HKSAR v. TOERAB MOHAMEDAJOEB AND OTHERS

HCCC 411/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 411 OF 2009

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BETWEEN

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R U L I N G

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Ruling regarding severance of trials.

1.  I refused an application by the second and third accused for the severance of the pending trial against them.  These are my brief reasons for that decision.

2.  The indictment in these proceedings alleges a joint enterprise between three accused, relating to the commission of a single offence of trafficking in dangerous drugs.  The first and second accused are husband and wife.  The first accused has pleaded guilty to the offence.  I am told that the prosecution does not intend to call him as a witness in its case: the second accused has indicated that she reserves her position in this regard.

3.  The three accused arrived by air on the same flight from Surinam, via the Netherlands.  They were observed after passing through immigration and customs clearance in Hong Kong.  Each was in possession of a suitcase.  When the cases were loaded or were being loaded into the boot of a taxi the accused were intercepted.  In the suitcases checked in for the flights in the names of each of the first and second accused were found secret compartments containing drugs which form the subject matter of the offence.  Nothing unlawful was found in possession of the third accused.

4.  Apart from the discovery of the dangerous drugs in her suitcase, there will be produced a record of interview of the second accused.  In that interview she denies any knowledge of the presence of drugs in her suitcase.  She indicates that that suitcase was supplied to her by the third accused and asserts that all that she put into the suitcase was her clothing.  In essence, her defence is that she was duped into carrying drugs by either or both of the first and third accused.

5.  The essential evidence against the third accused comes from one record of interview which survived the hearing of a voir dire when its admissibility was challenged.  The prosecution relies on admissions made by him in the course of that interview.  During that interview he asserted that a third party had told him that the first and second accused knew that they were transporting drugs and would each receive a substantial, in relative terms, cash reward for doing so.

6.  The second accused sought severance on the basis that the contents of the third accused’s record of interview was highly prejudicial towards her, particularly as to the fact of her knowledge concerning the presence of the drugs ‑ which she denies.  The third accused similarly sought severance on the basis that the second accused’s assertion that it was he who had supplied the suitcase to her was highly prejudicial towards him.

7.  This is, on the face of it, a straightforward joint enterprise alleged by the prosecution.  It is commonplace that in such trials one accused seeks to blame another.  Even so, it is only in exceptional circumstances separate trials are ordered.  It is trite that there are powerful public reasons why joint offences should be tried jointly.  It is accepted practice even though it may involve inadmissible evidence being given before the jury in respect of one of the accused.  Inevitably in such a situation when it is necessary for an accused to decide whether or not to testify in his or her defence, that decision has to be made without the knowledge of what they can accused might elect to do: that is so in every matter of this nature.

8.  The central issue in this matter, however, is that what is said by one accused in her or his record of interview is not admissible as against the other.  Counsel submit that, even so, the jury will inevitably be prejudiced by the contents of the records of interview despite any direction which they may be given.  I disagree.  The jury will be told in the clearest of terms just what the correct approach is that they are to adopt. I see nothing peculiar to or complicated in this matter which may suggest that the jury would not be able to follow such a direction.

9.  There is a further issue insofar as the second accused is concerned: what the third accused says in his record of interview concerning the knowledge of the second accused appears to be based on hearsay.  That they are specifically to ignore those assertions can be emphasised to the jury in a direction which the jury should have no difficulty in understanding.  If, in the fullness of time, the third accused elects to give evidence then, unless a proper basis is laid for that evidence, it will be excluded from the trial in any event.

10.  There is nothing in this matter to which my attention has been drawn that justifies deviating from the practice of the accused being tried together.

11.  As an alternative course I was asked on behalf of the second accused to consider editing portions of the third accused’s record of interview.  I declined to do so as those portions suggested to be edited are relevant to the state of knowledge of the third accused and will form the subject of the foreshadowed directions to the jury.