HKSAR v. Purugganan Rogelio Garcia

HCCC 196/2020

[2021] HKCFI 2338

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: 2 July 2021

Date of Ruling: 2 July 2021

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R U L I N G

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1.This is an application by Mr Arthur on behalf of the defendant to place before the jury an expert report (‘the Report’) prepared by Professor Monica Whitty, a cyber-psychologist.

2.The defendant, a 78-year-old citizen of USA, faces one charge of trafficking in a dangerous drugs contrary to s4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap.134 (“the DDO”).  The allegation against him is that he entered Hong Kong on 12 July 2019 with 1.54 kg of cocaine secreted inside his suitcase.  It is his case that he was the subject of an email scam in which it was suggested that he was to inherit US$10,500,000 but that it would be necessary to travel abroad to obtain the necessary documents to release the funds.  He refers in his VRI to four such trips, which he alleges were funded by the scammers.  The first trip took place in February 2019, at a time when he was in Manila visiting his family.  The scammers arranged for him to fly to Maputo in Mozambique to obtain a release order for the funds he was to inherit.  In Maputo he collected the release order and was given a bag to take to Nice in France.  In France he handed over the bag along with the signed release order but thereafter no funds were transferred into his US bank account and so he returned to Manila to await receipt.  Subsequently, he received an email, purportedly from the European Union, which had, allegedly, blocked his funds and which required him to obtain two certificates to secure their release.  Initially, he thought he was to do that by going to Buenos Aires via Ho Chi Minh City in Vietnam.  That was later changed to Hanoi.  He paid for this trip himself and for his hotel stay.  Whilst there he was provided with a ticket from Hanoi to Buenos Aires via Qatar but the ticket was rejected at the airport and so he decided to return to Manila.  He was later approached to go to Bologna in Italy via Maputo.  In Maputo he was to pick up a bag and the certificates to release the funds.  He flew to Bologna, handed over the bag and then returned to Manila.  Some time passed before he was contacted again.  On this occasion it was arranged that he would go to Addis Ababa via Paris to collect a bag and a certificate.  He did so and was due to bring the bag from Addis Ababa via Johannesburg to hand over to someone in Hong Kong, at which point he was intercepted.  He maintains that at no stage did he ever look inside the ‘gift’ bags.

3.In pursuance of that case, he wishes to call Professor Whitty, a cyber-psychologist.  Mr Arthur submits on his behalf that he should be allowed to call expert evidence from a cyber-psychologist to explain what he refers to as the ‘Nigerian 419’ scam (“the 419 Scam”).  He suggests that the 419 Scam is out-with the knowledge and experience of the jury and they will not know of the strategies employed by the scammers.  He also wishes to call Professor Whitty to say that the emails before the Court evidence such a scam[1]. He further submits that the Professor’s evidence is relevant on the question of whether the defendant was or may have been the victim of a scam[2] and that he fits the profile of such a scam.

Does the jury require assistance as to the Nigerian 419 Scam?

What is a s419 scam?

4.The number 419 derives from s419 of the Nigerian Criminal Code (“the Code”) which is the offence of obtaining goods by false pretences and can be found under Chapter 38 of the Code[3].  It states:

419. Obtaining goods by false pretences

Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a felony and is liable to imprisonment for three years…

5.It is therefore clear on the face of the Code that s419 was not implemented to address internet fraud specially nor is it apposite to the facts at hand.  It has however become used, incorrectly, by various international professional bodies, lawyers, law officers, and others to refer to internet fraud in general because of the historic suggestion as to where these types of fraud originated in the 1990s.  In fact, the label ‘419 Scam’ refers to a type of fraud known as an ‘advance fee fraud’[4].  This type of fraud operates in accordance with its original definition.  A fraudster requests help to move money and offers by false pretences a commission or reward for the services of the ‘dupe’.  However, the fraudster then asks for a very small amount of money upfront in order to facilitate the transfer.  It comes in many shapes and guises but it follows the pattern of asking for small sums of monies to be paid by the dupe in order to secure the commission or reward, hence its generic name of ‘advance fee fraud’.  This is not what has happened on the facts before the Court.

What is the type of scam evidenced before the Court?

6.Professor Whitty has suggested that the 419 Scam now includes a vast range of other scams including inter alia investment, inheritance, lottery and romance scams.  In essence, what she has referred to as a 419 Scam, is simply a modern day ‘obtaining by deception’, using the worldwide coverage of the internet to target victims susceptible to such deceit.  But we are not here considering the usual obtaining by deception or fraud.  The defence case is an allegation of manipulation by deception of a member of the public into providing a criminal service i.e. carrying drugs.  The issue is whether the defendant did so knowingly, for that is what the prosecution must prove and is the primary issue for the jury to resolve.  There is therefore no necessity to identify the particular type of scam being operated other than to outline its general characteristics as a scam or deception.  Those characteristics are plain on the face of the documents.  With respect to Professor Whitty, she is neither a criminal lawyer, investigator or specialist.  That is evidenced inter alia by the over simplification of the label which has been attached to this offending.  She is a psychologist of the scammers and the scammed.  That should be the area of expertise which is to be sought to be relied upon and which must be justified if her report is to go before the jury.

Does the jury require assistance about the strategies employed by scammers?

7.Section 1 of the Report purports to deal with the ‘inheritance scam’ version of the 419 Scam as it would appear to be the most applicable upon the facts of the case.  I have as yet found no evidence before me as to how this scam originated in respect of the defendant.  The emails in the original committal bundle at p.2189 onwards commence in June 2018, at a stage when it appears the defendant has been corresponding with someone for some time.  The emails contained within the additional evidence do not progress the matter.  The Court currently has no evidence therefore upon which to be able to define the underlying scam as an inheritance scam and why, in the absence of trustworthy or verifiable facts, it should have been accepted as such by the defendant.  Presumably, the Professor has access to something more?  In any event, and upon the basis for these purposes that it is an inheritance scam, the Professor goes on to provide an overview of advance fee frauds form which the 419 Scam derived its name.  She suggests that the inheritance scam is a derivative of the 419 Scam because it requires the victim to pay a small fee to release the relevant funds and thereafter continuing small sums of money are paid by him for a variety of reasons to a point at which the victim has invested a significant amount of his own funds.  It only ends when the victim realises he has been deceived.  The facts of this case, such as they are, do not sit easily, if at all, with this definition.

8.Section 2 deals with the methodology employed by scammers in advance fee frauds to develop trusting relationships.  The Professor does not state whether the methodology described is relevant only to an advance fee fraud or to all internet fraud.  She identifies 11 main strategies from deception, paltering, Cialdini’s persuasion techniques, sales and gambling techniques, urgency, alter casting, secrecy, distractions, developing trust, grooming and use of media.  Unfortunately, Professor Whitty does not go on to say which of these strategies apply to the facts at hand, nor does she provide examples from the materials.  From the definitions provided it would appear that only Cialdini’s persuasion techniques and the development of trust come close to describing the relationship between the defendant and the ‘scammers’ over a period of some 18 months.  Subject to my comments at paragraph 16 below, if there is no empirical research upon the methodology employed specifically within the inheritance scam and as to the receptivity/gullibility of the victim of such scams, I cannot see how this can assist the jury.  Nor do I see that this is something upon which they need to be assisted as it is unlikely to be out-with their everyday experience in the 21^st century.

Does the jury require assistance on whether the emails evidence a scam?

9.Section 5 of the Report, which purports to be an analysis of the materials provided to her, seeks to opine that the emails provided were the products of scammers.  She bases her opinion that the emails were written by scammers upon five ‘indicators’.  These are:

Transfer of Funds

Questioning Authority

Urgency

Person in Authority

Signing is Believing

10.The first ‘indicator’ refers to the transfer of funds and the difficulty tracing money transfers via Moneygram or Western Union especially if the bank accounts to which the money is sent changes frequently. This is indicative of money laundering.  According to the Professor this is common.  Unfortunately for the Professor, there was no such transfer of funds in this case.  There was no attempt at money laundering and no monies were ever received by the defendant save for a small amount of some USD2-300 for expenses in cash.

11.Given that this section of the Report seeks to show that the emails were written by scammers, I am at a loss as to why the Professor has included the section on ‘Questioning Authority’ within it.  She opines that victims commonly question the authenticity of a scam but are unable to distinguish between the authentic and the fake and when they are able to do so they become over confident that they will be able to do so again.  How is this relevant to proving the emails were written by scammers?  It appears to be misplaced.  If it is relevant to the attitude of the defendant, then it should have been supported by reference to the materials and placed under a different section.  Its current position and lack of support would be most confusing to the jury.

12.The third topic relied upon by the Professor to prove these emails were written by scammers is that of the use of ‘Urgency’. The Professor states that the word urgent is used in a number of communications.  She does not identify the emails in question, the number of emails in which it is used or their context.  If it were the case that the word urgent was used more than would be the norm, context is required from which a jury could understand and assess it.  I have found the word used only three times[5] in the 360 pages within the committal bundle and then only as a header without any reference to urgency within the associated text.  My understanding of the context of the emails provided is that this was a slow paced communication in which there were many delays, some of them at the behest of the defendant and at one point to the frustration of the defendant and not the scammers.  I am not satisfied that this point has been made out on the papers.

13.The fourth topic refers to ‘Person in Authority’.  This has been referred to previously under methodology.  Again, if this section is to show that the emails came from scammers because the author of the email is an authority figure, why is it relevant to refer to the state of mind of the defendant in not realising that the email address [email protected] is obviously fake?  This is a victim centric opinion and does not support the premise of the section.

14.Lastly ‘Signing is believing’.  The Professor states it is common for victims to be required to sign documents to release funds.  In doing so she provides no empirical research to support this.  In what type of internet fraud does this occur and why?  The Professor then goes on to suggest that certificates are often used without more.  Lastly, she refers to “Psychological studies on consumer behaviour have found that signing acts as a general self-identity prime that facilitates the activation of a particular aspect of an individual’s self-identity, which results in actions that are congruent with that aspect”.  What on earth is that supposed to mean and how does it help the jury here?  In any event, how does it support the premise of the section that these emails were written by scammers?

15.Subject to the evidential limitations as to the emails available to go to the jury, it is beyond peradventure that there was an attempt to deceive the defendant and that such attempt appears to have been well orchestrated.  There is no suggestion that he was part of the syndicate sending the emails.   The issue is not that he received them, that they were written by scammers or that he responded to them, but whether in July 2019, he knew that what he was carrying were dangerous drugs.  This is not something upon which the jury requires expert opinion.  It is wholly within their own capabilities.

Does the jury require assistance on whether the defendant fits the profile of a victim of a scam?

16.Section 4 deals with the profile of the scam victim.  It is a very short and succinct section as the Professor readily admits that her considerable research over 15 years does not reveal a typical profile. I presume therefore that there is no other research that does so, otherwise she would have been under a duty to refer to it.  This section should be considered in conjunction with section 6 which deals with the defendant’s psychological report (not disclosed) and which, as it is undisclosed, presumably identifies no psychopathology.  The defence therefore seek to place the opinion evidence of a psychologist before the court where the defendant has evidenced no psychopathology relevant to the situation at hand and where the expert cannot point to any psychological profile linking the defendant to the behaviour in question.  This is of no assistance.

Does the jury require assistance on whether the defendant was a victim of such a scam?

17.Whether or not the defendant was a victim or target of a scam may be relevant to how he behaved over a period of some 18 months and may be relevant to the issue of knowledge as events unfolded. However, the fact that the defendant could be said to be a victim or target of a scam is not the issue before the jury.  It may be circumstantial evidence which may be taken into account upon the issue of knowledge.  The facts of this case are not so complicated, specialised or out-with the everyday human experience of the jury that they require the opinion of an expert psychologist to identify the role of the defendant.

The rules relating to opinion evidence

18.Professor Whitty has limited first-hand experience of the type of scam before the court.  I say this because the Report lacks detail in this respect.  It appears that her expertise is drawn from four cases in which she has been directly involved.  She does not describe the circumstances of those cases and the manner in which they stand on all fours with the one at hand.  Indeed, other than the fact that they were drug trafficking cases, the Professor has supplied no other information.  Other references to legal proceedings are clearly hearsay.  Nor is there sufficient evidence from her research and other materials to suggest that she has any particular expertise in the particular type of deception before the Court.  Indeed, it would appear that the majority of her other research lies elsewhere.

19.Professor Whitty also falls into a common error in making a number of assumptions without any factual evidential basis.  She has assumed that if there is a scam, it is operated by a West African syndicate.  There is no evidence before the Court that the scam in question was operated by a West African syndicate.  It is speculation.  She refers to a ‘suckers list’ but has no direct evidence to show that was the case here.  She goes further and speculates that the defendant is not on just one but several of these lists.  This is conjecture.  She suggests, that these West African syndicates operate in the rest of the world.  We do not know if they are West African or indeed where they operate and in particular where this particular syndicate operates save that participants have appeared in Maputo, Addis Ababa, Paris, Nice and Hanoi.  The telephone number given to the defendant is a UK number.  For the avoidance of doubt, Mozambique and Ethiopia are in East Africa.  I also take judicial notice that such syndicates also operate in China and Hong Kong.

20.I might also add that the statistics and over generalisations dotted around the Report are unhelpful.  By way of example, on p.4 of the Report the Professor refers to 3.8 million fraud incidents in the UK but does not say over what period nor does she break them down by type.  What percentage of these, if any, were inheritance scams?  What methodology was employed?  How is it connected to the scam at hand?  She then maintains that the incidents referred to increased by 17% year on year.  How does that assist the jury? Whilst opining that many individuals continue to be tricked, she does not say into what or how.  At section 3 the Professor states that online scams are often committed by organised crime gangs.  Who are these gangs; where are they and what type of scam do they operate?  How does that knowledge assist the jury in the matter they have to consider?  She goes on to say, “It is not unheard of for victims to unknowingly assist criminals in other crimes such as acting as money or drug mules…” and then relates that comment to an FBI report in respect of 145 romance scams.  This is compounded by a short and unsubstantiated reference to 11 Australians in custody in China, all of whom she alleges were scam victims.  From what body of knowledge do these references come and what special acquaintance does the Professor have with that body of knowledge to allow her to opine upon it?  Rather than empirical research this appears to be hearsay upon hearsay.  More importantly, how are such comments of assistance to the jury?

The Law

21.It is trite law that evidence put before the court must be both relevant and admissible[6]. Evidence is relevant if it is logically probative or disprobative of some element in dispute[7]. That is largely a matter of experience and common sense.  Here Mr Arthur submits that the fact that there was a scam in operation and that the defendant was or may have been a victim or target of it, is relevant to his defence. That is accepted by the court.  It is likely to be a relevant consideration. In R v Turner (1975) 60 Cr App R 80, Lawton CJ[8] said: “Relevance, however, does not result in evidence being admissible: it is a condition precedent to admissibility”.  He went on:

“Our law excludes evidence of many matters which in life outside the courts sensible people take into consideration when making decisions. Two broad heads of exclusion are hearsay and opinion. As we have already pointed out, the psychiatrist’s report contained a lot of hearsay which was inadmissible. A ruling on this ground, however, would merely have trimmed the psychiatrist’s evidence: it would not have excluded it altogether.”

The issue therefore is whether the Report addresses the subject matter said to be relevant and, if so, whether it is admissible.  Admissibility may be considered under several heads, one of which is the qualifications of the expert witness and the quality of the underlying academic research upon which his or her opinion is based[9], as well as the independence of that opinion[10].

“Whether the subject matter of the opinion forms part of a body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court”.

A witness must speak to the facts which occurred in his or her presence.  This rule necessarily excludes hearsay but it also excludes the giving of opinion or of belief[11].  The giving of opinion evidence by an expert is an exception to this rule.  The foundation for such an exception was laid down by Lord Mansfield in Folkes v Chad (1782) 3 Doug.K.B. 157, when he said “the opinion of scientific men upon proven facts may be given by men of science within their own science.  An expert opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury.  If on proven facts a judge or jury can infer form their own conclusions without help, then the opinion of an expert is unnecessary.”

22.Whether expert opinion evidence can be adduced in any given trial may therefore depend, not upon the qualifications of the expert to given his or her opinion, but whether such evidence is necessary at all?  If it is not necessary, that will be the end of the matter. Is the issue before the jury upon which they are asked to exercise their judgment, out-with their experience and knowledge[12]?

23.If it is necessary because the subject matter is likely to be out-with their experience or knowledge, the Court must be satisfied that the expert witness has the necessary expertise in the area of scientific or specialist research upon which his or her opinion is based; that the research is peer reviewed and tested such that it can be put before the jury as an established and predominant body of opinion upon which they should properly rely, and that the opinion is independent of the party instructing him. Lastly, the Court must consider whether the facts upon which the opinion is premised are, of themselves, admissible.  This principle refers not only to the exception to the rule against hearsay which allows an expert witness to rely upon a body of work by other specialists in the same field as himself and upon which he bases his opinion[13] but also to any other fact which his opinion is premised[14].

Conclusion

24.As has been explained above, whilst I accept that the existence of a scam and the relationship of the defendant to it is relevant to his defence, I am not convinced on the facts before me that the jury require the assistance of Professor Whitty either in order to come to that conclusion nor to understand its relevance to the evidence as a whole.  No part of the Report seeks to address the issue which is actually before the Court and that is the issue of knowledge of the dangerous drugs he was found to be carrying.  Professor Whitty is not in a position to opine on that issue even if she wished to do so.  There are a number of reasons why she would not be allowed to do so.

25.Firstly, it is ultimate issue and there is no exceptional reason on the facts of this case as to why an expert should be allowed to opine upon the ultimate issue.  The legal position as to when an expert can testify upon the ultimate issue was summarised in HKSAR v Mo Sze Lung Thomsom & Anor [2003] 2 HKC 356 per Stock JA

“…depends upon the facts of the case; upon the expertise, whether the expertise is relevant to the ultimate question; whether the expert’s opinion on the ultimate question is a conclusion which depends upon his expertise or is proffered in some other capacity; and whether the court requires the assistance of an expert on the ultimate issue?”

26.Secondly, I have some considerable concerns about the Professor’s expertise.  Her opinion, such as it is, is not being proffered purely as a psychologist nor has it been directed to the psychopathology of the defendant.  The Professor has a considerable academic profile and an equally impressive background in advising upon internet fraud. However, a closer reading of the profile and academic research indicates that a significant proportion of the Professor’s expertise to date is broad based and where specific, is in romance scams.  Leaving out those substantial parts of her expertise which are irrelevant to appearing in the High Court as a witness in a criminal trial i.e. those relating to internet dating, romance scams, male female relationships, gaming etc, I confess, without wishing to denigrate her considerable expertise elsewhere, to struggling to find any detailed research on any part of the very wide coverage of what she has referred to as the 419 Scam, save for the papers in 2020, 2019[15], on psychological profiling, and susceptibility of victims of cyber-fraud.  I have not been provided with those papers and I do not know if they have been peer reviewed.  In any event at section 4 the Professor stated that it is difficult to provide a typical profile of a scam victim and she has not referenced her research in this area.

27.This difficulty in seeking to define the Professor’s expertise in relation to the issues before the Court has been brought about by another underlying concern.  The Report is far too ‘broad brush’.  It lacks specificity and properly quantifiable reference to academic research.  The Professor has not met with the defendant and has relied upon inadmissible hearsay in the form of other statements from connected parties and to unsubstantiated research. The materials should have been relied upon to make good the applicability of her general non-specific comments to the situation at hand. 

28.Lastly, and by no means least, there is no sense of any impartiality or objectivity on her part.  For example, there is no mention of the apparent dynamic between the defendant and the scammers.  The very essence of why a psychologist would be of potential assistance.  There are a considerable number of emails, if not the majority, which suggest that the defendant is exercising control and at times admonishing the scammers or simply refusing to travel.  This appears to be in conflict with her suggestion that scammers gain control by exercising authority and urgency.  I would have expected an independent expert witness to deal with this and other matters raised in the correspondence which conflict with her overarching descriptors.

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