HKSAR v. GUTIERREZ ALVAREZ KEISHU MERCEDES

HCCC 84/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 84 OF 2016

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REASONS FOR DECISION

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The application

1. This is an application by the defence for a Permanent Stay of these Proceedings on the grounds that in all the circumstances of this case (1) a fair trial is not possible; and/or (2) even if a fair trial is possible, to continue with these proceedings would be an abuse of the process, which amount to an affront to the public conscience. 

2. On 26 September I ruled against the defendant, in that the defendant failed to show, on a balance of probabilities, that (a) a fair trial is not possible; or that (b) to continue with these proceedings would amount to an abuse of process.  I said at the time that I will give my reasons.  This I now do.  

Background

3. On 9 August 2015, the defendant arrived in Hong Kong from Sao Paulo via Abu Dhabi and she was found to have 8 slabs of cocaine, totalling 1,664 grammes, wrapped in plastic bags strapped onto her calves. Initially she told the Customs Officer that she did not know what she was carrying.  Later, at a video-recorded interview conducted the next day, she told the Customs Officers that she was tricked and lured to leave her home in Venezuela and travelled to Sao Paulo, Brazil, believing that she would have a job in advertising.  Upon arrival, however, she was taken to meet an African male called Mikael and she was detained by him against her will.  She was threatened, beaten and raped.  She was instructed to bring the “stuff” to Hong Kong under a threat that her family members in Venezuela, including her 3-year old child, would be killed if she did not do so.  She therefore travelled from Sao Paulo to Hong Kong via Abu Dhabi, bringing the stuff into Hong Kong. 

4. The defendant thus claimed to have brought the “stuff” (the cocaine) to Hong Kong under duress.

5. The defendant was charged with one count of Trafficking in a dangerous drug and the case was committed to the Court of First Instance of the High Court for trial.  Prior to the trial, defence made an application to permanently stay these proceedings. 

Defence submission

1^st ground – the defendant cannot get a fair trial

6. As Mr Raffell indicated, the reason why the defendant cannot have a fair trial was “succinctly” put in his written submission (para 2):

“… to put the matter succinctly; realistically it is impossible for a Hong Kong jury, even with the fairest and clearest of directions, to be able to judge whether [the defendant’s] description of how and why she came to Hong Kong carrying a large amount of cocaine is even possibly true. It is hard to see how a Hong Kong jury, using their everyday experience of Hong Kong, can assess the situation in Venezuela and in Brazil to decide what had happened to [the defendant]. Because the situation in the case is so far outside of the everyday experiences of a Hong Kong jury, it is impossible or virtually impossible for them to assess what a ‘reasonable person’ would do or not do in the situation she found herself in? It might be that expert testimony on human trafficking will assist them but, even then, it is hard to see how they can relate that to [the defendant] without some actual experience or basic knowledge of human trafficking, drug trafficking, and the norms, customs, legal, economic and political situation in Venezuela and Brazil.”

7. Mr Raffell referred to articles from Amnesty International and other organisations concerning the activities of the police in both Venezuela and Brazil and submitted that it is unlikely for the people in Hong Kong to understand a society where the trust of police is low.  He referred to the language and culture difficulties faced by the defendant when she was in transit in Abu Dhabi and submitted a Hong Kong jury would not be able to fairly decide whether the defendant could or should have informed the police in Abu Dhabi the situation she found herself in.  Mr Raffell casts doubt on the ability of a Hong Kong jury to decide whether being subjected to sexual and other violence would have an effect on the defendant over and above the threat to her family, and how far would that work on the mind of a reasonable firm person of the defendant’s age and sex.  Mr Raffell also casts doubt on the ability of a Hong Kong jury to decide upon the isolation and fear the defendant would have suffered in both Sao Paulo and Abu Dhabi. 

8. Mr Raffell complained that the authorities in Hong Kong failed to arrange for proper full medical examination on the defendant, in particular to her private parts, to confirm, if possible, her story of rape and other violence against her.  

9. Mr Raffell submitted that the prosecution has no evidence to refute or rebut the defendant’s description of duress.  What the defendant had described fit in with the “identifiers” of human trafficking contained in the “Statement of Prosecution Policy and Practice” issued by the Department of Justice so that the prosecution and continuation of this case to trial has no proper basis.  

2^nd ground – abuse of process

10. Mr Raffell submitted that what the defendant has said to the Customs Officers during the video-recorded interview clearly shows that she was a victim of human trafficking.  Yet the Hong Kong authorities did not take swift and appropriate action which would or could have confirmed the defendant’s “evidence of duress”.  He referred to two cases: R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42 (where the defendant was forcibly abducted and brought to trial); and R v Latif [1996] 1 WLR 104 (where the defendant was entrapped into committing the offence).  He submitted that though the defendant’s position was not “exactly the same” as these two cases, in principle, this application is based on similar wrongdoings.  

11. Mr Raffell submitted that there does not appear to be a system of sensible procedures in place for the Hong Kong investigating authorities to deal with a person who claims to be a victim of human trafficking. 

12. Mr Raffell referred to the said “Statement of Prosecution Policy and Practice” which states that human trafficking cases are to be handled by prosecutors with an appropriate level of understanding, skill and sensitivity. He submitted that the same standard should be applied to the investigating authority as well. 

13. Mr Raffell submitted that the defendant’s claim fits in with the “identifiers” of human trafficking listed in the said statement: i.e. there was threat of force; there was actual use of force; there was an abduction; and there was deception in tricking her to travel from her home in Venezuela to Brazil.  

14. Mr Raffell prayed in aid the case of R v L, HVN, THN, T [2013] EWCA Crim 991 (Court of Appeal), where the Court of Appeal in England quashed four convictions because the defendants had been victims of human trafficking.  Of these four, three were drug cases.  

15. Mr Raffell submitted that the attitude of those involved in the investigation, in particular Tsang, appears to be “not interested” in the defendant’s story disclosed during the video-recorded interview and thereby failed to investigate the matter fully.  There was also no effort to obtain medical confirmation regarding the defendant’s statement that she was raped and subjected to ongoing violence. 

16. Mr Raffell also submitted that the defendant offered to assist by contacting the person who was supposed to collect the stuff in Hong Kong, but nothing was done by the Customs despite her willingness to co-operate.

17. In a nutshell, Mr Raffell stressed that there is clear evidence the defendant was the victim of human trafficking.  There is no evidence to rebut her version.  Despite the claim in the said “Statement of Prosecution Policy and Practice”, Hong Kong does not fully comply with international standards in combating human trafficking, including, inter alia, the lack of training of relevant investigating officers dealing with potential human trafficking victims arriving in Hong Kong.  Nothing was done to confirm or refute her story.  Mr Raffell submitted that after performing a balancing act, this Court should exercise its discretion to find that a fair trial is not possible; or failing that, this Court should rule that there has been an abuse of process which amounts to an affront to the public conscience, requiring the proceedings to be stayed.

Respondent’s submission

18. In relation to the 1^st ground, Ms Catherine Ko, Senior Assistant Director of Public Prosecutions, together with Ms Cherry Ho, Public Prosecutor, submitted that what the defendant had alleged is a “classical” example of duress.  “The real issue and the ultimate question before the Court and for the jury’s determination is to decide whether the defendant’s claim of her situation which resulted in her being compelled to bring dangerous drugs to Hong Kong is credible and whether such compulsion would substantiate the defence of duress.”

19. The respondent submitted that a Hong Kong jury is capable of assessing the defendant’s credibility and reliability of evidence based on general knowledge and everyday experience.  It is difficult, if not impossible, to require a jury to have “actual experience” and knowledge on all the different types of offences and the circumstances surrounding the offences.  This ground cannot possibly be raised as a ground for an unfair trial.  To succeed, the respondent submitted, is equivalent to “mounting a criticism on the entire jury system which has been in place for many years.”

20. The respondent takes exception to the way the defence made extensive references to facts which are contentious (e.g. the truth of the matters mentioned by the defendant during the video-recorded interview), or as hearsay or self-serving (e.g. that she claimed to have offered to assist the Customs by contacting the person in Hong Kong when there is no such evidence before the court).  The respondent also takes exception to the extensive reference to materials including documents from the BBC on the standard and standing of the police in Brazil and Venezuela without proper evidential basis.  

21. The respondent submitted that the defence assertion that the Hong Kong authorities did not take swift and appropriate action after the defendant’s assertion made during the video-recorded interview was a bare assertion without basis, pointing out that the identities and the travel agency referred to by the defendant during the video-recorded interview together with the case information had been passed to the relevant overseas law enforcement agency for investigation.

22. The two cases (Bennett and Latif) referred to by the defence are case-specific and the facts were extremely serious, to the extent that they fall within the threshold that “renders the trial of the accused an affront to the court’s sense of justice and propriety”, whereas the allegation against the investigating authorities are without basis, have not been proved or substantiated.

23. The respondent submitted that what the defendant has said during the video-recorded interview, without more, is mere self-serving assertions, with inherent improbabilities and contradictions.  She has not presented a “credible” claim that she is a victim of human trafficking.  It is not viable for the investigating team to investigate everything upon a defendant making a mere assertion which is not a credible one.

24. In short, the respondent resisted the application under both grounds, submitting that a fair trial is not impossible and there is no abuse of process.  

The evidence

25. For the purposes of these proceedings, the defendant did not give evidence before me.  The defence relied on what was said by the defendant during the video-recorded interview. 

26. The prosecution, on the other hand, called four witnesses:

(1) The first witness was Senior Inspector Tsang Kuen-fung (Tsang).  Tsang gave evidence in relation to the defendant’s unwillingness to take part in a “controlled delivery” on the day of the arrest and what follow up action was done in response to the defendant’s assertions made during the video-recorded interview.

(2) The second witness was Dr Pang Wai-keung, Arthur (Dr Pang).  Dr Pang was in charge of the medical ward in Tai Lam Centre for Women to which the defendant was admitted.  His evidence mainly concerns the medical history and physical condition of the defendant upon admission.

(3) The third witness was Senior Inspector Kwok Tsun Ah (Kwok).  His evidence mainly concerns the lack of response by the Drug Enforcement Administration (DEA) of the United States after the Customs and Excise Department requested for information based on what the defendant had said during the video-recorded interview.

(4) The fourth witness was Martinez Ferreras Antonia (Martinez), the Spanish Interpreter who interpreted between the Customs Officers and the defendant. Her evidence mainly concerns under what circumstances the defendant expressed that she did not consent to take part in a “controlled delivery” and the physical condition of the defendant on 9 August 2015.

27. After the prosecution finished calling their witnesses, the defence (with the Court’s leave) called Dr Ana Dubraska Garcia (Dr Garcia), the Consul General of Venezuela to give evidence.  Her evidence concerns the physical condition of the defendant on 13 August 2015, when she saw her. 

The law

28. The respondent has very helpfully set out the relevant legal principles in their written submission, which I will gratefully adopt:

“11. In HKSAR v Ng Chun To Raymond & Anor [2013] 5 HKC 390 [Tab 2], the Court of Appeal discussed the circumstances when a court would exercise its discretion to stay proceedings, with reference to leading authorities, from both the Court of Final Appeal in Hong Kong and other jurisdictions. The relevant legal principles can be cited at para. 84 & 85 and set out as follows:

‘(E) The law

84. The circumstances in which, in the exercise of a court’s discretion, a stay of proceedings will be justified are exceptional. Those circumstances are explained by Ribeiro PJ in HKSAR v Lee Ming Tee & anor. “In general,” he said, “if a prosecution is brought, the court’s duty is to try the case”; since “generally speaking a prosecutor has as much right as a defendant to demand a verdict … on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it.” But in exercise of its inherent power to prevent an abuse of its own process, the court has jurisdiction to stay criminal proceedings in two circumstances:

(1) where, notwithstanding the remedial measures which are available to a court to ensure a fair trial, the circumstances are such that “a fair trial for the accused is found to be impossible and continuing the prosecution would amount to an abuse of process.” (emphasis added) That is because “the continuation of processes which will culminate in an unfair trial can be seen as a ‘misuse of the court process’ which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.” The burden is on the accused to show on a balance of probabilities that no fair trial can be held. The basis upon which such applications tend to be mounted include delay, unfair methods of investigation, and pre-trial publicity; and

(2) in rare cases where, even though a fair trial is available, the court is prepared to grant a permanent stay because there has been an abuse of power of a kind that renders the trial of the accused an affront to the court’s sense of justice and propriety. An example is the refusal of a court to exercise jurisdiction over an accused who has been unlawfully abducted from another jurisdiction.’

85. The cases in the second category will be rare since:

“The public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial. For this to be displaced, powerful reasons must exist for concluding that such a trial, although fair, would nonetheless constitute an intolerable abuse of the court’s process. The instances where such an argument has any prospect of success must necessarily be very rare.” ’

12. Relevant principles which can be deduced from above can be summarized below.

(i) It is only very unusual circumstances that a court can properly be satisfied that a fair trial is ‘impossible’. See CFA emphasized in HKSAR v Lee Ming Tee & Anor No.1 (2001) 4 HKCFAR 133 [Tab 4] at 150 C-H which said:-

‘There are cogent reasons why in principle and in practice such stays are highly exceptional.

In the first place, it is only in very unusual circumstances that a court can properly be satisfied that a fair trial is “impossible”. The “fairness” achievable is judged in practical and not absolute terms. As Brennan J pointed out in Jago v The District Court of New South Wales (1989) 168 CLR 23 at page 49 :-

“If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it.  Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.”

More importantly, the court’s primary endeavor is to ensure that a fair trial takes place, employing the law’s available resources, and not to abort it on the ground that fairness cannot be attained, save as a last resort. To quote Brennan J again :-

“A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimize prejudice to either party.” ’

(ii) A permanent stay is a ‘remedy of last resort’ and to stay a prosecution on the abuse ground is very rare (see what CFA emphasized in HKSAR v Lee Ming Tee & Anor No.1 (2001) 4 HKCFAR 133 [Tab 3] at 151 G). Such a power to stay should be exercised only sparingly and in exceptional circumstances.

‘The public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial. For this to be displaced, powerful reasons must exist for concluding that such a trial, although fair, would nonetheless constitute an intolerable abuse of the court’s process. The instances where such an argument has any prospects of success must necessarily be very rare.’

See also HKSAR v Lee Ming Tee No.2 (2003) 6 HKCFAR 336 [Defence Authorities (“DA”) No. 2], where the CFA citied with approval the Canadian decision of R v O’Connor (1996) 130 DLR (4^th) 235 at 227 B-C where it was said that a stay of proceedings under the abuse limb was only appropriate ‘in the clearest of cases … where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued’. At page 395B-C, the CFA concluded:

‘In the absence of a finding of “bad faith”, this standard will rarely, if ever be satisfied in a case where a fair trial is still possible. Even if there be a finding of “bad faith”, that finding would not necessarily conclude the matter.’

As Stock VP (as he then was) stated in HKSAR v Ng Chun To Raymond & Anor [2013] 5 HKC 390 [Tab 2] at 414 para 87:

‘The key question in the second category of case is, therefore, not whether, without more, the court is offended or even outraged by the prosecutorial misconduct disclosed; and it is not whether the public, possessed of the facts, would be offended or outraged by the misconduct. It is, rather, whether “the court’s sense of justice and propriety” or, one should add, public confidence in the proper administration of justice, is or would be offended “if [the court] is asked to try the accused in the particular circumstances of the case.” (emphasis added)’

(iii) The burden is on the accused to show on a balance of probabilities that no fair trial can be held.

13. In considering the permissible ambit of the challenge by way of the stay application and the procedural steps required for it, it is pertinent for the Court to bear the above statements of principle in mind. It is also important to pay heed to the following warnings by Stock JA (as he then was) in Yeung Chun Pong v SJ [2008] 3 HKLRD 1 [Tab 5] at para 71:

‘It is obvious to this Court that stay applications constitute a growth industry in this jurisdiction. It is a habit that seems to be considered in some quarters as almost de rigueur; and tribunals at first instance should ever be aware of the exceptional circumstances in which applications for a stay may succeed.’

14. Reference is also made to the warning given by Viscount Dilhorne in Director of Public Prosecutions v Humphrys [1977] AC 1 [Tab 6] at page 26E that the power to stop a prosecution should only be used ‘in most exceptional circumstances’.”

Evaluation of evidence

29. Although Mr Raffell made a rather impassioned plea, pointing to various answers given by the defendant during the video-recorded interview, and submitted that the defendant was truthful; that she had given a credible and plausible story of what had happened to her, the fact remains that she has not given evidence before me to confirm the contents, and further, her allegation or assertion has not be tested by cross-examination.  In any event, it is not my function as the judge to decide whether what she has said is true or may be true.  It is a question to be decided by the jury.

30. Whilst she claimed to have been tricked by this man Mikael; detained by him against her will; raped and beaten up by Mikael; and forced by Mikael to bring what was later confirmed to be cocaine to Hong Kong under a threat that harm would be done to her family members if she did not comply, it does not follow that the defence can just adduce articles with information about Venezuela and Brazil without following the proper rules of evidence.  In any event, the defendant’s assertions during the video-recorded interview made no reference to the state or standard of police either in Venezuela or Brazil, the defendant simply claimed that she was tricked, detained against her will, ill treated and threats were made to her regarding the safety of her family; she was forced to bring the stuff to Hong Kong and she did not make any report before she arrived in Hong Kong.  There was no explanation or further elaboration as to why she did not make any report.

31. For the purpose of this application, the information about Venezuela and Brazil which the defence placed in the hearing bundle does not pass either the admissibility test or the relevance test and I will ignore such information in my consideration of this application.

Did the defendant refuse to co-operate with the Customs on 9 August?

32. As to what had taken place between Tsang and the defendant on 9 August, the day of arrest, I have the evidence of Tsang and the Spanish interpreter Ms Martinez.

33. Tsang said in evidence that he conducted a 15-minute interview with the defendant at 1150 to 1205 hours.  The interview was conducted in English as Tsang does not speak Spanish and no Spanish interpreter could be arranged.  According to Tsang, the defendant said she understood the English spoken by Tsang; that she had brought the stuff into Hong Kong to give to somebody; that she would go to a hotel and someone would contact her; that she believed the stuff was something illegal and that she did not agree to take part in a “controlled delivery”.

34. No written record was made of the questions and answers during this early interview.

35. During evidence-in-chief, Tsang said his question to the defendant was “Do you agree to assist Customs to conduct a controlled delivery” and the defendant answered “No”.  During cross-examination, however, he said the words he recalled being used were “Do you assist us to go to downtown to arrest the person who would collect the stuff” which means “controlled delivery”.

36. Tsang agreed that in his own witness statement he only mentioned an interview with the defendant at that time without mentioning anything about a “controlled delivery”.

37. When it was suggested to Tsang (with reference to the mobile phone record (PS10) that the defendant’s mobile phone rang and she became agitated and offered to speak to that person so as to assist the authorities to catch the man, he was not interested and did not take up her offer (hence the calls were either “missed” calls, or having “received” the call but cut off immediately), Tsang disagreed with such a suggestion.

38. Later that date, after the Spanish interpreter Ms Martinez had arrived, at 1615, Tsang arranged for another interview, using a form with the title: “Preliminary Enquiry for Immediate Follow-Up Investigation” (PS14).  Tsang said he asked the questions in English, which were translated to the defendant by Ms Martinez, who then wrote down what the defendant had said in Spanish and then translated in English.  The questions were more or less the same as those he had asked the defendant earlier at 1150.  As to the question whether the defendant was willing to co-operate to conduct a “controlled delivery”, it was the Spanish interpreter who had crossed out the word “consent”.

39. Tsang told the Court that there were other encounters between him and the defendant on 9 August.  He testified that she did not complain about any injuries, did not make any request to see a doctor, and did not mention anything about how she had gone from Venezuela to Brazil.  It was only on the next day, during the video-recorded interview, that she mentioned about it.

40. Ms Martinez told the Court she is not a registered Spanish interpreter with the authorities.  She was approached on a rather urgent basis so she agreed to act as one.  She confirmed that that occasion was the one and only time she acted as a Spanish interpreter.  She could not explain why, in relation to the last question about consent or otherwise to conduct a “controlled delivery”, she had not followed the earlier pattern, (i.e. writing down the answers in Spanish first and then translate the Spanish into English). She admitted she was the one who had crossed out the word “consent” as it was the defendant’s choice not to do the controlled delivery.  Although Ms Martinez could not explain why two sentences were written at the bottom of the page as opposed to writing them immediately following the last question, she confirmed she wrote down what the defendant had expressed in Spanish, i.e. the defendant did not “give consent to cooperate with customs agents to perform a controlled delivery operation”.

41. Ms Martinez said there was a general talk about controlled delivery that it might put her family in danger.  The defendant said she had been detained against her will, she had been raped and beaten, and was forced to bring the packets into Hong Kong.  Ms Martinez told the defendant she could not help her.  She said she repeated what the defendant had said to her to the Customs Officers.  Ms Martinez also mentioned the defendant referring to some medication she was taking because she was pregnant.  Ms Martinez cannot remember specifically whether the defendant had requested to see a doctor. 

42. As Ms Martinez only ever acted as a Spanish interpreter once, what the defendant had told her must have a deep impression on her.  Whilst what the defendant had told her remains hearsay evidence as to the truth of such assertion, more appears to have seen said about “controlled delivery” than what Tsang had testified.

43. I am aware of Tsang’s evidence that the defendant did not mention, on 9 August 2015, how she had gone from Venezuela to Brazil.  Tsang was not specifically asked if the defendant had said anything about being detained, raped and forced against her will.  However, the tenor of Tsang’s evidence seems to suggest the defendant said nothing about being forced to bring the stuff to Hong Kong until the next day, during the video-recorded interview.  If that was the effect of Tsang’s evidence, his testimony would have been contradicted by the evidence of Ms Martinez.

44. Bearing in mind Ms Martinez was only called upon on an emergency basis to act as a Spanish interpreter on 9 August 2015, if the defendant had not said anything about being forced to come to Hong Kong on that day, it is difficult to see how Ms Martinez would have known the defendant’s version of what had taken place or that the defendant said she was pregnant. 

45. I am satisfied that the defendant did repeatedly mention, on the day of her arrest, that she had been raped, beaten, and forced to bring the stuff to Hong Kong against her will, with threats to harm her family.  She had also mentioned that she was pregnant on 9 August when the Spanish interpreter Ms Martinez was present.

46. I find as a fact that Tsang did conduct a preliminary enquiry, in English, to see if any follow up action is required at 1150.  I also find as a fact that he did ask the defendant whether she was willing to take part in a “controlled delivery”.  However, I am not sure what term he used to ask the defendant: “controlled delivery” as testified in chief?  Or “go to downtown to arrest the person who would collect the stuff”.  Bearing in mind the defendant speaks Spanish and the interview was conducted in English, I am not certain if the defendant truly understand this last question when she answered “no”.  I will not treat that answer as a refusal to co-operate with the authorities.

47. I accept Tsang’s evidence that the phone did not ring, or if it did he was not aware of it.  I accept his evidence that the defendant did not offer to answer the phone to assist the Customs to catch the man in Hong Kong.  I would add that since the defendant elects not to give evidence, which is of course her right, there is no evidence to contradict Tsang’s evidence on this issue.

48. Whilst Ms Martinez recalled there was a general talk about “controlled delivery” that it might put the defendant’s family in danger, in my view, it is far from clear who had actually said what?  Or who had instigated the topic of “danger to the family”.  It is unclear whether the Customs Officer was merely repeating what the defendant had said, or it was the Customs Officer who had suggested to the defendant about danger to her family should she take part in a controlled delivery.  That being the case, even though the defendant had signed a document with the word “consent” crossed out, it is unclear whether the defendant was unwilling to co-operate on 9 August 2015.

49. In any event, whether the defendant was willing to co-operate with the Customs on 9 August 2015 has little bearing on this application, particularly when Tsang agreed that the defendant did offer to assist during the video-recorded interview on the next day.

Did the defendant have bruises on her limbs?

50. Tsang’s evidence was that the defendant did not mention any injury on the day of arrest.  From the video-recorded interview, one can see that the defendant said (counter 626) that she had already mentioned her injury to the officers the day before and she tried to show her lower leg to those present at the interview, including Tsang, pointing out her injury.

51. Tsang said he did look at the defendant’s leg for one second or two.  He did not notice any injury or bruise.  Ms Martinez, however, said she saw bruises on the defendant’s leg: not a lot of bruises, just some bruises.  It was the defendant who showed Ms Martinez her leg.  That was on 9 August 2016, the only time Ms Martinez interpreted for the defendant. 

52. The defendant was admitted into the Tai Lam Centre for Women (Tai Lam) on 11 August 2015.  Upon admission, she was seen by a nursing staff who took down her medical and health history.  The nurse was not called to give evidence.  Dr Pang first saw the defendant on 12 August and he had before him the record made by the nurse.  According to the record, old surgical scars were noted on the defendant’s body.  No injuries were noted on the defendant’s body, including her limbs.

53. Dr Pang testified that he made enquires of the defendant’s past medical history as noted by the nurse.  Dr Pang said the defendant was tearful at the time.  He conducted a general examination which included her face, her neck and the general exposed parts of her body.  He did not see any recent external injuries on her arms.  He was sure there were no bruises at the time of the examination.  There were no visible injuries on her legs either.

54. Dr Pang arranged for a pregnancy test when he noted that the defendant’s last menstruation was in May 2015.  There was no complaint made by the defendant noted on the record, nor did the defendant make any complaint to Dr Pang.  When Dr Pang saw her subsequently during her hospitalization within the institute, they spoke about the defendant’s wish to continue with the pregnancy and arrangement was made for the defendant to consult a surgeon at the Queen Elizabeth Hospital due to her medical history.

55. Dr Pang testified that the defendant had not mentioned having been raped.  Had the defendant do so he would have arranged for her to see an expert. He further elaborated that had the defendant made such a complaint, a report would have been made to the police.  As a medical doctor, Dr Pang agreed that if a person complains about having been raped, arrangements should be made for that person to be checked for injuries and for sexually transmitted diseases.

56. Dr Garcia saw the defendant on 13 August 2015 at Tai Lam. She said the defendant was nervous and crying.  The defendant related to her that she was a victim of possible kidnapping and that she had been raped several times.  The defendant showed Dr Garcia some injuries on her forearms and legs.  Dr Garcia described the bruises as “not very big”, indicating the dimension as around 2.4 cm x 2.4 cm. she drew on a sketch (PS25) to show the location of a total of 7 bruises: two each on the forearms, one on the back of the left calf and two on the back of the right calf.  She could not recall if there were any bruises on the front of the legs.  She said the colour of these bruises was between yellow and green and she was not able to say whether they were old or new bruises.

57. As the defendant was seen trying to show her leg to those present during the video-recorded interview, and she had mentioned during the video-recorded interview that she had shown the Customs Officers her injuries the day before, together with evidence of Ms Martinez that the defendant had showed her the bruises on the defendant’s leg, I accept that the defendant did have some bruises on her leg prior to her admission to Tai Lam.  There is nothing to indicate that those bruises were extensive or serious, that could well be the reason why the nursing staff did not make a record of it.  It is also likely that Dr Pang did not see them when he saw the defendant on 12 August as there would not have been any need for the defendant to remove her trousers to expose her legs. As to the injuries on the arms, while I do not doubt Dr Garcia’s evidence that she saw some small bruises on the defendant’s forearms, bearing in mind there was a gap of 3-4 days since her arrest, I am not satisfied that any such bruises, if any, were clearly visible to Tsang, to the nurse or to Dr Pang.

58. In any event, as to how and why the defendant had such bruises and whether the defendant suffered injuries as a result of being beaten up by Mikael remain questions to be decided by the jury.

Video-recorded interview

59. During the video-recorded interview, the defendant gave her version under what circumstances she came to be in Hong Kong, strapped with the stuff on her legs.  At one stage, she showed her lower leg to those present during the interview when she said she was beaten up by Mikael before she was forced to bring the stuff to Hong Kong.  At another stage, when the defendant gave details about the travel agent Camila who made all the travel arrangement for Mikael, including preparing a fake ticket for her to return to Venezuela in case she was asked to show a return ticket, she pointed to an envelope which bore the particulars of the travel agency.  However, that envelope was not seized as an exhibit and it was only retrieved from the defendant’s personal properties kept by the Correctional Services Department during the hearing of this application.

60. When Tsang was cross-examined, questions were put to him which suggest that he was “not interested” in what the defendant had told him.  Reference was made to the two incidents mentioned earlier.  It was also suggested that Tsang was not “sensitive” to the defendant – a victim of human trafficking.  Tsang disagreed with these suggestions.

61. Tsang agreed that the defendant was co-operative during the video-recorded interview, and shown to be eager to assist.  He also agreed that upon hearing the defendant’s assertion she had been raped and beaten by Mikael, he has not made any arrangement for her to be medically checked.

62. Tsang also testified that he had not received any training regarding the handling of victims of human trafficking.

What was done after the video-recorded interview?

63. Tsang testified that in November 2015, he prepared a confidential document titled “Case Information from Hong Kong Customs” regarding the defendant’s case and forwarded it to his colleague Fion WK Li (Fion) who liaised with overseas agencies regarding the exchange of and request for information.  An email dated 9 November 2015 with the case information prepared by Tsang (PS22A) was sent by Fion to someone named Shannon.  Fion had since unfortunately passed away.

64. It is noted that the case information includes photographs of how the drugs were strapped to the defendant’s calves, and what the defendant had said about her circumstances of how she came to bring the dangerous drug into Hong Kong.  Tsang also included two telephone numbers of Mikael disclosed by the defendant, and the defendant’s claim that personal particular of Mikael’s associate might be obtained from the Spanish Consulate or Embassy when she was brought there by the said associate.

65. Although the Customs Officers did not seize the envelope with the name and address of the travel agency which the defendant claimed to be Camila’s, nevertheless the name and address of the same travel agency and the name Camila Palaio were provided by Tsang in the report after investigation.

66. Tsang testified that as far as he knew, no response was given by the DEA.

67. Kwok, who was responsible for communications with other drug enforcement agencies or police overseas, testified that in June 2016, he followed up the matter by sending another email to DEA, referring to the previous enquiry raised by Fion.  Again, there was no response by the DEA.

68. Kwok told the Court that there is no formal communication between Hong Kong and Brazil.  Since it is understood that the DEA has operatives in Brazil, the information was sent to DEA instead.

69. In my view, the failure of getting the envelope from the defendant at the time of the video-recorded interview does not indicate that the Customs Officers was not interested in what the defendant had said.  As can be seen from the video-recorded interview and the transcript (counters 1210-1217), Senior Inspector Howard Chan confirmed with the defendant that the same address of the company in which Camila worked appeared on the itinerary found in the defendant’s possession which was already seized as an exhibit.  I can also see that the address, telephone and fax number of the same company “Metodo” and the name “Camila Palaio” were indeed shown on the said itinerary.  In any event, Tsang did include details of the travel company with the name Camila in his report which was provided to the DEA.

Is a fair trial not possible?

70. The defendant was caught “red-handed” with the cocaine wrapped around her calves.  This would be a simple case of trafficking in a dangerous drug, with the prosecution having to prove that the defendant knew she was bringing drugs into Hong Kong.  The defendant gave a self-serving statement about circumstances of how she became involved and how she was forced to bring the drug into Hong Kong.  The jury will be directed on the law regarding duress according to the evidence adduced before them.  

71. I do not accept the defence submission that a Hong Kong jury will not be able to fully understand the defendant’s position.  Jury members do not have to have actual experience of drug trafficking or sexual assault to appreciate the defendant’s assertions.  Indeed, it would be rare, if not impossible, to find jurors who have such personal experiences.

72. Whilst the Customs Officers did not arrange for any medical examination on the defendant after she claimed she had been raped, bearing in mind the alleged rapes did not just occurred immediately before she travelled to Hong Kong and the fact that she was already pregnant at the time of the arrest, I do not find the lack of any medical report on the state of her private parts affects the fairness of the trial.  In any event, the defendant was seen by the nurse who took her medical history when she was admitted into Tai Lam on 11 August and Dr Pang examined her on 12 August.  According to Dr Pang, the defendant did not make any complaint about having been raped and clearly there were no obvious injuries or discomfort experienced by the defendant which warranted medical intervention.

73. Much emphasis was placed on the said “Statement of Prosecution Policy and Practice” and Mr Raffell was at pains to point out how what the defendant had described fits in with the “identifiers” of human trafficking.

74. It is correct that Hong Kong has not established any set of rules or protocol in dealing with victims of human trafficking.  The said “Statement of Prosecution Policy and Practice” issued by the Department of Justice, which is reproduced in Archbold Hong Kong (2016), Chapter 18 reads:

“18. Human Exploitation Cases

18.1 Under Article 1 of the Universal Declaration of Human Rights all human being are born free and equal in dignity and rights. The exploitation of persons and the trafficking of them for that purpose are both serious crimes and violations of fundamental human rights and freedoms. The trafficking of a person involves the recruitment, transportation, transfer, harbouring or receipt of persons for the purpose of exploitation by means of:

(a) threat or use of force or other forms of coercion;

(b) abduction;

(c) fraud;

(d) deception;

(e) the abuse of power or of a position of vulnerability; or

(f) the giving or receiving of payments or benefits to achieve the consent of a person having control over another person.

The trafficking of a child involves these elements except for the requirement of the means.

18.2  Human exploitation includes activities that demean the value of human life such as sexual exploitation, enforced labour, domestic servitude, debt bondage and organ harvesting.  Human exploitation is a domestic and international concern which should be handled by prosecutors with an appropriate level of understanding, skill and sensitivity.  In appropriate cases, a prosecutor should consider a credible claim that a defendant or intended defendant is a victim of trafficking.  If such a claim is found, a prosecutor should appropriately deal with the case bearing in mind that the person is a victim of trafficking.  In this regard, reference can be made to applicable international standards and practices concerning victims of trafficking.”  [My emphasis]

75. I agree with the respondent that the key word is “credible”.  It would have been impossible to expect every claim to be investigated.

76. Having watched the video-recorded interview and considered what the defendant had said, I agree with the respondent that there are inherent improbabilities or contradictions within the defendant’s assertion.  Without going into great detail, I will just point out that according to her, she arrived in Brazil from Venezuela on 21 June 2015 and after she was taken to Mikael’s place, she was detained by him against her will until she was forced to bring the stuff to Hong Kong, arriving on 9 August.  She said the period in which she was detained, raped and beaten was about 3 weeks after arrival.  There was no stamp on her passport showing that she had entered Brazil on 21 June.  Instead, there was a stamp showing that she entered Brazil on 1 August, 8 days before she was arrested.  The defendant then claimed that the “customs” office was closed when she crossed the border in June so there was no stamp to show her earlier entry.  Mikael then arranged for her to go to Paraguay to re-enter Brazil so that a stamp would appear on her passport.  However, there is no stamp on her passport showing that she has left Brazil to enter Paraguay on 1 August 2015.  Since the only stamp on her passport shows that she entered Brazil only on 1 August, and that she had left Brazil and arrived Hong Kong on 9 August, there is a doubt as to her claim that she had been detained for 1½ months and had been ill-treated during this period by Mikael.

77. Among her possession there was a document issued by ANAC to her (PS5).  When the defendant was asked about it, she then disclosed, for the first time, that she had missed the flight to Guarulhos where Sao Paulo was and flew to Belo Horizonte instead.  In other words, she did not fly direct from Boa Vista to Sao Paulo, as she first claimed when questioned by Tsang re her routing.  The defendant said as the mistake was made by the company so an agent called Azul was fined.

78. Whilst the date when she missed the flight was not mentioned on this document, at the bottom of the document, a date: 22 July 2015 was shown.  Since according to her assertion, she was being detained by Mikael for the whole month of July and not allowed contact with anyone except Mikael and his associate, the fact that she was in possession of such a document dated 22 July 2015 throws doubt on her assertion that she arrived Brazil in June.

79. On the phone she claimed to be given to her by Mikael, the Customs Officer found an outgoing message, saying that she was on the plane and that she was fine.  When asked about it, she said she texted Mikael according to his instruction when she was on the plane, as if writing to a boyfriend.  Why was there a need to pretend that Mikael was her boyfriend if the purpose of the message was to inform Mikael that she was already on the plane?

80. On the evidence before me, Tsang did compile a report based on what the defendant had told him and forwarded the same to his colleague Fion so that the information could be passed onto other foreign agencies.  Though he failed to take the envelope indicated by the defendant during the video-recorded interview, the fact remains that he was able to get the information about the tour company and the name of Camila through his investigation.

81. I find that no blame could be attached to the decision by the relevant Customs Officers to approach DEA of the US rather than trying to contact drug agencies in Brazil or Venezuela when there was no formal contact between the Hong Kong authorities and those two South American countries.

82. I do not accept that the prosecution does not have any evidence to refute or rebut the defendant’s claim.  As already mentioned, there were inherent improbabilities and contradictions in the defendant’s own assertion which would no doubt be highlighted by the prosecution during the trial.  In any event, I do not think I have to consider whether the prosecution has evidence to rebut the defendant’s assertion when considering the question whether a fair trial is impossible.

83. Once the defendant raises the defence of duress during the trial, it is for the prosecution to prove that duress does not apply.  There is no onus or duty on the defendant to prove that she was acting under duress.  I do not accept the submission that failure on the part of the investigating team to confirm or refute her assertion in a timely fashion leads to the defendant not having a fair trial.

84. For these reason I find that the defence has failed, on a balance of probabilities, to show that the defendant cannot get a fair trial.

85. As to the second ground of abuse of process, the defence is basically relying on the same arguments regarding the response or the lack thereof on the part of the Customs Officers, after the defendant claimed that she had been raped and forced to bring the stuff to Hong Kong.  I have already dealt with them under the 1^st ground.

86. I find that there is no substance in the defence claim that there was any abuse of process on the part of the investigating team.  Even if it is arguable that Tsang should and could have prepared the report earlier than November 2015 so that enquiries could be made earlier; or that he should have arranged for the defendant to have a medical examination to either confirm or refute her claim of having suffered sexual assaults, such inactions, when weigh against the seriousness of the offence faced by the defendant and the public interest that a person suspected of having committed an offence should be brought to trial, I have no hesitation in ruling that there should be a trial.  Nothing done by the investigating team comes close to any misconduct, or any abuse of the process.

87. I should add that the present case does not even come close to the kind of situation as disclosed in Bennett or Latif.  I also do not derive any assistance from the four cases relied upon by Mr Raffell in relation to the way the Court of Appeal in England dealt with victims of human trafficking.  Leaving aside, for the moment, that there is an established framework to deal with victims of human trafficking in England and there is no such framework here in Hong Kong, in the cases cited, the defendants were (or accepted to be) victims of human trafficking, whereas in the present case, the defendant claims to be a victim of human trafficking, which is not accepted by the prosecution.

88. For these reasons, I ruled against the defendant on the 2^nd ground as well.