HKSAR v. Purugganan Rogelio Garcia

HCCC 196/2020

[2021] HKCFI 2340

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: 8 July 2021

Date of Ruling: 9 July 2021

______________

R U L I N G

______________

1.This is an application by the defendant to have his two video-recorded interviews ruled inadmissible under the principles laid down in R v Sang [1980] AC 402. Ms Mohamed submits that the Court should, exceptionally, exercise its residual discretion to exclude both interviews on the basis of the unfair manner in which they were conducted. Mr Sherry opposes that application.

The Video Recorded Interviews

2.The first video recorded interview took place on 13 July 2019, between 1542 and 1754 hours.  The defendant was unrepresented and did not initially wish to answer questions[1]. During the ensuing discussion about that issue, the defendant intimated that he wished to turn on his laptop[2]. However, Inspector Lam indicated that she would like to ask some questions first, before she turned on the computer, and cautioned him once more[3].  This is a common ploy by officers from the uniformed services.  An initially unwilling interviewee is more likely to continue to answer questions which are safe, such as questions covering family, residence, employment etc.  There is nothing in and of itself that would suggest anything underhand in doing so, even if the interview is emphatic in his desire to remain silent.  At the stage in which the defendant suggests turning on his computer[4], I do not believe this request is a response to the officer’s questions, but rather a reaction driven by his desire to be able to access his own information, whether or not he intended to provide that information to the officer.  I do not accept that at this stage the defendant did not understand that he was entitled not to answer questions and I find the officer dealt with his right of silence in these early stages on a number of occasions.  This was not the stage at which the issue of informed consent truly arose.  I do not accept that an interviewing officer should immediately stop an interview the moment an interviewee expresses a desire to remain silent.  I see no reason, so long as it is done properly, for the interviewee to explore what areas, if any, an interviewee is prepared to answer and thereafter to continue.  The interviewee can at any time decline to answer.

3.From Counter 158-380, the officer asked only background questions.  That is clearly admissible.  At Counter 381, the officer asked the defendant why he had come to Hong Kong, which resulted in further discussion about access to the computer up to Counter 538 at AE855.  The interview proper does not commence until Counter 554.  Between Counter 554 and 612 the defendant is speaking in vague terms.  Counter 618 is the first reference to the facts at hand but unfortunately the defendant mentions that the trip to Hong Kong was the third time he had made a trip connected to the USD 10,500,000[5]. This was volunteered by the defendant by way of explanation.  I do not criticise the officer for attempting to investigate these points.  Without that context the defendant was in difficulty answering the initial question as to why he came to Hong Kong.  On one view the background does explain his intentions and may be said to go to knowledge at the time of the alleged offending.  The other trips however are not relevant to the issue before the Court and in any event are liable to be considered uncharged acts by the jury. Whilst that could be dealt with by way of a direction, it could easily be edited and parties agree that it can be dealt with in this way.  The final trip in respect of the offending before the Court appears to start at Counter 1510 on AE935 and continue to Counter 2195, although there is further reference to irrelevant inadmissible matters.

4.The defence suggest that at the point that the interview turned to the specifics of the offending in question, the officer should have re-cautioned the defendant.  I know of no guidelines which require this to be done nor any authority which suggests if it is not done, the admissions made would be rendered inadmissible.  At least not on the facts of this case.

5.Reference is made once more to the defendant’s laptop at Counter 2242 when the Inspector asks “You want to turn on your computer and connect to the internet and then log in to your Gmail account, isn’t it?”  In response the defendant replies “oh, okay”.  The following conversation then takes place:

Counter 2253     A: Okay.  So as this room we cannot connect to the wifi, and then after that we will go out, and then I will let you use the computer and you will log into your Gmail account and show me the correspondence with David Boyce”

Counter 2254     B: Uhm…

Counter 2265     A: So, how many person are you going to show me in the email?

Counter 2266     B: Ah, three

Counter 2267     A: … one is David Boyce, right?

Counter 2268     B: uh-huh

Counter 2269     A: … Is there any name for the other person?

Counter 2270     B: Godwin Emefiele

Counter 2306     A: …okay, so this is the second person you want to show me?

Counter 2307:     B: yeah, I thought that’s the er, should be the third person, the ere er, there’s a name there which is deputy Governor of CBN, ahm, can’t remember now the name, Dr Kingsley.

Counter 2310:     A: …so, these three person related to the trip?

Counter 2313:     B: they are the one’s trying to coach me.

Counter 2318:     A: so, after that, please show me about the correspondence with these guys.

Counter 2319:     B: yeah, yeah.

Counter 2320:     A: Yes, then after that we will print all the, we will print the correspondence now.

Counter 2321:     B: Sure

Counter 2326:     A: …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, [yeah], is between David Boyce and the other two person.

Counter 2327:     B: Mm

Counter 2340:     B: You are reasonable in trying to get me all the fact alright?  And also thank you very much.

Counter 2341:     A: You are welcome.

Counter 2357:     C: Then all of your emails will be printed out by the person there which are in your computer and then we will have an interview again here and then you will be shown the emails, those emails.

6.There may very well have been no intention on the part of the officer to mislead the defendant at this point but it is apparent that they are talking at cross purposes.  The officer is attempting to secure more evidence to make sense of the explanation of the defendant but no doubt with a view to relying upon against him if possible whereas the defendant believes this exercise is to assist him in explaining the complicated background to his relationship with the relevant third parties.  He is thanking the officer at Counter 2340 because he believes she is carrying out this exercise to assist him.  That belief looks as if it is strengthened with her response at Counter 2341.  It was the responsibility of the interviewing officer to ensure that the defendant was not induced into providing assistance which might be to his disadvantage as a result of a misunderstanding.  That responsibility was all the more onerous when taking into consideration all of the circumstances at the time e.g. his age, nationality, the period of time in custody etc.

7.Thereafter the officer takes the defendant to another room.  In the presence of another C&E officer and the interpreter, she accesses the internet through a C&E desktop computer and enters the defendant’s Gmail account.  She enters the search term ‘David Boyce’ and over 100 emails are generated in a list.  She does not make any record of this list and does not attempt to copy or download it.  Thereafter, the officer opens each email and asks the defendant to confirm the email address but no more.  He is not provided with an opportunity to read the emails.  As each is confirmed, it is printed out.  The defendant is not provided with an opportunity to identify what has been printed out or read them.  There is no record of what is printed out.   No copy is made and they are not secured in a tamper proof envelope.  This is because the officer releases to the defendant back into detention and spends the evening reading the emails to prepare for a further interview.  I have already ruled out the emails extracted in this manner for the reasons given in my previous ruling.

8.The second VRI takes place on 14 July 2019 at 1108 hours and finishes at 1240 hours.  It commences with the usual preliminaries and a further caution.  At counters 28-31, the officer says: you told me that you want to turn on your computer and connect to the wifi and that you want to show me email correspondence with David Boyce.  At counter 44, he says Yes.  At counter 67 she confirms that she printed them out with “his consent and assistance”.  She then seeks to have him confirm the whole bundle printed out but then goes on to show him a limited selection.  The interview proper starts at counter 130 AE1255.  Documents are put but they are not in context and the defendant is not given the opportunity to read them properly. The first document referred to at p.2439 of the committal bundle is not related to the trip in question and the transcript is generally irrelevant up to counter 197.  Thereafter the degree of confusion of the defendant is apparent especially when the officer seeks to ask question relating to events in 2018. Time and again the defendant says “I am unsure”.  Emails are being referred to which he has no opportunity to digest or contextualise.  The officer jumps from the later part of the printout to the earlier part without warning and from the middle of 2018 to January 2019 at p.2214 of the committal bundle, which is possibly related to another syndicate or syndicates and which is therefore irrelevant.  Much of the second VRI is in relation to other matters not relevant to the issue at hand but the latter part of the VRI covers the material events and is relevant.

The Law

9.A judge in a criminal trial has the discretion to refuse to admit evidence where the prejudicial effect outweighs its probative value[6]. A judge also discretion to refuse to admit otherwise relevant and admissible evidence where it has been obtained by unfair and improper means after the commission of the offence.  In this case the emails obtained on 13 July 2019 between the two VRIs and the evidence relating to such emails which led to the second VRI may not otherwise have been permissible under the Rules & Directions for the Questioning of Suspects and for the reasons given elsewhere. In other circumstances the Court would not ordinarily concern itself with how evidence was obtained under the ‘fruit of the forbidden tree’ principle.  But that is not the case here.  The submission made includes evidence obtained post offence in what the defence submit was a wholly improper manner which the defence say was misleading.

10.I am being asked to exclude both VRIs.  An out of court statement by a witness is generally inadmissible to prove the truth of its contents subject to well-known exceptions[7]. One such exception allows the prosecution to adduce a defendant’s out of court statement made against his interests for the purpose of relying upon the truth of the contents of that statement to incriminate him.  The VRIs are prima facie admissible.  Their purpose is to show firstly that they were in fact made and secondly that they were true in material respects where they can be shown to be inculpatory.  The primary pre-conditions of admissibility of such an out of court statement is its authenticity and voluntariness, for a “free and voluntary confession is deserving of the highest credit”[8].  There is no confession as such in this case as the defendant denied any knowledge of the content of the suitcase although he did make admissions in so far as his possession of it.  There are therefore admissions as to some of the elements of trafficking in dangerous drugs.  For the most part however, the VRIs consist of the defendant explaining how he came to be in Hong Kong.  Do those admissions, such as they are, suffice to categorise the two video-recorded interviews, when looked at individually, as mixed statements?  In HKSAR v Yuen Man Tung CACC 442/2003, the Court of Appeal stated “If it is adverse to the person making it in relation to an important element of the offence charged…then, self-evidently, it is not wholly exculpatory”.  If the inculpatory parts are such that they materially assist the prosecution to prove its case against the defendant, then the nature of the statement is mixed[9] and the whole of the statement is admissible as the evidence of the truth of its contents[10], although of course it is for the jury to decide whether the statement, when viewed as a whole, constitutes an admission but should take into account that the exculpatory parts were not made on oath or subject to cross examination if the defendant chooses not to give evidence[11] as is his right.

Conclusion

11.To advance her application, Ms Mohamed asks the Court to consider the manner in which the introductory part of the first recorded interview (“the first VRI”) was conducted, set against the background of the offending and particular characteristics of the defendant.  Her primary submission therefore relied upon a close examination of counter 1-159 at AE809-825.  The thrust of her submission is that the transcript clearly evidences a desire on the part of the defendant to remain silent.  He became confused about that right, which was not dealt with appropriately by the officer, and which led to him answering questions amounting to admissions against interest when he would not otherwise have done so.  She submits that the interview should have been stopped immediately upon the defendant indicating he wished to remain silent.  Having continued, the officer should at least have further cautioned the defendant once the interview started to focus upon the material events in the same way she would do if she was moving on to a new offence.

12.Ms Mohamed’s second point is as to the references made by the defendant to the three other trips prior to the one in question.  She posed the question: How is the prosecution intending to rely upon this evidence?  The defence submit they are irrelevant to the issue before the Court i.e. knowledge.  In the alternative, if not irrelevant, the circumstances of the three other trips and the introduction of the carrying of a gift bag are so prejudicial as to outweigh their probative value.  She submits that even with a strongly worded direction to the jury, there is a serious risk that the jury will use this information inappropriately and infer that the defendant was carrying drugs prior to the material events.  Lastly, because of the course of the questioning and the answers given, Ms Mohamed submits there is a lack of sufficient context to properly assess the relevance of the answers given by the defendant and it would be unfair to admit them. This is because the second VRI flows from the first and the harm done during the first VRI and intervening internet search, taints the second interview in the same way save for the fact that it becomes difficult to understand without the relevant emails to which the officer referred but which have been ruled inadmissible by the Court.  It follows, she submits that large parts of the second VRI must be edited.  Other parts are clearly wholly disconnected to any other events.  What small part remains, Ms Mohamed suggests then lacks context in a similar way to that advanced in respect of the first VRI.

13.As to the introductory part of the first VRI, Mr Sherry on behalf of the prosecution, submits that it is clear from a reading of the whole of the transcript that the defendant understood his rights.  The officer cautioned him clearly and properly at the beginning and attempted a further five times in a very short period of time to reinforce that caution prior to the defendant choosing to answer questions.  The defendant can point to no behaviour of such egregious quality that it would warrant excluding not just one but two interviews.

14.I am with Mr Sherry upon this point.  Whilst I accept there was a misunderstanding as between the officer and the defendant, it was not as to his right of silence.  It was about the procedure to be employed and his desire to have access to his laptop to assist him with remembering events.  This particular confusion continued throughout the first interview.  I do not believe this submission has traction.  I have been referred to no authority to suggest the Court would even have the discretion to exclude the interviews on the basis advanced.  As for the remainder of the first VRI, Mr Sherry submits that it would be proper to edit out those references to the first, second and third trips where they relate to the fact of the trips but that there are references to the defendant’s state of mind which could properly be before the Court and which are relevant to his state of mind at the time of the offending.  He has indicated where he says that is the case.  Again, I am with Mr Sherry on this point.  If an exercise can be done which does not prejudice the defendant and which can be read in context, then his state of mind in the build up to the events of 12 July 2019 is relevant.

15.Rightly, Mr Sherry accepts that he may have some difficulty with the second VRI.  Not because he says it is inadmissible for the reasons advanced by Ms Mohamed but because of the effect of the Court’s ruling on the emails downloaded from the internet on the evening of 13 July 2019 and the further decision of the prosecution not to rely upon other digital evidence.  However, the number of emails referred to within the second VRI was in fact quite limited and the manner in which the second VRI was carried out was such that a substantial part of the VRI remains even if the sections relating to the emails is edited out.  Having conceded other editing in accordance with his approach to the fist VRI, there are still sections which deal with knowledge and with the material events and there is no reason why these should not be put before the jury.

16.I do not accept that the manner in which the first VRI was carried out, nor for that manner intervening events and the second VRI, was so prejudicial to the accused that it warrants both VRIs to be excluded.  I have considered in what form the VRIs should go before the jury. Those parts which are irrelevant, indicate uncharged acts or which cover matters where the prejudicial effect outweighs their probative value must be edited so as not to prejudice either party but with a view to putting before the jury a document which is comprehensible.  I have attached to this ruling a schedule of how that should be done subject to further submissions from the parties.

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