HKSAR v. PEREZ OSORIO LUIS FERNADO

CACC 88/2015

CRIMINAL APPEAL NO 88 OF 2015

(ON APPEAL FROM HCCC 444 OF 2013)

------------------------

------------------------

_________________________

REASONS FOR JUDGMENT
_________________________

Hon McWalters JA (giving the reasons for judgment of the court):

Introduction

1.  The applicant was charged with one count of trafficking in a dangerous drug, namely, 1.07 kilogrammes of a powder containing 0.81 kilogramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He was convicted after trial before Zervos J and a jury on 18 February 2015, and sentenced to 22 years’ imprisonment.

2.  On 11 March 2015, the applicant filed a Notice of Application for Leave to Appeal against both his conviction and sentence. 

3.  At the hearing we allowed his application and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal, quashed the conviction, set aside the sentence and ordered a retrial, pending which we ordered the applicant to be remanded in custody.  We said we would hand down our reasons for doing so at a later date and this we now do.

The prosecution case

4.  On 17 April 2013, at around 16:05 hrs, Rodolfo Bardales Tobar (“Tobar”), a national of EL Salvador was stopped by Customs officers at the Arrival Hall of Hong Kong International Airport having flown in to Hong Kong from Amsterdam.  When stopped by Customs officers Tobar was pulling a briefcase which, when subsequently X-rayed, was found to have concealed within it 9 plastic bags containing 810 grammes of cocaine that had an estimated street value of $1,094,610.  Tobar was arrested for trafficking in a dangerous drug and when requested to participate in a controlled delivery operation of the drugs he agreed to do so.

5.  Tobar was taken to a hotel to arrange the delivery where he waited in Room 239.  The Customs officer in charge of the controlled delivery was Inspector Ho Chun Wing and he had with him a team of Customs officers.  Also present in the afternoon of 18 April was a civilian, Miss Giai, who was there to act as the Spanish interpreter.  Earlier that day Inspector Ho had noted that Tobar had a phone number stored in his phone under the name of “Laura”.  This number was subsequently discovered to be the same number as a number stored in a phone of the applicant under the name “Nata”. He instructed Tobar to call this number and at about 1:10 pm he spoke to a person who told him to wait for Laura. 

6.  At about 5 pm a call was put through to the room.  Tobar told Inspector Ho it was Laura.  She told him she would not be coming and another person by the name of Carmillo would come and pick up the suitcase and pay him.  About 1 hour later another call was put through to the room and he was told it was a man who was coming.  The man asked for the address of the hotel.

7.  At about 6:25 pm the applicant knocked at the door of the hotel room.  Inside the room were Inspector Ho and two colleagues, Officer Ng Man Tak and Senior Officer Leung Chi Wai, Miss Giai[1] and Tobar.  Inspector Ho said Tobar opened the door, holding the suitcase.  He could see a hand reaching inside and grab hold of the suitcase.  The handle of the suitcase was extended and the applicant grabbed the side of the handle.  Tobar and the applicant spoke to each other in a foreign language.  The applicant then reached out to the suitcase and walked into the room. 

8.  Inspector Ho then used a walkie talkie to order the arrest of the applicant and Officer Tsang came from Room 237 and made the arrest.  At the same time Officer Tsang cautioned the applicant in English and conducted a brief search of him.  After a short period of time Officer Tsang took him to Room 237 where he was questioned by Inspector Sunny Leung with Ms Giai acting as the interpreter.  Inspector Leung was in charge of the post-arrest handling of the applicant.  Officer Tsang said that he did not repeat the caution before Inspector Leung commenced questioning him and Inspector Leung confirmed this.  These questions and answers were challenged in a voir dire as being involuntary.

9.  The applicant was later taken to an office at the airport where, with the assistance of the interpreter, a post-recorded statement of Inspector Leung’s questions and his answers was taken from him.  He signed the post-recorded statement, which stated that he had answered questions from a Customs officer at the hotel, saying that he had come to collect the suitcase from a friend named Catalina, whose real name was Natasha, and who would pay him $5,000 for doing so.  He also refused to assist the Customs officers in the further delivery of the drugs saying: “No, I won’t do that.  I worry about the safety of lives of my family in Columbia.”

10.  A search of the applicant had found that he had on him HK$17,930.50, which the prosecution suggested was to be used to pay Tobar for bringing the drugs into Hong Kong.  He also had in his possession two mobile phones.

11.  An examination of the telephone records of the applicant’s two phones revealed that:

(i) there were seven telephone calls between the number saved under the name of “Nata” and the applicant on 17-4-13 and seven on 18-4-13;

(ii) the applicant had twice rung the hotel where Tobar was staying.  Both calls were on 18-4-13 and were at 17:48 and 18:19;

(iii) there was no telephone contact between the applicant and Tobar; and

(iv) the telephone records of “Nata” and of the applicant’s two phones showed three common numbers, one of which in one of the applicant’s phones was stored under the name of Parcero.

12.  The telephone record for the number of “Nata” revealed that this number, which is a pre-paid CSL sim card, had called the hotel in which Tobar was staying that night on 7 occasions.  They were, on 18‑4‑13 at 17:02, 18:07, 18:12, 18:54 and 18:59, and on 19-4-13 at 00:48 and 01:00. 

13.  Staff at the hotel also testified as to the phone calls received on behalf of the room in which Tobar was staying.  One staff member said that on 18 April at about 1:45 pm he received a call from a foreign male who could hardly speak English.  Because the communication was so poor the male caller passed the phone to a woman whose English was better.  She asked for Tobar and was connected to his room.

14.  Another staff member who worked a later shift received four incoming calls relating to Tobar’s room.  This staff member was of the opinion the person making all the calls was the same foreign woman.

15.  The prosecution also adduced Immigration Department records that proved that the applicant had not entered Hong Kong after July 2012.  It then fell to the applicant to explain, when he testified in the defence case, that he had gained entry to Hong Kong by using a false passport in the name of another person.  The applicant’s counsel had objected to the admission of the Immigration records on the ground that the evidence was more prejudicial than probative but the judge ruled it was admissible.

16.  It was the prosecution case that the applicant knew about the drugs and by going to Tobar to collect them was playing a part in trafficking in them.  The judge summarized the prosecution case as follows:

“ The prosecution put their case on trafficking on the basis that the defendant had numerous telephonic contact with Natasha, also known as Nata, who at the same time was making contact with Tobar at the hotel; that the defendant also made telephonic contact with the hotel at relevant times; that the defendant went to Room 239, and after discussion with Tobar knowingly took hold of the suitcase containing the drugs; and that he made admissions at the scene which were recorded in a post-recorded statement where he stated that he was to collect the suitcase for a woman by the name of Catalina, who we know was Natasha or Nata, for a fee of $5,000, and that by using the name Catalina he was protecting Natasha and concealing his involvement in trafficking in the drugs.”

The voir dire

17.  A voir dire took place in respect of the applicant’s oral admissions and the post-record of those admissions.  The applicant chose to give evidence in the voir dire and alleged that when arrested he was pushed down on the bed, an officer knelt on his back and pulled his hair.  When he was asked by a Customs officer how much he was paid he said he did not know and he was then punched twice on his lower torso.  In order not to be punched further, the applicant then said “Five thousand”.  He claimed also that he was not aware of being cautioned as he was not proficient in English.  He was then taken to Room 237 where he made the cautioned statement. When he did so he was still under duress.    

18.  In ruling the contents of the statement in the post-record to be voluntary the judge said: 

“I found that there was a struggle between the defendant and Customs officers initially in Room 239, and this continued when he was taken to Room 237. After he calmed down he was asked questions which he answered voluntarily through an English-Spanish language interpreter.

I found that in Room 239 a Customs officer arrested the defendant for a drugs offence and administered a caution in English. I found that the defendant has some proficiency in English. I found the defendant signed the post-recorded statement understanding and agreeing with its contents. I found that the defendant had no complaint about his treatment by Customs officers.

Accordingly, I rule that the defendant’s statement and the post-record of it on 18 April 2013 is admissible.”

The defence case

19.  The applicant elected to give evidence.  He testified he had left Hong Kong in July 2012 but had attempted to come back in October 2012 to meet his girlfriend, who was residing here.  However, he was denied entry on his Colombian passport on that occasion, and so he used another passport in another name in February 2013 to enter Hong Kong.

20.  The applicant said he had a friend in Hong Kong called Natasha, who had asked him to pick up some items that she had left behind.  The applicant said he did not know what he was to collect from Tobar but thought it related to clothing as that was Natasha’s line of business.  The applicant also did not know Tobar.

21.  The applicant said that when he arrived at Room 239, the person who opened the door tried to give him the suitcase, but he said he did not want to take it as he wanted to go inside to speak to Natasha.  He had contact with the suitcase only in order to move it so that he could step inside and was expecting to pick up clothing packed in bags and not a suitcase.

22.  Regarding his admissions, the applicant said he was forced to make them, having been physically assaulted and shouted at by the Customs officers in Room 239 so that he was willing to give whatever answer was necessary.  He was asked “How much pay?” in English, to which he replied “$5,000”, after having been punched in the ribs.  No one translated what had been said and he was not aware that he had been arrested.

23.  When he was taken to the adjacent Room 237, he saw Miss Giai and was asked the same questions as had been asked in the previous room, to which he gave the same answers. 

24.  He was taken to the airport, and was not allowed to make a phone call until he signed the post-recorded statement.  He did not agree with the contents of the post-record, which he indicated by putting “For the time being I have nothing to say”.  No complaint against the officers was recorded because the applicant thought that he was being asked about complaints relating to how he was being treated at the airport, and he also had difficulty being understood by his lawyer at the time. 

The judge’s summing up

25.  In respect of the applicant’s admissions, the judge directed the jury as follows:

“As regards the admissions, you must decide two issues. First, did the defendant in fact make the admissions? If you are not sure that he did, you should ignore them. If, however, you are sure he did, then, second, are you sure that the admissions are true? When deciding this you should have regard to all the circumstances in which you find the admissions were or may have been made and consider whether there were or may have been any circumstances which might cast doubt upon the reliability of those admissions.

In addressing the issue whether the admissions are true, decide whether they were or may have been made or given as a result of violent, oppressive or improper conduct or circumstances such as the defendant described. If, indeed, the defendant is correct or may be correct in what he says, then you may think it unsafe to rely on the admissions. It is for you to assess what weight should be given to the admissions.

If, for whatever reason, you are not sure that the admissions are true, you must disregard them.  If, on the other hand, you are sure that they are true, you may rely on them.”  [emphasis added]

The Reasons for Sentence

26.  In sentencing, the judge took a starting point of 21 years’ imprisonment, and enhanced it by 1 year to reflect the international element, making a final sentence of 22 years’ imprisonment.

The grounds of appeal against conviction and sentence

27.  In his Perfected Grounds of Appeal and Written Submissions, Mr Andrew Bullett relied on 6 grounds of appeal.

28.  By Ground 1, it was said that the judge erred in ruling admissible the oral admissions made by the applicant and the post-record made at the airport. 

29.  By Ground 2, it was submitted that the judge unfairly directed the jury on how they should deal with the caution that had been given only in English. 

30.  Ground 3 complained that the judge misdirected the jury when he told them that if the admissions may have been made as a result of improper conduct, it was for the jury to assess what weight should be given to them.  This direction allowed for the possibility that the jury might conclude that the admissions made by the applicant were involuntary, but nevertheless true, and so might give full weight to them when determining their verdict.  Mr Bullett contended that this would be wrong and that the jury must be directed that if they concluded that the admissions were or may/might have been obtained by oppression then they must disregard them.  In this regard Mr Bullett relied on the Court of Final Appeal’s judgment in HKSAR v Pang Hiu San (2014) 17 HKCFAR 545. 

31.  Ground 4 concerns the judge’s decision to allow the prosecutor to adduce into evidence the applicant’s immigration arrival records and asserts that the judge erred in ruling them admissible. 

32.  Ground 5 was not pursued by Mr Bullett.

33.  Ground 6 is the ground of appeal that relates to the application for leave to appeal sentence.  By this ground the applicant complained that the judge erred in enhancing the applicant’s sentence by one year for the international element as there was no evidence that the applicant was part of a conspiracy or had knowledge of the syndicate or the source of the drugs.

Discussion

34.  It is not necessary for us to address any of the grounds of appeal except Ground 3 as in our view this ground is unanswerable.  It relies upon the judgment of the Court of Final Appeal in HKSAR v Pang Hiu San (2014) 17 HKCFAR 545.  There it was said that where the circumstances suggest that a defendant’s statement was, or may have been, induced by oppression and if the jury conclude that the confession was or may have been so obtained, they must be directed that they are required to disregard it.  This has become known as a Mushtaq direction after the name of the English case in which the House of Lords laid down this statement of the law.[2]

35.  A specimen direction based upon the Mushtaq direction was first published by the Hong Kong Judicial Institute in July 2009 and is as follows:

“In this case, the defendant alleges (summarise the allegation). If you conclude that that allegation is or may be correct and that the admissions/answers were or may have been obtained as a result of that conduct, then you must disregard the admissions/answers”.

36.  In HKSAR v Ho Wing To (No 2) [2012] 1 HKLRD 1023 the Court of Appeal adopted the Mushtaq direction.  Finally in the Pang Hiu San case the Court of Final Appeal confirmed that such a direction reflected the law of Hong Kong and in the relevant circumstances must be given.  At page 550 of the report of the court said:

“We have considered the relevant authorities and are of the opinion that a Mushtaq direction is required in Hong Kong where the circumstances suggest that the statement was, or may have been, induced by oppression, including cases where the defendant denied making the confession.”

37.  The effect of the Mushtaq direction is to take away from the jury the right to rely on, and give weight to, an admission, when they conclude that the admission was or may have been obtained in circumstances rendering it involuntary.  However, the effect of the judge’s direction in the present case was to allow the jury to act upon the admission, if persuaded it was true, even if they concluded that admission was or may have been involuntary. 

38.  The respondent very properly conceded that a Mushtaq direction was required in the present case, and further conceded that the judge’s failure to give it constituted a material irregularity in the trial.  The respondent did not seek to rely on the proviso, recognizing that, absent the applicant’s confession, the prosecution case was not so strong that it could be said that the jury would inevitably have convicted the applicant.  We agree.  There is no doubt that, given the allegations of the applicant, a Mushtaq direction was required and that the failure to give it, in conjunction with the giving of a contrary direction, constituted a material irregularity.  We also agree given the significance which was attached to the oral admissions and the post-record of those admissions at trial that recourse to the proviso is not appropriate.  That being so the conviction must be quashed and the sentence set aside.

Retrial

39.  Mr Bullett, though arguing that the prosecution case is not a strong one, recognized that it was hard for him to oppose a retrial given that the offence is so serious.

40.  Given that there is evidence on which a jury properly instructed could convict the applicant we were in no doubt that the public interest demanded that the applicant’s guilt or innocence be properly determined.

Conclusion

41.  For these reasons we granted the application for leave to appeal against conviction and treating the hearing of the application as the hearing of the appeal we allowed the appeal.  We quashed the conviction, set aside the sentence and ordered that the applicant be retried on a fresh indictment and that pending such retrial he be remanded in custody.

[1] Miss Giai denied she was in Room 239 when the applicant was arrested and maintained that she was waiting in a nearby room, Room 237.

[2] R v Mushtaq [2005] 1 WLR 1513