HKSAR v. Useche Balanta Rodrigo

CACC 510/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 510 OF 2012

(ON APPEAL FROM HCCC NO. 99 OF 2012)

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BETWEEN

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Hon Lunn JA (giving the reasons for judgment of the court):

1.At the hearing the applicant sought the leave of the court to appeal against his conviction on 7 December 2012, after trial by Bokhary J and a jury, of a count of unlawfully trafficking on 2 August 2011 in a dangerous drug, namely 0.55 kg of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. We allowed the application and, treating the application as the hearing of the appeal, allowed the appeal and quashed his conviction, but ordered a retrial on a fresh indictment. We said that we would give our reasons in due course. That we do now.

THE TRIAL

2.On arraignment, Reinoso Devia Napoleon (“the 1^st defendant”) pleaded guilty and the trial proceeded against the applicant.

3.There was no issue at trial that the applicant and the 1^st defendant, were intercepted by Customs and Excise officers in the public corridor as they emerged from Room 1121 of the Novotel Hotel at 348, Nathan Road, Kowloon shortly after 5 p.m. on 2 August 2011.  The dangerous drugs, the subject of the count, on the indictment were found contained in 52 pellets inside a plastic bag which was itself inside a bag carried by the 1^st defendant. Having arrived at the hotel together by taxi some minutes earlier, the applicant and the 1^st defendant went up to the 11^th floor and were admitted to Room 1121 at about 17:04.  They were intercepted and arrested by Customs and Excise officers after they emerged from Room 1121 about 10 minutes later.

Admitted facts

4.Amongst the admitted facts placed before the jury was the fact that the 1^st defendant had been found guilty, on his own plea on arraignment on 19 December 2012, of having unlawfully trafficked in the dangerous drugs, namely the 52 pellets, on an indictment in which he was jointly charged with the applicant.  In addition, adduced into evidence were video recordings and English transcripts of records of interview conducted of the 1^st defendant and the applicant by Customs and Excise officers on 3 August 2011.[1]

The prosecution case

5.It was the prosecution case that the applicant and the 1^st defendant had come to Room 1121 to take possession of the dangerous drugs, the subject of the count, from its occupant, Ms Yvonne Mbambo.  She had been intercepted and detained by Customs and Excise officers at Hong Kong International Airport in the early afternoon of 25 July 2011 on her arrival by aeroplane from Caracas in Venezuela via Frankfurt in Germany.  Subsequently, she excreted 52 pellets whilst detained at Queen Elizabeth Hospital.  Thereafter, she cooperated with the authorities in making a controlled delivery ofthe dangerous drugs to the persons who came to collect them.

6.She testified that she was a South African national who lived in Johannesburg.  However, she had travelled to Colombia in March 2011 in order to act as a courier of dangerous drugs.  There, she met two men, whom she called Papa and Frank, and for whom she had tried unsuccessfully to deliver dangerous drugs to Dublin, which drugs she had swallowed.  Earlier, in 2008 and 2009, she had trafficked in drugs for others in the same manner in Argentina and Brazil respectively.  In June 2011, they introduced her to the 1^st defendant, whom she knew as Mr Nocha.  For the promised reward of US$5,000, she had agreed with him to swallow the pellets of dangerous drugs and bring them to Hong Kong.  In July 2011, she swallowed those pellets and then travelled from Colombia to Caracas in Venezuela, from where she flew on 23 July 2011, first to Frankfurt and then to Hong Kong.

7.Whilst detained at Queen Elizabeth Hospital, after several unsuccessful attempts, eventually Ms Mbambo had contacted Frank in Colombia by telephone and informed him of her arrival in Hong Kong.  She was told that Mr Nocha was in Hong Kong and was given a telephone number to contact him.  However, she was unsuccessful in subsequent attempts to contact Mr Nocha from the Novotel Hotel into which she, and various escorting Customs and Excise officers, had moved on 1 August 2011.  Finally, she received a call at the hotel from someone who described himself as being Mario, a friend of Mr Nocha.  He told her that they would come to visit her at the hotel.  Mr Nocha confirmed that to be the case in a subsequent telephone call.

8.Following a number of telephone conversations between Ms Mbambo and Mario on 2 August 2011, in which arrangements were made for the parties to meet, at about 5:00 p.m. that afternoon she opened the door to Room 1121 and allowed the applicant and Mr Nocha to enter.  She was clad in a towel with another towel wrapped around her head.  Unknown to the two men, Customs and Excise officers were waiting in the adjoining room, Room 1122 and one officer was concealed within the room.  Ms Mbambo testified that the applicant asked her various questions in English: why she had taken so long to contact them; how long she had been in Hong Kong; when she had arrived.  In response to her reply that she had arrived in Hong Kong on 25 July 2011, after an interchange between the two men in Spanish, the applicant asked her if she had any problem with immigration officials at the airport and whether or not her stomach was all right.  Of what was said in Spanish, she said that she heard Mr Nocha saying “Aeroporto” and “cokiana”.

9.Ms Mbambo said she told them that they needed to take the “goods”, because it was not safe there.  After she handed the plastic bag containing the 52 pellets to 1^st defendant he knelt on the floor and emptied the pellets onto the floor.  The applicant joined him kneeling on the floor as they both counted the pellets.  The applicant held the plastic bag into which the 1^st defendant replaced the pellets.  Having noticed that the 1^st defendant had shown the applicant one particular pellet and that a discussion between them ensued, Ms Mbambo asked whether or not there was a problem, in particular whether the pellet was leaking.  The applicant responded in the negative.  The 1^st defendant answered in English her enquiry as to whether or not all the pellets were present in the negative, saying that there should have been 55 pellets.  However, in face of her explanation that she had discharged some of the pellets in Frankfurt whilst travelling, the 1^st defendant went on to say that that was not a problem.

10.Then, the 1^st defendant went to the toilet to wash his hands, after which he returned and picked up an Adidas sports bag, which he had brought to the room earlier, into which the applicant placed the plastic bag containing the pellets.  After the applicant had returned from washing his own hands and, after a discussion between the two men in Spanish, the applicant asked her the cost of her hotel.  Having been told that it was $900 a night, he observed that was very expensive.  Then, the 1^st defendant gave her two $500 notes.  After the two men had spoken again in Spanish, the applicant told her to dress so that they could go downstairs to lunch, adding that when they returned to the room she would be paid.  Having agreed to do so she opened the door to the room and the two men left.  After they had done so, by way of a prearranged signal with the Customs and Excise officers, she shouted out loudly “That’s great!”  At that signal, the Customs and Excise officers moved in to intercept the two men.

The defence case

11.The applicant testified in his own defence and called Griljiba Rojas.  It was an admitted fact that the applicant was of good character, in that he had not been convicted of any criminal offence in Hong Kong.  Mr Rojas testified to having known the applicant for 8 months and of his knowledge of the applicant as a trader and the provider of trading services as a broker.  He shared a room with him at a hostel in Hong Kong.

12.The applicant testified that he was a graduate Systems engineer in Colombia and said that, before he went into business, he had worked for seven years for the government of that country.  In the latter job, he had dealt with cases involving drug couriers.  As a result, he had quite an in-depth knowledge of how the drug trade worked and the great profits to be made by traffickers.  Now, he did business on the Mainland.  He had come to know the 1^st defendant through the latter’s wife and son.

13.Shortly after 01:00 on 2 August 2011, at the request of the 1^st defendant, he had called Ms Mbambo at a telephone number provided by the 1^st defendant to confirm her presence and to advise her that the 1^st defendant would visit her later that day during daytime.  She said that she was sleeping and asked him to call back at 10-11 a.m.  He did not tell her that his name was Mario.  He informed the 1^st defendant that he had passed on that message.  At 12:55 that day he called Ms Mbambo again, telling her that he was a friend of Mr Nocha, reminding her that the latter would visit her in the afternoon.

14.The applicant said that at the request of the 1^st defendant in a telephone call, in which the latter told him that he was on a train travelling from Guangzhou to Hong Kong, he agreed to act as a translator in the prospective meeting between the 1^st defendant and Ms Mbambo.  Having met the 1^st defendant at Hung Hom Station the applicant said that the two of them travelled by taxi to the Novotel Hotel.  Having made arrangements with Ms Mbambo in telephone calls, the two of them went up to and entered her room, Room 1121.

15.At the 1^st defendant’s request he asked Ms Mbambo some inconsequential questions in order to break the ice: shopping, visiting tourist sites, the cost of her room and why she had taken so long before getting in touch.  Next, again at the request of the 1^st defendant, he asked her to get ready to join them for lunch.  Then, interpreting on behalf of the 1^st defendant, he asked her the whereabouts of the latter’s ‘stock’.  In response, she pointed at a plastic bag, which the defendant picked up and emptied its contents onto the floor.  He saw that the bag contained brown coloured balls.  He became very upset.  In an out-of-court record of interview, adduced into evidence by way of admitted facts, the applicant explained that he was familiar with those kind of balls, having seen them in connection with persons who had been arrested for carrying drugs which they had ingested.  Although he did not know exactly the kind of drug, he guessed that the pellets contained a drug.  The applicant said that he did not know, prior to going to Room 1121 that the 1^st defendant was going to collect dangerous drugs.  Further, he did not intend to have anything to do with those dangerous drugs.

16.The applicant said that he refused the 1^st defendant’s request to help him pick up the pellets from the floor.  Rather, he went into the bathroom and splashed water on his face to calm himself down.  Whilst in the bathroom he heard Ms Mbambo say something about having lost three of what had been 55 pellets.  When he returned to the bedroom he saw the 1^st defendant hand Ms Mbambo two $500 notes.  Then, he opened the bedroom door and left.  As he did so, he heard Ms Mbambo shout out, but he continued to walk in the corridor before he was intercepted by Customs and Excise officers.

GROUNDS OF APPEAL AGAINST CONVICTION

17.Although multiple grounds of appeal against conviction were advanced by Mr Bullett on behalf of the applicant, in the event it was only necessary to address one ground.

The out-of-court statement of the 1^st defendant

18.Mr Bullett submitted that, having permitted the out-of-court statements made in the video recorded interview of the 1^st defendant to be adduced in the trial and having directed the jury that it was part of the evidence in the case[2], the judge erred in not directing the jury that the assertions made therein were not evidence against the applicant.  Further, that the judge erred in directing the jury that the “circumstances” to which they were entitled to have regard in determining whether or not to infer that the applicant was guilty, and to reject his defence that he was present merely as an innocent translator, included whether or not they rejected the exculpatory assertion made by the 1^st defendant in his video record of interview that when he entered Room 1121 he did not know that dangerous drugs were involved, which matter he came to learn only after he arrived in the room.  Also, the judge erred in inviting the jury, in considering that issue, to have regard to the fact that the 1^st defendant had pleaded guilty to unlawfully trafficking in those dangerous drugs.[3]

A CONSIDERATION OF THE SUBMISSIONS

The out-of-court statement of the 1^st defendant

19.In his record of interview the 1^st defendant asserted that, having arrived in Hong Kong from Columbia a few days earlier, he had come back to Hong Kong from Guangzhou, where his wife lived, in order to collect US$30,000 from an African woman, Yvonne.  In the event, she turned out to be Ms Mbambo.  He did so as the result of an arrangement by telephone with a man who lived in Colombia, whom he called “Doctor”.  He was provided with Yvonne’s room number at the Novotel Hotel and a telephone number.  As a reward he was to receive US$5,000 of those monies as a loan, with which he could purchase goods for his business. 

20.The 1^st defendant asserted that he had known the applicant for only a short time, describing him as a translator into English.[4]  He said it was in those circumstances that he had contacted the applicant, who was in Hong Kong renewing his visa, and invited him to telephone Yvonne and tell her that he was coming to visit her at the hotel.  By arrangement with the applicant, they met at Hung Hom Station on his arrival by train from Guangzhou and travelled together by taxi to the hotel.  When Yvonne did not meet them in the lobby of the hotel, as arranged, the two men went upstairs, where she let them enter her room.  Of those circumstances, he said:[5]

“ I did not know that it, that it was related to drugs, I went upstairs without…any afraid, I went upstairs without, without any problem.”

21.The 1^st defendant said that, although he was expecting to be given money by Yvonne, she did not give him money.  Rather, she gave him the plastic bag which contained the pellets.  When he enquired why it was not money, she told him, “No, that is what you need to take”.[6] He said that he knew that they were drugs.[7]  Nevertheless, he received and retained the plastic bag containing the pellets.  He took the pellets out of the bag to take a look at them, but did not count them.  Then, he put the plastic bag in his own bag.  As the judge reminded the jury in respect of the issue whether or not the applicant had touched the plastic bag, the 1^st defendant said “I did not know.  No.”[8]

22.In the course of his oral submissions Mr Bullett accepted the validity of the written submission made by Miss Anna Lai, on behalf of the respondent, that the video record of interview of the 1^st defendant and its transcript were wrongly admitted into evidence.  He accepted that it was inadmissible hearsay, being the out-of-court assertion by a third party to another.  Having been found guilty by the judge, on his plea of guilty to the count on which he and the applicant were jointly charged, the 1^st defendant was a competent and compellable witness in the trial of the applicant.  Accordingly, he accepted that, if the applicant wished to have the benefit of the account of the 1^st defendant of the circumstances obtaining at the time that he and the applicant entered Room 1121, it was necessary to call him as a witness at trial.  He informed the court, having spoken to counsel who represented the applicant at trial, Mr Trevor Beel, that the latter did not realise that the 1^st defendant was a compellable witness, albeit that he understood that he was a competent witness.  Further, in any event Mr Beel said that he had made the ‘tactical decision’ to seek to put the content of the 1^st defendant’s account before the jury by way of the out-of-court statement.

23.For her part, Miss Lai said that having spoken to counsel for the prosecution at trial, Mr Leslie Parry, she understood that he had merely acquiesced to a request from Mr Beel to adduce the 1^st defendant’s out-of-court statements into evidence by way of admitted facts.

24.It appears from the material available to this court that the issue of the admissibility into evidence of the 1^st defendant’s out-of-court statements was not addressed in submissions by counsel or raised by the judge.

25.Clearly, the assertions of the 1^st defendant in his out-of-court statements contained in his video record of interview were inadmissible hearsay at the trial of the applicant.  It was improper to have admitted them into evidence by way of admitted facts.  Having pleaded guilty on arraignment the1^st defendant was no longer “a person charged” within the meaning of section 54(1)(a) of the Criminal Procedure Ordinance, Cap. 221.[9]  As is pointed out in §8-53 of Archbold Hong Kong 2014, and was also stated in the 2012 edition, which was the addition available at the time of the trial, a defendant who has pleaded guilty is a “competent and compellable witness for a co-defendant.”[10]  It follows that, if it was wished to adduce in evidence the account of the 1^st defendant as to the circumstances obtaining at the time that he and the applicant entered Room 1121, it was necessary to call him to give evidence, thereby exposing him to cross-examination.  There was no ‘tactical decision’ available to the applicant to avoid that danger by adducing the out-of-court statement of the 1^st defendant into evidence through admitted facts.

26.It is extremely regrettable that counsel presented the court with the admitted facts which contained the inadmissible video record of interview and transcript of the out-of-court statement of the 1^st defendant. As noted earlier, at no stage was there a discussion between the Bar and Bench as to the evidential status of that evidence.  Had the latter been raised, it is to be hoped that the impermissible nature of the course taken by counsel would have been identified.

27.In the event, the judge gave no specific directions at all to the jury as to the status of the out-of-court statement of the 1^st defendant or how the jury were to approach a determination of what, if any, factual assertions made in those statements to accept or reject and how to do so.  That difficulty was caused by the obvious fact that the factual assertions contained therein had not been subjected to challenge in any way in cross-examination.

28.In the context of the evidence of Ms Mbambo, the judge directed the jury:

“ Members of the jury, if you feel sure, after exercising the extra caution which I have told you about, that Miss Mbambo’s evidence is true and reliable, then you would be entitled to find that the 2^nd accused did more than the sort of translating or interpreting that an innocent translator or interpreter, unaware that dangerous drugs were unlawfully involved, might do, and it would be open to you, as the sole judges of fact, to conclude, if you see fit, that he is surely,as a matter of what is the only reasonable inference in all the circumstances, guilty of trafficking in these dangerous drugs by dealing with them in the course of the drug trade, doing so together with Nocha or doing so by assisting Nocha.

When I refer to the circumstances, they include the following. Nocha has pleaded guilty. In his video-recorded interview, Nocha gave an account to the effect that he went to Miss Mbambo’s hotel room without knowing that dangerous drugs were involved and that it was only after he had been in the room for some time that he guessed that drugs were involved. He says that he brought the 2^nd accused along as a translator.

Now, members of the jury, do you think that it might have happened that way? You are entitled, if you see fit, to bear the following in mind and ask yourselves the following questions. Here was a quantity of dangerous drugs worth HK$977,960 which had been brought into Hong Kong by a dangerous drug courier, Miss Mbambo, who had done so by concealing them inside her body.

Do you think that whoever had arranged for her to do that might have left the next phase of the operation - that is to say the collection of the dangerous drugs - to some innocent person who might recruit another innocent person as a translator, or do you think that the only reasonable inference is that it would surely have been arranged that only persons who were knowingly involved in the trafficking of these dangerous drugs would go to or be sent to Miss Mbambo’s hotel room to collect them?

In other words, do you think that the only reasonable inference is that that phase of the operation would surely have been entrusted to and only to such persons who knew full well that dangerous drugs of considerable value were involved and would know full well all the precautions to be taken and would take all such precautions to ensure that dangerous drugs were not lost and that the Customs and the police would not discover them?

If you think that the only reasonable inference is that no innocent person would have been allowed to go into Miss Mbambo’s room on that occasion as Nocha and the 2^nd accused were, then you can take that into account.”  [Italics added.]

29.Clearly, the rejection by the jury of an assertion made in the out-of-court statements of the 1^st defendant as to his lack of knowledge that he was involved in collecting drugs from Room 1121, prior to his arrival at that room, was not a matter that was relevant to the jury in its determination of the issue of guilt of the applicant.  The judge’s direction was a material misdirection.

30.That misdirection was compounded by the limited range of inferences that the judge suggested were available in those circumstances, namely that (i) either both persons were innocent, in the sense that neither knew that they were there to collect dangerous drugs; or (ii) both persons went to Room 1121 knowing that they were involved in the collection of dangerous drugs.  As was made clear in the trial, it was the defence case that the 1^st defendant had gone to Room 1121 knowing that he was to collect dangerous drugs, but that he had not imparted that information to the applicant, who was duped into assisting him as a translator.[11] Indeed, earlier in her summing up the judge had identified the defence case as being that the applicant was only “..an innocent translator or interpreter for Nocha and did not give him any help after coming to believe that Nocha was collecting dangerous drugs.”[12]

31.Nowhere in her summing up had the judge given the jury the standard direction[13] that the evidence that the 1^st defendant had pleaded guilty to having unlawfully trafficked jointly with the applicant in the dangerous drugs, “can have no bearing on your decision in the case of this defendant”.  Similarly she had not given the jury the standard direction[14] that the out-of-court statements of the 1^st defendant were not evidence against the applicant.  Both directions were appropriate in the particular circumstances of this case.

Conclusion

32.Although Miss Lai invited us to apply the proviso, we were satisfied that in all the circumstances it was not appropriate to do so.

33.For the reasons we have given we allowed the application for leave to appeal against conviction and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal and quashed the applicant’s conviction.

Orders

34.Although Mr Bullett sought to persuade us otherwise we were satisfied that having regard to all the circumstances, including the evidence available to the prosecution, it was in the public interest that we order a retrial of this serious offence.  Accordingly, we ordered that the applicant be retried on a fresh indictment and directed that a listing hearing to fix the date for the trial be held within six weeks and that, having regard to the length of time the applicant has been detained in custody, the trial itself be expedited.  There being no application for bail, we ordered that the applicant be remanded in custody pending his retrial.

Miss Anna Lai, SADPP of the Department of Justice, for the respondent

Mr Andrew Bullett, instructed by George Chan & Co, assigned by Director of Legal Aid, for the applicant

[1] Appeal Bundle, page VIII.

[2] Appeal Bundle, page 12 I-K.

[3] Appeal Bundle, page 41 B-U.

[4] Appeal Bundle, page 18 D-E.

[5] Appeal Bundle, page 1019-counter #1243.

[6] Appeal Bundle, page 1024-counter # 1287.

[7] Appeal Bundle, page 1028-counter # 1327.

[8] Appeal Bundle, page 18 F-G.

[9] Section 54

“  (1)  Every person charged with an offence, whether charged solely or jointly with any other person, shall be a competent witness for the defence at every stage in the proceedings;

Provided as follows -

(a) a person so charged shall not be called as a witness in pursuance of this section except upon his own application;”

[10] Also, see the Judgment of this court in HKSAR v Hung Wai Yip and Another (CACC 51/2011; unreported, 8 November 2013) at paragraphs 64-71.

[11] Appeal Bundle (defence closing speech) page 442 R-T: “the 1^st defendant, in his statement, started off saying he was collecting it for the Doctor*, a man he knew in Columbia whom he knew by that nickname,.. the story just was ludicrous…clearly, he was going there to pick up the drugs.”

* See paragraph 19.

[12] Appeal Bundle, page 39 A-C.

[13] Specimen Direction 10 B of the Specimen Directions issued by the Hong Kong Judicial Institute.

[14] Specimen Direction 31 of the Specimen Directions issued by the Hong Kong Judicial Institute.