HKSAR v. MILNE JOHN

HCCC 240/2020

[2022] HKCFI 800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 240 OF 2020

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REASONS FOR DECISION

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1.  On 14 March 2022, I heard the parties, in the absence of the defendant, on an application to permanently stay proceedings, at which time I allowed the application and ordered the immediate release of the defendant. These are the reasons for that Decision.

BACKGROUND

2.  The defendant is a 68-year-old man.  He is a British national of good character.  On 10 September 2019, he arrived in Hong Kong through the Hong Kong International Airport from the UK via Sao Paulo and Zurich.  He was found to be in possession of 3,312g of cocaine, which had been secreted within his luggage.  At the time of arrest at 1705 hours, the following conversation occurred:

“Q: What is it?

A: Confidential document.

Q: Where did you get it?

A: A man gave me in Brazil

Q: Where will you take this?

A: The Mira Hotel

Q: Will you receive any reward?

A: No”

3.  A preliminary enquiry was carried out shortly afterwards in which the defendant explained^[1]:

“Jimmy asked I go to Brazil and someone gave me the suitcases and took my suitcase and bringing new suitcases back to Zurich and then go to Hong Kong and bring them to the Mira Hotel and await contact and someone will come to collect it.”

4.  A controlled delivery was attempted but was unsuccessful.  No evidence was gained from it.

5.  The defendant then took part in a video-recorded interview (“VRI”) at 1757 hours on 11 September 2019.  It lasted 2 hours 43 minutes, during which time he denied knowledge of the drugs and explained how he came to be in possession of the luggage.  He said he was a self-employed IT contractor working within the UK and Europe and earning approximately £10,000 per month^[2] but had been “resting” for 18 months.  He said his financial situation was currently “a mess” and that he was about £70,000 in debt between three credit cards and a loan^[3].  He had recently entered into the property business and was going to look at properties in Hong Kong.  When asked how he came to be in Hong Kong, he explained that he had met someone called Yolanda over the internet in 2018 and they had become romantically involved^[4].  Yolanda had explained that she was to claim an inheritance from her grandfather who had invested in property in Brazil^[5] but she needed help to collect confidential documents from Brazil in order to obtain her inheritance.  That was all she had asked him to do^[6].  Yolanda introduced someone called Jimmy Roland and a lawyer known as Anthony Campbell to the defendant.  He had not met any of them in person but was not concerned about that because so much business was now done on the internet.  He understood that they were working for the United Nations Association^[7].  They were in charge of the claim.  He believed that Yolanda had agreed to give the United Nations Association 15% of her inheritance for doing this^[8].  This trip was organised by them^[9] and was supposed to be for the collection of those highly confidential documents on her behalf as her agent^[10].  He believed they were processing the inheritance which may have included the sale of property.  He had packed his own things into the suitcases provided to him by them in Brazil and which he believed contained highly confidential documents and not drugs^[11].  He understood that the nature of the documents was that they were akin to bearer bonds, which, if stolen, could be used to obtain funds^[12].  He had been suspicious that the documents may not be fully approved by the Brazilian government to be taken out of the country,^[13]which is why they were hidden in this manner. He hadn’t thought he was carrying drugs because he didn’t believe one could take drugs out through customs nowadays^[14].  He understood that he needed to come to Hong Kong because they were liquidating the assets in Brazil and dealing with a customer situated in Hong Kong^[15].  He had received US$900 and Euro$200^[16] from them but that was reimbursement of his costs as he had paid for the hotel in Brazil and was to pay for the hotel in Hong Kong.  He had received no reward.  He was not looking to make any money out of it as he was doing a favour for Yolanda^[17].  He was to be paid US$2,500 once he was in Hong Kong but that was to pay for the hotel and return journey to the airport plus expenses for meals[18].

CURRENT APPLICATION

6.  The defendant is charged with one count of trafficking in a dangerous drug (“TDD”).  TDD is an extremely serious offence for which the penalty on these facts is in the region of 25 years’ imprisonment after trial before consideration of any mitigating or aggravating features.  This is an application for a permanent stay of those proceedings as a result of my Ruling dated 17 December 2021 (“the Ruling”), under which I ruled inadmissible the digital evidence from the defendant’s mobile phone [P60]. That Ruling should be read in conjunction with this Decision.

THE ISSUE AT TRIAL

7.  The sole issue in the trial is one of knowledge.  The admissible prosecution case against the defendant as to knowledge relies upon the answers to questions on arrest; the one answer obtained during the preliminary enquiry taken at the time of arrest and the remaining edited content of the VRI as outlined above.  Mr Poon accepts that a significant portion of the VRI is inadmissible in any event and a further portion is now inadmissible as a result of the Ruling.  He nevertheless submits that the remaining admissible evidence is sufficient for him to ask the jury to draw the irresistible and only reasonable inference that the defendant knew that he was bringing dangerous drugs into Hong Kong because a) he had collected these bags in Brazil, b) he had switched his clothes into the new bags and c) he had travelled a long way to come to Hong Kong to deliver the bags.  He also seeks to rely upon s47 of the Dangerous Drugs Ordinance, Cap 134[19].  Nothing more need be said as to that latter submission in this Decision save for the fact that I am surprised by it.

8.  Mr Donald maintains that evidence is nowhere near enough and that the matter would not survive a half time submission[20] but if it were to do so the defence is significantly prejudiced in addressing the case of the prosecution as a result of the Ruling.  This is the basis of his application. Mr Donald asks the Court to consider first the evidence relied upon by the prosecution.  The defendant explained during the VRI that he had entered into an online relationship with a lady called Yolanda, even though the parties had never met.  The relationship became a romantic one in the eyes of the defendant.  Yolanda had asked him to assist her to recover an inheritance.  She had put him in touch with a man called Jimmy Roland and a lawyer called Anthony Campbell, whom the defendant had checked out as being related to the United Nations Association in London.  The defendant’s sole role was to bring what he believed were confidential documents to the Mira Hotel and to hand over the same to Jimmy.  He had received no reward for so doing.  At no stage in the VRI does he suggest any knowledge of or suspicion of carrying dangerous drugs.  He says more than once that he did not believe he was carrying dangerous drugs. Mr Donald submits there are no proven primary facts from which the prosecution can properly ask the jury to draw an inference of knowledge, but, by contrast, there is clearly evidence within the VRI itself from which the jury could be asked to conclude that he had, or may have had, no such knowledge and that evidence is not so inherently improbable as to suggest that, appropriately directed, the jury could do anything other than find the defendant not guilty.  But in order to put his case squarely before the jury, the defendant wishes to rely upon WhatsApp messages and email correspondence with Yolanda, Jimmy Roland and Anthony Campbell, which he cannot now do. 

9.  Mr Donald points to the WhatsApp messages and emails retrieved from P60.  He says they represent the true nature of the defendant as a kind and loving man who was a devoted son and family man albeit that it is clear that his life at the material time was in crisis.  He was going through divorce proceedings, was in financial difficulty and was in significant debt arising from continuing to support his wife who remained in the family home.  This goes to credibility only.  But the WhatsApp messages are also of particular significance as to the underlying facts.  They put the ‘meat on the bones’ of what is now a confusing explanation and chronology of events given by the defendant in the VRI and would have been admissible to show how events evolved and, most importantly, his state of mind, which is a key issue before the jury.

10.  In particular, and with reference to the remaining admissible evidence of the prosecution which the defendant would have to meet, Mr Donald submits that the WhatsApp evidence can be divided into two categories i.e. the evidence within the committal bundle and the evidence within the unused material, both of which have been rendered inadmissible as a result of the Ruling and as a result of which the defendant is prejudiced. He submits the Court must understand the true evidential effect upon the defendant of the Ruling.  

As to the WhatsApp messages within the committal bundle[21] by way of example:

i.  There are 3,923 messages between 14 June and 11 September 2019, which have been downloaded by Customs and Excise (“C&E”) and which evidence an extremely close romantic relationship between the defendant and Yolanda but one she was openly taking advantage of[22]e.g.

From the defendant:

“so be prepared, we might be married and living together before we are finished”

“You might be pregnant with child before you have your inheritance”

“I want to build a new life with you, and now I am prepared to take whatever risk is necessary to complete getting the funds for us to build a new life, that was what I meant that I am prepared to take the risk of carrying the documents through the airports, if I get caught by any of the authorities then so be it…”

“…I am just nervous that I could really believe that my future partner is a multi millionairess, it’s a lot to take in”.

“I believe in your inheritance and this is the sacrifice I have to endure to be worthy of your love and your inheritance”.

From Yolanda:

“So I can quit immediately when you confirm to me that its done”

“Am thinking of meeting you as soon as you confirm the remaining money in the account”

“So I told the investor I wouldn’t be able to leave my job and travel at this moment I need get all my job done and the investor don’t want to wait that why I involved you as my man and beneficiary to get it done as soon as possible”

“I will suggest you go your next trip before asking Jimmy what you could do to withdraw the money”

“if it isn’t real why would you be given a preferential treatment and given an allowance for your travelling?”

ii.  The messages show that the defendant was in contact with Jimmy and Anthony and that monies had apparently been paid into an account[23]e.g.

“Ok, I’m good, just staying positive I had another email from Anthony the Barrister this morning just wanting confirmation that I had got his email on Wednesday with details of the bank account and seen the money in it”

“There is 2,000,000 dollars in the account but I can do nothing with it till all the documents are transferred before we get the pin”.

iii.  The messages show that the defendant himself questioned the events[24]e.g.

“I have just had an email from Anthony regarding the Brazil trip which will basically be any time now. I know it is a lot of money, but it all seems quite cloak and dagger, the way they want it transferred”

“Well, sounds an incredibly complicated way, they just do a bank transfer from Brazil to Switzerland”

“Unless they do not want any track of that payment?’

“It feels a bit dodgy all this handing out hard cash, very primitive in this day and age. Just not wanting any tracks of dealing with me”.

iv.  They indicate the sophistication of the scam and the acceptance of it by the defendant[25]e.g.

 “I have to go to Paris with the documents when I leave Brazil, to hand them over to the French members of the organisation who will take them to the World Bank, and then 5 days later I will get the balance of the funds deposited in my account in Switzerland”

“Yes I understand, but when you feel you are backed into a corner, you will agree to desperate things, some would say the same about my trip to Brazil when we have never met, and I have to do it on pure trust also for the promise of colossal amounts of money”.

v.  There is evidence to show that he genuinely believed they were to receive $10,000,000 and that he was considering how the money could be invested in property[26]e.g.

From Yolanda:

“When we have our remaining money transferred to the account we don’t have to travel to Switzerland we just have to transfer the cash to the Dubai account you will open”

In response:

“there is property in Dubai I would not mind investing in”

“A guy wants me to go down to Manchester and look at some student properties, just not sure we are at this stage of soon being able to do property deals yet”

As to the WhatsApp messages in the unused material:

vi.  Messages show the extent of the grooming of the defendant by the person purporting to be Yolanda[27]e.g.

“I put your name on inheritance transaction that I inherited from my grandpa…and I don’t have solutions to collect the funds of the inheritance but now I have one investor to invest his money on the transaction but he wants the beneficiary of the inheritance to contact his lawyer, the investor just request for 15% of the fund of the transaction which is 10 million dollars and he will collect the money after the end of the transaction then fund will have been remitted into our account. You have no fee or any money to pay what I need from you is just to stand by me as my man and sign the document as my beneficiary and that all”

“If I don’t have any likeness for you I wouldn’t have come back to you. Hope you know that. I could have gotten a man to help me get the inheritance done and give him some percentage when we done but I don’t need just any man I need a man I can also spend my life with after the funds is released and you have make me have more interest in you at first when we started chatting that why I believe we are meant to be together Not just for the funds sake.”

“Am so happy to have a lovely and hardworking man like you John. You mean a lot to me right now. It will be a dream fulfilled when we are finally together and get our marriage legalised”

vii.   The extent of the messages and deception from Jimmy Roland and Anthony Campbell[28]e.g.

“….I have attached to this mail the copy of the agreement letter stating that you have agreed to give is 15% of the total funds after the funds is finally processed…”

“Congratulations. I would like to inform you that the Funds Processing Department of our organisation in Brazil has received some part of the claim documents of your funds, in which they are satisfied with it and they have instructed the bank to credit the account where your funds will initially be deposited with the sum of 1 million dollars……”

11.  As a result of the Ruling, the defendant maintains that he has been deprived of the ability to adduce that evidence, and a significant amount of other evidence from the same source[29], in support of his defence as to knowledge.  This would have been the sole issue in trial.  In essence, Mr Donald on behalf of the defendant, maintains that the digital evidence is corroborative of the explanation provided by the defendant in his VRI and provides the background to the material events as well as evidence of his state of mind.  As for any remedial action, he submits that ACCO Chan had confirmed that he would not be in a position to provide a s22A certificate in respect of the operation and contents of P60 and therefore no such s22A certificate could now be obtained from a defence expert in order to produce it for any hearsay or non-hearsay purpose and, even if the defendant were able to rely upon the retrieved digital evidence, that data is only a portion of what was on P60 and the contents of P60 may have been altered, deleted or corrupted as a result of the actions of C&E.  Its integrity cannot now be ascertained.  The weight which could properly be said to attach to it was significantly undermined by the conduct of C&E.  The defence had intended to rely upon it once it was adduced by the prosecution and proceeded at all times upon that basis.  Without it, the defendant will be severely prejudiced in mounting his defence.  An adjournment cannot address that prejudice.  Mr Donald submits that a fair trial is no longer possible and that for the trial to continue would amount to an abuse of the process[30].

12.  In the alternative, if unsuccessful in that application, Mr Donald submitted[31] that after editing, the VRI no longer makes any sense and the Court should exercise its discretion to rule it out as its prejudicial effect outweighs its probative value.  That subsidiary argument is no longer necessary to address given the Court’s view as to the substantive application.

13.  Mr Poon, on behalf of the prosecution has helpfully provided the court with a summary of the facts he says he will rely upon to prove the guilt of the defendant.  Some of those facts he now accepts are inadmissible but, taken at its highest, he maintains that the explanation given by the defendant throughout the VRI was incredible and he wishes to rely upon s47 of the Dangerous Drugs Ordinance, Cap 134 for a presumption of possession and knowledge.  He submits that the defendant has provided an explanation for some of the WhatsApp messages within the VRI and is therefore not prejudiced by the inability of the prosecution to put them before the jury or his inability to rely upon them.  He maintains the WhatsApp messages are in any event self-serving and would be previous consistent statements and as such the defendant cannot rely upon them. Lastly, any prejudice can be addressed by the prosecution undertaking not to suggest the messages do not exist and by appropriate directions to the jury.  He did not assist the Court in what such directions should contain.

The Abuse of Process Application

14.  If an indictment has been properly laid before the Court, then a Court is obliged to try the case: HKSAR v Lee Ming-tee [2001] 1 HKLRD 598[32]. The public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial.[33] The circumstances in which a Court will intercede to take a matter away from consideration by a jury must therefore be exceptional.  Much will depend upon the particular circumstances of the case[34].  On the rare occasions when it may be right to do so, a Court may exercise its inherent power to prevent an abuse of its own process where

i) it would be impossible to give the accused a fair trial, or

ii) where it was necessary to protect the integrity of the criminal justice system[35] [put in other words where the court finds it would be unfair for the accused to be tried][36]

These two categories are distinct and should be considered separately.  Mr Donald relies only upon the first limb.  He submits the degree of prejudice to the defendant as a result of the Ruling makes a fair trial impossible.  The test under the first limb does not require the Court to engage in the same balancing of interests which is required under the second limb[37]. Fairness to the accused is the question to be resolved.  The Court, in doing so, will consider all of the circumstances of the case before it.  But it is not required to balance the interest of the accused with the public interest in ensuring that those accused of serious crimes are prosecuted nor the competing public interest in ensuring that any alleged misconduct or failure by the prosecuting authorities may undermine the criminal justice system and bring it into disrepute.  Given the findings of this Court in the Ruling, the exercise of its jurisdiction to order a stay is not to be seen as a disciplinary action nor is it to be seen as a mark of the Court’s disapproval of the conduct of C&E[38]. That is merely a consideration within the overall scope of whether a fair trial can be held.  For if a fair trial cannot be held then the Court should exercise its jurisdiction to stay the proceedings.  In Ng Chun To Raymond supra, following Lee Ming-tee, the Court of Appeal held:

(1)  …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.” 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^[39].

15.  Both parties have relied upon a number of authorities in support of their respective positions, the outcome of which turn very much upon their own peculiar facts but the applicable principles are not in dispute.

16.  It is common ground that the burden is upon the defendant to show a fair trial is not possible.  For that, the defendant maintains he need do no more than rely upon the Ruling in which this Court found:

i.  P60, the mobile phone was recovered from the defendant upon arrest on 10 September 2019 and was accessed for the purpose of the preliminary interview;

ii.  P60 was retained by C&E and accessed during the controlled delivery;

iii.  P60 was thereafter accessed prior to and during the VRI;

iv.  It was finally sealed in a TEPE at 2115 hours on 11 September 2019;

v.  There is no record of when the TEPE was next opened but it was accessed (having at some stage placed in airplane mode) by CO12200 on 15 and 17 September 2019, at which point it was sealed once more in a TEPE;

vi.  At no stage up to and including 17 September 2019 was a hash value taken of the data within the memory of the phone;

vii.  Throughout the period from arrest and up to and including 17 September 2019, it has been accessed in an insecure environment;

viii.  No record was made of its storage and handling on any central computer record during this period;

ix.  On 23 October 2020 (almost one year later) ASCO Cheung handed over P60 to ACCO Chan in the computer forensics laboratory;

x.  At some stage prior to 29 October 2020, at an unrecorded date and time, the phone was accessed using Celebrite software which was unsuccessful.  No hash value was recorded either before that exercise or immediately afterwards.  The effect upon the data is unknown;

xi.  On 29 October, the Hancom software was then used to successfully access the phone ‘via the back door’ and some data^[40] was accessed but it was not possible to access 100% of the stored data;

xii.  The Hancom software automatically calculated the hash value at that time but no separate record was made;

xiii.  The data extracted under the Hancom exercise was copied onto an external hard disc, which was retained at ACCO Chan’s work station.  This was not entered into any exhibit handling system (if indeed there was any);

xiv.  At unrecorded times between 29 October 2019 and 2 November 2019, the phone was accessed on several occasions by the OC Case and ACCO Chan and verified against the hard disc copy of partially downloaded data in order to decide which data would be required for the purpose of investigation.  No record of the hash value was made at any stage of this exercise;

xv.  The hash value of P60 would have been automatically affected by the Nand Flash memory of the phone each and every time it was accessed.  When that is done under normal conditions, data will be open to external interference.  If it were carried out within the secure environment of the Computer Forensics laboratory it will not;

xvi.  The only stage that the hash value of the data was verified in respect of exhibits to be relied upon by the prosecution was after it was copied onto hard disc.  The value of the hard disc was recorded;

xvii.  ACCO Chan was not in a position to provide a s22A certificate in respect of the data retrieved from P60.  It follows no other computer forensic expert would now be able to do so;

xviii.  No secure and unassailable copy was made of the data retrieved and, in any event, a significant amount of data was not and cannot be retrieved;

xix.  This results in a substantial prejudice to the defence who have little idea of these shortcomings until a long way into the investigation by which time the harm had been done and the costs of seeking to unravel that harm, if possible, would be significant.

17.  Mr Donald submits it is now too late to undo the harm done. Indeed, it is impossible to do so.  The defendant has been substantially prejudiced thereby[41] as can be seen by a full analysis of the contents of the WhatsApp messages and emails.  The defence should have been provided with a full encased copy of data extracted from P60 with a hash value at the beginning.  That exercise was not an impossible one.  It required an acknowledgment by C&E that this was important evidence whose integrity needed to be secured.  The operational priority to carry out a controlled delivery could have been satisfied by the removal of the sim card.  There was no necessity to use the phone itself.  Given that almost 24 hours passed between arrest and interview, during which time the C&E sought a warrant to search P60, the data within it could have been encased.  Had that been done, then no matter what errors thereafter occurred in the handling of P60 by C&E, the defence would have had a good copy of the evidence.

CAN THE DEFENDANT HAVE A FAIR TRIAL?

18.  Every person has a right to a fair trial.  The general public has an interest in no matter being brought to trial which cannot be dealt with in a fair and just manner.  The onus is therefore on the whole of the prosecutorial team from the point of arrest onwards to ensure that it is fair. In order to do that, proper procedures should be in place throughout the criminal process and those procedures should be recognised by all stakeholders and should not differ significantly as between them.  As an aside, this is not the first time this Court has been informed that one department does not speak to the other or that divisions within departments do not communicate.  In this instance, one forensic laboratory carries out its functions in a manner different from another.  Indeed, in this case, the Court was acutely aware that the evidence given before it differed substantially from other evidence in previous C&E prosecutions.  The prosecution was alerted to this on several occasions so as to provide them with a chance to remedy the problem.  This comment is not made to punish; it is not the function of this Court to do so.  It is made to highlight the difficulties which Courts face today in ensuring that justice is done and seen to be done and it is for the prosecution to take cognisance of the fact that it is currently failing to do so where the integrity of digital evidence is concerned.  This case is a prime example.

19.  Has the defendant shown on a balance of probabilities that a fair trial is impossible?[42]  Is there any remedial action which can be taken to address that unfairness?  In deciding whether a fair trial is possible the Court must consider all of the circumstances of the case including the whole of the admissible evidence relied upon by the prosecution and its right to ask for that evidence to be put before the jury, as against the defendant’s right to avail himself of all of the relevant material evidence which he wishes to rely upon in his defence to be placed before the jury for their consideration in seeking to undermine the case for the prosecution.

20.  The defendant’s mobile phone [P60] was seized upon arrest. At that stage, the investigating officers would have known that there was a high probability that there would be significant evidence upon that phone. The moment they accessed it and found that to be the case, they took the risk that the data on the phone would be compromised.  They did not need to do so. For the purposes of the controlled delivery, only the sim was required.  The phone was not.  The phone could have been immediately securely encased or imaged and copied without harm to any future investigations.  That was not done.  The provenance of the exhibit itself was compromised as were the contents and a significant amount of data was not retrieved.  This was done in such a manner that the defendant would have been unaware as to what had taken place and not in a position to require evidence be properly secured.

21.  Evidence which is inadmissible cannot by reason of prejudice to one party or the other, be resurrected and rendered admissible.  The acts of the prosecuting authority caused it to be so. Those acts and the subsequent Ruling were detrimental to the defendant and cannot now be undone so as to render the evidence admissible in the hands of the defendant.  It is clear that the defendant himself may give evidence of that which he is in a unique position to relate.  But he would be in difficulty as to what he was told by Yolanda, Jimmy or Anthony save to explain what he did as a result of what he read.  Whilst it is correct to point out that in the normal course of events, a witness would not be entitled to state what he wrote or said and then point to a document to show that he did indeed write it or say it, in the circumstances of this case that is far too simplistic a stance.  There are over 3,000 WhatsApp messages in the committal bundle alone.  If relied upon, as they were in the VRI, the prosecution would have wished to place them before the jury and would have sought to rely upon them as evidence of the truth, to show that events did happen in the manner in which the messages suggest i.e. that tickets were provided by Jimmy and Anthony or that a handover of suitcases took place.  They cannot pick and choose that which they rely upon as evidence of the truth and that which they do not, without some other evidence in support of that contention.  The prosecution having placed them before the jury, the defendant would have been able to point to them and state what he did and why he did it.  He would have had no difficulty in pointing to specific messages to show his state of mind at any given time and to explain his actions.  As a matter of simple assistance to the jury, one would expect a bundle of messages to be before them.  They could not possibly follow the chronology of events and assess the relevance of the communication between the defendant and third parties without them.  It seems disingenuous of Mr Poon to wish to rely upon them for his own purposes as evidence of the truth of their contents but at the same time suggest that the defendant need not do likewise because questions have already been asked and answered.

22.  There is the option of allowing the defendant the documents to refer to when giving evidence in order to refresh his memory from them but that would then require a substantial note taking exercise by the Court, which would be wholly artificial.  These messages and all relevant emails should have been before the Court for the jury to assess both the case for the prosecution and defence.  As it is they are not before the Court and there is no route by which they can now be adduced which does not afford the Court considerable difficulty in directing the jury.  It would render otiose the original Ruling.  Mr Poon did not suggest such a route. As he was of the view that he could proceed against the defendant without reliance on the messages, he did not feel the need to offer assistance as to how they might otherwise be admitted.

23.  I do not see how Mr Poon’s suggestion that he would undertake not to suggest the messages did not exist would cure the obvious unfairness.  How on earth would he be able to cross-examine the defendant on the issues identified in the examples given above, which are substantial, without reference to the actual messages and without copies being available to the jury?  The defendant will wish to say, “I was told X, Y and Z. They may not have been true but I did not know that then.  As a result, I honestly believed A, B and C”.  The prosecution is in no position to undermine that evidence.  All they can do is to put their case that the defendant knowingly trafficked in dangerous drugs.  Why can’t the defendant say in answer to that case “Look, I was told this and whether it is true or not, I reacted in this way because at that time I believed it was true. My subsequent actions show that was indeed my state of mind”?  Why, in the normal course of events, would that not have been admissible before the jury?  It would appear that the prosecution’s hands would be equally tied given the limited evidence they now have.

24.  In addition, Mr Poon suggests that the defendant has had an opportunity to answer questions in the VRI and therefore he is not prejudiced as his explanations are before the Court already.  It is correct to say that the defendant gave his version of events in his VRI, but that VRI has now been edited to exclude uncharged acts and the inadmissible digital evidence along with many of his explanations.  That in itself causes problems of comprehension and is most unfortunate.  But, it must also be remembered that the content of a VRI is only as good as the interviewing officer and the questions asked.  The officer has an agenda.  A defendant responds to questions if he chooses to waive his right to silence but his answers are only as good as the questions put to him.  If he is not asked a relevant material question, there will be no available answer.  At the time of a VRI, an officer’s knowledge as to the background to the offence will be limited; the questions asked will therefore be basic in nature.  It follows that there will be little opportunity for a defendant to provide a coherent chronology of events. In this case, the defendant answered questions and provided an explanation for his possession of the dangerous drugs.  His story did not come out in a coherent manner as a result of the manner of questioning.  The officer is not to be criticised for that.  It is not the duty of the interviewing officer to seek to adduce the case for the defence.  It is for him to interrogate the defendant to make his case on the limited facts known at the time.

25.  The issue now is how the Ruling has affected the defendant and whether it has rendered any trial unfair.  The defence cannot adduce it in its current form of its own volition.  There is no proper digital copy of what was on the phone at the material time for the purpose of a s22A certificate by an independent expert.  That error cannot be remedied.  S22A(3) precludes the defendant from adducing it himself.

CONCLUSION

26.  Exclusion of evidence does not automatically render a trial unfair even in circumstances where the conduct of the investigating authority is egregious.  The power of the Court to stay proceedings is not a disciplinary power to be exercised to punish the transgressor.  In any event, that was not the case here.  Whilst the court was frustrated by the lack of proper procedure for the handling and extraction of digital evidence, no part of the Ruling was intended to suggest mala fides on the part of C&E.  It simply inter alia sought to put the investigating authorities on notice as to the proper manner in which to seek to adduce digital evidence before a criminal court where the matters are extremely serious and a defendant is looking at a significant loss of liberty.  Fairness to the defendant should not be overborne by convenience.

27.  A Court must always be slow to take a properly constituted case away from the jury.  It is a matter for the prosecution who they bring proceedings against, upon what basis and what evidence they seek to rely upon to secure a conviction and a judge in a jury trial should not seek to interfere with that process without good cause.  There are several factors which may come into play when considering whether an application to stay proceedings should be acceded to.  Those factors depend very much upon the particular proceedings at hand and the nature of the complaint made. Every effort should be made to allow the prosecution to proceed as it proposes and for the jury to be the arbiter of guilt or innocence.  However, whether the charge against a defendant is one which can be dealt with summarily in the magistracy or one which attracts the ultimate penalty in the highest of our criminal courts, the rules of evidence apply and must be adhered to subject to the inherent discretion in the High Court to secure a fair trial in the interest of justice.

28.  The reality of any prosecution is that the defendant must react to the case brought against him.  He is not in control.  That is why such a heavy burden is placed upon the prosecution to act at all times with integrity.  That is not simply the issue of acting without bad faith but for the prosecution to be conscious of the need to preserve the evidence in a manner which can be fairly placed before the Court.  Inconvenience, at its highest and slap dash and unprofessional systems at its lowest, can never inure to the benefit of the prosecutor and the prejudice of the defendant. There is no doubt that we, as a jurisdiction, have fallen far behind others in the investigation and handling of digital evidence but that failure on the part of the relevant authorities cannot be used to the detriment of the defendant, especially one who may be looking at spending the remainder of his life in a foreign prison.

29.  The failures of C&E in respect of the processing of evidence from P60 have led to substantial prejudice to the defendant, which cannot now be addressed.  As a result, he cannot now receive a fair trial.  I wish to point out that whilst it is likely this matter would not proceed beyond the end of the prosecution case, that is not an issue which has been taken into account as relevant to the exceptional course the Court is taking in ordering a permanent stay of proceedings against the defendant[43].

OBITER

30.  A number of matters have arisen during the application which, whilst not determinative, bear a mention.  The first, is the duty of the prosecution, both the case handling officer in the Department of Justice (“DoJ”) and prosecuting counsel, to assess all of the evidence available to it and not just that which the investigating authority seeks to rely upon.  In this case, a significant amount of digital evidence found its way into the unused material which supported the case of the defendant in material respects and which significantly undermined the case of the prosecution and yet prosecuting counsel had not read it or considered it.  Counsel has a duty to consider all of the material in the case on receipt of his brief including that contained within the unused material.  He or she should do so in order to properly advise on the case both as to the prospects of success but also as to the evidence to be relied upon in trial.  Just as he has a duty to advise, he also has a duty to take instructions, which it appears Counsel did not do.  Defence counsel should also ensure that they look at the unused material, as was carried out in this case, in order to ensure that they are in a position to address the case against them and advise and take instructions accordingly.  Issues may arise, as they did here, upon how such evidence may be adduced or undermined and it should not be left to trial for such issues to be addressed.  No criticism is made of defence counsel in this respect as he was entitled to expect that the evidence arising from P60 would be handled appropriately and that the prosecution would proceed, as it indicated, to adduce it as part of their case. Indeed, given what had occurred within the VRI, it would have been difficult for the prosecution not to seek to rely upon it, whether they needed to or not.

31.  Secondly, prosecuting counsel has a continuing duty not just to ensure proper disclosure but also to satisfy himself that he has a case sufficient to go to trial.  That duty clearly extends to revisiting the strength of the prosecution case after any ruling.  No such review was undertaken here and therefore no advice was provided to the DoJ.  The Ruling rendered inadmissible a significant portion of the prosecution case including the knock-on effect it had upon the content of the VRI.  The result being that Mr Poon had no direct evidence of knowledge[44] to put before the jury but he also had no indirect proven primary facts from which he could properly ask the jury to infer knowledge, despite maintaining that he could.  He conceded he only had the evidence of the defendant’s possession of the drugs at Hong Kong International Airport and an admission against interest during the preliminary enquiry that the suitcase containing the drugs had been provided to the defendant in Brazil, which he had then brought into Hong Kong.  Plus his misguided view that he could pray in aid s47 of the Dangerous Drugs Ordinance.  On the other hand, he nevertheless wished to rely upon an edited VRI in which the defendant explained what he believed was secreted within the suitcase and how that had come about as a result of his relationship with Yolanda and his instructions from Jimmy and Anthony.  From the committal bundle alone, without reference to the unused material, which he should have read, Mr Poon knew that explanation to be prima facie made out and that he had no means of undermining it.  On that basis, Mr Poon submitted he nevertheless had a case which would survive any half time submission and one which he could properly place before the jury and ask them to infer that the only reasonable inference which could be drawn from the defendant’s possession of the suitcases in which the drugs were secreted was that he knew he was carrying dangerous drugs and that the other inference which could be drawn[45] was so highly improbable as not to be capable of belief. The sole ground on which he advanced such a proposition was that other Judges had allowed him to put such tenuous evidence before the jury.  I do not accept that proposition.  This matter should have been considered with the case officer and instructions taken as to the best way to proceed.  That was not done.  All counsel have a continuing duty towards those who instruct them and should not seek to proceed oblivious to the significant cost to the public purse of pursuing a case which has no merit.  Counsel who do so, and who do not seek instructions, may in the future be at risk of costs against them personally.