HKSAR v. Purugganan Rogelio Garcia

HCCC 196/2020

[2021] HKCFI 2339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 196 OF 2020

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Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 5 & 6 July 2021

Date of Ruling: 7 July 2021

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R U L I N G

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1.This is an application by the prosecution to adduce digital evidence obtained directly from the internet by means of a Gmail search carried out in the presence of the defendant on 13 July 2019. This evidence has been identified as P48 and covers p.2189-2478 of the committal bundle.

2.The defendant, a 78-year-old citizen of the United States of America, had been apprehended at 1720 hours on 12 July 2019 by officers of Customs & Excise when he arrived in Hong Kong via Hong Kong International Airport from Johannesburg.  At that time, a search of his suitcase was carried out and 1.54kg of cocaine was found secreted within it. The defendant denied knowledge of it at the time of arrest and caution and refused to answer questions in the ensuing preliminary enquiry which took place at 1925 hours the same day.  As is usual practice, the drugs and other relevant property were seized and ultimately sealed within tamper proof evidence bags. Included within these items were a number of documentary exhibits P3-10.

3.At 1535 hours on 13 July 2019 the defendant was interviewed by Customs Inspector Lam Lok-sze (“the first VRI”).  This first VRI took some 2.5 hours.  The defendant was unrepresented and did not initially wish to answer questions but did want access to his personal computer, which was not opened at that time but was apparently accessed later in the interview at the defendant’s request (Counter 394).  There was no wifi within the interview room and therefore the officer suggested that the defendant told her what he wanted and after the interview they would connect his laptop to the wifi.  This was referred to again at Counter 2242 (AE997).  The officer suggested in her evidence that the defendant had asked to turn on his computer in order to access his Gmail account which is not what he actually said but, in any event, he agreed to her suggestion that he should do so.  In the first VRI, Inspector Lam tells him they will carry out this exercise elsewhere and confirms with him that he wishes to access emails dealing with David Boyce, Godwin Emefiele and Dr Kingsley (Counter 2267-2307).  At Counter 2326 the officer states:

“…I will print the hard copy first and then we will bring it to this room again to have the video interview to just let you confirm this is the correspondence between David Boyce and the other two person.”

4.It appears however that the defendant is under the impression that accessing the computer is being done to help him access the facts for his own use rather than as a recollection of evidence against him (Counter 2340)

“You are [A: Yeah] reasonable in trying to [A: Yeah] yeah [A: Yeah] get me all the facts, right? And also thank you very much.”

And at Counter 2357 he is led to believe he will be shown the emails which are to be printed out.

“…And then you will be shown the emails. Those emails.”

5.Thereafter, the evidence was obtained in an unorthodox manner.  There was no recording of what occurred in Room 5T022, which is where they went to use a C&E computer.  They did not access the defendant’s laptop.  This was sensible as the laptop had been seized and required encasing.  The officer made no note in her official notebook, nor did she make any other note of the exercise other than what had been forewarned within the first interview.  In her witness statement dated 14 July 2019, the officer refers to ‘screening’ through the email correspondence between the defendant and David Boyce and subsequently those emails were printed out.  In her evidence on the voire dire, the officer said that she entered a search term into the Gmail account which was ‘David Boyce’.  This was the only search term she entered despite originally saying that she would search for two other names.  She did not enter the other two names.  A list was generated by the account.  She did not screen shot or copy this list.  It was never printed out.  However, she said that she opened each email and “asked the defendant to verify whether it was between David Boyce and himself.  There were a hundred odd emails”.  The witness then said “I showed some to the defendant” but accepted she had now shown him the contents.  There was no record of this procedure to identify which emails she had done this exercise with and therefore no record as to which he adopted as his own although she said that he accepted the email address of all the ones she showed him.  The whole task took two hours.  She printed each email out as she showed it to the defendant in soft copy.  She did not allow the defendant to read the emails after print out.  She did not take a copy of those emails and she did not make a list of them.  She did not place any such emails in a tamper proof bag or have the defendant identify the printouts.  She studied the original printouts later but not in his presence.  She then selected some of the emails to put to the defendant in interview.  When asked to identify which of the emails she used in interview the next day (“the second VRI”), she said that for the purposes of her latest statement she had guessed which ones they were from the references within the second VRI to the date and sometimes if there had been a reference to the time or to the content but thereafter it was a question of context and guesswork as she had made no note or any other record of what she had referred to in the interview and had no independent memory of them and she could not remember how many she had printed out.  At no stage did she identify by marking them, any of the emails referred to despite having selected them the previous evening.

6.Thereafter, the bundle of documents which she says she had printed out on 13 July, remained within an envelope and were kept personally by the officer until 5 November 2020, at which point she handed them over to the exhibits officer along with all other exhibits.  According to the officer no copies were made.  At no stage were the documents now said to be P48 identified individually nor were they placed in a tamper proof envelope and sealed.  Indeed, the officer said she accessed these original emails from time to time to work on the case.  The exhibits officer fell into the same trap.  He made no list of what he had received.  There is no way of being able to check whether what was printed out that evening directly from the internet is one and the same as the contents of P48.

Access to the internet and email servers

7.This method of obtaining evidence is problematic.  Clearly the messages are computer produced and stored on a computer.  If relied upon for a hearsay purpose then s22A is triggered and the prosecution clearly cannot meet the hurdles which have been laid down by the section.  There is no suggestion by Mr Sherry that they could do so.  Not by this means in any event.  If relied upon for a non-hearsay purpose, s22A is not triggered but the Court would nevertheless have to be satisfied of their authenticity and that they were not obtained in an inappropriate and unfair manner.  They are not prima facie inadmissible but they are subject to scrutiny.  Mr Sherry wishes to rely upon P48 for a non-hearsay purpose.  He says he merely wishes to show what was produced in interview as a real exhibit.  If that is the case then clearly the only emails he could rely upon would be the actual emails put in front of the witness during the second VRI as we know that the defendant was given no opportunity at any stage to read them for himself.  That would not cover the 289 pages which are the subject of P48.

8.By reference to Annex 1 to the witness statement of Inspector Lam dated 3 July 2021, only the following pages would be potentially admissible.  These are pp.2437, 2438, 2439, 2450, 2214, 2282, 2458, 2473, 2424 and 2302.  Of these pages only the specific email would be admissible and not any other email on that page or which formed part of the string.  Those not relevant to the immediate offending would also be excluded. As such that list would be reduced to 2437, 2438, 2282, 2458, 2473, 2424 and 2302.  The Court is therefore left with 7 emails out of 289 pages of emails, to consider.  Should these seven emails be placed before the jury for a non-hearsay purpose?  Are they authentic?  Have they been adopted by the defendant as authentic in the VRI?  For if he accepts them as such, why should they not be placed before the jury on that basis?  Taking each in turn.  The first reference at Counter 98 is to email at p.2438 which the defendant did not read as by this time he had been apprehended and was in C&E custody.  The same must be assumed for the email at p.2437 when he would have been disembarking.  He cannot adopt something about which he knew nothing until such time as it is produced in interview.  They are not admissible on the basis of adoption.  The email at p.2282 is adopted at Counter 670 but is in relation to the first trip which is inadmissible as irrelevant to the events upon which the prosecution rely i.e. the last trip.  P.2458 refers to the stop order, a copy of which the defendant has in his possession on arrest and would be prima facie admissible as a real exhibit.  P.2473 is pure guesswork.  P.2302 does not cover the relevant period and p.2424 refers to a hotel booking in Hong Kong for July 2019.

9.That exercise restricts the admissible documents to pp.2458 and 2424.  If the prosecution are relying upon them for a purely non-hearsay purpose and wish to rely upon them, then as they have been adopted by the defendant, they should be admissible if it could been shown they had actually been derived from the exercise on 13 July 2019.  Unfortunately, the prosecution cannot support the chain of evidence in respect of these emails and therefore none of the emails can go in.  If I were incorrect in that, I find that the manner in which these emails were obtained, the lack of further caution and the clear misunderstanding of the defendant as to why this exercise was being carried out, produced an unfair outcome to the defendant especially in light of the fact that he was not allowed to read the emails when questioned nor was he allowed to refresh his memory from their content and context.  This would have been particularly important given his age, the period of time over which the emails are said to have been generated, the complexity of the interactions and the fact he had been in custody for two days by the time the second VRI took place.

Other Digital Evidence

10.P48 was a bundle of emails from the Gmail account of the defendant downloaded directly from the Gmail server by Inspector Lam, without the aid of any forensic tool.  PW22, SCO Wong Chung-man (AE 3-9) is the expert forensic examiner.  He examined the defendant’s mobile phone and laptop computer.  Data extraction from the laptop was not possible.  However, the memory of the defendant’s Samsung mobile phone was also examined and a copy made.  I refer the parties to HCCC 174/2020 for how that exercise could have been carried out.  It is clear that the defendant’s mobile phone was accessed by officers after seizure and no record was made as to that.  That should not have happened.  No verification was made as to the status of the mobile phone when first opened by SCO Wong.  There would have been a date time stamp to show when it was last accessed.  No hash value was attributed to the data which was examined whilst still on the phone and no hash value was confirmed when the data was copied.  There is no evidence of when this exercise was carried out or by whom.  The witness statement merely states when the examination was completed.  There is no evidence as to who carried out the exercise of searching for particular emails, and interestingly, why there was a request for items vii to xiii of paragraph 6 of the statement, which do not appear anywhere else in the papers and which suggests some other prior access of either the phone or the laptop, which has not been disclosed.  Only 55 emails concerning David Boyce were retrieved from the memory of the Samsung mobile phone and these are not identified as such.  Within the first AE bundle, 456 pages have been produced in one volume with no recognisable way to navigate around them. This is wholly unacceptable.  As Mr Sherry now says that he is not relying upon any of his digital evidence, there is no application to adduce them.  The Court wishes to make clear however that they are not currently in admissible form.

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

Mr Michael Arthur and Dr 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