HKSAR v. INDRA AGUS SETIAWATI

HCCC 318/2017

[2018] HKCFI 2466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 318 OF 2017

(ARISING FROM WKCC 1169 OF 2017)

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REASONS FOR RULING

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1.  On 22 October 2018 I heard submissions on behalf of counsel for the accused and counsel for the prosecution in relation to the admissibility of some of the contents of a mobile phone seized from the accused at the time of her arrest. On that day I ruled as follows:

“ That the application is refused.”

And I gave brief reasons.  I indicated that I would hand down my reasons in due course.  These are my reasons.

Introduction

2.  Indra Agus Setiawati (hereafter referred to as “the accused”) faces an indictment alleging trafficking in a dangerous drug, contrary to sections 4(1)(a) and (c) of the Dangerous Drugs Ordinance (Cap 134), namely 178.4 g of solid containing 124.3 g of cocaine.  To this indictment she has pleaded not guilty.

3.  There is some complexity in this matter.  This is a re-trial.  The accused was previously tried by Deputy High Court Judge Bruce SC (“the Deputy Judge”) and a jury (“the earlier trial”).  The jury after deliberating for some time were unable to reach a verdict and were discharged.  It was ordered that the accused be re-tried.  This is that re-trial. 

4.  In the course of the earlier trial there were two rulings made by the Deputy Judge.  Both of the rulings dealt with the same evidence namely the admissibility of certain photographs and a video recording which were extracted from a mobile telephone which belonged to the accused and which was in her possession at the time of her arrest.  It is the same material that I am also asked now to rule inadmissible, albeit on a different basis than that which was advanced before the Deputy Judge.

Prosecution case

5.  On 3 March 2017, an officer of the Customs & Excise Department was on duty at the Customs Examination Hall, Airmail Centre, Hong Kong International Airport.  He selected for examination a parcel fromBrazil that was addressed to “Joe Willis” at 2/F, 21C, Block A, Tsui Yee Garden, Tai Wo Tsuen, Yuen Long, Hong Kong.  The declaration on the parcel asserted that the contents were “Beauty Creams, Tonic Lotions”.  The parcel was opened and inside were a number of plastic containers.  The plastic containers showed a positive reaction to a test for cocaine.  Further examination was undertaken and, in the result, cocaine was discovered concealed in the bottom part of the plastic container.  In total there was 178.4 g of a solid containing 124.39 g of cocaine.  The cocaine had an agreed value of $168,000.

6.  The Customs and Excise officers then conducted a controlled delivery to the address on the parcel.  This was effected on 8 March 2017 by a Customs Officer disguising himself as a Postal Officer.  At the Ground Floor, Block A, 21C Tai Wo Tsuen, Yuen Long, the accused opened the door of the premises and approached the Customs Officer (disguised as a Postal Officer).  He asked the accused whether she lived there.  The reply was that she lived on the top floor.  The accused then gave him a colour photocopy of the passport of “Joe Willis” and said that she wanted to collect the postal item for her friend.  Joe Willis was the name of the addressee on the parcel.  Further, the accused produced a slip of paper bearing the handwriting RR 1148 1488 BR, which was the Waybill number on the parcel.  She then signed for the parcel when requested to do so.

7.  These events took place about 11 am on 8 March 2017.  (There had been an earlier attempt on 6 March 2017 to make a controlled delivery of the parcel but nobody was at the address.)

8.  Upon receipt of the parcel, the accused was arrested and cautioned.  The essence of what she said was that she was receiving the parcel on behalf of a friend of a friend and that she did not know what was in the parcel.  A mobile phone in the possession of the accused was seized. 

9.  Subsequently at the rooftop of these premises, under the supervision of Customsand Excise officers she made and received calls to those persons who had arranged for her to collect the parcel.  It was the intention of the Customs Officers to permit the accused to deliver the parcel to those persons and to then arrest them also.  This took some time and it appears that there was a considerable degree of cooperation between the accused and the Customs Officers.  This attempt to conduct a controlled delivery failed as it would appear that those persons she contacted were somehow alerted to the fact that there was a problem and they did not thereafter accept calls from her.  The accused and the customs officers remained at the premises until about 4 pm. 

10.  That mobile phone was examined by an Inspector of Customs and Excise, Mr Lam Chun Pang.  Inspector Lam conducted what he characterised as a “manual screening”on the mobile phone (he looked at the contents of the phone).  This “manual screening” occurred shortly before the accused participated in a video recorded interview. 

11.  In the course of the video recorded interview conducted on the accused starting at 9:46 pm and concluding at 11:45 pm on 8 March 2017, the accused was questioned in detail about many of the images and phone records contained in her mobile phone.  These are presently the subject of objection on the part of the accused.

12.  No objection was taken to the seizure of the mobile phone before the Deputy Judge or me.  As has already been noted, the phone was used by the accused under the control of an officer of Customs and Excise.

The contents of the mobile phone of the accused

13.  That which was stored in the mobile phone of the accused included: pictures of scales with white powder on the scales; a video of a person dismantling what appeared to be a thermos flask from which a white powder was recovered; and a photograph of a United States passport.

Relevance of the contents of the mobile phone of the accused

14.  It was the prosecution case before the Deputy Judge and before me that the material on the mobile phone could be accepted by the jury as a circumstantial evidence from which an inference that she knew the contents of the parcel that she collected was a dangerous drugs.  It could, it is said, provide a basis for the jury to infer that the sending of the parcel to this address indicated that she was part of an organised group importing those dangerous drugs into Hong Kong.

The scope of the objection before the Deputy Judge

15.  Counsel for the accused objected to the reception into evidence of the information on the mobile phone of the accused and those questions in the video recorded interview of the accused which related to the information stored on the mobile phone of the accused. 

16.  The then objection to the admissibility of this material was foundedon the basis that the seizure of the contents of the mobile phone, without a valid warrant, was a breach of the privacy rights of the accused. It suffices to say that whilst the Deputy Judge found that notwithstanding that there had been a substantial breach of the privacy rights of the accused he exercised his residual discretion in favour of ordering that the evidence be admitted.

17.  This was the first ruling dated 4 January 2018.  No issue is now taken with this ruling.

18.  On 5 January 2018 the Deputy Judge made a second ruling in respect of the same evidence.

19.  On 17 January 2018 his reasons for his second ruling were handed down. These were headed “Ruling on Admissibility (No 2): Evidence Irrelevant and More Prejudicial Than Probative”.  On behalf of the accused it had been submitted that the Deputy Judge should refuse to admit the challenged evidence on the basis that its probative value was minimal and its prejudicial effect very high.  The Deputy Judge said:

“ 1. On 5 January 2018 I heard further submissions on behalf of counsel for the accused and counsel for the prosecution in relation to the admissibility of the examination of a mobile phoneseized from the accused. The objection in this case concerned the impact of 2 items which are part of the product from the mobile phone of the accused. These are:

(1) the video and the connected audio which depicts a demonstration of how to prise open certain thermos cups in order to access them for the purpose of placing what appears to be a white powder in them. The connected audio could be seen by the jury to give an element of instruction as to how to do what is depicted on the video;and

(2) the pictures of what appears to be a white powder in a transparent bag on a digital scale.”

20.  He went on to say:

“ 2. The bases of objection in relation to these 2 items is that firstly they are irrelevant to the case which is presently before the jury and, secondly, even if relevant, the prejudicial effect of such evidence outweighs its probative value. It is said that these items of evidence the subject of objection have nothing to do with what occurred on 8 March 2017.”

“ 12. In my judgement, when the impugned items on the mobile phone are taken together with the conduct of the accused and the circumstances in which she received the parcel, a jury could infer that her receipt of the parcel containing the dangerous drugs the subject of this indictment was part of an organised system for receiving dangerous drugs for unlawful trafficking. When all of this evidence is taken together, a properly directed jury could infer that not only was the accused part of the system for the receipt of dangerous drugs by post for the purpose of unlawful trafficking but from allthe circumstances that she must have known that what was contained therein included dangerous drugs. On those premises, a jury could infer that the accused knew that the purpose for which those drugs have been sent and had been received.

13. At this stage, in determining the admissibility of the impugnedevidence, the issue is what a jury could infer. In this context, what is meant bythat is that the jury could be satisfied beyond reasonable doubt in accordancewith the principles set out by the Court of Final Appeal in Winnie Lo v HKSAR(2012) 15 HKCFAR 16, 1 HKC 537, §§114 – 116. There, Chan PJ held thatthere are three requirements for drawing an inference adverse to the accused. These are:

‘ First, it must be grounded on clear findings of primary fact. Secondly, the inference must be a logical consequence of those facts. Thirdly, beyond being logical (since more than one inference might logicallybe drawn), in a criminal case the inference must be ‘irresistible’, that is, it must be the only inference that can reasonably be drawn on the basis of those facts.’

14. Against that standard, in my judgement, a jury could draw the inferences that I have outlined above. The evidence is therefore, in my judgement, relevant. It is capable of being a basis upon which a jury could find that the accused had the relevant state of mind required for the proof of the offence on the indictment.

15. The second issue is whether the evidence is more prejudicial than probative. It is plainly probative when taken together with the other evidence to which I have made reference. The only remaining issue is whether it is so prejudicial as to place in jeopardy the fair trial of the accused. In Pfennig v R (1995) 182 CLR 461, in the High Court of Australia, McHugh J made the point that: ‘The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial.’ In determining the threat to the fairness of the trial, the issue is whether, by reason of the reception of this evidence, the jury might somehow be diverted from the real issue, or that there is a substantial risk that the jury might misuse the evidence to the prejudice of the accused. It would be necessary for there to be a careful direction on the use (and possible misuse) of circumstantial evidence. In my judgement, if such a direction is given in the context of a direction based on Winnie Lo v HKSAR (above), the fair trial of the accused is not put in jeopardy.

16. It follows that I decline to exclude the evidence on the basis that the prejudicial effect of the evidence outweighs its probative value.  I should add that this ruling, which occurs about one third of the way through the prosecution case, and, if the evidence turns out differently to that which is anticipated, there might be a case which would justify revisiting this objection and my ruling.  Part of the reason for this is although the material on the mobile phone is not susceptible of changing,part of my reason for concluding that the impugned evidence is admissible upon the basis that it is relevant and that the prejudicialeffect of that evidence is outweighed by its probative value, thathas been done in the context of not only the product of the mobile phone but also the other evidence in the case.”

No issue is now taken with this ruling.

This application

21.  On behalf of the accused Mr Donald raises further objection to the admissibility of the content of the mobile phone of the accused.  The objection reads in part as follows:

“ 1. This is the Defendant’s objection to the admissibility of the photographs (Exhibits P 31, 32, 40, 40A, 41A and 47) extracted from the mobile phone and a SIM card seized (Exhibits 29 and 30) on the basis that the evidence of ‘uncharged acts’ should be inadmissible in the present case.

2. On 8 March 2017, upon her arrest, the Defendant was searched bythe officers of the Customs and Excise Department and a mobile phone and a SIM card (Exhibits 29 and 30) were recovered and retained by them.

3. On 9 March 2017 at around 0010 hours, PW12, an officer with theCustoms and Excise Department, took pictures of the contents of the mobile phone with a digital camera, including the call log, Whatsapp record, photos and video record.

4. On 17 March 2017 at around 1445 hours, PW12 recovered the photos that had been deleted in the mobile phone and took pictures of them.

5. The description of the photographs and videos (Exhibits P 31, 32, 40, 40A, 31A and 47) are as follows:-

a. White powder on the scales;

b. White powder relating to the unscrewing of the thermos cups.”

22.  As I would understand the submissions it is said that the evidence of:

(1)  the white powder on the scales; and

(2)  the removal of the white powder from the thermos flask,

would indicate to the jury that the accused had at or about the dates of those photographs and video participated in other acts of drug trafficking in a manner almost identical to that alleged in the instant charge. It was his submission that this evidence was, in effect, evidence of earlier uncharged criminal acts and should therefore be excluded.

23.  In considering these submissions it is important to identify:

(1)  whether the evidence if admitted is capable of suggesting to the jury that the accused has engaged in criminal acts prior to the date of the subject offence with which she has not been charged;

(2)  and if so, whether this has been considered by the Deputy Judge in the second of his two rulings on admissibility; and

(3)  whether as outlined in the submission of Mr Chau dated 22 October 2018 this is an attempt by the defendant to reopen decided issues absent a material change in circumstances and as such is an abuse of the process of the court.

Discussion

24.  In my oral reasons given on 22 October 2018 I have said that to my mind this evidence is incapable of being described as evidence of uncharged earlier criminal acts.  The evidence falls far short of that which could support any charge let alone a charge of trafficking in a dangerous drug either in isolation or collectively.

25.  To begin with whilst it might be said that a video recording of other persons demonstrating how to remove a substance from a thermos flask is suspicious, to say the very least this could not be the basis of a criminal charge.  Whilst the accused accepted in the video recorded interview that she filmed this demonstration, the audio description which formed part of the video was in a language other than English or Indonesian (I am advised that it was Igbo).  There is no evidence that she understood any of the commentary.  A jury would however have to be carefully directed that they could not possibly infer that this was a depiction of a criminal act which she was a witness to. 

26.  In similar vein the photographs of white powder on sets of scales could not, in isolation, possibly be the basis of any criminal charge. 

27.  Even if the jury rejected the account given by the accused in the video recorded interview that this was sugar to be used to make sweets they could not possible conclude that it was a dangerous drug. 

28.  I ruled that this was not a situation where there were uncharged offences alleged or demonstrated by this evidence.

29.  It therefore follows that it is not necessary to rehearse the authorities which deal with how and when evidence of earlier uncharged acts would or could be admissible.

30.  I confirmed with both counsel that this matter had not been raised by either of them in the earlier trial.  The Deputy Judge had not been asked to consider this matter.  In those circumstances I did not consider that it was an abuse of the court’s process to raise it now.

Conclusion

31.  As I have indicated Mr Donald’s submission having failed I am content to view this evidence in light of the Deputy Judge’s earlier assessment of it and accept hisconclusion as to its relevance and probative value.  His approach to the degree of prejudice I would likewise endorse, but add that as an abundance of caution I should direct this jury that they could not possibly consider that this evidence supported any assertion that there had been earlier acts of drug dealing or trafficking by the accused.  I was advised by Mr Chau that such a suggestion was no part of the prosecution case and would not be made by him.

32.  I refused the application.