HKSAR v. JOERAWAN WIKASH SHARDHANAND

CACC 278/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 278 OF 2010

(ON APPEAL FROM HCCC NO. 411 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Stock VP (giving the reasons for judgment of the Court):

Introduction

1.  On 3 August 2010, the applicant was convicted after trial before Wright J and a jury of one count upon an indictment which alleged that he and two others on 2 June 2009, at Hong Kong International Airport, unlawfully trafficked in a dangerous drug, namely, 3.15 kg of a powder containing 1.46 kg of cocaine.  He was sentenced to 26 years’ imprisonment.

2.  He sought leave to appeal against conviction and sentence.

3.  On 28 June 2011, we dismissed the application for leave to appeal against conviction.  As for sentence, we granted the applicant leave to appeal against sentence, treated the hearing of the application as the appeal, set aside the sentence of 26 years’ imprisonment and substituted a sentence of 25 years’ imprisonment.

4.  We said then that we would give reasons for our decisions.  This we now do.

The facts

5.  The applicant was the third defendant on the indictment.  The first and second defendants (D1 and D2) were husband and wife.  D1 pleaded guilty; D2 and the applicant not guilty.

6.  All three accused lived in Surinam.

7.  It was common ground that on 29 May 2009, a travel agency in Surinam booked three tickets for flights on KLM for each of the accused to fly to Amsterdam on 31 May and then from Amsterdam to Hong Kong, departing Amsterdam on 1 June, arriving in Hong Kong on 2 June.  The tickets carried sequential numbers and each ticket stated that it was paid for in cash. They were also booked to fly the reverse route, D1 and D2 departing Hong Kong on 8 June, the applicant departing Hong Kong on 13 June.  D1 and D2 were booked on business class and D3 on economy class.

8.  It was also common ground that on 29 May the same travel agency made a hotel reservation in the name of the applicant for him to stay at the Ibis Hotel, North Point from 31 May to 8 June, but that that booking was cancelled later the same day although, later still that day, the agency made a reservation at the same hotel for two rooms, one in the name of D1, for two persons from 2 June to 14 June and one in the name of the applicant for one person from 2 June to 9 June.

9.  On 31 May 2009 the three accused boarded a KLM flight from Paramaribo in Surinam for Amsterdam, after all three had checked in for the flight within five minutes of each other; the checking-in numbers were sequential.

10.  On 1 June 2009, the three boarded a connecting flight from Amsterdam to Hong Kong which arrived in Hong Kong on 2 June 2009 at about 2.25 pm.

11.  A police party observed the three on and after their arrival in Hong Kong.

12.  On arrival at the baggage claim area at the airport, D1 and D2 waited at the carousel together.  D1 lifted two suitcases from the carousel and put them on a trolley.  He passed through the Customs area with D2 carrying only a shoulder bag.  The applicant collected his suitcase separately and met D1 and D2 in the Arrivals Hall.

13.  At the Arrivals Hall, the three spoke to each other for a while.  The applicant was seen to leave the other two in the Arrivals Hall, move away to a shop and return.  The three spoke together again.  They then walked to the taxi rank that services the Arrivals Hall.  The taxi driver opened the boot of his vehicle, spoke to the applicant and was told by him to take them to North Point.  The driver placed the applicant’s suitcase in the boot and as he was about to take hold of D1’s suitcase, police officers of the Narcotics Bureau intercepted and seized the three suitcases.

14.  The three suspects were then taken to a place nearby and the suitcases were searched.  No drugs were found in the applicant’s suitcase or upon his person but concealed in the two other suitcases, those which D1 had unloaded from the carousel, were the drugs which became the subject of the indictment, a substantial quantity, the retail value of which was HK$2,520,000.

15.  The prosecution evidence against the applicant at trial was that of admissions he made to the police upon interview.  He did not himself testify in his own defence.  D2 testified and implicated him but that was irrelevant for the purposes of the application relating to conviction, for the application concentrated on the safety of the admission into evidence of the applicant’s inculpatory statements to the police and on the question whether, at the end of the prosecution case, there was a case to answer.

The applicant’s statements

16.  Shortly after his arrest, the applicant was taken to the Airport Police Station and cautioned for trafficking in dangerous drugs.  He stated that he had nothing to say.

17.  He was subsequently taken to Police Headquarters in Arsenal Street where a video-recorded interview was conducted between 0058 hrs and 0215 hrs on 3 June.

18.  In the course of that interview, he revealed that he was university educated and aged 29 years.  He said that he had originally planned to come to Hong Kong by himself but a friend of his, named Faizel, whom he had known for about 10 years, had asked him if he, the applicant, could bring “these two people along for him”, to take care of them at Schipol Airport and in Hong Kong, and “help them to talk, to pick them up in time and to bring them to the hotel” in Hong Kong.  It is relevant at this juncture to note that the applicant speaks English, Dutch and Hindi whereas the other two accused spoke Hindi.  The applicant added in the interview that it was his duty to bring the two others to the hotel in Hong Kong and then call Faizel in Surinam.  Faizel had told the applicant that the two others were to transport drugs for him, Faizel, to Hong Kong.  The applicant thought that the two other accused were to be paid US$5,000 or $6,000 and he, the applicant, expected to be paid in the region of US$4,000 or $5,000.  Faizel had booked the tickets for the other two.

19.  On the day of their departure from Surinam, Faizel had pointed out the two others to the applicant at the airport and, when they arrived at Schipol, the applicant spoke to the two.  He knew the name of D1.  He knew that there were drugs inside the suitcases which they were carrying: Faizel had made that clear.  The applicant said that after he emerged from the Arrivals Hall in Hong Kong, he had telephoned Faizel to inform him that the three had arrived in Hong Kong and were leaving the airport.

20.  Towards the end of the interview the applicant said: “I made a big mistake.  I would like to rectify myself.”  The mistake, he explained, was that he had accompanied these two persons with drugs to Hong Kong.

The decision to admit the record of interview

21.  The first ground of appeal was directed at the admission into evidence of the record of the interview at Arsenal Street.  The complaints were that:

(a)  the applicant was effectively denied legal representation;

(b)  the applicant was denied the right to telephone his family; and

(c)  the applicant was too tired to make an informed decision as to whether he should agree to be interviewed without taking legal advice;

so that his agreement to be interviewed was not made freely or voluntarily; alternatively, that the judge was wrong not to exercise his discretion to exclude the record of interview.

22.  On the voir dire, the testimony of DPC 54856 (DPC Lau) was that at the Airport Police Station, he provided the applicant with a notice to persons in custody which included information about the right to seek the advice of a lawyer.  From the Airport Police Station, the applicant was taken to Police Headquarters in Arsenal Street where, in an interview which commenced at 9.10 pm, he said that he wanted to have a legal representative.  So he was taken to Central Police Station where they keep a list of solicitors available for legal advice, and a book containing a long list of legal advisers was provided to him and, according to this officer, the applicant made a series of telephone calls over a period of about 40 to 45 minutes after which he said that he had not yet found a lawyer.  Another officer, DPC Yau, who had accompanied the two to the police station said he heard the applicant speaking in English during these calls.

23.  According to the evidence of DPC Lau, the applicant was then asked whether he needed to continue to try to obtain a lawyer and he said: “No need”; but the applicant had not explained why there was no need.

24.  So he was taken back to Police Headquarters, arriving there at 10.40 pm and the interview, commencing at 0058 hrs, to which we have earlier referred, took place.

25.  Thereafter, he was taken back to the Airport Police Station and later, on 3 June, returned to the Police Headquarters where two other interviews took place, the first abortive because there was something wrong with the tape. We were not concerned with these last two interviews.  The judge excluded them for reasons that are irrelevant for present purposes.

26.  It was put to DPC Lau in cross-examination that the applicant had told the officer that he wanted more time to find a lawyer but was told that that was not acceptable, and that he had to go back to Arsenal Street for an interview.  It was put that the officer questioned anyway how the applicant could afford a lawyer and that the applicant said that if he were given until the morning, he would be able to arrange funds for a lawyer.  This was a bare assertion, not supported by testimony, for the applicant did not give evidence on the voir dire.

27.  The other witness of significance in the voir dire was the Dutch interpreter, Ms Vermeulen.  She said that during the interview in the early morning of 3 June, the applicant was very tired indeed, his eyes occasionally closing and he was trying to stay awake but although he was visibly tired, “he was willing to co-operate, because we asked him during the interview if he was still clear enough to continue or if he would rather stop.”

28.  In relation to the question of access to lawyers, we see from the video interview which commenced at 0058 hrs on 3 June, that the interviewing officer put to the applicant that he had previously requested a lawyer and that he had been taken to the report room of the Central Police Station “where you contacted a few lawyers” but there was no lawyer with him now and he was asked: “Do you at present still require a lawyer?”  And the applicant said “No.”

29.  We see too from the same record of interview a question: “Are you feeling clearheaded and well enough to continue with this video interview?” to which the applicant answered: “I am tired, because I did not sleep enough on airplane,” but he was asked whether he was clearheaded enough to continue with the interview and he said: “Yes.”  He was asked if he felt tired and he said that he did and he was asked whether nonetheless he was clearheaded enough to continue with the interview and he said: “Yes I can continue.”  He was asked if there was any problem and he said: “No.  No.”  He was told that if he was feeling very tired or no longer clearheaded enough, he was to say so.  The interview then commenced in substance.

30.  The applicant did not give evidence on the voir dire.

31.  Detailed but precise submissions were made to the trial judge by Mr Hemmings, who appeared then, as now, for the applicant.  As to access to lawyers, he submitted that it would have been difficult to access lawyers at that time of night; that the applicant was given scant assistance to do so and no privacy in which to make the calls; that the judge should infer that something must have transpired, perhaps acute fatigue, that dissuaded the applicant from pursuing his request for access to lawyers prior to or during the second interview.  As to fatigue, there was nothing to stop the officers offering the applicant the choice of engaging in an interview the following day after he had had some rest.

32.  Mr Shiu pointed out, in response, that several factors stood out: the applicant had shown sufficient resolve to stop the first interview and ask to be allowed to contact lawyers and was, self-evidently, permitted to do so; that it appeared from the evidence that he indeed contacted some person or persons; that the judge had had the opportunity of looking at the interviews to ascertain whether the applicant was sapped by fatigue and, in this regard, that the interpreter’s evidence was to the effect that the applicant was co-operative.

33.  The judge ruled the interview admissible as being voluntary and saw no reason in the exercise of his discretion to exclude it.  He did, in the exercise of his discretion, exclude a subsequent interview.  The judge did not – and as the law presently stands, is not required to – provide reasons for his ruling.

34.  In his submissions before us upon this application, Mr Hemmings invited us to say that the circumstances surrounding the second interview in the early hours of the morning were oppressive, even though it was not suggested that that was intentional.  The applicant was, he contended, in no proper condition to make an informed decision as to participation in the interview or as to pursuit of legal representation.  In any event, having expressed a desire for legal representation, and there being no urgent need to conduct the second interview when it did take place, fairness dictated that the interview be postponed and that he be permitted not only to be interviewed when he was not fatigued but also to look for a lawyer at a time when a lawyer would be more readily available.

Analysis

35.  It was for the prosecution to establish that the applicant’s participation in the second interview and the answers given, were voluntary in the sense that they had not been obtained from him by oppression.  The judge expressly acknowledged this as the test and acknowledged too the existence of a discretion to exclude an interview as evidence if that interview was obtained in circumstances of unfairness.

36.  The difficulties for Mr Hemmings’ arguments are those advanced before the learned judge below by Mr Shiu for the prosecution.  No one, apart from the applicant himself, knows what happened in the 40 to 45 minutes at Central Police Station whilst seeking to contact lawyers; to whom he spoke or whether he just left messages or why later he changed his mind about the need for a lawyer.  True it is that the burden of voluntariness is on the prosecution, but what the judge had in front of him was the fact that the applicant, a young man aged 29 at the time of the events in question, was sufficiently robust to assert his wish to contact lawyers, was allowed to do so and then expressed a willingness to be interviewed despite the fact that he had not by then had the benefit of legal advice.

37.  In addition, the judge was able to see the videotapes in which the applicant was interviewed and to assess for himself whether the applicant’s fatigue was such as to sap his will or constitute unfairness of a kind which warranted exclusion of the interview record; and he had as well the evidence of the interpreter who was present, whose testimony was self-evidently reliable.  In the course of the hearing before us, we watched relevant parts of the video interview and it seemed to us that the applicant clearly understood what was going on during the interview, was not guarded in his agreement that the interview proceed, carefully examined a document placed in front of him, and expressed himself with clarity.

38.  As for the question of family access, it is not at all clear from the evidence that that request was made before the interview in question.  There is no adequate foundation upon which to conclude that it was.

39.  In the circumstances, we saw no proper basis upon which we should conclude that the judge’s decisions in relation to the interview were wrong.

No case to answer

40.  The final ground of appeal, added by way of amendment, was that the judge was wrong to rule at the close of the prosecution case that the applicant had a case to answer.

41.  Extensive submissions were made before the trial judge who, in his ruling, applied the correct test in law for determination of this issue.

42.  The essence of Mr Hemmings’ submission to the judge, which he adopts for the purpose of this application, was that there was no evidence to show that the applicant was in joint possession of the drugs; that mere presence at the commission of an offence does not of itself constitute the person who is merely present an aider and abetter; that the prosecution case was based upon the importation of the drugs into Hong Kong and that there was no evidence that the applicant assisted in the act of importation, it being noticeable that he was not in the presence of the other two defendants when they cleared the Customs section.

43.  We did not agree with Mr Hemmings’ submissions.

44.  One starts with the applicant’s admission that he had been told that the other two were carrying drugs, that they were to be paid substantial sums for doing so and that he himself expected to be paid a significant sum for the role which he was asked to assume.  The tickets for the three were purchased at the same time.  The three of them were to stay in the same hotel in Hong Kong.  The applicant spoke all the languages that might come in use in the course of the journey to Hong Kong via Amsterdam, namely, Hindi (which the other two defendants spoke) and English and Dutch (which they did not).  His function was to accompany them on the aircraft, to take care of them at the airport in Amsterdam, to help them to talk when talking was necessary, and to ensure that they made their way safely from Surinam via Amsterdam and on to the hotel in Hong Kong.  The act of assistance which this evidence, if correct, established was that of ensuring the safe passage to Hong Kong for two people whose sole function in coming to Hong Kong was to import drugs.  It was also his function to let the organiser of the importation, Faizel, know once Customs had been cleared, presumably so that the scheme could be furthered.  It was clearly open to the jury to infer that the applicant was present at Hong Kong airport before, during and after transit through the Customs hall to render such assistance as may be required.

45.  Accordingly, this argument also fails and the application for leave to appeal against conviction was dismissed.

Sentence

46.  In accordance with the guidelines in HKSAR v Abdallah [2009] 2 HKLRD 437, the judge took a starting point in relation to both D1 and this applicant of 23 years’ imprisonment.  He categorized D1 as simply that of a courier.  He took in aggravation of sentence the fact of importation, adding two years to the starting point for that factor, thereby arriving at 25 years.  In the case of D1, he deducted one-third on account of his plea of guilty and sentenced him to a term of 16 years 8 months’ imprisonment.

47.  In relation to the applicant, however, he added a further year to the 25 years, resulting in a sentence of 26 years’ imprisonment.  That is because he took the view that the applicant’s conduct “plainly demonstrated that it was he who set up this delivery and that his role, even assuming that the person who referred to as Faizel existed was that of an escort to ensure the safe delivery of a consignment of drugs to Hong Kong, in colloquial terms, what might be referred to as “a minder”.  His role was certainly more active than that of the first accused and the role that he played, as demonstrated by the evidence, is such that it constitutes a further aggravating feature.  I am mindful of the comment,” he said, “that the Court of Appeal passed in [Abdallah] that a further aggravating feature is if the trafficker is shown to be a mastermind or senior player and, in my judgment, the third accused falls within that category.”

48.  The complaint advanced on the applicant’s behalf is that this extra 12 months was not justified.

49.  There was, as we saw it, a problem with the judge’s reasoning which caused us some concern.  What the judge said, in coming to his conclusion about the role of the applicant was that:

“I have had the benefit of hearing the evidence and I have the benefit of the jury’s verdict. It is quite plain from their verdict that they rejected entirely the version put forward by the [applicant] in his record of interview. It seems to me inevitable that they accepted the evidence of the then 2^nd accused in regard to the [applicant’s] conduct.”

50.  As Mr Shiu for the respondent conceded, the jury’s verdict was not inconsistent with the applicant’s record of interview which, in itself, so far as we assessed it, was tantamount to an admission of guilt of the offence charged.  Nor did it necessarily flow from the acquittal of the 2^nd accused that they accepted her version of events as against the applicant.  That acquittal was equally consistent with no more than a lack of assuredness as to her knowledge that the suitcases contained drugs.  Given the apparently substantial degree of the judge’s reliance on the verdicts for his conclusion as to the applicant’s role, and although the judge’s analysis of the applicant’s role may well be the truth of the matter, we thought it safer to proceed for sentencing purposes on the basis of the applicant’s own admissions as to his role.  They did not constitute sufficient evidence in our judgment upon which to conclude that the applicant ‘set up’ this delivery of drugs.  Accordingly, we decided to reduce the sentence to one of 25 years’ imprisonment.