HKSAR v. Dinda Rabiatul Adwia and Another

HCCC 136/2020

[2021] HKCFI 1858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 136 OF 2020

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Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 21 June 2021

Date of Ruling: 22 June 2021

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R U L I N G

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1.This is a trial in which both defendants are charged individually with trafficking in a dangerous drug from Indonesia. The evidence consisted of the stop and search of D1 and D2, the seizure of the dangerous drugs at the Hong Kong International Airport on 8 June 2019 and the subsequent video recorded interviews. There were also two sets of admitted facts but they are not relevant to this Ruling. The defendants did not give or call evidence. They relied upon their wholly exculpatory interviews which the prosecution adduced as part of its case.

2.At the end of the trial, prosecution and both defence counsel made closing speeches.  During the closing speech for the prosecution a number of issues arose as to the basis of the prosecution case and the evidence upon which the prosecution sought to rely in order to ask the jury to infer knowledge on the part of the defendants.  There was no direct evidence of knowledge.  The defendants admitted unlawful possession and importation.  The Court raised its concerns of its own volition being acutely aware of the undesirability of taking matters away from the jury which should properly be before them.

3.Mr Chui, on behalf of the prosecution accepted that he had no direct evidence as to knowledge.  This is invariably the case.  He was therefore bound to ask the jury to draw an irresistible inference as to knowledge.  He accepted that the proven facts upon which he could rely for this purpose were limited.  They are similar for both defendants and I will not distinguish between them for the purposes of this analysis. They were:

(i)  The fact that the defendants had come to Hong Kong by way of Singapore and Laos.

(ii)  The fact that a person called Limbu had paid for the travel and accommodation for the defendants.

(iii)  The fact they had swapped suitcases in Laos.

(iv)  The fact the suitcase, when empty, was unusually heavy.

(v)  The fact of their being in possession of the relevant suitcases on 8 June 2019.

(vi)  The fact the DD were found professionally secreted within those suitcases.

(vii)  The fact they each had in their possession USD1,000 on arrival.

(viii)  The fact they were to handover the suitcases to someone in Hong Kong.

4.The remainder of the case put before the jury in his closing, consisted of an attempt to reverse the burden of proof; undermine the defendant’s absolute right to silence and encourage the jury to speculate. No doubt Mr Chui felt compelled to do so because he had very little direct evidence upon which to rely generally and the evidence against his case by way of the explanations given in interview were such that he was in an extremely difficult position advancing any case on knowledge of DD.  In any event, the prosecution may not make its case by asking the jury to reflect upon why the defendant has not provided sufficient explanation for her acts or speculate as to whether an unknown third party syndicate would engage a drug mule without telling them what it was they carried.  As a result, the Court asked for assistance on the direction it could properly give upon the drawing of inferences.  All three counsel were asked to assist the Court on the proper test to be applied where the prosecution case on an issue relied upon a very limited set of proven facts and where there was credible evidence to support other irresistible inferences in favour of the defence.

5.Hong Kong Archbold 2020, Chapter 4-152, deals with the test to be applied where there is insufficient evidence to go before the jury.  That is trite law and will not be replicated here.  The learned author of the chapter summarises the position as to inferences at the bottom of p 351, when she says:

“(2) Where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against an accused from a combination of factual circumstances based upon the prosecution evidence, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence.”

With respect to the author that is not readily understood.  It actually derives from the judgment of Laws LJ in R v Hedgcock & Others [2007] EWCA Crim 3486.  At §21, he states

“If at the close of the Crown’s case the trial judge concludes that a reasonable jury could not reject all reasonable explanations that would be consistent with innocence, then it would be his duty to stop the case.”

6.Where there is more than one version of events based upon proven facts which a jury has to consider and if there was no inherent probability that one version of events was correct and the other not, then it is wholly within the province of the jury[1] to decide which they accept or reject.  But to do so, the jury would clearly need other objective proof.  The Court in Hedgcock found that it was not possible, without more, for a reasonable jury to exclude the defence proposition as fanciful or unrealistic.  It was not therefore inherently probable on all of the evidence, that the inference sought to be drawn by the prosecution was the only and irresistible one.  If that was the case, and such an inference could not be drawn, the prosecution would need to look elsewhere to make its case or as Laws LJ said “...a reasonable jury could only conclude that the participants actually intended to carry out the agreement to rape if there was some extraneous evidence favouring that interpretation.”

7.Having considered how the prosecution puts its case and the inference it seeks to draw from a limited set of proven facts and having taken into consideration the explanations given by both defendants independently of each other and which are wholly consistent with other facts before the Court, I find that a jury properly directed on the evidence in support of the inference to be drawn as to knowledge could not properly convict either defendant of the charge which they face and accordingly I will stop the case from proceeding further and direct the jury accordingly.

Mr Steve Chui, counsel‑on‑fiat, for HKSAR

Mr Kamlesh Sadhwani and Mr Tsang Hing Fung, instructed by Littlewoods, assigned by Director of Legal Aid, for the 1^st defendant

Mr Andrew Bullett, instructed by Krishnan & Tsang, assigned by Director of Legal Aid, for the 2^nd defendant