HKSAR v. ARIAS GUARDIA ROBERTO EMILIO

CACC 95/2018

[2020] HKCA 152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 95 OF 2018

(ON APPEAL FROM HCCC NO 52 OF 2017)

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J U D G M E N T

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Introduction

1.  The applicant was charged with conspiracy to traffic in a dangerous drug (Count 1), and in the alternative, attempting to traffic in a dangerous drug (Count 2).  On 22 March 2018, following a trial before Andrew Chan J and a jury, the applicant was convicted of Count 1.  On 23 March 2018, the applicant was sentenced to 34 years’ imprisonment.

2.  On 4 April 2018, the applicant applied for leave to appeal against conviction only.

The prosecution case

3.  The prosecution case was that the applicant, a Panama national, had conspired with Law Kam Yuen (Law), “Mr Lai” and “Chan Keung” to unlawfully traffic in 44,970 grammes of a solid containing 32,047 grammes of cocaine.  Law was originally the second defendant in the case but he pleaded guilty to the alternative count of attempting to traffic in a dangerous drug and after the applicant’s trial on 14 May 2018, he was sentenced to 26 years’ imprisonment.

4.  The applicant arrived in Hong Kong on a flight from Panama via Amsterdam on 22 January 2016.  He had a return journey booked for a flight from Guangzhou to Panama via Amsterdam on 10 February 2016.  This was his first visit to Hong Kong.

5.  On 24 January 2016, a 20-foot container carrying 200 sacks of cocoa beans (the Container) arrived at the Hong Kong Container Terminal from Panama.  Upon examination by Customs officers on 27 January 2016, two extra sacks were identified.  Inside the two sacks were 48 blocks, containing a total of 32,047 grammes of cocaine narcotic.  The street value of the drugs was estimated to be over $47.8 million.

6.  Inquiries revealed that the Container was loaded in Panama on 12 December 2015 and shipped to Hong Kong on 18 December 2015. According to the shipping documents, the consignee was a logistical company in Hong Kong by the name of Union Loyalty International Limited (Union Loyalty) and the contact person was John Amelines.

7.  Sometime after 20 January 2016, Wang Zhao (PW15) of Union Loyalty was asked by “Mr Lai” to deal with the Container in Hong Kong for onward transfer to mainland China.  Arrangements for delivery of the Container were made by “Chan Keung”.[1]

8.  On 29 January 2016, Customs officers put into operation a controlled delivery.  At the same time, they carried out surveillance at Harbour Plaza 8 Degrees Hotel, where the applicant was staying.  They observed a meeting between the applicant, Law and another male at around 8 am that day.  They also observed the applicant and Law later board a van driven by Tam Chi Yat (PW18), and they travelled to the Fei Hip Container Yard in Tsing Yi, where the Container was situated.  At about 9:05 am, in the Container yard, the applicant was seen entering the Container and crawling on top of the goods that were inside, as if he was looking for something.  As he was doing so, he was speaking to Law and making a number of telephone calls.[2]

9.  At about 9:20 am, the applicant was in the innermost section of the Container and observed lifting two bags.  These bags originally contained the cocaine in question but had since been replaced with dummy drugs by Customs officers.  He took the two bags and placed them on the ground outside the Container.  Customs officers then arrested the applicant and Law.[3]

10.  Under caution, the applicant claimed that he had purchased cocoa beans in Panama, which he had shipped to Hong Kong.  He denied knowledge of the drugs in the two sacks.  He claimed that Law had been with him to help with translation.  When asked about Wang Jing Dong, the applicant stated that his name was “Tom” and that he had accompanied him from Panama to Hong Kong, also for translation.  In a post-record of his admission, the applicant stated that Law was there to show him the cocoa beans.[4]

11.  Law was searched by Customs officers.  They found inside Law’s bag, two bunches of keys, an itinerary, two deposit slips, eight bags of baking soda and a receipt for the baking soda.[5]

12.  A search was conducted at Law’s residence in Tsim Sha Tsui.  Customs officers found a tenancy agreement for a flat at the Latitude in San Po Kong (“the Latitude”).  The agreement recorded that the flat had been leased to Ms Lam Chi-kwan, on 25 November 2015, for 2 years.  With keys seized from the applicant, Customs officers gained entry to the flat at the Latitude and found inside a variety of paraphernalia that was capable of being used in processing drugs, such as, a hydraulic jack and moulds.[6] 

13.  Customs officers also examined Law’s mobile telephone.  They found two video clips which depicted an unknown person using a hydraulic jack and moulds to mould white powder into a block.[7]

14.  In a subsequent video-recorded interview, the applicant denied he was involved in trafficking of dangerous drugs.  He stated that he was a businessman, earning US$10,000 per month, and that he was in a comfortable financial position.

15.  A friend of the applicant called “Jerry”had introduced him to a business opportunity in relation to cocoa beans, and he helped him arrange the transaction. He was to be paid around US$100,000 for this shipment of cocoa beans.  He claimed he had purchased the cocoa beans for US$4,500 per packet and was to sell them for US$8,000 per packet.  This was his first and only time he had engaged in dealing in cocoa beans.  He said he had purchased the cocoa beans in Panama, but had not checked them.  Instead, he checked them in Hong Kong to make sure they had not been spoiled.  “Tom” accompanied him to Hong Kong.  He did not know who John Amelines was.  He travelled to Hong Kong for a number of reasons, namely for the cocoa beans, tourism and procuring drones.

16.  The applicant said he was taken to the Container yard by a male person.  He had entered the Container to check the cocoa beans and found two bags not belonging to the Container.  Otherwise, the cocoa beans were in perfect condition, although they had a bad smell.

The defence case

17.  The applicant gave evidence in his defence and called his mother as a witness.  His case was that he was unaware that there were dangerous drugs in the Container.  He was in Hong Kong primarily for procuring drones with thermal imaging capability in Shenzhen, and overseeing his first shipment of cocoa beans, as well as exploring business opportunities here.  On the day in question, he went to the Container yard to check the 200 sacks of cocoa beans.  He did not go there to collect drugs.  He never had any agreement with Law, “Mr Lai” or “Chan Keung” to traffic in dangerous drugs. 

18.  The applicant’s mother testified as to the applicant’s education, background and good character.  Although, she admitted knowing little about his business.

The grounds of appeal

19.  The applicant advances four grounds of appeal against conviction.  The first ground alleges that the judge had erred in allowing the prosecution to adduce irrelevant and prejudicial evidence pertaining to Law and the Latitude premises (Ground 1).  The second ground criticises the judge for failing to give proper direction in relation to prejudicial evidence concerning Law’s conviction, the Latitude premises and the items found on Law (Ground 2).  The third ground suggests that the judge’s summing-up was inaccurate and confusing (Ground 3).  The fourth ground contends that the conviction is unsafe and unsatisfactory (Ground 4).

Grounds 1 and 2

20.  Grounds 1 and 2 can be dealt with together.  In Ground 1, it is contended that the judge wrongly allowed the prosecution to adduce into evidence the items relating to the applicant’s co-conspirator, Law, which were found in the Latitude flat or on Law.  It is argued that this evidence was irrelevant, and even if it was relevant, its prejudicial effect far outweighed its probative value.  In Ground 2, it is complained that the judge failed to give a proper direction as to the prejudicial evidence relating to Law.

21.  The prosecution alleged that the applicant conspired with Law, “Mr Lai” and “Chan Keung” to unlawfully traffic in the dangerous drugs in question.  It was an admitted fact that (1) the applicant and Law went to the Container yard on 29 January 2016, where the Container was situated and where they were both arrested; (2) Law’s black bag was searched and certain items were found inside it; (3) Law had pleaded guilty to the alternative charge; and (4) an array of items were found on Law and in the Latitude flat. 

22.  It would seem that the purpose of admitting this evidence was to show that Law was responsible for the importation of the drugs, not the applicant.

23.  Mr Edward Luke McGuinniety, for the applicant, raises for determination on appeal the basis on which evidence relating to Law was admitted into evidence at the applicant’s trial.

24.  The Law evidence concerned the following items:

“(a) 2 bundles of key (one key from the smaller bundle was used to open the locked room in Flat G, 7/F, Block 6, The Latitude, 638 Prince Edward Road East, San Po Kong (the ‘Latitude flat’) (P148);

(b) 8 packets of baking soda (P149);

(c) receipts for 8 packets of baking soda dated 29 January 2016 at 7:27 am (P152);

(d) 2 Bank of China deposit advices dated 23 December 2015 and 24 January 2016 recording two HK$16,900 payments (P150);

(e) temporary receipt dated 15 November 2015 issued by Centaline Property Agency to Lam Chi-kwan showing payment of $4,225 in relation to the Latitude flat (P151);

(f) itinerary (P153);

(g) phone (P138) containing 2 videos showing drug moulding activity in a room similar to that of the locked room in the Latitude flat (P129);

(h) tenancy agreement for the Latitude flat signed 15 November 2015 (P154)

(i) Latitude flat search and drug paraphernalia seized in a locked room, bedroom, and kitchen (P155 – 171 and P173 – 201).”[8]

25.  The prosecuting counsel in his oral submission to the judge said that the co-conspirator’s rule was not engaged because the prosecution was not relying on this evidence as to the truth of its contents.  He said he was relying on it as circumstantial evidence to prove that there was a conspiracy.[9]

26.  He articulated his argument in his written submission as follows:

“11. The Accused’s submission that the co-conspirator’s rule is relevant is misconceived. The Prosecution does not rely on any of the impugned evidence for the truth of their contents; there is therefore no issue of whether any documents fall under the co-conspirator’s rule ‘exception’ to the hearsay rule. In Oei Hengy Wiryo v HKSAR (2007) 10 HKCFAR 98, [2007] HKCFA 8 at 113D-F, McHugh NPJ cited the following passage in R v Ahern (1988) 165 CLR 87, 34 A Crim R 175:

‘… evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.’ [emphasis added].”[10]

27.  In respect of the admissibility of this evidence, the judge ruled that:

“Based on the existing material on file, it appears that there is no direct evidence in this case to prove the existence of a conspiracy. The existence of such can only be inferred from a number of facts and circumstances. The exhibits identified by the prosecution, together with other circumstances, again named by the prosecution in paragraph 4 of their submission, in my view are relevant to the issue of the existence of a conspiracy in trafficking in a dangerous drug.

Whether the jury would, at the end of the day, draw the necessary inference, that’s a matter entirely for them. Suffice to say that at this stage, it is not for this court to usurp the jury’s function. The exhibits found on D2 and the acts and movements performed by him on the day of his arrest, and indeed on other material days such as the day of, say, taking out of a list, paying for deposits and rental and the purchase of baking soda, etc, may also be considered to be part and parcel of acts in furtherance of one joint enterprise.

As such, I do not see how the reception of these exhibits may adversely affect the fairness of the trial, …”[11]

28.  Prosecuting counsel opened his case to the jury that the evidence went to establish a conspiratorial agreement between the applicant and Law to traffic in the drugs.[12] He also closed his case to the jury on this basis, highlighting to the jury the surveillance evidence of the applicant and Law attending the Container yard, and the items found on Law and in the Latitude flat.[13]

29.  It is arguable that prosecuting counsel relied on the Law evidence as acts and declarations in furtherance of the conspiracy, even though he submitted he was not doing so.

30.  The judge addressed this issue in his summing-up to the jury as follows:

“ The prosecution also ask you to draw the necessary inference that the defendant was part of an agreement with at least Mr Law to deal with the cocaine from the following facts: (a) Mr Law went to the hotel and met the defendant in the café and the agreement was consummated, reached, at that juncture; (b) the two then chatted, talked to each other on their journey to the container yard; (c) the two alighted from the vehicle and proceeded to the container; (d) the defendant checked the container whilst Mr Law was nearby standing there; (e) Mr Law was found to possess video clips on his mobile telephone as to the making of blocks of substances resembling cocaine blocks; (f) Mr Law was found to possess baking soda powder on him when being arrested; (g) Mr Law was found to possess equipments for making blocks of substances resembling cocaine inside the Latitude flat. So the prosecution say from these facts you can draw the irresistible inference that the defendant was party to an agreement.

Now, I wish to emphasis to you, members of the jury, that there is no evidence to suggest the defendant was aware of the fact that Mr Law had the video clips on his mobile phone or baking soda on him. Nor is there any evidence to suggest that the defendant was aware of the taking out of a lease at Latitude and/or the equipments found in The Latitude premises. There is no evidence to suggest the defendant was aware of that, all right? Now, the purpose of adducing these aspects of the evidence by the prosecution was an attempt to show you, members of the jury, that Mr Law himself was a party to the conspiracy to deal with the cocaine because Mr Law has been named as a co-conspirator in Count 1.

So what you must not do is to use the video clips, the items found on Mr Law, the leasing of The Latitude as well as the equipments found at The Latitude, as evidence against the defendant, in the sense that he would be taking part in any further dealings or activities inside The Latitude, all right, so you must not do that.”[14]

31.  The co-conspirator’s rule permits evidence of the acts and declarations of one or more conspirators in furtherance of the conspiracy to be adduced to prove the extent and degree of participation of another or others in the conspiracy and the nature and extent of the conspiracy. 

32.  It was held by the Court of Final Appeal in Vivien Fan v HKSAR (2011) 14 HKCFAR 641, that in order to lay the foundation for the reception of such evidence, there must be independent evidence linking the defendant concerned to the conspiracy.  To this end, the foundation evidence must be admissible against the defendant concerned and it must amount to at least reasonable evidence. Fairness dictates that the rule be appropriately applied so that the defendant concerned knows the case he has to meet, particularly in respect to evidence that is subject to the rule against hearsay.

33.  I am satisfied that the applicant has a reasonably arguable ground of appeal against conviction as to whether the Law evidence was properly admitted into evidence and whether there was a material irregularity in not applying the co-conspirator’s rule to the Law evidence.  It also raises for consideration whether the judge correctly directed the jury on the Law evidence and how they could use and rely on it.

Ground 3

34.  Ground 3 is based on the premise that the judge had in his summing-up to the jury confused evidence and facts.  There are three complaints under this ground.  First, the judge did not clearly direct the jury on how they should consider the CCTV footage.  This is simply not the case.  Secondly, the judge stated the prosecution case was that the applicant was “a member of a drug syndicate”.  It is complained this was inappropriate, but this was the prosecution case.[15] There was nothing offensive about this description given the facts alleged by the prosecution in its case against the applicant.  Thirdly, the judge did not direct the jury that questions asked by prosecuting counsel were not evidence.  The judge made it clear to the jury that they were to decide the case on the evidence, namely the testimony of the witnesses, the exhibits and the admitted facts.[16]

Ground 4

35.  Ground 4 consists of a series of criticisms about factual and legal matters mentioned by the judge in his summing-up.  It is complained that the judge made inaccurate or inappropriate comments to the jury or failed to correct certain matters with them.  There is nothing of substance to the matters raised.  They mainly consisted of issues of fact and how they had been described or referred to either by the judge or in the course of the trial.  I note that no complaint was made about any of these criticisms at trial.

Conclusion

36.  It follows from what I have said that leave is granted to the applicant to appeal against conviction but only in relation to the ground concerning the co-conspirator’s rule.  The rest of the grounds are not reasonably arguable and leave is refused in respect of them.

[1] Appeal Bundle, 41P – 42P.

[2] Appeal Bundle, 39G – U.

[3] Appeal Bundle, 39G – 40O.

[4] Appeal Bundle, 40L – U.

[5] Appeal Bundle, 13, Admitted Facts, at [20] and [21].

[6] Appeal Bundle, 13 – 14, Admitted Facts, at [23] – [26].

[7] Appeal Bundle, 15, Admitted Facts, at [33].

[8] Appeal Bundle, 224 – 225, Skeleton Argument for Prosecution on Admissibility, at [1].

[9] Appeal Bundle, 207S – 208B.

[10] Appeal Bundle, 229 – 230.

[11] Appeal Bundle, 223E – M.

[12] Appeal Bundle, 166B – 167Q.

[13] Appeal Bundle, 190E – H, 193Q – 194N, 195J – 197M and 199K – 200F.

[14] Appeal Bundle, 45F – 46E.

[15] Appeal Bundle, 19C – F.

[16] Appeal Bundle, 20P – 23F.