HKSAR v. MOALA ALIPATE

HCCC 76/2019

[2021] HKCFI 2611

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 76 OF 2019

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R U L I N G

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1.  The defendant, a Tonga national, is charged with one count of trafficking in a dangerous drug. The evidence consists of the stop and search of him by the police at around 2015 hours on 14 September 2015 when he was walking to a Cathay Pacific counter at the Hong Kong International Airport to check in for a flight to Auckland departing at 2105 hours.

2.  Inside the black travel bag the defendant was carrying the police found 2 boxes each containing a Sony PS3 game console.  Inside each of the game consoles there were 3 packets of plastic and tinfoil wrappings which contained a total weight of 1076.8 grammes of a crystalline solid of which 1,057.2 grammes were methamphetamine hydrochloride, commonly known as ice. 

3.  The defendant was later interviewed under caution which was video-recorded.  In the video-recorded interview (“VRI”) the defendant denied knowing dangerous drugs being hidden inside the game consoles.  He had come to Hong Kong to take the game consoles to New Zealand for his friends who would sponsor him as a singer and a boxer. The trip was funded by these friends.  He was told there were chemicals inside the game consoles which were to be used to clean blackened money and it did not involve dangerous drugs or anything illegal. 

4.  The DNA found on one of the 6 packets was analysed and the result is that it could have come from the defendant. 

5.  In this trial the only issue is whether the defendant knew that the ice, which is the subject-matter of the charge, were concealed inside the 2 game consoles.  The prosecution relies on the DNA evidence and other circumstantial evidence to prove such knowledge. 

No Case To Answer Submission

6.  At the conclusion of the prosecution case the defence makes a submission of no case to answer.  It relies on the email communications between the defendant and a person by the name of Antony Jenkins and the VRI of the defendant.  According to the emails and the VRI a person by the name of Michael Ousei was also involved while a person named Boyo was the contact person of the defendant in Hong Kong who had given the chemicals to the defendant for him to take to New Zealand. 

7.  In the emails Antony repeatedly assured the defendant that the chemicals which the defendant was to take to New Zealand were not harmful substance and were perfectly legal. Antony described them as something “transportable to anywhere in the world”. 

8.  The defence is saying that the only reasonable inference that can be drawn from these emails is that the defendant had been scammed into smuggling the ice from Hong Kong to New Zealand by way of Black Money Drugs Scam and that the defendant had no knowledge at all that ice had been concealed in the game consoles.  It further says that there is no evidence in the case which can discount the only inference that the defendant is innocent. 

9.  The prosecution says that the emails were contrived and cannot be taken to show that the defendant is innocent.  It contends that the emails are sketchy and are not the complete communication between the defendant and Antony and Michael and cannot be taken as the foundation for drawing the inference that the defendant had no knowledge of the ice hidden inside the game consoles. 

The Law

10.  As in most cases of a submission of no case to answer the starting point is the authority of R v Galbraith [1981] 1 WLR 1039 which sets out how a judge should approach such a submission:

(1)  If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty, the judge will stop the case;

(2)  The difficulty arises where there is some evidence but it is of a tenuous character, for example because of the inherent weakness or vagueness or because it is inconsistent with other evidence;

(3)  Where the judge concludes that the prosecution evidence taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty on a submission being made to stop the case;

(4)  Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability, or other matters which are generally within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury;

(5)  For the borderline cases they can safely be left to the discretion of the judge. 

11.  The rules in Galbraith were explained in the Court of Appeal’s judgment in Attorney General v Li Fook Shiu Ronald [1990] 1 HKC 1 where it was said:

“If elaboration of the approach explained in Galbraith is called for we are of the opinion that a judge faced with a submission of ‘no case’ or an application for discharge in circumstances where the Crown’s case depends, as it usually does, upon an inference or inferences from primary facts, may ask himself:

(1) is there some evidence that the crime has been committed? If not, the judge will rule no case or discharge the count in question. If there is;

(2) is the evidence of primary facts of a quality permitting a jury to accept it? If not, the judge will stop the case or discharge the count. But, if such evidence is of appropriate quality;

(3) could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established? If he concludes that a jury could, may or might so be satisfied, he will rule against the submission or application.”

Drawing of Inference

12.  In the present case there is no direct evidence that the defendant knew that there were ice hidden in the 2 game consoles.  The prosecution is asking the jury to draw the inference that he had such knowledge on the basis that the ice were found inside the game consoles placed inside the black travel bag carried by the defendant when he was going to check in for the flight to New Zealand.  Also relevant is of course the evidence that the DNA of the defendant was found on the outside of the wrappings of one of the 6 packets of ice. 

13.  Applying the third question posed by the Court of Appeal the issue in this application becomes whether a properly directed jury could, may or might be satisfied beyond reasonable doubt, by the drawing of an inference, that the defendant knew of the presence of the dangerous drug in the game consoles? 

14.  To answer this question the evidence that has been adduced during the case of the prosecution has to be scrutinised as a whole, including of course the emails relied on by the defence. 

15.  In respect of its contention that the emails are consistent with the only reasonable inference that the defendant is innocent the defence cites in support the cases of HKSAR v White Michael R HCCC 70/2020, HKSAR v Purugganan Rogelio Garcia HCCC 196/2020 and HKSAR v Dinda Rabiatul Adwia and Another HCCC 136/2020.  The first two concern submission of no case to answer while the third one is about the judge withdrawing the case from the jury after closing submissions by the parties. 

16.  Of them White Michael R, which is a decision of the Court of First Instance in a drug trafficking case, is closer in facts to the present one.  In that case the court upheld the submission on the ground that the emails between the defendant and 2 drug traffickers were capable of being regarded by a reasonable jury as allowing of only one possible inference, and that is that the defendant was deceived by the 2 drug traffickers to transport dangerous drugs for them. 

17.  The rulings in that case and the other 2 cases are of course not binding on this Court and were decided on their own facts.  The analysis of the relevant legal principles in White Michael R, however, serves as useful reference for this Court:

‘11. Since that time the Privy Council and the English Court of Appeal have provided more detailed guidance on how the third question in Lee Fook Shiu should be answered by a judge when dealing with a case in which there are competing inferences available to be drawn.

12. The decision of the Privy Council is Director of Public Prosecutions v Varlack [2009] 4 LRC 392.  In giving the judgement of the Board, Lord Carswell said:

‘[21] The basic rule in deciding on a submission of no case at the end of the evidence adduced by the prosecution is that the judge should not withdraw the case if a reasonable jury properly directed could on that evidence find the charge in question proved beyond reasonable doubt. The canonical statement of the law, as quoted above, is to be found in the judgement of Lord Lane CJ in R v Galbraith [1981] 2 All ER 1060 at 1062. That decision concerned the weight which could properly be attached to testimony relied upon by the Crown as implicating the defendant, but the underlying principle, that the assessment of the strength of the evidence should be left to the jury rather than being undertaken by the judge, is equally applicable in cases such as the present, concerned with the drawing of inferences.

[22] The principle was summarised in such a case in the judgement of King CJ in the Supreme Court of South Australia in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 at 5 in a passage which their Lordships regard as an accurate statement of the law:

“It follows from the principles as formulated in Bilick (supra) in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence… He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence… I would restate the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.”

A similar statement appears in a recent judgement of the English Court of Appeal, Criminal Division in R v Jabber [2006] EWCA Crim 2694 at [21] where Moses LJ said:

“The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference. To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence. But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion. That is not an appropriate test for a judge to apply on the submission of no case. The correct test is the conventional test of what a reasonable jury would be entitled to conclude.”’

18.  As pointed out in White Michael R there is nothing in the  authorities which would prevent the Hong Kong courts, when answering the third questions of Li Fook Shiu, from applying the guidance set out in the Privy Council’s judgment in Varlack.

19.  In the present case the emails between the defendant and Antony which the defence says would exonerate the defendant took place between 9 to 11 September 2015.  In these emails there were exchanges about cleaning money with chemicals and the defendant bringing the chemicals which was very expensive to New Zealand where the cleaning process would be carried out.  Antony assured the defendant that the chemicals were not harmful substances and were legal, transportable to anywhere in the world. 

20.  It was initially mentioned in the emails that the reward for Antony and the defendant would be paid in cash and it later transpired that it would be paid to their bank accounts.  Antony even offered to help the defendant open a bank account so that the defendant could use the money anywhere. 

21.  After studying these emails the Court agrees with the defence that the only reasonable inference that can be drawn is consistent with the innocence of the defendant. 

Emails Contrived

22.  In support of its contention that the emails were contrived the prosecution points out that all the emails relied on by the defence took place after the defendant had arrived in Hong Kong on 6 September 2015 and there was no email of the defendant asking Antony whether the chemicals were legal or illegal. 

23.  If the Court understands the prosecution correctly, it is saying that if the emails were genuine and the defendant was genuinely concerned about the legality of his mission there should have been communication between him and Antony and Michael about this issue before he embarked on the journey to Hong Kong. 

24.  The prosecution further points out that the defendant was in email communication with Michael as early as in January 2012 and there was no mention at all about Antony and Michael sponsoring him as a singer and a boxer. 

25.  The prosecution seems to argue that this is inconsistent with the assertion of the defendant in the VRI that he had come to know Antony online about 1 month before the interview and Antony had introduced Michael to him and that they were providing sponsorship for him to be a singer and a boxer. 

26.  One may argue that whether the emails were contrived is a question for the jury and the Court should not usurp the function of the jury in forming its own conclusion in this regard.  The Court, of course, has no dispute about the different functions of the jury and the court in a trial. 

27.  There were exchanges about the defendant bringing chemicals from Hong Kong to New Zealand for cleaning money and reassurances given to the defendant that his mission was legal in 5 emails between the defendant and Antony.  They were quite detailed, even touching on how long the cleaning process would take.  There is nothing on the face of them suggesting that they are not genuine and the detailed manner in which the discussions took place is inconsistent with the emails having been contrived to provide a cover story for the defendant in case of him being arrested.  The Court is of the view that despite the arguments of the prosecution a properly directed jury would not have failed to find that the emails are genuine. 

Impact of the Emails

28.  The Court is to assess the impact of these emails.  Having carefully studied them the Court is of the view that they are capable of being regarded by a reasonable jury as allowing of only one possible inference, namely, that the defendant was duped by Antony and Michael and, perhaps, Boyo also, to take the ice hidden in the game consoles to New Zealand from Hong Kong on the pretext that they were chemicals for cleaning money. 

DNA Evidence

29.  As rightly pointed out by the defence, the Court has to consider whether there is any evidence in the present case which is capable of excluding the only reasonable inference of innocence of the defendant that can be drawn from the emails.  As it is put in the case of HKSAR v Hui and Ors HCCC 98/2013:

“I am certainly prepared to accept that if one has decided that there is no case to answer under that time-hallowed test in R v Galbraith [1981] 1 WLR 1039 at 1042, one will necessarily have also concluded that a reasonable jury properly directed could not exclude all reasonable possibilities consistent with innocence. If one finds that there is a case to answer one will necessarily have found that a reasonable jury properly directed could exclude all reasonable possibilities consistent with innocence.”

30.  In this connection, the evidence of the DNA of the defendant being found on the wrappings of one of the 6 packets of ice is relevant.  The question is whether such evidence is capable of giving rise to the only reasonable inference that the defendant had been in contact with the packet of ice, thus excluding the inference of the defendant being innocent as drawn from the emails.  An expert in DNA profiling technology gives evidence in the present case as a prosecution witness.  His evidence is to the effect that there is a possibility that the DNA of the defendant could have been transferred indirectly to the wrappings of the packet of ice in a number of scenarios even if the defendant had not come in contact with it. 

31.  The more important scenarios include firstly the one concerning the search of the clothing and belongings of the defendant and the finding of the 6 packets of ice.  Although the police officer responsible for the search wore a pair of gloves he found and took out the dangerous drug from the game consoles after he had searched through the clothing of the defendant, wearing the same pair of gloves.  The expert agrees that this could result in transferring the DNA from the clothing of the defendant to the wrappings of the ice through the pair of gloves. 

32.  The second one concerns the taking of photographs of the exhibits, including the 6 packets of ice.  The various exhibits were put on a green matt for that purpose and the expert agrees that DNA of the defendant could have been transferred to the wrappings of the ice from other exhibits, such as the travel bags, the clothing and other belongings of the defendant through the gloves the police officer was wearing in handling the exhibits and through the green matt. 

33.  The third one relates to the showing of the packets of ice to the defendant during the VRI.  The expert agrees that if the defendant was speaking when being shown the ice his saliva could have landed on the wrappings of the packets, thus resulting in his DNA being found on the wrappings. 

34.  The prosecution does not specifically address on this issue in its submission, but cites the case of R v Morgan [1993] Crim L R 870 which held that if there was an inference of guilt which it was reasonably open to the jury to draw then the case could properly be left to the jury, notwithstanding that there might have been an inference, or other inferences, consistent with innocence, and that it was the jury’s task to see whether the inference of guilt was one which they were sure could properly be drawn.  The case further said that for the judge to withdraw the case from the jury simply because at the close of the prosecution case all other inferences had not been excluded would be to usurp the function of the jury.  The prosecution points out that the case of Morgan was not cited in White Michael R and other authorities cited by the defence. 

35.  The Court is of the view that the decision of Morgan is not controversial and is in effect consistent with the authorities cited by the defence.  As stated above, the emails are capable of being regarded by a reasonable jury as allowing of only one possible inference, namely that the defendant is innocent.  The question remains whether there is any evidence in the present case to exclude such an inference which in the sense of Morgan will mean whether there is evidence such that the inference of guilt is one which the jury are sure can properly be drawn. The evidence of the DNA of the defendant being found on the wrappings of one of the packets of ice is obviously incapable of doing so. 

36.  This piece of evidence can give rise to the inference that the defendant had been in contact with the packet of ice, but at the same time there is the possibility that the DNA had been left there through indirect transfer.  It is trite law that when on a set of facts there is a reasonable inference to be drawn against the defendant but at the same time there is also a reasonable inference to be drawn in his favour, then the jury cannot draw the inference against the defendant.  The jury therefore cannot rely on the DNA evidence to draw the inference that the defendant had been in contact with the packet of ice. 

Presumption of Knowledge of Dangerous Drug

37.  The prosecution also raises the presumption of knowledge in section 47 of the Dangerous Drugs Ordinance, Cap 134.  This section provides, inter alia, that a person who is proved to have had in his possession anything containing a dangerous drug is presumed to have known the nature of the dangerous drug unless the contrary is proved.  The Court of Appeal has held in HKSAR v Hung Chan Wa & Another [2005] 3 HKLRD 291 that the section only imposes an evidential burden on a defendant to show that he has not had the knowledge.  As rightly pointed out by the defence the emails it relies on already constitute such evidence. 

38.  The defendant denied in the VRI to have any knowledge about the ice being hidden in the game consoles. This of course also constitutes such evidence.  According to R v Sharp [1988] 1 WLR 7 the denial of a defendant in a VRI is also evidence which the jury have to consider.  The section is, therefore, of no assistance to the prosecution. 

Conclusion

39.  It is the finding of the Court that the emails between the defendant and Antony were capable of being regarded by a reasonable jury as allowing of only one possible inference, namely the defendant being innocent in that he was deceived by the 2 drug traffickers to unwittingly transport dangerous drugs for them and there is no evidence capable of excluding such an inference.

40.  In the interests of justice, the matter should not be left for the consideration of the jury.  The Court rules that the defendant has no case to answer in respect of the sole count of trafficking in a dangerous drug he is facing.