HKSAR v. Hernandez Borjas Raul Orlando

HCCC 359/2019

[2022] HKCFI 1825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 359 OF 2019

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BETWEEN

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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 1,420g of cocaine into Hong Kong on 6 October 2018. 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 Mr Kelly on behalf of the defendant of no case. He submits that at its highest, the prosecution case relied upon the defendant’s possession of the backpack [P18] in which the drugs were hidden. Thereafter, he submits that the prosecution case amounted to putting to the defendant that he knew of the presence of the dangerous drugs when he received the backpack in Sao Paolo. Ms Chan also suggested it was at this stage that the defendant tampered with the backpack and caused the protrusion of a small part of the drug packaging and therefore he knew what the packaging contained which was why he said “thank god” when he returned safely to Honduras with the backpack. Lastly, Mr Kelly submits, the prosecution suggested that he carried the drugs to Hong Kong because he wanted the $5.2 million offered as funds for humanitarian projects. None of these suggestions were made good. Ms Chan had no evidence to support any of them and the defendant not only denied them but pointed to documentary evidence which supported his case. As a consequence, the only admissible evidence before the jury from the prosecution case was the admitted fact of possession of the dangerous drugs.

3.There was no digital evidence either from a telephone or from a laptop which the prosecution sought to rely upon to suggest the defendant had any knowledge of the presence of dangerous drugs in the backpack and no admissions against interest were made under caution, during the preliminary enquiry or when interviewed. The drugs were concealed within the backpack in a professional manner save for some suggestion that there was a very small part of packaging showing at the top of a seam. There was no evidence of the exact position of that protrusion nor was there evidence of how slim or thick the packets of hidden drugs were within the backpack as they had not been photographed in their original condition, nor had the jury felt the weight of the drugs within the backpack.

4.Albeit weak, no application was made by the defence at half time and the case was allowed to continue.

5.As the issue was one of knowledge the defendant chose to give evidence. He was aware he did not have to do so but he elected to give evidence. He is a 66-year-old man of positive good character. His life has been spent in the service of the poor and poverty stricken of Honduras. He relied upon a considerable number of emails and other documentary evidence spanning the period 30 May 2018 to 6 October 2018, to explain how he came to be in Hong Kong. He explained he received and responded to these emails in the hope of obtaining funds for humanitarian projects in his home country of Honduras. The defendant was the operating mind of a Honduran NGO. It was in this capacity that he frequently sought funding from local and international sources. He explained the nature of the correspondence and the concerns he had over their authenticity. He was aware of the possibility of a scam but his mind was directed to scams which sought to defraud him. There was never any suggestion that he put his mind to being duped into drug trafficking. In particular, he told the jury he had checked the backpack twice when he first received it to ensure there was nothing suspicious in it and he travelled with it from Sao Paolo to Panama and then Honduras going through customs and immigration at all three airports and thereafter when he travelled from Honduras via Panama and Amsterdam to enter Hong Kong. At each airport he was further checked without incident suggesting that the small piece of parchment which is said to have protruded must have been small indeed.

6.The defendant was cross examined over 1.5 days. Unfortunately, Ms Chan on behalf of the prosecution made no headway. As a result, the Court raised the issue for the consideration of both parties that there appeared to be no direct evidence of knowledge nor was there any evidence from which an inference could be drawn save for the fact of possession. The Court was conscious of not interfering with the function of the jury but could not ascertain how the prosecution could advance a case on knowledge and properly argue the jury could be sure of guilt. Ms Chan very sensibly accepted that the prosecution case was weak in the face of the defence evidence. I think even that was optimistic. There was no admissible evidence from which the jury could draw the inference required. There was therefore nothing she could say to the jury to persuade them that the prosecution had proven beyond reasonable doubt that he knew of the presence of the dangerous drugs. If that were the case the Court would have to direct the jury accordingly.

7.The question which then arises is whether it is open to a trial judge to withdraw a case form the jury not just at the end of the prosecution case but at any time during a trial even at the stage that the defence has closed its case. Bearing in mind the need to ensure that the Court does not usurp the function of the jury as the trier of fact. In R v Brown (Davina) [2002] 1 Cr app R 5, Longmore LJ relied upon an unreported judgment of Steyn LJ in R v Boakye, March 12, 1992 in which he said:

“Mr Jones has made a submission to us that it was not appropriate to make a submission of no case to answer at the end of the defence case. In our judgment a judge is entitled, even at a late stage, if no evidence is available on a count of if there is no evidence available on that count upon which a reasonable jury could convict, to rule that there is no case to go before the jury. The contrary proposition would be a startling one. It would contemplate that the judge would be powerless to prevent a real miscarriage of justice in a case where there was a sudden change in the strength of the prosecution case as a result of cogent evidence emerging in the defence case. We rule, without any doubt that it was within the power of the judge to make the ruling that was requested of him”.

He also relied upon R v Brown (Jamie) (1998) Crim LR 196, in which Rose LJ said that the judge has a responsibility throughout a trial not to allow a jury to consider evidence on which they could not safely convict. As a consequence he went on to say:

“If at the end of the evidence a trial judge is of the view that no reasonable jury, properly directed, could safely convict, he should, generally speaking, whether a submission of no case to answer has been made at the end of the prosecution case or not, raise that view for discussion with counsel, in the absence of the jury. If, having heard submissions, he remains of the view, then he should, in our judgment, withdraw the case from the jury”.

8.Whilst it is within the power of the Court to act independently, in the event, Mr Kelly made the application on behalf of the defendant canvassing the points referred to above but also extending his submission to the other positive elements of the defence case such as the credibility and propensity of the defendant. If this matter rested upon a view of the credibility of witnesses, I would be more reluctant to accede to this application as that is more likely to overstep the separate functions of judge and jury. However, this application relies upon whether there is any evidence from which an inference could be drawn and not whether such evidence is credible. Having heard Ms Chan and Mr Kelly upon the point and having provided them with the opportunity to research the matter overnight and heard their submissions, the Court finds that in the circumstances of this case and exceptionally, there is no case to answer and the Court will direct the jury to acquit the defendant upon the single count of trafficking in a dangerous drug.

Ms Cannise Chan, counsel on fiat, for HKSAR

Mr Shaun Kelly, instructed by Vidler & Co, assigned by Director of Legal Aid, for the defendant