HKSAR v. Leni Maya Sari

HCCC 126/2021

[2022] HKCFI 3350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 126 OF 2021

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Before:  Hon Campbell‑Moffat J in Court

Date of Hearing:  19-21 October 2022

Date of Decision:  24 October 2022

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D E C I S I O N

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1.This is an application by the prosecution on behalf of the Department of Justice to adjourn this trial until the handing down of the judgment in CASJ 1-3/2021 (“the References”), which they anticipate will be, at the latest, the end of January 2023.

CASJ 1-3/2021

2.These references arise out of HCCC 359/2019, HCCC 136/2020 and HCCC 70/2020 respectively. The Court of Appeal is requested to give its opinion upon two points of law, which differ slightly dependent upon the circumstance of the individual cases.

3.As to CASJ 1/2021 arising from HCCC 359/2019:

(1) Where there is no direct evidence of a key element of the offence and the Prosecution rely on circumstantial evidence in establishing that element, what is the correct approach that a trial judge should take in dealing with a submission of no case to answer made at the close of the Prosecution case or during the course of the Defence case? In particular, should the trial judge take into account competing inferences consistent with innocence which are only premised on the Defence evidence?

(2) In the context of the present case of trafficking in dangerous drugs where there is no direct evidence of the accused’s knowledge of the presence of the drug, whether the trial judge erred in respect of a question of law in ruling there was no case to answer and directing the jury to acquit, namely (i) wrongly finding that there was no admissible evidence from which the jury could draw the required inference, and (ii) wrongly making findings of fact and/or drawing inferences which were matters that ought to be left to the jury to determine?

4.As to CASJ 2/2021 arising out of HCCC 136/2020:

(1) Where there is no direct evidence of a key element of the offence and the Prosecution rely on circumstantial evidence in establishing that element, what is the correct approach that a trial judge should take in deciding if a reasonable jury, properly directed, could not convict so that he should withdraw the case from the jury? In particular, should the trial judge take into account competing inferences consistent with innocence which are only premised on the out of court statements of a defendant?

(2) In the context of the present case of trafficking in dangerous drugs where there is no direct evidence of the accused’s knowledge of the presence of the drug, whether the trial judge erred in respect of a question of law in stopping the case from proceeding further and directing the jury to acquit, namely (i) wrongly finding that a jury properly directed on the evidence in support of the inference to be drawn as to knowledge could not properly convict, and (ii) wrongly taking into account the out of court statements made by the accused, which were wholly exculpatory and the weight to be given to which ought to have been left to the jury to determine?

5.As to CASJ 3/2021 arising out of HCCC 70/2020:

(1) Where there is no direct evidence of a key element of the offence and the Prosecution rely on circumstantial evidence in establishing that element, what is the correct approach that a trial judge should take in dealing with a submission of no case to answer made at the close of the Prosecution case or during the course of the Defence case? In particular, should the trial judge take into account competing inferences consistent with innocence which are only premised on the out of court assertions (express or implied) made by a defendant?

(2) In the context of the present case of trafficking in dangerous drugs where there is no direct evidence of the accused’s knowledge of the presence of the drug, whether the trial judge erred in respect of a question of law in ruling there was no case to answer, namely (i) wrongly relying upon the truth of the implied assertions contained in the email exchanges between the accused and other persons in finding that a reasonable jury could not exclude all hypotheses consistent with innocence, when the weight to be given to such out of court assertions, if any, ought to have been left to the jury to determine, and (ii) wrongly finding that the Prosecution evidence was not sufficiently strong as to be capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt?

6.Mr Ryan submits that this trial stands on a similar evidential footing to those currently under consideration by the Court of Appeal and that it would be prudent to adjourn this matter to await the result of those references.

7.The References all arise out of prosecutions for trafficking in dangerous drugs where there is no direct evidence of knowledge. The issue before the Court of Appeal under the References seeks assistance upon the test to be applied when the issue of no case arises whenever that may be. Firstly, where there is no direct evidence of knowledge at all. Secondly, where there is no direct evidence of knowledge but some evidence from which an inference may be drawn. Thirdly, where there may be competing inferences. Fourthly, the provenance of the evidence relied upon i.e. from the prosecution only or from the defence.

8.The Court asked Mr Ryan if he could assist with how the hearing on 26, 27 and 29 July 2022 before Macrae VP, Zervos and Anthea Pang JJA progressed and whether the issues were further crystalized in order for this Court to properly assess what was to be gained by any adjournment.

9.Mr Ryan provided a further summary on the common question of law which reads:

“By these three references under s81D of the Criminal Procedure Ordinance, Cap 221, the Secretary for Justice (“The applicant”) seeks clarification from this Court on the common question of law, namely where there is no direct evidence of a key element of an offence, and the Prosecution rely on circumstantial evidence in establishing that element, what is the correct approach to be taken by the trial judge in dealing with a submission of no case to answer or in deciding whether to withdraw a case from the jury with a direction to acquit the defendant? In particular, how should a trial judge take into account competing inferences (in the case of CASJ 1/2021) or the out-of-court statements or assertions of a defendant (in the cases of CASJ 2/2021 and CASJ 3/2021)?”

10.The initial question therefore upon this application is whether this case manifests, at this stage of the proceedings, a striking similarity to the issues before the Court of Appeal such that it would be in the interests of justice and fairness to delay these proceedings until after the judgment of the Court of Appeal, who, unlike the tribunal in the Decisions below, had the assistance of leading counsel. However, the Court has now had the opportunity to read authorities which were not before it at the time of the proceedings under review. There appears to be a clear and obvious test arising out of those authorities which I have outlined below. The prosecution were therefore asked whether they maintained their application in the light of the possibility that all parties may be ad idem on the test to be applied if the situation were to arise in the present case.

11.Mr Ryan asked for further time to take instructions. Having done so he now submits that the prosecution is content to proceed with the trial as listed, and whilst accepting that the prosecution case on knowledge is weak, he submits that there is sufficient circumstantial evidence from which it would be proper to ask the jury to infer knowledge.

12.In the circumstances, and in no way indicating that an application should be made, there is a possibility that an application of no case may be made at some stage in the proceedings. Out of an abundance of caution and so as to avert any misunderstanding arising out of the exchanges to date, the following is the applicable test in so far as this Court understands it at present.

The Law

13.It should go without saying that the overriding authority for any submission of no case to answer is that to be found in R v Galbraith (1981) 73 Cr App R 124:

“(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 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 on it, it is his duty, on a submission being made, to stop the case. (b) Where however the prosecution evidence is such that the strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking 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.”[1]

14.For the purposes of HCCC 359/2019 and 136/2020, as already noted, this Court did not have the benefit of a number of later, relevant authorities, which have subsequently been placed before it. Those of Attorney General v Lee Fook Shiu Ronald [1990] 1 HKC 1; Questions of Law Reserved on Acquittal (No 2 of 1993) 61 SASR 1 per King CJ as cited in Director of Public Prosecutions v Varlack [2009] 4 LRC 392[2] appear to be of the most assistance at this point. They each approach the test in a slightly different way.

15.The test set out in Lee Fook Shiu Ronald supra, is as follows:

“(1) 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;

(2) 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;

(3) could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as to have to be drawn if all the elements of the prosecution case are to be established? If he concludes that a jury could, may or might so be satisfied, he will rule against the submission or application.”

16.In Director of Public Prosecutions v Varlack, the prosecution case against the respondent was circumstantial, being based largely on the evidence of telephone calls made between the defendants from which the prosecution sought to draw the inference that she knew of and agreed to a plan to kill the deceased. Lord Carswell stated that the “canonical statement of law” was to be found in the judgment of Lord Lane CJ in R v Galbraith [1981] 1 WLR 1039, but also cited the judgment of King CJ in the Supreme Court of South Australia in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 as being an accurate statement of the law:

“I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.”

17.My humble understanding of these authorities on the issue of knowledge is:

i)  If there is direct evidence of knowledge, no matter how weak or tenuous, and taken at its highest, it is capable in law of supporting a conviction, then the matter must go the jury.

ii)  If the direct evidence of knowledge taken at its highest is not capable in law of supporting a conviction, then there is no case to answer.

iii)  Where there is no direct evidence of knowledge and the prosecution rely upon circumstantial evidence from which they ask the jury to draw an irresistible inference of knowledge, then if a properly directed jury could, may or might be sure of guilt from those proven facts and from the irresistible inference drawn from them and thereby be said to be able to exclude all possible hypotheses consistent with innocence, then the matter should go to the jury.

Analysis of the Evidence

18.This analysis is not intended to pre-judge the findings of the jury in this trial nor is it intended to indicate the view taken by the court to evidence. Any comments upon the evidence are for the purposes of analysis only in order to ascertain whether it is in the interests of justice to postpone this trial at this stage. It will necessarily therefore seek to consider the evidence from the stand point of both parties and where it appears to suggest a view, that is for the purposes of analysis only.

19.The accused faces one count of trafficking in 965g of methamphetamine hydrochloride, otherwise known as Ice. The drugs were secreted in what were described as nine pulleys[3] (but were in fact nine cylindrical metal casings) contained within one package [Exhibit P2], which can be seen in the photographic exhibit P59 at photos 5-13. That package was intercepted by Customs and Excise (C&E) by PW1 CO 14160 LO Ka-ming[4] on 4 July 2020, working within the Cargo Examination Hall at Hong Kong International Airport. It had upon it a House Waybill SF 1025823202602 from SF Express (“the HWB”). The consignor was Nizam bin Mohd with an address at C-3-4, Endah Regal Apartment Kuala Lumpur Selangor Malaysia 57000 and there was a consignee address at Flat E, 3/F, No.87 Fuk Wa Street, Kowloon, Sham Shui Po. The consignee was Johnson Clinton. There is no evidence as to the actual tenant of Flat E, but that could be because it does not appear to exist.

20.PW2, CO 0758 LEUNG Yat-keung[5], took over control of the package [Exhibit P2] and on 6 July 2020 carried out a controlled delivery. Between 1438 and 1553 hours on 6 July, he rang the mobile number 6389 7732, which was said to be the consignee contact number on the HWB but could not get through. On 7 July 2020, he repeated the exercise and at 1108 hours he contacted a woman who spoke to him in English. The prosecution accept the identity of the woman is unknown. They cannot prove that it was the defendant. He arranged to deliver the parcel to the consignee address at 1500 hours in order for the consignee to sign for it. When he arrived at 1500 hours he could not find a Flat E on the 3/F. He rang the consignee’s mobile number and spoke to a woman in English who said she was not at home. Arrangements were made to hand over the package at 1515 hours on the same day but this time at the G/F of No. 87 Fuk Wa Street. No one arrived at that time and so PW2 left at 1518 hours having been unable to make contact with the consignee’s mobile phone. At 1523, 1524 and 1531 hours, the woman rang PW2 eventually arranging for PW2 to deliver the package at 1600 hours on the 3/F of No. 87 Fuk Wa Street. At 1555 hours, PW2 arrived at No. 87 Fuk Wa Street and was making his way to the 3/F when the defendant stopped him on the mezzanine level. The woman indicated in English that she was the consignee. The defendant said her name was Johnson Clinton and that her mobile number was 6389 7732[6]. The parcel was placed upon the floor. PW2 handed over the SF express delivery receipt [Exhibit P41a] for the defendant to sign and date, which she did. She then picked the parcel up from the floor and was arrested shortly afterwards by PW3 CO 1896 NG Wing-kei[7].

21.PW2 also interrogated the defendant’s mobile phone and found AWB and HWB numbers. The picture at CB 225 and timed at CB 254 and 11:21 on 3 July sent by D to B not the same as the HWB in this case P3a at CB 146. He also attended the VRI with CO 1896 between 1846 and 1916 hours. This is not to be relied upon.

22.PW3 arrested and cautioned the defendant at the scene. The questions and answers after caution were:

“Q: What is it?

A: I don’t know

Q: Who owns this?

A: I don’t know

Q: What is it used for?

A: I don’t know

Q: What is inside the parcel?

A: I don’t know”

23.Thereafter the parcel was examined in front of the defendant. PW2 pointed to the dangerous drugs and asked the following questions with the following answers:

“Q: What is it?

A: I don’t know

Q: What is this used for?

A: I don’t know

Q: Who own this?

A: Someone asked me to take it.

Q: Who asked you to take it?

A: The woman in my phone

Q: How to give the parcel to the woman

A: She come here to take it

Q: How is the woman look like?

A: Indonesian woman, shorten than me

Q: Are you willing to help Customs to find the woman and give her the parcel?

A: Yes”

24.That controlled delivery was attempted between 1628 and 1650 on 7 July but was unsuccessful as there was no response.

25.Taken at its highest, Mr Ryan submits the prosecution case no knowledge is derived from her possession of the drugs when she signed for and picked up the parcel; the false address, her lies as to her identity, her apparent evasiveness as to the identity of other woman, the manner in which the delivery was arranged and finally the fact that she refused assistance to take the package to her flat. Consequently, the issue of lies may very well be a significant factor in the case.

Conclusion

26.Given that the committal bundle indicates there is unlikely to be any direct evidence of knowledge, the prosecution was concerned that this Court in particular may be open to an application of no case to answer at half time and may apply the incorrect principle of law to any such application. The prosecution accepts that the test set out in Attorney General v Lee Fook Shiu Ronald [1990] 1 HKC 1, as explained in Varlack and Questions of Law Reserved on Acquittal (No 2 of 1993) is correct. It was accepted by Macrae JA, as he then was, but sitting as an additional judge of the Court of First Instance in HKSAR v Hui Rafael Junior & Ors HCCC 98/2013 when he stated far better than I:

“I am certainly prepared to accept that if one has decided that there is no case to answer under the time-hallowed test in R v Galbraith [1981] 1 WLR 1039 at 1042, one will necessarily have also concluded that a reasonable jury properly directed could not exclude all reasonable possibilities consistent with innocence.”

27.There is no longer a submission that this trial will be in a better position to be heard after the judgment in the References. The case will therefore be dealt upon its own peculiar facts applying the above test.

Mr Bernard Ryan, counsel on fiat, for HKSAR

Dr Nisha Mohamed, instructed by M.C.A. Lai Solicitors LLP, assigned by Director of Legal Aid, for the defendant