HKSAR v. CUMPIO SUSAN BATION

HCCC 107/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 107 OF 2016

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RULING ON THE ISSUE OF ASSISTANCE TO THE AUTHORITIES

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Introduction

1.  Following the defendant’s plea of guilty to trafficking in a dangerous drug, Mr Richard Donald, counsel for the defendant, submitted in mitigation that the defendant assisted or tried to assist the officers of the Customs and Excise Department at the time of her arrest. 

2.  Mr Donald stated in his written mitigation that:

“7. From the time of her interception at the airport, the Defendant has fully cooperated with the authorities. … The Defendant advised those who had arrested her that there was a person outside the airport waiting to have the drugs delivered to them. She offered to ring that person and to arrange a meeting. The response from those involved was to refuse to let her make the phone call; they simply turned off her phone.

8. The Defendant also advised those arresting her that she had been accompanied by a minder; this generated no interest whatsoever.”

3.  Mr Donald went on to state that the defendant was currently in a position to assist the authorities and that she could provide valuable information to them.  Arrangements were made for her to be seen by Customs Officers about the assistance that she could provide but it proved to be of no value. 

4.  The two relevant Customs Officers gave statements refuting the defendant’s claims of assistance at the time of her arrest.  Mr Donald maintained that the defendant had assisted the authorities. He requested that a Newton Hearing be held in order to examine the two Customs Officers and for the defendant to give evidence in support of her claim of offering assistance to them. 

5.  The Newton Hearing was conducted on 10 May 2017.  The two Customs Officers, Customs Officer 14192, Li Lai-shan (PW1) and Customs Inspector Tsang Man-chi (PW2) and the defendant gave evidence on the issue. 

The evidence of PW1

6.  PW1 testified that the defendant’s luggage was searched but nothing suspicious was found.  She said that the defendant was taken to a room for a body search and drugs were found on her person.  She identified various items that she seized from the defendant’s shoulder bag as personal belongings.  The items were seen in exhibit NH1, a photo of the items found in her bag.  She was taken to a handwritten note exhibit NH2.  Written on the note is a bus number, the name and address of Chungking Mansions and a single name with what appears to be two Hong Kong numbers.  She explained that she did not follow up on what was there as she passed on the personal belongings to another officer. 

7.  The defendant asked PW1 about contacting a lawyer and she provided her with a book containing the names of lawyers.  While she could not recall what they said to each other, she denied that the defendant said anything to her about other persons being involved with the delivery of the drugs or that there was someone waiting for her outside the airport.  She said that they spoke in English and she appeared to understand her.  She denied the suggestion that the defendant was willing to cooperate and that she told the defendant not to say anything and sit quietly.  She said that PW2 came in and interviewed the defendant from about 17:00 to 17:10 hours.  She said that they spoke in English but she did not pay particular attention to what they discussed.

The evidence of PW2

8.  PW2 confirmed that she interviewed the defendant for the purpose of establishing whether she would cooperate with them.  After she cautioned the defendant, she agreed to answer questions.  There was no interpreter at the time and she appeared to understand English.  The defendant told her that her final destination was the Philippines the next day.  She told her that she was not going to stay in Hong Kong or give the drugs to anyone in Hong Kong. 

9.  PW2 said that the defendant refused to cooperate in a controlled delivery.  She explained that she addressed these matters in a form entitled “Preliminary Enquiry for Immediate Follow-up Investigation” which the defendant completed and signed at the time.  It was later interpreted to the defendant by an interpreter who endorsed the document that it had been read and interpreted to her in Tagalog and that the defendant said she understood it.  This was exhibit NH3. 

10.  PW2 denied that the defendant had mentioned anything to her about another person being involved in the delivery of the drugs or that someone was waiting for her outside.  She also denied the suggestion that exhibit NH3 was completed at 7 pm and not 5 pm as she had testified.  She further denied that the defendant told her anything about the numbers on exhibit NH2 or about another document with Dubai telephone numbers on it.

The defendant’s evidence

11.  It was clear during the course of the defendant’s testimony that she had a reasonable understanding of English which was far from the situation as represented on her behalf. 

12.  The defendant testified that PW1 searched her.  She found the drugs strapped to her body and certain items in her bag.  One of the items was exhibit NH2.  She said she told PW1 to please help her.  Referring to the note, she told her this is the person waiting for her outside, but PW1 gave no response. 

13.  The defendant said she was hungry and food was provided to her.  Another officer came in at the time writing on a piece of paper.  A third officer, not in uniform, came in (not PW1 or PW2 who she referred to as an Inspector or the third person) and she pointed to the note and said this was the person waiting for her.  The Inspector got angry with her. 

14.  The defendant was asked if someone was waiting for her and she said there was someone outside.  She told them that they could open her phone and make a call.  Her phone did not have a Sim card and she told them to use their phone.  She said she mentioned this to PW1 and later to the Inspector but not to PW2.  Although it had been put by Mr Donald to PW2 that the defendant mentioned this to her. 

15.  The defendant said the note, exhibit NH2, was written by one of her two minders, a man and a woman, that she met in Dubai. This was at variance with Mr Donald’s written mitigation that the defendant had one minder accompany her. 

16.  The defendant said exhibit NH3 was read to her at 7:00 pm and not at 5:00 pm.  She acknowledged her signature on it and that she understood everything that was there.  She said she only put her signature on the document.  She said the interpreter came later and interpreted the document to her.  This she said occurred at 9:30 to 10 pm.  She said that everything had already been written on the document.  Even though it had “No” about willing to cooperate, at 7:00 pm she was still willing to do so.  Despite her previous answer that she understood everything she changed her evidence to not understanding it very well. 

17.  Mr Donald confirmed with the defendant that in her video recorded interview she had exercised her right of silence and did not say anything.  She said it was not that she did not want to cooperate but she was told by a Customs Officer not to say anything.  She said the Customs Officer told her because she did not have a lawyer, she should not say anything.  She said the Customs Officer was behind her in the interview room and she could not see her.  She was taken to counter 37 of the interview by Mr Donald which set out the caution.  She said this was what was told to her and why she did not answer the questions.  But when it was pointed out that there was no mention about not having a lawyer, she said it was said to her.  The interview was recorded and this has not been said.

18.  In cross-examination the defendant’s evidence changed.  She conceded that she was able to communicate in English and had no difficulty expressing herself in English. 

19.  She said she only mentioned that there was someone waiting outside for her to PW1.  This evidence was contrary to what she said previously that she said this to PW1 and the Inspector.  Her evidence changed again.  She said it was after the Customs Officers had searched her luggage and she was told that they would do a body search, that she said “is it done because someone is waiting for me outside”.  Now she was saying this was before she was taken to the interview room for the body search.  This was completely different to what she had said in examination in chief and how her case was put to PW1 and PW2. 

20.  After lengthy questioning she said the only person she told that there was someone waiting outside was PW1.  She said nothing was said about this to PW2 or to the third person who put the cell phone and the piece of paper in a plastic bag.  She said the third person was the one who brought the food at around 6 pm.  She said the third person asked her if she knew the person named on the piece of paper and she said no. 

21.  The defendant’s evidence changed about exhibit NH3.  She said she first saw the document at around 9 to 10 pm when the interpreter came.  She previously testified that it was completed before her at 7:00 pm by PW2.  She also confirmed that she understood the English written on the document.  Even after exhibit NH3 had been later interpreted to her she signed it.  Recorded on exhibit NH3 was that she was not willing to cooperate although she testified that was not the case. 

22.  The defendant’s evidence changed yet again when taken to the contents of exhibit NH3.  She said that “Philippines tomorrow” to the second question was written by her when interviewed earlier by PW2.  The answers in English were translated into Tagalog which appears to have been done by the interpreter.  As to the first question as to whether she could understand English is written “Yes”.  She was asked if she wrote it but she said she could not remember.  She agreed it looked like her handwriting. 

23.  The defendant was taken to counter 202 of her interview where she was shown exhibit NH2 and asked to explain what was written there.  She said “I refuse this.  I do not want to answer this question.” 

24.  She initially testified that no paper (exhibit NH2) was shown to her and no one asked her about that.  When the video recording was played in Court it showed exhibit NH2 was shown to her.  Even then having seen and heard the recording she said that at the time she could not remember this. 

25.  The defendant professed that her understanding of English was poor but it was clearly established that she was able to communicate well in English and did so with the Customs Officers. During her video recorded interview as was the case in her evidence, she responded to questions asked in English directly with answers in English.  She also initially denied that the handwritten notations to the questions in exhibit NH2 were written by her but later acknowledged that the answers to Question 2 and possibly Question 1 were written by her.  In any event, exhibit NH2 was interpreted to her after it had been completed and she acknowledged that she understood the document at the time.  As noted exhibit NH2 is a series of questions that were put to her seeking information and cooperation from her where it is recorded that she was not willing to do so.  The document is signed by her and was later interpreted to her through a Tagalog interpreter who endorsed the document that she had interpreted it to the defendant and that she understood the contents of it. 

26.  The defendant’s case that was put to PW1 and PW2 was different to what was stated in the written mitigation, and different again from what the defendant said in evidence.  In fact, the defendant’s evidence also changed from time to time and was very confusing.  It was put to both PW1 and PW2 that the defendant told each of them that there was someone waiting outside for her and that she was willing to cooperate with them.  In her evidence, she said that after her luggage had been checked and before she was taken to the interview room for body search, she mentioned to PW1 that there was someone waiting for her.  This was not how it was put to both PW1 and PW2. 

Findings

27.  Having considered the evidence and the submissions of counsel, I am not prepared to accept the evidence of the defendant on the issue of the assistance that she claimed she rendered or sought to render to the Customs Officers.  Her evidence was inherently illogical and contradictory.  Furthermore, it was not supported by the contemporaneous records in significant respects.  I find the defendant has not told the truth.  I do not accept her evidence. 

28.  I accept the evidence of PW1 and PW2 which was supported by the relevant exhibits.

29.  I am therefore satisfied that as they have stated, the defendant did not offer the assistance that she claimed to the Customs Officers and her position is amply reflected in the video recorded interview where she refused to answer questions or give any information.  It was the defendant’s right to do so and it is only being relied upon as evidence to show her lack of cooperation with and assistance to the authorities.  The fact that the defendant exercised her right of silence during the course of the video recorded interview is not being used to draw an adverse inference against her.  It is only being relied upon as evidence of the position that she took with the Customs Officers at the time of her arrest and detention by them.  

Directions

30.  At the conclusion of the Newton Hearing, I adjourned the sentence of the defendant to 4:30 pm, 23 May 2017.

31.  I also indicated I would hand down my ruling in the meantime which I have done.  It was discussed with counsel that if I ruled against the defendant, I needed to be addressed by the parties on whether the failed Newton Hearing should have any bearing on the sentence of the defendant.  Written submissions and any relevant authorities should be filed by 22 May 2017.