HKSAR v. INDRA AGUS SETIAWATI

HCCC 318/2017

[2018] HKCFI 80

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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RULING ON ADMISSIBILITY (NO 2):
EVIDENCE IRRELEVANT AND MORE
PREJUDICIAL THAN PROBATIVE

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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 phone seized 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.

There are a number of other items on the mobile phone of the accused and I am informed by counsel for the accused that the balance of these are not the subject of objection.

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.

3.  In brief outline, the case for the prosecution is that these 2 items of evidence taken with other items on the mobile phone are circumstantial evidence which, when taken with the other evidence in the case including the conduct of the accused when she received the parcel from customs officers disguised as postal workers provides a circumstantial case which, a jury properly directed could infer that the receipt on 8 March 2017 of this parcel posted from Brazil was part of a system in which the accused was involved in the conduct the subject of the indictment and from which the jury could infer relevant knowledge.

4.  On 5 January 2018 I ruled that the evidence the subject of objection may be received and considered by the jury.  I indicated that I would provide reasons in writing for this ruling at a later date.  This was particularly necessary as the prosecution has already opened its case and theobjection was taken after the prosecution had commenced calling witnesses.  Set out below are my reasons for admitting the impugned evidence.

5.  The facts of the case involved an allegation that a parcel was detected by Hong Kong Customs officers in the course of routine inspection of parcels arriving from overseas.  This parcel was from Brazil and was addressed to Joe Willis of 2/F, 21C, Block A, Tsui Yee Garden Tsui Wo Tsuen, Yuen Long, Hong Kong.  The parcel contained a number of identical items and secreted in the bottom of these items was some cocaine.  The bottom was, in effect, a false bottom and had to be prised off before being detected.  Customs officers disguised as postal workers attended at the building at which the parcel was addressed.  As they attended the door of this building (which was a village house in the Yuen Long area), the accused came out of the door of the ground floor of these premises.  There was an exchange between the customs officers and the accused and she had with her a copy of a passport in the name of the addressee.  There will be evidence that the passport copy that was produced was false.

6.  After the disguised Customs officers handed over the parcel, the accused was immediately arrested and cautioned.  She denied knowing what was in the parcel.  It would be open to the jury to infer that the accused did not just happen to walk out of the gate when the disguised customs officers attended at the premises.  Given she was in possession of the false passport and was also in possession of a piece of paper upon which was written the serial number of the waybill, it would be open to the jury to inferthat she was waiting for the parcel.  That gives rise to the questions as to how she would have known that.  That is reinforced by the fact that there had been an enquiry the day before at the post office at Yuen Long about when the parcel might be delivered.  A postal officer at the Yuen Long Delivery Office received a telephone enquiry from an English-speaking male who claimed to be Joe Willis.  That person called to enquire about the delivery status of the parcel and requested delivery in the morning of 8 March 2017.  Although on no account could it be said that it was the accused who made that enquiry.  The voice of the enquirer was male.  It is pertinent that the inference could be drawn that there was an anxiety about the delivery of the parcel.  A jury could conclude that the contents of the parcel could readily explain that anxiety.  A jury could conclude that the accused was there waiting at the gate with passport and parcel number in hand when the Customs Officers arrived.

7.  Indeed, a jury could infer that given the cocaine was in the parcel, it was extremely unlikely that it was addressed to where it was addressed to without a fairly firm expectation that there would be someone there to receive it.  All of that would enable a jury to conclude that there was a substantial element of preplanning in sending the cocaine from Brazil to this address in Hong Kong.  Given Joe Willis was not a tenant at the premises and the accused was a tenant of the rooftop (but not a tenant of what could be described as 2/F of that address (the tenant of 2/F statement will be read‌—‌he is not Joe Willis)) a jury could infer that the accused was part of the preplanning.  The jury could conclude that this was not some casual requestfor the accused to do the addressee a favour.  This was a parcel with cocaine in it which was worth serious money.  (See admitted facts as to the value.)

8.  The issue in the trial is whether she was aware that the parcel contained dangerous drugs.  In the circumstances, if that was proved, it would be fairly easy for the jury to infer that she either received and thus possessed the parcel and its contents for the purpose of unlawfully trafficking in the dangerous drugs therein.  Alternatively, her conduct could be viewed as dealing in or dealing with dangerous drugs within the meaning of the definition of trafficking in section 2 of the Dangerous Drugs Ordinance, Cap 134.

9.  The mobile phone which was carried by the accused was examined by customs officers.  It contained not only the items to which objection has been taken but a number of other items.  First of all, the mobile phone contained an image of the same passport as that purporting to be Joe Willis but in a different name.  All of the other particulars were exactly the same.  Also, the signature on the passport bearing the name of the addressee of the parcel could, on no account,be the same as the false passport with the addressee’s name on it or the false passport depicted in the mobile phone of the accused with a different name on it.  In other words, it would be difficult to see how the accused could have been under any illusion that the passport was anything other than false.  Further, there will be uncontested evidence as to who lived at the precise address on the parcel and, on no account, could be said that that was the addressee.

10.  In addition, there is the material on the mobile phone to which objection has been taken.  There is, of course, no evidence that the white powder either on the scales or relating to the unscrewing of the thermos cupsis an illicit drug.  However, both items are obviously unusual items to be on amobile phone.  The explanation offered by the accused in her video recorded interview as to the nature of the white powder appearing in a number of photographs to be being weighed on digital scales that it as sugar is plausible only in a worldwhere everything is possible.  A jury could infer that what she said is untrue.  I do not think that the jury could go the next step and infer that what is on the scales is an illicit drug but I think that the jury could readily eliminate the explanation offered by the accused.  Indeed, the jury might think that the explanation was bordering on laughable.  It is perfectly plain that there is a superficial distinction between the cosmetics containers with the false bottom which are the subject of the present indictment and the white powder relating to the false bottom of the thermos cups.  However, the video which appears to have been recorded on the mobile phone of the accused, either taken alone or in conjunction with the audio which appears to be instructions relating to the manipulation of the thermos cups so that white powder can be removed from the false bottoms thereof is very similar in substance to the false bottoms which are the subject of the present indictment.

11.  The items the subject of objection might not, when viewed individually have that much, if any, probative impact.  However, the case for the prosecution is that these items cannot be viewed in isolation and are part of the collection of circumstances that when viewed collectively derive their relevance and probative force.  How this form of evidence may operate in the proof of guilt was described by PollockCB in Rv Exall (1866)176ER850,853 as follows:

“ It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope comprised of several cords. One strand of the cord might be insufficient to sustain the weight, but three strands together might be quite of sufficient strength.

Thus it may be in circumstantial evidence—there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.”  

Dixon J in the High Court of Australia articulated the matter as follows in MartinvOsborne (1936)55CLR367,375:

“ If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered includes circumstances whose relationship to the fact in issue consists in the probability or the increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed.”

The passage in the judgement of Dixon J was cited with approval and was applied by the Court of Final Appeal in OeiHengky WiryovHKSAR (No2) (2007)10HKCFAR98,1 HKLRD568, §66.

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 logically be 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 divertedfrom the real issue, or that there is a substantial risk that the jury might misusethe 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 WinnieLov 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 prejudicial effect of that evidence is outweighed by its probative value, that has been done in the context of not only the product of the mobile phone but also the other evidence in the case.