BETWEEN v HKSAR

HCCC 301/2019

[2021] HKCFI 2515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 301 OF 2019

________________

________________

Before:  Hon Campbell‑Moffat J in Court

Dates of Hearing:  10-12 March 2021

Date of Ruling:  15 March 2021

____________________

PRELIMINARY RULING

____________________

1.  The Defendants, who are Columbian nationals, are charged with trafficking in dangerous drugs contrary to s4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134 by importing them into Hong Kong on 30 June 2018. For the purpose of this preliminary ruling they both accept that they knowingly, unlawfully, imported Cocaine into Hong Kong on that date. The first defendant (“D1”), imported 740g of cocaine, which had been ingested by him in Bogota, Columbia on 27 June 2018. The second defendant (“D2”) ingested 342g of cocaine in Bogota and imported it in like manner into Hong Kong on the same date.

2.  The only issue in this trial is whether the Defendants can avail themselves of the defence of duress.

3.  It became clear at the beginning of the trial, and before the jury was empanelled, that there may have been some divergence of understanding as to whether the defence of duress was available on the facts of this case taking into account the prosecution case on the papers, and the proposed defence case, which was outlined to the Court so far as the defence felt able so to do. As a result of the exchange between the Bench and the Bar, Mr Percy on behalf of D1 asked the Court if the defence could have the benefit of a ruling upon the Court’s understanding of the law of duress as it pertains to the case at hand i.e. duress by threats. This was a sensible and pragmatic request, for if the defence were bound to fail for some reason known and accepted at the outset, defence counsel would be in a better position properly to advise their clients, who, after all, are not citizens of a common law jurisdiction and are at a disadvantage as to their understanding of the common law.

4.  This ruling does not seek to provide an overview of the whole of the law on duress. Nor is it an indication of the view of the Court on the facts prior to trial. It is made to facilitate an agreed understanding of the law so far as it pertains to the case at hand, so that all counsel can consider whether evidence will be available upon which the defence can be supported sufficient for that defence to go before the jury. It certainly does not seek to make that decision in advance. In providing this summary, the Court has provided counsel with a provisional opportunity to agree certain principles of practice and has heard counsel on a preliminary basis on some of the issues which arise for particular consideration. Neither defence counsel have indicated they are in any way prejudiced by so doing, indeed they seek this clarification in order to be able to properly advise their clients. In the interest of fairness to both the prosecution and defence, this Court is providing a summary of its understanding of the applicable law in respect of duress by threats for that limited purpose and not in any way to indicate that it will not hear counsel on the way forward or to suggest that the Court has already taken any view on the facts of the case.

Basic outline of the case for the Prosecution and Defence

5.  The prosecution case is straightforward on the issue of trafficking. The defendants travelled from Bogota in Columbia on 28 June 2018, via Sao Paolo in Brazil and Dubai, entering Hong Kong on 30 June 2018. They were found to have ingested pellets of liquid cocaine, which they later discharged. They had ingested the cocaine on 27 June 2018.   As I have already stated, it is accepted by the defendants that they knowingly, unlawfully imported the cocaine into Hong Kong. The only live issue is one of duress.

6.  The prosecution case includes a video recorded interview (“VRI”) carried out with D1 [P23 & 26 at ppAE182-298] and a written record of interview (“ROI”) taken from D2 [P20 at pp AE62-74]. Within the VRI, there is a suggestion of duress arising at counters 303 -“ ..he was also going to retaliate against me and my family”;533 “because he threatened us both.”; and 535 “he threatened the family…not just me”. There is also a hint of the defence at answers 3 & 5 of the ROI, where D2 makes reference to “…we had to swallow” and “ ..he forced us to swallow.”

7.  The practical reality of that evidence is that if the defence wish to make good their defence to the requisite standard in order for it to be placed before the jury, more would be required. They accepted that. Mr Percy submitted that D1 would be giving evidence to address that.  He did not wish to rehearse the details of his case but he submitted that the basis of the defence was premised upon an unpaid loan of what had ultimately amounted to a considerable sum of money. The person from whom D1 had loaned the money was a person by the name of Mauricio Arango Ospina (“Ospina”). He was a well-known violent criminal who had recently come to a tragic end being shot in the head three times in what appeared to be an underworld “hit”. Some time prior to the flight on 28 June 2018, perhaps a week or so before, Ospina had demanded repayment of that loan and, because D1 could not repay him, Ospina had threatened D1 and his family unless D1 carried out this crime. The Court was not informed of the nature or scope of the threats made but for the purposes of this analysis, the Court will take the suggested defence at its highest. The Court was informed that Ospina insisted upon D2 being a party to the trafficking as she had been a beneficiary of the loan at the time it took place.

The Law of Duress by Threats

8.  The common sense starting point of the common law is that adults of sound mind are to be held responsible for the crimes they commit[1]. For over 700 years there has been a limited exception to this rule which is available where a person commits a crime because they are compelled to do so against their will as a result of threats by others. In such cases they are said to have acted under duress. The defence of duress, properly established, excuses what would otherwise be a crime for which the perpetrator would expect to be held accountable in law i.e. there is deemed to be an absence of moral blameworthiness and an inappropriateness of punishment in such circumstances[2].

9.  Both the actus reus and the mens rea of the underlying offence must be proved beyond reasonable doubt by the prosecution before duress can be raised as a defence. In other words, but for the application of this defence, the accused would be found guilty.

10.  The leading authority in the United Kingdom in respect of duress is that of R v Hasan [2005] 2 Cr App R 22. Duress affords a defence to a crime if raised and not disproved. There is no burden upon the defendant save that there must be some evidence of each element before the jury upon which to base the defence. Where such evidence is before the jury, there is a burden upon the prosecution to prove beyond reasonable doubt that the defence of duress is not proven. 

11.  Why has this issue arisen at this stage of the trial? In the ordinary course of events counsel would look to the specimen directions to ascertain the elements of a defence required to be proved (or, as in this case, disproved). The traditional direction for duress by threats was formulated by Lord Lane C.J. in R v Graham[3]. It was as follows:

(1) Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed X had said or done, he had good cause to fear that if he did not so act X would kill him or cause him serious physical injury.

(2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed X said or did by taking part in the killing?  

12.  The relevant direction in Hong Kong[4] is :

“First, you must ask yourself whether D was driven to do as he did because he genuinely and reasonably believed that if he did not do so he, [a member of his family or a person for whose safety he could reasonably regard himself as responsible], would be killed or seriously injured either immediately or almost immediately. If you are sure that this was not the case the defence of duress does not apply. However, if you think this was or may have been the case you must next consider whether a reasonable person, in D’s situation and believing what D did, would have been driven to do what he did. By a reasonable person I mean a sober person of reasonable firmness and of D’s age, sex and characteristics. The reactions of a reasonable person may or may not be the same as those of D himself. If you are sure that a reasonable person would not have been driven to do as D did, the defence of duress does not arise and D is guilty. However, if you think that a reasonable person would have been driven to do as D did, the defence of duress does apply and you must find the D not guilty.

13.  Neither of those directions seek to break down the constituent parts of the defence of duress for the purposes of deciding whether there is any or any sufficient evidence for the defence to go before the jury. As a consequence, it is not surprising that counsel, and indeed their clients, may be encouraged to take a somewhat simplistic approach to the defence when considering if it should be advanced in trial. Such an approach could be to their detriment. However, the current UK JSB direction may provide some assistance for the purposes of this preliminary ruling:

1. D has raised the defence of duress. D says that he/she was driven to do what D did by threats, namely {specify}.

2. Because it is for the prosecution to prove D's guilt, it is for them to prove that the defence of duress does not apply in this case. It is not for D to prove that it does apply.

3. You must first decide whether the threats to which D referred were or may have been made. If you are sure that they were not made, or sure that D did not reasonably believe them to have been made, the defence of duress does not arise and your verdict will be 'Guilty'. However, if you decide that the threats were or may have been made, or that D may have reasonably have believed them to have been made then go on to answer the following questions:

(1) First you must ask whether D acted as he/she did because they genuinely and reasonably believed that if they did not do so D / a member of D’s immediate family would be killed or seriously injured either immediately or almost immediately. If you are sure that this was not the case, the defence of duress does not apply and your verdict will be 'Guilty'. However, if you decide that this was or may have been D’s belief you must go on to consider a further question. [Here go to paragraph (2) If the issue of escape from / avoidance of the threats arises. Otherwise go to paragraph (3).]

(2) Before acting as he/she did, did D have an opportunity to escape from / avoid the threats without death or serious injury, which a reasonable person in D's situation would have taken but D did not. [Here refer to any escape or avoidance route canvassed during the trial, e.g. calling for help or going to the police.] If you are sure that there was a course of action the defendant could have taken to avoid the threat D reasonably believed to exist without having to commit the crime the defence of duress does not apply and your verdict will be 'Guilty'. However, if you decide there was or may have been no opportunity to escape or avoid the threatened action then go on to the next question.

(3) You must ask whether a reasonable person, in D's situation and believing what D did, would have done what D did. By a reasonable person I mean a sober person of reasonable strength of character of D's age and sex [here refer to any other relevant characteristics that may have been canvassed during the trial – see the Legal Summary above]. If you are sure that a reasonable person would not have done what D did, the defence of duress does not apply, and your verdict will be 'Guilty'. However, if you decide that a reasonable person would or may have done what D did: Crown Court Compendium Part I June 2018 Judicial College 18-18 [either, if the issue referred to in paragraph (4) below does not arise,] the defence of duress does apply and your verdict will be 'Not Guilty' [or, if the issue referred to in paragraph (4) below does arise,] you must go on to consider one final question.

(4) You must finally ask whether D had voluntarily put himself/herself in a position in which they knew or ought reasonably to have known that they might be compelled to commit crime by threats of violence from other people. The prosecution say that D did by {e.g. getting involved with other criminals who might make such threats if D let them down or came to owe them money]. But it is for you to decide. If you are sure that D did voluntarily put himself/herself in such a position, the defence of duress does not apply and your verdict will be 'Guilty'. However, if you decide that he/she did not do so or may not have done so, the defence of duress does apply and your verdict will be 'Not Guilty'.

14.  In my view, in order for the defence to be raised[5], evidence of the following is required:

(i)  There must be a threat or D must have reasonably perceived there to be a threat; and

(ii)  that threat must be of death or serious bodily injury (which I take to be really serious bodily injury akin to grievous bodily harm)[6]; and

(iii)  that threat must be directed at the defendant, his family or someone close to him i.e someone for whose safety the defendant would reasonably regard himself as responsible[7]; and

(iv)  the defendant genuinely and reasonably believed that if he did not act as he was required to, either he, a member of his family or someone he cared for, would be killed or seriously injured either immediately or almost immediately[8]; and

(v)  whether the defendant did  genuinely and reasonably believe that was the case is to be ascertained by the standard of the sober person of reasonable firmness of D’s age, sex and characteristics i.e. an objective test[9]; and

(vi)  the criminal conduct with which the defendant is charged was directly caused by such threats although it does not have to be the only cause[10]; and

(vii)  there was no evasive action he could reasonably have been expected to take in the circumstances; and

(vii)  the defendant did not voluntarily surrendered his will to the domination of another[11]i.e. lay himself open to the risk of being placed in this position[12].

15.  Before any analysis of thecase at hand is sought to be considered at this early stage, parties should note the following. The development of the common law defence of duress in Hong Kong has been strictly defined. It follows to a greater extent the development of the defence in the United Kingdom. Elsewhere in the common law world this defence, sometimes referred to as a defence of compulsion, has been the subject of subtly different interpretation and in many instances has been the subject of legislation. It is nevertheless available in very limited circumstances. Although there was a period when there was a tendency towards a more flexible approach to the relevant criteria as seen in R v Hudson and Taylor (1972) 56 Cr App R, that tendency has received some criticism by the House of Lords and since Hasan supra, the application of the defence of duress has been the subject of considerable restraint. In the United Kingdom and in Hong Kong, it is not available at all for the crime of murder, attempted murder or treason. In other common law jurisdictions, the statutory defence is not available for an even wider range of offences beyond that of murder and treason. It is interesting to note that the development of the common law defence is not identical in all common law jurisdictions especially upon the issue of the interpretation of immediacy and availability of evasion[13].

Analysis

16.  For the purpose of this ruling, all counsel accept that there must be some evidence before the jury of all of the relevant elements of duress by threats before the matter can be placed before the jury. If there is no evidence on any one of the relevant elements the defence fails ab initio. It cannot go before the jury. If there is some evidence but it is not sufficient to put before the jury because no reasonable jury properly directed could fail to find the defence disproved[14], no legitimate purpose is served by leaving it to go before the jury. Whether the defence may go before the jury is therefore a matter for the consideration of the trial judge[15] after hearing Counsel upon the matter.

17.  The Court is cognizant of the fact that there is limited scope for a judge to withdraw a defence from the jury and it would be slow so to do[16]. It is not being asked to do so at this juncture and it does not seek to suggest that it would do so during trial as the Court has not heard all of the evidence which it is intended to place before the jury.

Threats

18.  As to ss (i) to (iii) of paragraph 14 above, the Court has no evidence before it of the details of the threat, the nature of the threat or the timing of the threat. Having heard Mr Percy’s submissions, the Court will consider taking the defence case at its highest so that as currently suggested there appears there will be evidence of the threat sufficient to meet this element of the offence.

The Objective Test

19.  As to ss(iv) and (v) of paragraph 14 above, Mr Percy submits that there will be defence evidence as to this. He has indicated he will be calling his client.

Causation

20.  As to ss(vi) of paragraph 14 above, on the face of the submissions there is a prima facie case of causation.

Immediacy & Continuing Threat

21.  As to the issue of immediacy arising in ss (iv) of paragraph 14 above, the Court has no authority before it upon the issue of whether threats made in the circumstances of this case can be said to be continuing and so extend the concept of ‘immediacy’ beyond that which is referred to by Lord Bingham in Hasan where he states: “It should, however, be made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged.” Later at paragraph 34 in reference to both R v Ali and R v Cole[17] he said “ ..it would seem that the defence of duress should in any event have failed, for lack of immediacy, since the threat was not to be executed until the following day, and therefore the defendant had the opportunity to take evasive action”. As the evidence currently stands there is, at its highest a 4-day period from 27 June to 30 June 2018, when the defendants could have availed themselves of the opportunity to avoid the immediate consequences of non-compliance. The facts as they currently stand are as to a future act of retribution upon failure to comply. There is no evidence of any immediate, or almost immediate threat as at the time, in fact, the threat was made or at the time of the beginning of the actus reus when the cocaine was ingested. There is currently no evidence from D2 upon this point and she would stand to be considered quite separately upon this issue as it appears that no threats were made to her directly.

Taking Evasive Action

22.  As to ss(vii) of paragraph 14 above, it is clear that the defence is not available if the defendant could avoid carrying out the crime[18]. The test is whether the defendant could reasonably have been expected to take evasive action. This is because it is the very imminence of retribution of a violent nature which affords the exceptional defence. This is considered in conjunction with the equally important issue of the ‘immediacy’ of the threat for if it were not immediate, the more opportunity there is for the defendant to avoid committing the crime. Even if it were to be accepted, and the Court has not heard Counsel upon this issue, that the defence of duress may be “continuing in nature”, it follows that the opportunity to take avoiding action is greater. It also follows that the issue of immediacy falls away because the threatened action in a situation of ‘continuing duress’ is unlikely to be carried out immediately, rather the threat is more likely to be carried out at some future unspecified time or at a point that the person carrying out the threat comes to know that the criminal conduct has not been fulfilled.

23.  Even without the possibility of the threat having been made some one or two weeks before travel, which is in itself problematic, and assuming further sufficient threat or threats were made at the time of consumption of the drugs and at the time of travel, the defendants travelled through three separate jurisdictions outside of Columbia. At each and every stage there may be evidence as to why the defendants did not avail themselves of the opportunity to appeal to the local police or airline authorities or to surrender themselves such that it would appear they had been arrested rather than sought assistance. At present there is no suggestion of such evidence, quite the converse, as D1 had offered to assist within his VRI thereby placing himself (and presumably others if his defence is to be accepted) at clear risk of retribution in any event.

Voluntary participation

24.  As to ss(viii) of paragraph 14 above, where the defendant willingly joins a criminal enterprise and also where he associates with criminals for his own purposes[19], then he places himself at risk of being open to coercion to commit crimes.  The defence will be excluded if he foresaw (or ought reasonably to have foreseen) the risk of being subjected to any compulsion or threats of violence[20]. There need not be foresight of coercion to commit crimes of the kind for which the defendant is charged. It is the awareness of the risk of compulsion that matters. Prior awareness of what criminal activity those exercising compulsion may offer as a possible alternative to violence is irrelevant.”[21]

25.  It appears to be a mainstay of the defence case that they were placed under duress by Ospina, who was a well-known and extremely violent Columbian criminal. Their relationship with Ospina, the nature of the loan and the connection between both D1 and D2 is currently unknown. What is known is that it is part of the defence that they voluntarily had previous dealings with him which placed them, in the event, at the very risk of which they complain. Nothing will turn upon how the dominant party Ospina chooses to exploit that weakness. It is not open to the defendants to say that the debt cannot be connected to the offence because this is their case, or that their relationship in taking a loan could not have led to them foreseeing they would be forced to traffic in drugs[22] because they knew he was a violent criminal who dealt inter alia in drugs.  This is therefore an element of the defence which is to the benefit of the prosecution and, without more, is problematic for the defence.

Conclusion

26.  It is entirely a matter for the defendants if they wish to avail themselves of this defence. The approach of the Court during trial is not limited to this preliminary ruling, which has been provided upon the application of D1 to provide an outline only of the matters which are required to be considered by the Court before the defence may go to the jury. The parties accept other matters may very well come to the fore during the trial, which have not been disclosed to the Court and all Counsel may have the benefit of other research not currently placed before the Court and upon which the Court will hear them either now or at the appropriate time.

Dr Nisha Mohamed, counsel‑on‑fiat, for HKSAR

Mr Duncan Percy, instructed by Edward Lau Phoebe Ng Solicitors LLP, assigned by Director of Legal Aid, for the 1^st defendant 

Mr Frederic Whitehouse, instructed by Peter K.H. Wong & Co., assigned by Director of Legal Aid, of the 2^nd defendant