HKSAR v. Purugganan Rogelio Garcia

HCCC 196/2020

[2021] HKCFI 2138

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: 19 July 2021

Date of Ruling: 20 July 2021

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R U L I N G

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1.The defendant is charged with one count of trafficking in a dangerous drug contrary to s4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134, in that he imported 1.54kg of cocaine into Hong Kong on 12 July 2019. The issue before the jury is that of knowledge.

2.In order to succeed the prosecution must establish either from proven facts, or by way of an irresistible inference from proven facts, that the defendant knew that he was importing dangerous drugs.  This is an application by Dr Mohamed on behalf of the defendant of ‘no case to answer’ in accordance with the principles laid down in R v Galbraith[1981]2 All ER 1060 at 1062[1].

3.Dr Mohamed’s primary argument is a straightforward application of the Galbraith test as defined in Attorney-General v Lee Fook-shiu Ronald [1990] 1 HKC 1.  Her submission is quite simply that the prosecution’s case, taken at its highest is such that a jury properly directed could not properly convict upon it.  For this purpose, the defence rely upon five elements which they say form the pillars of the prosecution case.  They are: that the defendant suspected he was dealing with criminals; that he entertained the possibility that the bag he was given contained dangerous drugs; that he was entrusted with a large quantity of drugs because he was complicit; that he never expected to receive any inheritance funds and that he had lied to his family about what he was doing.  All of which, the prosecution say, points to a guilty mind.

4.If they are unsuccessful on this point, the defence rely in the alternative, upon the point raised by Deputy High Court Judge McWalters in HKSAR v White Michael R HCCC 70/2020 and contemporaneously considered by this Court in HKSAR v Dinda Rabiatul Adwia & Anor in HCCC 136/2020.  That is the test to be applied in an application to remove a matter from the consideration of the jury, where the prosecution case relies upon a limited set of proven facts from which they seek to draw an irresistible inference of guilt but where there is other credible evidence to support an irresistible inference in favour of the defence.  Dr Mohamed submits there is other credible evidence before the jury in the Admitted Facts P43, the attached press release P64 and from the explanations of the defendant in the two VRIs, which is not inherently improbable and it follows that the prosecution cannot prove their case upon inferences beyond reasonable doubt and therefore the case should be withdrawn from the jury at half time.

The Law

5.The test in Galbraith is well known but for the avoidance of doubt I will recite it once more:

(1)  If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty, the judge will stop the case.

(2)  The difficulty arises where there is some evidence but it is of a tenuous character, for example because of the inherent weakness or vagueness or because it is inconsistent with other evidence; (a) where the judge concludes that the prosecution evidence taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty on a submission being made to stop the case; (b) where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability, or other matters which are generally within the province of the jury, and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.

6.I commence therefore with the underlying principle that the assessment of the strength or weakness of the evidence should be left to the jury to decide, where, on one view of the facts, a properly directed jury could convict upon it.  But the issue before the Court on a submission of ‘no case’ is one of law not fact.  The issue of law the Court has to consider is whether there is some evidence (not inherently incredible) which, if accepted as accurate, would establish the material element of the alleged offence at issue i.e. knowledge.  The Court does not have to make findings of fact beyond all reasonable doubt at this stage but must bear in mind the standard of proof to be applied by the jury when determining the question of law before the Court i.e. whether or not a reasonable jury might safely convict.  In the words of Lord Edmund Davies[2]:

“When at the close of the case for the prosecution a submission is made that there is no case to answer, the question is not whether on the evidence as it stands the defendant ought to be convicted but whether …he could lawfully be convicted”

7.It follows that where the prosecution case relies upon an inference to be drawn, it is not for the Court to be satisfied such inference is to be drawn but whether, as a matter of law, it can be drawn[3] by the jury at the appropriate time[4].  The Court of Appeal in Li Fook-shiu Ronald supra, which was a pre-trial application under s22 of the Complex Commercial Crimes Ordinance Cap 394 in respect of prosecution inferences only, took this a step further by suggesting the approach of the trial judge where the prosecution relies upon an inference to be drawn, should be:

(i)  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 some evidence;

(ii)  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:

(iii)  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 a jury could, may or might so be satisfied he will rule against the submission or application.

8.This does not detract from the earlier authorities.  It simply hones one’s mind to the principle that it is not whether the Court would convict that the Judge should put his or her mind to but whether at the appropriate time a jury ‘could, may or might’ convict to the requisite standard.  The test is still that of a prima facie case.

9.There is no issue here of evidence of knowledge from primary facts.  In what manner then is the test in Galbraith to be applied by this Court where the evidence relied upon is not as to primary facts but as to the drawing of inferences.  According to Lord Carswell in Director of Public Prosecutions v Varlack [2009] 4 LRC 392, the test in Galbraith is equally applicable.  There is no difficulty with that.  What is the test however where there is not one inference relied upon but where there are competing inferences?  In Varlack,His Lordship stated “Once it is accepted … 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.”  This is on all fours, although differently expressed, with R v Hedgcock[5]  citing R v Jabber [2006] EWCA Crim 2694.

10.The correct approach at half time is for the judge to ask herself whether a reasonable jury properly directed as to the drawing of inferences would be able to draw an adverse inference?  To draw such an inference, adverse to the defendant in law, necessarily involves the rejection of any realistic possibility consistent with innocence.  In this case the rejection of those inferences said to be able to be relied upon by the defence as being inherently improbable.  Or, put conversely, if at the close of the prosecution case, the trial judge concludes that a reasonable jury, properly directed could not reject all realistic explanations that would be consistent with innocence, because such inferences relied upon by the defence could not be said to be inherently improbable[6], then it would be his or her duty to stop the case.  However, where there is more than one version of events to be inferred from proven facts and there was no inherent probability that one version of events was correct and the other not, it is not for the judge to resolve that issue but for the jury to decide upon the evidence which, if any they accept or reject based upon a proper direction in law as to the drawing of inferences.

11.It must be remembered that in considering that question, this trial is at the stage of a no case submission, the trial judge is not concerned only with the evidence at this stage of trial but with potential future proof to the requisite satisfaction of the jury.  The jury’s view of the facts can be affected by future evidence within the defence case or, in certain circumstances from the lack of any such evidence[7], which is why the test is what the jury ‘could, may or might’ properly conclude when they are asked to retire to consider their verdict.  This is the test which exercised the mind of Deputy High Court Judge McWalters in HKSAR v White supra at half time when considering whether there was sufficient evidence from which a jury could draw an irresistible inference of knowledge and having done so, whether a jury properly directed ‘could, may or might’ be satisfied beyond reasonable doubt that the defendant knew of the presence of the drugs.

12.This exercise involves a number of steps.  Firstly, as to what direct evidence there is.  Secondly, whether there is an irresistible inference adverse to the defendant which can be drawn from that direct evidence.  Thirdly whether that inference and any primary facts it arises from is sufficient to prove beyond reasonable doubt the element of the offence sought to be proved.  Fourthly, whether there is evidence to support a competing inference (which is not inherently improbable) for the drawing of an adverse inference by a jury must necessarily include the rejection of all other inferences consistent with innocence.  Only if a jury could not in law draw the adverse inference should the case be stopped.  For if they ‘could, may or might’ reach that conclusion, then it is a matter for them and not the trial judge.

13.This is not a case where there is no evidence of the crime alleged to be committed.  All of the elements of trafficking in dangerous drugs have been admitted by the defendant save for that of knowledge.  The issue therefore at this stage is whether there is evidence from primary facts of such quality that a jury ‘could, may or might’ be satisfied beyond reasonable doubt that the defendant knew he possessed dangerous drugs.  In this case there is more than one version of events which can be inferred from the proven facts.  The prosecution say his knowledge can be inferred from his personal financial situation; his lack of honesty with his family; his initial scepticism in respect of David Boyce and others; his consideration that he may be carrying drugs; his acceptance that it was unlikely he would receive the inheritance funds and the value of the drugs he was entrusted to carry.  The inference sought to be relied upon by the defence is predominantly based upon his answers to questions in interview and only peripherally to the independent and neutral evidence that syndicates exist who have targeted the elderly to bring drugs into Hong Kong on the pretence of inheriting money.  The relevant and substantive part of that evidence relies upon the view the jury take of the defendant.  It is a matter entirely for them to decide what weight they give to the evidence given the gaps and conflicts arising within the VRIs.  It is for the jury to assess whether the inference sought to be drawn by the prosecution is the only and irresistible one or whether the explanations given by the defendant are inherently improbable or not.  If there is no inherent probability that one version is correct and the other not correct then that is a matter entirely for the jury to decide.

Conclusion

14.There is a prima facie case raised by the prosecution, from which the jury could be asked to infer knowledge on the part of the defendant.  The competing inference relied upon by Dr Mohamed on behalf of the defendant relies predominantly upon the view the jury take of the defendant’s explanations in his two VRIs.  What they make of those explanations is a matter for the jury and not for the Court at half time.  This application is refused.

Mr James Sherry, counsel-on-fiat, on behalf of the 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