directed could on that evidence find the charge in question proved beyond reasonable doubt. The canonical statement of the law, as quoted above, is to be found in the judgement of Lord Lane CJ in R v Galbraith [1981] 2 All ER 1060 at 1062. That decision concerned the weight which could properly be attached to testimony relied upon by the Crown as implicating the defendant, but the underlying principle, that the assessment of the strength of the evidence should be left to the jury rather than being undertaken by the judge, is equally applicable in cases such as the present, concerned with the drawing of inferences.

[22] The principle was summarised in such a case in the judgement of King CJ in the Supreme Court of South Australia in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 at 5 in a passage which their Lordships regard as an accurate statement of the law:

‘It follows from the principles as formulated in Bilick (supra) in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence…He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence... I would restate the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.’

A similar statement appears in a recent judgement of the English Court of Appeal, Criminal Division in R v Jabber [2006] EWCA Crim 2694 at [21] where Moses LJ said:

‘The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference. To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence. But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion. That is not an appropriate test for a judge to apply on the submission of no case. The correct test is the conventional test of what a reasonable jury would be entitled to conclude.’”

13.Lord Carswell went on to discuss the evidence in the case, saying:

“Once it is accepted, as their Lordships consider it must be on the evidence adduced, that it was reasonably possible for the jury to accept the guilty inference and reject all possible innocent ones, then the submission of no case had to be rejected.”

14.In HKSAR v Hui & ors HCCC 98/2013, unreported 13 February 2014, Macrae JA, sitting as an additional judge of the Court of First Instance, made a no case to answer ruling in which he discussed more recent English authority on this subject. In discussing the applicable law, he said:

“I am certainly prepared to accept that if one has decided that there is no case to answer under that time-hallowed test in R v Galbraith [1981] 1 WLR 1039 at 1042, one will necessarily have also concluded that a reasonable jury properly directed could not exclude all reasonable possibilities consistent with innocence. If one finds that there is a case to answer one will necessarily have found that a reasonable jury properly directed could exclude all reasonable possibilities consistent with innocence.”

15.I am satisfied that there is nothing in the Hong Kong authorities which would prevent me, when answering the third of the Lee Fook Shiu questions, from applying the guidance set out in the Privy Council’s judgement in Varlack.

16.Ms Crebbin does not dispute that the email correspondence would allow of the inference that the defendant was the victim of a fraudulent scheme of some kind which involved him being deceived into travelling internationally on behalf of drug traffickers. She argues that notwithstanding that the defendant may have been duped at an earlier stage into joining this scheme, by the time he was intercepted in Hong Kong he knew that those with whom he was dealing were drug traffickers and that he was transporting drugs on their behalf. She says that this can be inferred from the emails.

17.I accept that the circumstantial evidence, other than the emails, does allow of an inference that the defendant had knowledge of the presence of the dangerous drugs in the briefcase. However, the emails allow of an inference that the defendant was the victim of drug traffickers who were deceiving him into believing that if he carried out their instructions, which involved him travelling internationally on their behalf, he would be able to obtain access to a sum of US$10.5 million. By this means they were able to use him as a courier of the dangerous drugs in which they were trafficking.

18.The task for me is to assess the impact of the emails on the other evidence and to determine whether the inference of knowledge still remained as an inference which a reasonable jury properly directed could, may or might draw. The reasonable jury could only do so if the evidence was capable of making the inference of knowledge the only reasonable inference, thereby excluding inferences consistent with innocence from being a reasonable inference capable of being drawn.

19.It is clear from the emails that the defendant had already made two trips on behalf of the two drug traffickers. There is no information in the emails on the earlier trips, but one of them, perhaps it was the second trip, was to Hong Kong and it took place in January 2019. The third trip, also to Hong Kong, was the one which resulted in his arrest.

20.In the emails it is apparent that the defendant is impecunious and in need of money. It is also apparent that he has not been paid anything for these first two trips. By March 2019 he is becoming concerned about the failure of the traffickers to pay him his fund. In an email dated 20 March 2019 (email number 10) he says “I feel like I have been used for other purposes...”

21.In an email of 21 March 2019 (email 13), the trafficker William Greene, refers to a trip that will take the defendant from South Africa to Hong Kong adding “like in the first trip. I really do not want to use any other bank aside HSBC in Hong Kong.”

22.There is also reference in the emails to an incident in Taiwan but it is not clear what happened. What is clear is that it was not something that they want to see repeated.

23.In an email of 26 March 2019 (email 18) the defendant states that this will be his last time to travel for them.

24.In an email dated 27 March 2019 (email 20) the defendant refers to an occasion when he was approached by strangers and he queries William Greene as to how they knew where he was and his phone number as Mr Greene was the only one that knew anything about him and his whereabouts. In the next email he says “let’s move on and forget that nightmare. Please let this trip be successful so we can both rejoice get on with our lives.” It is not clear whether this is a reference to what happened in Taiwan or to some other incident.

25.A key email is that dated 4 April 2019 (email 26) in which Alex William tells him of the “GOOD NEWS”, namely that the United States had approved the transfer of monies from Nigeria and that consequent upon that decision he had transferred $10.5 million to a client by the name of Daisy Martin. Alex William went on to tell the defendant that it was now his turn to receive his fund through bank to bank wire transfer. He assured the defendant that the only money he had to pay was the transfer charges.

26.The following day the defendant wrote to William Greene expressing some scepticism saying:

“After everything that has happened with me on these trips and still nothing has happened to conclude this, I don’t know what to think. What I sent you was the third time I Time a message from him. Now is this for real or not??. I am not in this for games and I have not worked for four months trying to get this done plus with the crap that happened the last time. I just don’t know. If this is a scam. Count me out. If this for real, then make it real.”

27.The defendant repeats his concerns to Mr Greene in an email the following day. His concern becomes such that he even queries Alex William’s in an email of 7 April 2019 (email 31) whether he is in fact connected to William Greene. This prompts an email reply from Alex William the same day in which he encourages the defendant to focus his attention on the effort being made by William Greene “to enable you receive this fund during this next trip. We are truly committed to have this fund be released to you and we highly regret the misunderstanding during your last trip to Taiwan which would have concluded this transaction.” This appears to reassure the defendant who then replies to William Greene: “OK, now let’s get this done”.

28.In an email of 13 April 2019 (email 39) William Greene refers to the provision of a gift, telling the defendant:

“And I must inform you that the gift has worked wonders, if not the officials won’t be giving us the kind of attention and assistance they are giving us now. If you doubt me, just go there without the gift and see if anyone will respond to your request. They understand the true nature of this fund, and that’s why they are behaving this way, any little mistake can jeopardise the whole efforts. Just follow my instructions strictly.”

29.The defendant replies to this email complaining about the interruption to his working life created by the travel and the poor accommodation provided to him overseas. The complaint about the quality of the accommodation recurs in other emails and we know that when he arrived in Hong Kong he was booked to stay at a guesthouse in Chungking Mansions in Tsim Sha Tsui. Clearly little money was being spent on accommodating the defendant when he travelled overseas.

30.In an email dated 9 May 2019 (email 94) William Greene says to the defendant:

“Anyway, next step is to meet you and deliver this all-important document to you and your departure to Hong Kong for the final payment. I’m working very seriously to ensure that you receive this money this time.”

31.A jury could infer that the document to which William Greene is referring is the Authority to Release document purportedly issued by the Central Bank of Nigeria and which is the basis for the defendant’s belief that the outcome of his assistance to William Greene and Alex William will be his receipt of US$10.5 million. When read together with other emails, a jury could infer that this email was intended as reassurance and additional enticement to the defendant to carry out the Hong Kong trip.

32.For example, there is the email in which William Greene expresses a preference for HSBC in Hong Kong as his banker. There is also the content of emails exchanged between the defendant and William Greene over the quality of the accommodation that Greene is providing to the defendant. In an email dated 8 May 2019 (email 93) the defendant complains about his accommodation in South Africa. At the end of the exchange of emails dealing with this issue William Greene writes to the defendant on 10 May 2019 (email 100): “My only wish and prayer is for us to receive this money in Hong Kong as you get these this time.” This prompts a reply from the defendant on the same day at email 101 saying: “Let get on with this and get this done to completion. and we can the celebrate.”

33.Ms Crebbin accepts that there is no email in which the defendant says anything that would indicate recognition by him that he was being deceived into transporting drugs around the world. Nor does Ms Crebbin argue that it would be open to the jury to ignore the emails and treat them as some kind of fabricated history that had been prepared to be deployed in the eventuality that the defendant was arrested by a law enforcement agency. Indeed, Ms Crebbin relies on them in order to prove the prosecution case.

34.It is Ms Crebbin’s position that the emails prove a growing awareness by the defendant that he is being used by Alex William and William Greene as part of some kind of fraudulent scheme that they are operating. This growing awareness, she submits, develops into a belief that these two men are using him to transport dangerous drugs around the world.

35.I am of the view that the emails are capable of being regarded by a reasonable jury as allowing of only one possible inference, and that is that the defendant was deceived by the two drug traffickers to transport drugs for them. I accept that there are emails in which the defendant shows a degree of suspicion, anxiety and desperation but I do not see that those emails, or the emotions reflected in them, are capable of being regarded by a reasonable jury as indicia of the defendant becoming aware that he was being used to courier dangerous drugs.

36.I do not find that the evidence is sufficiently strong to enable it to be said, in the words of King CJ in his Questions of Law judgment that if accepted, it:

“… is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable… even if all the evidence for the prosecution were excepted and all the inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.”

37.That being so, I rule that the defendant has no case to answer.

Ms Diane Crebbin, counsel-on-fiat, instructed by the Department of Justice, for the Prosecution/HKSAR

Mr Phillip Ross, instructed by B Manek & Co, assigned by the Director of Legal Aid, for the Defendant