HKSAR v KHAN WASAL

HCCC389/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 389 OF 2009

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R U L I N G

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1.  The defendant was yesterday acquitted of a single charge of trafficking in a dangerous drug.

2.  Following his acquittal, Mr Dunn, counsel for the defence, made application for costs to be awarded to the defence. Mr Andrews, for the prosecution, opposes the application on the basis that the defendant has brought suspicion on himself and misled the prosecution to think the case against him was stronger than it was.

3.  To understand the objection in the context of the present case, I need to traverse some of the history of this matter.

4.  The defendant, Mr Khan, was arrested on 25 May 2009 entering Hong Kong from Macau with a carton box containing two large wooden sculptures of eagles, secreted in the bases of which were over 1.8 kilograms of heroin.  He testified that he had gone to Macau at the request, made with some persistence, of a Philippine lady who had once lodged with his family in Amoy Street, Wan Chai, and who had called his wife the night before to ask for his help in collecting what were said to be samples from Macau.  These samples were to be collected from the Philippine lady’s sister, who was unable to come to Hong Kong herself from Macau because she lacked the requisite visa.

5.  His understanding of the arrangement was that the samples would then be collected from him in Hong Kong by the same Philippine lady’s boyfriend’s brother, who was black.

6.  The defendant went to Macau with his wife and child, and duly collected the box which contained the eagles.  He was subsequently arrested on the same day by Customs Officers at the Hong Kong Macau Ferry Terminal in Hong Kong upon discovery of the heroin.

7.  The defendant, by his own admission in evidence, never checked the contents of what must have been a very heavy and bulky object to bring through Customs, although, according to his wife’s evidence, she did, and she satisfied herself that there was nothing dangerous in the box.

8.  There was a factual dispute between the defence and the prosecution as to whether the box had ever been opened before it was checked by Customs officers in Hong Kong.

9.  The defendant’s own account plainly brought suspicion on himself.  Indeed, the unchallenged evidence of his carriage of a box found to contain heroin would have triggered the presumptions under section 47(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.  However, that would not necessarily be conclusive in my judgment of the issue in relation to costs, since most people who are arrested and brought before the courts charged with serious criminal offences have almost certainly brought suspicion on themselves at some stage.

10.  Upon the defendant’s arrest, he was cautioned and questioned briefly, which process was recorded in PW2’s notebook, Exhibit P12.  In the defendant’s answers recorded in Exhibit P12, reference was made to a Philippine female in Macau who was said to have given the defendant the eagles in which drugs were found secreted, and to a “black guy” to whom they were to be delivered.  No names or details of these or any other persons were mentioned.  That exhibit was not formally objected to, and became part of the evidence before the jury.

11.  In a later record of interview, Exhibit PP13, which was objected to and which was ruled to be inadmissible, more details of the arrangements were given but again no names were disclosed.

12.  It matters not, for present purposes, that the record of interview was ultimately ruled inadmissible, because the prosecution would have relied on that evidence in their overall assessment of the strengths and weaknesses of the prosecution case, and in particular in formulating their own approach or response to what was believed to be the defence: and it is what the prosecution were led, or misled, to believe as to the strength or otherwise of the case against the defendant which lies behind Mr Andrews’ objection.

13.  If I am wrong in taking that view about Exhibit PP13, it is clear that no reference was made in that record of interview to a lady who had once lived with the defendant and his family, and obviously, therefore, no name given by which such a person might be identified.

14.  On 26 May 2009, before Eastern Magistrates’ Court, when represented by counsel, Miss Shine, the court was told this during a bail application:  “He has a good defence to this charge, which is that actually, on the day in question, he was together with his wife and one of their children, and they went to Macau to collect a parcel from a Filipino woman who had previously resided together with them in their premises in Hong Kong.  She was unable to come to Hong Kong herself because she had recently delivered a baby.”

15.  Allowing for some misunderstanding or miscommunication of instructions at that early stage of the case about the woman from whom the defendant had collected the parcel in Macau and the woman who had previously resided with the defendant, who were both Filipinas and who, on the evidence, it was made clear were different, no name or identity was disclosed of the woman who had previously lived with the defendant.

16.  On 12 March 2010 a bail application was made before Madam Justice Beeson.  No mention of a woman living with the defendant and his wife was given in the defendant’s affirmation - I will call it the first affirmation - dated 4 March 2010; nor was any mention of such a  woman made in counsel, Ms Panesar’s, skeleton submission dated 11 March 2010.

17.  I have read carefully the notes made by the learned judge during that bail hearing, and no mention of a Philippine lady living with the defendant, and her identity, was made orally either.  However, in reply, Ms Panesar is recorded as saying this:  “It was a Philippine lady who sent him to collect the parcel.”

18.  A second bail application took place before me on 7 May 2010, in which the defendant was represented by another counsel, Mr Marray.  In a second affirmation of the defendant dated 19 April 2010 in respect of that bail application, mention was made, for the first time, of a lady who had once lived with the defendant and his wife and who had asked for their help in collecting a box from Macau.  However, she was referred to simply as “Miss Glenda” with no other details of identification, and it is fair to say that the bones of what was to become the defence case at trial was set out in the defendant’s second affirmation.

19.  An affirmation of the defendant’s wife dated 26 April 2010 was also filed for the purposes of  that bail application hearing, and again, “Miss Glenda” was referred to, with no further details of her name or identification.  However, a telephone number of “Miss Glenda”’s boyfriend’s brother was set out in paragraph 10 of her affirmation.

20.  No further details about this woman were given by Mr Marray orally during that bail application.  What is perhaps significant is that Mr Andrews’ response to the defendant’s application for bail at that hearing made it clear that the prosecution considered the various versions of the defence case so far put before different courts by way of submission or affirmation as being “inconsistent” and “unbelievable”.

21.  What is also noteworthy is that if the wife’s affirmation, which she told us was perfected, as is usual, by lawyers in English for court proceedings, confined any reference to the Philippine lady to simply “Miss Glenda” without more, when in fact the defence knew a great deal more about her, in particular, her full legal name, Hong Kong identity card number, Philippines passport number and contact telephone number, as well as what she looked like, then the decision to withhold those details from the affirmation must have been the deliberate decision of the defendant and his lawyers.  That same decision must have also run through the defendant’s evidence at trial, since rather noticeably he too never gave any details of the full name of “Miss Glenda”, nor made any mention of anything found in the bag which he said “Miss Glenda” had left behind at his home, yet it was from this bag that his wife eventually, in her evidence, produced Exhibit D2 containing copies of the documents which fully identified “Miss Glenda”.

22.  The full name and details of “Miss Glenda” emerged for the first time, interestingly not, as I say, in the defendant’s evidence, but in his wife’s evidence, right at the end of the trial.  Indeed, these details, which were contained in Exhibit D2, were produced on the second day of the wife’s evidence in answer to the last question in‑chief just before the mid‑morning adjournment and cross-examination.  The entire case closed, in terms of evidence, after cross‑examination in the middle of the afternoon of the same day.

23.  In belongings said to have been left behind in September 2008 at the defendant’s home by the lady concerned were documents giving “Miss Glenda”’s full name and passport details of a still valid passport, together with a photograph of the holder.  The full name was Glenda Marcellino Lucero, with her date of birth and place of birth recorded.  In addition was a photocopy of the same lady’s Hong Kong identity card and identity number.  There was also a signed Immigration form bearing another photograph of the same lady, four signed copies of an employment contract with no other details filled in; and, finally, another signed Immigration document pertaining to the same lady with a telephone contact number in which was stated the defendant’s address in Wan Chai as her own.

24.  As I say, these were produced almost at the end of the trial, after the conclusion of the defendant’s own evidence, and over 14 months after his arrest.  It was done, as Mr Dunn made clear, in order to show that this lady known as “Miss Glenda” in the defendant’s evidence, who was so central to the defence being put forward, did in fact exist.

25.  No doubt this was done at the last possible moment for maximum tactical advantage, the advantage being that after the prosecution had conducted its case and put to the defendant that “Miss Glenda” did not exist and that the whole defence was, in Mr Andrews' word, “specious”, the trump card would then be produced through the last witness that she did in fact exist, with documents to prove it.  The effect on the jury would be expected to be significant, and I have to say the effect on me, also listening to the evidence, was significant as was its timing surprising.

26.  Mr Andrews may not have put directly to the defendant that “Miss Glenda” was a figment of his imagination, but he did adopt what is sometimes called ‘a raised eyebrow’ approach to the defendant’s explanation about this woman and  the rather odd arrangements for collecting samples on her behalf, if she existed at all, in Macau.

27.  The other tactical advantage of holding these details back until the eleventh, almost the twelfth, hour is that the chance of the prosecution making timely inquiries about this lady and her status and movements, and thus meeting the case put forward, was by that stage rather restricted.  Indeed, as I recall, when Mr Andrews started querying in cross-examination details on the documents in an endeavour to investigate their authenticity, Mr Dunn objected, repeating again that the documents were produced in relation to the issue of “Miss Glenda”’s existence alone.  But of course it was her existence which the prosecution had doubted until confronted with the documents.

28.  That is not to say that it was not a legitimate tactic to use, but it does mean that it was not until the eleventh hour that the prosecution could have realised that “Miss Glenda” was not a figment of the defence imagination and that she did after all exist; with passport, identity card and photograph to prove it.

29.  I take Mr Dunn’s point that the prosecution, had they known these details, would not necessarily have stopped the prosecution, but it would have permitted the prosecution the timely opportunity of making inquiries and concluding that the existence of “Miss Glenda” was probably true and that the defence was not as specious as they may have thought it was; and it would have given them the opportunity of adapting their position accordingly in this prosecution.  Put another way, the prosecution might have realised there was more to the defence case than they believed, and that their own case was not as strong as they thought it was.  They would have realized that they had to meet a more cogent case than they had at first thought.

30.  There is a useful commentary in the 2010 volume of the Hong Kong edition of Archbold at paragraph 6.3 on page 594 about whether a defendant should effectively be penalised by not getting his costs, and thus having his right to silence undermined in that way, for not bringing out an explanation which he had until trial, which explanation may well have led the jury to acquit him.  In this regard, the judgment of the Court of Final Appeal in Tong Cun Lin v HKSAR (2000) 1 HKLRD 113 at 117 is relevant:

“In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular period of time. Since, however, the discretion is being exercised in the context of an acquittal, the averments constituting the charges having been found by the jury as not amounting to the crimes alleged, it follows that generally speaking, the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial: how he first responded to the investigators, the answers he gave when confronted by the accusations, the consistency of those answers with his subsequent defence, etc. Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted. These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not indirectly thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not guilty verdict. The person in the best position to weigh those matters is clearly the judge himself.”

31.  However, I do not think it is necessary to go further into a discussion about whether or not the defendant is effectively being penalised by not getting his costs, having only raised the matter of “Miss Glenda”’s existence and identity in the final stages of the evidence in this case because here, there was disclosure at least by the defendant’s second affirmation, but only partial disclosure, of something which was tantalisingly unverifiable, namely, a single Christian name, and so little as not to disabuse the prosecution of its view about the manifest weakness and untruth of the defence case.

32.  I should also say that whilst the defendant’s right to silence is fundamental, it does not mean that if it is exercised in this manner with the withholding of cogent evidence until the eleventh hour of a trial, there can not be in appropriate circumstances costs implications.

33.  I have to exercise my discretion in this matter in a principled way.  The defendant, who has been in custody for over 14 months and who has been properly acquitted on the merits by a jury, is entitled to his costs unless there are positive reasons for making another order. Such reasons may result in his being deprived in whole or in part of his costs.

34.  In my judgment, there are positive reasons for making a different order in this case.  The defendant has brought suspicion upon himself but, more importantly, he has, by the tactic employed in this case, led the prosecution to think their case was stronger than it was and led them to treat the defence and put their case to the defendant in a way they may not have done had they known the full details of the person who was the lynchpin of the defence case before the last moments of the evidence-in-chief of the last witness.

35.  In those circumstances, I am refusing the order for costs to the defence.