HKSAR v. Purugganan Rogelio Garcia

HCCC 196/2020

[2021] HKCFI 2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 196 OF 2020

______________

______________

Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 6 July 2021

Date of Ruling: 6 July 2021

______________

R U L I N G

______________

1.This is an application by Mr Arthur for disclosure. He seeks disclosure of any evidential connection between characters and email addresses to be found in this matter, which are duplicated in other proceedings for trafficking in dangerous drugs by Customs & Excise.

2.This is not the first such application.  Ms Mohamed raised the issue of disclosure at the first CMH on 29 April 2021.  At that time defence counsel outlined the defence case in very general terms as one in which the defendant had been carefully groomed by fraudsters to unwittingly carry drugs when he believed what he was doing was travelling to obtain documentary confirmation in order to obtain an inheritance.  Ms Mohamed submitted that a perusal of the email evidence indicated that there may be parallels to other proceedings where a defendant was the subject of an internet scam and unwittingly duped into carrying drugs. By way of example, defence counsel specifically identified the series of trials under Operation Cocoon but did not limit her application to that operation. The application therefore extended to prosecutions under the Department of Justice and was not limited to Customs & Excise.  This had been the subject of a prior written requests on 22 January and 9 March 2021 but the prosecution had refused to make such a search or provide information.  By way of a letter from prosecuting counsel dated 27 April 2021, at page 2 thereof, Ms Mohamed had identified specific email addresses, names, and telephone numbers, which she requested be subject to a search.  Mr Sherry had informed the defence under cover of that letter that none of the email addresses were found to be contained in the Operation Cocoon file and declined to carry out any broader search without an order of the court, although the prosecution did share the information with various overseas law enforcement agencies.  Mr Sherry objected to carrying out a further search because they were not relevant to the issue of knowledge and he submitted information from other cases not involving the defendant fell outside their common law duty of disclosure.  Prosecuting counsel said his case was not that there was not a scam but whether the defendant was taken in by it.  It was their case that he was not taken in.  They say he was deeply skeptical at all times.  He relied upon R v Flook [2010] 1 Cr App R 30 at para 35 and R v H and C [2004] UKHL 3, [2004] 2 Cr App Rep 179 at para 35.  I note that Flook deals with operations carried out by the UK and South African police and defence requests for South African material.  The Court of Appeal found that the prosecution should take reasonable steps to obtain the requested material but if such informal attempts came to nothing, there was little else the prosecution authorities could do.  H and C concerned public interest immunity.  Neither issue is pertinent here.  On that occasion the Court attempted to take the middle road and did not go so far as directing that a search should take place by the prosecuting authorities but Mr Sherry, on behalf of the prosecution undertook to make enquiries within the jurisdiction in answer to the request made.  Those enquiries however came to nought.

3.At the 2^nd CMH on 31 May 2021, the matter was raised again but with Mr Arthur representing the defendant along with Ms Mohamed.  Mr Sherry submitted that C&E did not keep statistics of this nature and the database of both Customs & Excise and Department of Justice do not avail themselves of the type of search terms where an email address is used.  The task would require a manual investigation of a considerable number of files.  He submitted it is incredibly difficult and too extensive especially compared to how any such material could be relevant to the issue at hand.  Mr Sherry suggested it was for the defence to raise the issue of the scam but accepted they could not deny such scams exist but nevertheless they intend at that time to rely upon those emails relating to the scam which were put before the defendant in the VRI.

4.There was considerable discussion on 31 May as to how this search could be made.  Mr Sherry confirmed the search to date was only as to emails but not as to names.  Mr Arthur submitted that the defendant wanted to be able to say there is in existence a scam industry from which he wishes to show that the defendant was a victim of a scam.  He said, as he does now, such evidence is not within his ability to obtain.  It is merely because of his professional practice that he could identify such possibilities exist.  He rejected the submission that the authorities could not carry out a key word search as he has had cooperation to this extent in another matter he appears in.  He maintained it was not a fishing expedition.

Does the prosecution have a duty to disclose the material requested?

5.It is not known whether the material requested actually exists.  From experience and some degree of anecdotal evidence, it is possible that it does and today Mr Arthur was able to provide a document said to come from a prosecution which took place before the High Court recently which clearly evidences a name known within the current trial bundle.  It is therefore possible that there is material within the prosecution’s possession which answers the application made.  Mr Arthur has not gone so far as to allege mala fides on the part of the prosecution in not disclosing this material but he renews his application for the search exercise to be carried out with more diligence.  Mr Sherry in response reminds the Court that the exercise to date was done in respect of email addresses only and went no further.  He also reminds the Court that the prosecution’s duty covers matters which are relevant and admissible before the Court in the hands of the defence.  The Court notes that it is not in a position to say what is admissible as it does not yet know, what if anything, is in the hands of the prosecution.  However, despite repeated requests not just on this occasion but on 29 April and 31 May, the Court has asked the defence to justify how any such material would be used to advance its own case or say how the lack of it would prejudice the case of the defendant.  This is not the test as to whether the Court should accede to the defence application but it is certainly a proper consideration in the circumstances as currently before the Court where the prosecution suggest it is all too difficult and in any event irrelevant and the defence say they are entitled to the material if it is available and it is for them to say within their own case how they rely upon it.

Conclusion

6.Both parties are entrenched.  The Court, in the absence of submissions on the point, cannot say whether the material is relevant to the defence case or how it may be relevant to the issue in trial, and must rely upon the undertakings of experienced defence counsel that it is. Whether or not there is evidence to show that the parties cited in 196/2020 can be shown to be evidenced elsewhere is still at large because of the inability of the prosecution to carry out a comprehensive search.  Mr Sherry submits they have now identified 11 cases falling within the criteria laid out by the Court on 31 May.  An order from the Court to this effect could result in a costly exercise which fails to produce anything.  On the other hand, if such material was available, is it for the Court to refuse this application because it cannot identify in what manner could it properly be relied upon?  There is no doubt there is a duty upon the prosecuting authority to disclose relevant material which may undermine its case or advance the case of the defence[1].  It is not always known by the prosecution how material may advance the case of the defence and such material does not necessarily have to be admissible in its own right but might be relevant because it leads to some other train of inquiry.  Whilst it is helpful in situations such as this to have some insight into how the defence say this would carry out this function in order to carry out the balancing exercise, there is no duty upon the defence to disclose its case in advance of trial.  It is clearly not a fanciful application.  Mr Arthur simply takes the risk of the Court taking a view adverse to him but the Court cannot order disclosure of his defence.

7.The duty of this Court is to ensure a fair trial.  That means fair to both parties and with an eye upon the sensible use of government resources.  But the prosecution brings this case against the defendant and they suffer the burden placed upon them by the rules as to disclosure.  As Lawton LJ said in R v Hennessey (Timothy John) (1979) 68 Cr App R 419 “those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to the accused is either led by them or made available to the defence”.  All relevant evidence of help to the accused is not limited to evidence which will obviously advance the defendant’s case[2]. They may not pick and choose when and how they disclose nor may they limit the defendant from running a proper defence if there is good reason for him to do so.  It would appear that the latest document under MFI/3 indicates that the information Mr Arthur requires is indeed available.

8.It is unfortunate that it requires an order of this Court for that exercise now to be carried out.  The prosecution will carry out a search of all prosecutions where an individual over the age of 40 has carried drugs into Hong Kong from abroad concealed within his or her luggage in the years 2018 and 2019 and where there is evidence of an internet fraud syndicate in operation within the papers.  They will identify those cases by prosecution case reference where there is any evidence of an internet fraud and will search for similarities in the identity of any persons mentioned therein, email addresses, telephone numbers and by similarity of documentation templates.  These will be produced to the defence by 4:30pm on 8 July 2021.

(A P Campbell‑Moffat) Judge of the Court of First Instance High Court

Mr James Sherry, counsel-on-fiat, for HKSAR

Mr Michael Arthur and Ms Nisha Mohamed, instructed by Massie & Clement, assigned by Director of Legal Aid, and Ms Zoe McCoy, instructed by Massie & Clement, on pro bono basis, for the defendant