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HKSAR v. UN MARK WILLIAM

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104931-EN-2016-01-21

HKSAR v. UN MARK WILLIAM

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HCCC 10/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 10 OF 2015

(ARISING FROM TWCC NO 1776 OF 2014)

_______________

 HKSAR 
 v 
 UN Mark William 

_______________

Before:  Hon Zervos J in Court
Dates of Hearing:  18 and 20 January 2016
Date of Ruling:  21 January 2016

____________________________________________________

RULING ON ADMISSIBILITY OF EXPERT EVIDENCE

____________________________________________________

Introduction

1.  The defence wishes to adduce at trial psychiatric and related evidence in relation to the defendant, consisting of a psychiatric report and two letters from the defendant’s sisters. 

2.  Dr LAM Chi Leung, a specialist psychiatrist, has made a report dated 11 December 2015 and a supplementary report dated 7 January 2016, in which he addresses the mental health of the defendant and concludes that he is suffering from schizophrenia with symptoms including grandiose and persecutory delusions, impaired logic of thoughts with disorganized ideas and social isolation. 

3.  Whilst the defendant was on remand before being granted bail, he was detained at Siu Lam Psychiatric Centre from 31 July 2014 to 12 August 2014 and from 7 October 2014 to 31 January 2015 for psychiatric assessment and management.  It would appear that the Government psychiatrist, Dr LUI Sing-heung, in his notes dated 29 January 2015 diagnosed the defendant as suffering from chronic schizophrenia and delusional disorder. 

4.  I had been previously informed by Mr James McGowan, counsel on fiat for the prosecution, that Dr LUI was not available to provide a report and arrangements would be made for another Government psychiatrist to provide a psychiatric report on the defendant.  Even though the prosecution were on notice to ensure this was done before the trial fixed to commence on 18 January 2016, a report was submitted only by way of memorandum dated 13 January 2016 from Dr Dorothy Tang.  Dr Tang provided a brief summary of Dr LUI’s notes and recorded his diagnosis that the defendant was suffering from a mental illness, namely chronic schizophrenia/delusional disorder.  She recommended that the defendant be remanded to Siu Lam Psychiatric Centre for a thorough psychiatric assessment. 

5.  The position taken by the prosecution was to initially object to the admissibility of any psychiatric evidence in relation to the defendant.  A brief written submission dated 15 January 2016 was filed with the Court where objection was taken to the admissibility of the psychiatric evidence on the ground of relevance.  Broad argument was presented on whether such expert evidence was necessary to address issues of fact.  However, in the course of discussion of the prosecution’s submission, the objection was withdrawn when it was acknowledged that the defendant’s mental state, in particular his suffering with a delusional disorder, would be a relevant matter for the jury to have before them when addressing the issue of the defendant’s state of mind at the time of the offence as to whether he knew he was in possession of drugs. 

6.  I am satisfied that the psychiatric evidence submitted by the defence in relation to the defendant’s mental illness is a relevant matter that should properly be put before the jury on the issue of the defendant’s state of mind and knowledge.  I therefore rule that the psychiatric evidence sought to be adduced by the defence is admissible. 

7.  As a result of the change of position by the prosecution, I was informed that they wished to have the defendant psychiatrically evaluated as suggested by Dr Tang.  However, this requires the defendant being an inpatient at Siu Lam Psychiatric Centre but he has refused to participate in a psychiatric evaluation on this basis.  The prosecution suggested alternative arrangements for the defendant to be psychiatrically evaluated as an outpatient by a psychiatrist appointed by them.  Mr Michael Arthur, counsel for the defendant, did not object to the evaluation taking place by a Government appointed psychiatrist as he may want to rely on the report in light of Dr LUI’s diagnosis.  Mr McGowan quite rightly acknowledged that the prosecution would need to consider the report once it is to hand and assess whether it would have any bearing on the prosecution case. 

8.  On 20 January 2016, the issue concerning Dr LUI’s availability was discussed.  Dr LUI appears to have been the treating psychiatrist of the defendant whilst he was at Siu Lam Psychiatric Centre.  From the medical records he has concluded that the defendant suffers from a mental illness, namely schizophrenia or delusional disorder.  In the circumstances, it would be preferable that in light of Dr LUI’s opinion that he provide a full report.  

9.  As the trial of the defendant has to be adjourned in order for the prosecution to psychiatrically evaluate the defendant, I requested that inquiries be made as to the availability of Dr LUI at some later date.  I was informed that he was on leave and would not be available until April 2016.  I have now been informed that he is on pre-retirement leave but may be available to provide a report. 

Admitting expert evidence

10.  I should make a few comments about expert evidence.  The key considerations for admission of expert evidence are that the subject upon which the witness proposes to give evidence is a relevant matter in the proceedings; the subject is a matter of art, science, learning or knowledge which can become the subject of expertise by study; the witness is proved or admitted to be an expert on the subject; and the subject is one upon which the court requires the assistance of an expert.

11.  It is generally understood that expert opinion evidence may only be received on a subject calling for expertise which the court could not be expected to possess, to a degree sufficient to understand the evidence given in the case unaided.  If the court can form its own opinion without the assistance of an expert, the matter being within its own experience and knowledge, expert opinion evidence is inadmissible because it is unnecessary.  See R v Turner [1975] QB 834 per Lawton LJ at 841, applied in R v Loughran [1999] Crim LR 404.

12.  Whether a witness is competent to give evidence as an expert is for the court to determine. In R v Bonython (1984) 38 SASR 45, King CJ, explained that the court should approach the issue by addressing the following questions.

“Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.”

13.  As a general proposition, it is not permissible to adduce expert evidence which purports to answer the question for which it is for the court to determine.  This is not so much a prohibition on expert evidence regarding the ultimate issue but recognition of the rule against allowing an expert to testify as to a matter that the court is perfectly capable of deciding.  In this respect, an expert should not usurp the function of the court given that the purpose of expert evidence is to explain to the court matters which it needs to understand, but cannot without expert assistance, as special knowledge or experience not possessed by the court is required in order to reach a just conclusion of the matter it is adjudicating upon. 

14.  There are some subjects upon which the court is generally incapable of forming an opinion unassisted, and others upon which it could come to an independent conclusion, but the assistance of an expert would be useful.  The need for expert evidence will very much depend upon the subject matter and the issues and circumstances of the case.  The basic principle is that expert evidence is admissible when it can assist the court. 

15.  The fundamental principles to bear in mind on the question of admissibility of expert opinion evidence in criminal proceedings is that, first, it is relevant to a matter in issue in the proceedings, secondly, it is needed to provide the court with information likely to be outside the court’s own knowledge and experience and thirdly, the witness is competent to give that opinion.  Whilst there are other principles relevant to the assessment of expert opinion evidence, it is important to bear in mind that such evidence is within the expertise of the expert and is confined to opinion on the matter in issue requiring expert opinion.  I mention this important principle because Dr Lam in paragraph 6 of his supplemental report addresses issues of fact which are within the domain of the jury as judges of fact in a criminal trial.  Mr Arthur has acknowledged that paragraph 6 addresses factual matters and is outside the expertise of Dr Lam.  So it is therefore important to bear this matter in mind when expert opinion evidence is presented during the course of this trial.

16.  With the foregoing principles in mind, I rule that the expert opinion evidence is relevant and admissible as it concerns the defendant’s mental state insofar as he suffers with schizophrenia and delusional disorder.  It follows that the evidence of the defendant’s sisters is also relevant and admissible insofar as it concerns his past conduct and behaviour that reflects on his mental capacity and condition.

17.  Mr McGowan has agreed to admit the statements of the defendant’s sisters under section 65B of the Criminal Procedure Ordinance, Cap 221, as long as the statements comply with the requirements of the section and concern instances or events relating to the defendant’s mental capacity and condition.  At this stage, there is no need for me to say any more about the statements of the defendant’s sisters as this is a matter that has been discussed and resolved between counsel.


 (Kevin Zervos)
 Judge of the Court of First Instance
 High Court

Mr James McGowan, counsel on fiat, instructed by Department of Justice, for HKSAR

Mr Michael JB Arthur, instructed by Morley Chow Seto, assigned by Director of Legal Aid, for the defendant

104930-EN-2016-01-21

HKSAR v. UN MARK WILLIAM

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HCCC 10/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 10 OF 2015

(ARISING FROM TWCC NO 1776 OF 2014)

_______________

 HKSAR 
 v 
 UN Mark William 

_______________

Before: Hon Zervos J in Court
Dates of Hearing:  18 and 20 January 2016
Date of Ruling:  21 January 2016

________________________

RULING ON DISCLOSURE

________________________

Introduction

1.  There has been an ongoing issue in relation to disclosure of unused material between the prosecution and the defence in this and other related cases.  Earlier in these proceedings the issue of disclosure was the subject of a decision by me on 24 September 2015.  It centred on the public comments made by law enforcement officers in relation to an international joint operation, known as “Operation Cocoon”, involving the Hong Kong Customs and Excise Department, the US Immigration and Customs Enforcement and the Australian Federal Police.  The public comments were to the effect that an international joint operation had been undertaken in relation to international drug syndicates that target and groom certain vulnerable persons and lure or trick them into transporting drugs to arranged destinations.  Arising from this operation was this and other cases. 

2.  The defence argues that in light of the public comments and the information so far provided, there appears to be material concerning the operations of the syndicates in targeting and grooming potential couriers generally as well as material concerning the targeting and grooming of this and other defendants specifically. 

3.  The position of the prosecution throughout has been that there is no unused material that is subject to disclosure.  Mr James McGowan, counsel on fiat for the prosecution, has recently revisited the issue.  He has been provided with five files which he has examined for this purpose and concluded at the end of his examination that there is no information or material in the files which can be classified as unused material and therefore disclosable.  In other words, there is no information or material in the files that can be of use or advantage to the defence in the trial of the defendant. 

4.  In my decision on 24 September 2015, I explained that the prosecution has a duty of disclosure which is part of the defendant’s fundamental right to a fair trial.  I pointed out that it requires the prosecution to make full and timely disclosure to the defence of all relevant or possibly relevant material available or known to it whether here or abroad. In general terms, this includes such information or material that may in some way advance the defence case or weaken the prosecution case.  I also pointed out that in light of the foregoing, the prosecution was on notice to take all reasonable steps to identify and obtain such material.  It would appear that, following my decision, the prosecution has amassed the five files to address the issue of disclosure. 

5.  A formal application has been made by Mr Michael Arthur, counsel for the defendant, for me to examine the five files to determine, on the facts and issues so far disclosed in relation to this case, whether anything contained in the five files is unused material and therefore disclosable.  This has been agreed to by both parties, with Mr Arthur noting in particular that the defence would be satisfied with me examining the five files for this purpose and would abide by my decision.  

6.  For this exercise, I have borne in mind the relevant legal principles on the duty of disclosure as well as the guidelines contained in Chapter 12 of the Prosecution Code. 

7.  I should say by way of general comment that from my examination of the files, it is clearly apparent that the relevant law enforcement officers and prosecutors from the Department of Justice for the purpose of complying with their duty of disclosure have used their best endeavours to identify and obtain all relevant material both here and abroad.  

8.  From my general impression of the contents of the five files, it would appear that it mainly consists of the record and dissemination of information and intelligence between relevant law enforcement agencies and communications in addressing the issue of disclosure.  The information and material contained in the files is either not relevant to this case or known to the defence.  There are some documents that I wish to be further addressed on which I have marked and identified as follows: (1) File 1 A and B; (2) File 4 A, B and C; and (3) File 5 A, B, C, D and E.

9.  Finally, I just wish to say that the sharing of intelligence between law enforcement agencies here and abroad is imperative in the interests of preventing and detecting criminal activity whenever and wherever it may occur.  Shared intelligence and investigative techniques are matters of great sensitivity and when necessary should be appropriately safeguarded.  It is when there is information outside the jurisdiction that may be relevant in the conduct of a defendant’s case that such information should be disclosed, firstly by being identified, and secondly, by being obtained through the Mutual Legal Assistance provisions if that is required. 

 (Kevin Zervos)
 Judge of the Court of First Instance
 High Court

Mr James McGowan, counsel on fiat, instructed by Department of Justice, for HKSAR

Mr Michael JB Arthur, instructed by Morley Chow Seto, assigned by Director of Legal Aid, for the defendant

[2018] HKCFI 763-EN-2015-09-24

HKSAR v. UN MARK WILLIAM

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HCCC 487, 488 and 498/2014, and 10, 38, 74, 259, 310 and 368/2015

[2018] HKCFI 763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 487 OF 2014

(ARISING FROM TWCC NO 1881 OF 2014)

_______________

 HKSAR 
 v 
 ULITZKA Jorg Heinz 

_______________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 488 OF 2014

(ARISING FROM TWCC NO 1215 OF 2014)

_______________

 HKSAR 
 v 
 TONER Brendan John 

_______________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 498 OF 2014

(ARISING FROM TWCC NO 1023 OF 2014)

_______________

 HKSAR 
 v 
 EBERHARD BOVE Celia Gertrude 

_______________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 10 OF 2015

(ARISING FROM TWCC NO 1776 OF 2014)

_______________

 HKSAR 
 v 
 UN Mark William 

_______________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 38 OF 2015

(ARISING FROM TWCC NO 2398 OF 2014)

_______________

 HKSAR 
 v 
 TEUTSCHER Hendrikus Jacobus 

_______________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 74 OF 2015

(ARISING FROM TWCC NO 3037 OF 2014)

_______________

 HKSAR 
 v 
 LUU Suong Thu 

_______________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 259 OF 2015

(ARISING FROM TWCC NO 3280 OF 2014)

_______________

 HKSAR 
 v 
 CLIFFORD James 

_______________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 310 OF 2015

(ARISING FROM TWCC NO 3419 OF 2014)

_______________

 HKSAR 
 v 
 MOORMAN William Leon 

_______________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 368 OF 2015

(ARISING FROM TWCC NO 658 OF 2015)

_______________

 HKSAR 
 v 
 WALSH Kent Andrew 

_______________

Before: Hon Zervos J in Chambers

Dates of Hearing: 23 and 24 September 2015

Date of Reasons for Decision: 24 September 2015

______________________________

REASONS FOR DECISION

______________________________


Introduction

1.  This group of drug trafficking cases all arise from an international joint operation, known as “Operation Cocoon”, involving the Hong Kong Customs and Excise Department, the US Immigration and Customs Enforcement and the Australian Federal Police.  The cases have a number of common characteristics and issues but what is a predominant concern to the defendants is disclosure of material by the authorities involved which may support their claim that they did not know they were transporting drugs as they had been tricked and groomed into getting involved by drug traffickers. 

2.  I have had a series of pre-trial hearings to address this and other matters but the situation has now reached the point where the defendants make application to be released on bail.  It is therefore necessary to provide a brief account of what has happened to date. 

Defence submissions

3.  It is claimed that each of the defendants fits the profile of person that the drug traffickers would target and groom to transport drugs.  It is submitted that the targeted persons generally live a socially isolated existence and in most cases are single and/or elderly and are therefore likely to be easily influenced or cajoled.  This appears to have been given credence by public comments made by relevant law enforcement officers involved in the operation that international drug syndicates had targeted certain vulnerable persons and tricked them into transporting drugs to arranged destinations. 

4.  Mr Gerard McCoy, SC, and Mr Michael Arthur, assigned by the Legal Aid Department for the defendants by a memorandum to the Court dated 15 July 2015 noted that they had been in custody for a considerable period with little progress being made for disclosure of material in light of what was known about their cases.  It was noted that the cases all had certain common features.  Each defendant faced a single count of trafficking in a large quantity of methamphetamine hydrochloride, commonly known as Ice.  Each defendant was arrested at the Hong Kong International Airport and the drugs were found concealed in his or her luggage.  Each defendant was about to depart for Australia except one for New Zealand.  Each defendant, it was claimed, had been tricked into coming to Hong Kong as a result of emails or internet grooming by a drug trafficking syndicate.  Each of the defendants, it was claimed, had no knowledge of the drugs.  The defendants range in age from 43 to 78 and have had no history of any prior involvement in the drug trade. 

5.  There appears to have been public statements from representatives of the relevant law enforcement agencies involved in this operation about the modus operandi of the drug syndicates involved to the effect that they would groom vulnerable people to carry drugs to Australia.  It is claimed that certain related cases have been dropped and the reason or reasons for doing so is of particular relevance to the defendants in defending the charge that they each face.  In a related case, HKSAR v Kummerfeld, HCCC 395/2014, a female defendant aged 82, had her case dropped on 30 April 2015 after nearly a year in custody. It is suggested that the reason for dropping the case may be relevant to the defendants’ cases but the prosecution have stated that it was on medical evidence that the decision was taken not to proceed with the prosecution.

Mention hearings

6.  A mention hearing was convened on 5 August 2015 in relation to eight cases arising from the operation.  The prosecution as requested provided in relation to each case a brief case statement together with relevant particulars of the charge and an update as to the situation with unused material.  In this regard, it had been specifically requested that the prosecution provide details of any relevant information relating to the defendants arising from the operation.  A statement dated 4 August 2015 was provided by the Assistant Commissioner of Customs and Excise in which he addressed the public statements he had made in relation to the operation.  As far as material he said:

“4. During my report, I said the Operation was a joint operation amongst the Customs and Excise Department in Hong Kong (hereinafter referred to as the Department), U.S. Immigration and Customs Enforcement, and the Australian Federal Police. It was started in 2014 to tackle transnational methamphetamine trafficking. In this Operation, retired persons, involving European, American and Australian, were found smuggling methamphetamine to Australia. Retired and aged persons were asked through email messages saying something like, ‘You have an estate for collection in Hong Kong’. The email would also say something like, ‘We would provide you passage and accommodation for free for you to come to Hong Kong.’

5. Once in Hong Kong, there was in fact no estate to collect.  After certain simple document signing, the retired persons would be given free passage and accommodation again to take a suitcase to Australia.  Some of them agreed to do so.  Inside the suitcase were about one to two kilogrammes of methamphetamine.  The concealment method of the methamphetamine was simple and the drug was just put inside a suitcase, rucksack or handbag.  Some methods were more sophisticated by using reeling drums with methamphetamine contained inside.  Some used decoder or electrical equipment to put the drug inside and then put inside a suitcase.  I also said that in the Operation, we detected 10 drug traffickers from Europe, United Stated and Australia who came to Hong Kong and attempted to take methamphetamine with them to Australia.  Among the 10 arrested persons, the youngest was aged 45 and the oldest 82.  Out of them, 7 aged over 65 and all were retired persons.”

7.  It is principally on the basis of the public statements and what is now known about Operation Cocoon that Mr McCoy submits that the relevant law enforcement agencies involved appear to be in possession of material relating to the operations of the drug syndicate or syndicates in targeting and grooming vulnerable persons to be drug mules. 

8.  A further mention hearing took place on 1 September 2015 to follow up on these issues and to ensure that full and proper disclosure was being made to the defendants.  It was also noted that an additional case of HKSAR v Walsh, HCCC 386/2015 was to be included in the group of cases. 

Disclosure issue

9.  Prior to the hearing on 23 September 2015, the Prosecutions Division of the Department of Justice informed the legal representatives of the defendants by letter dated 11 September 2015 the following:

“I also confirm that meetings have been held with the representatives of the Australian Federal Police and the US Immigration and Customs Enforcement and after an explanation of the Prosecution’s duty of disclosure and the issues, assurances have been given that there is no material which bears on the question of your respective client’s knowledge of the dangerous drugs seized nor any material which would confirm or otherwise, that they had been tricked into carrying the same, held by these organisations.

The material which bears or may bear on both of these issues is contained in the material already supplied to you, either in the Committal Bundle or the further material which was contained in the phones computers and i pad seized from the respective Accused.”

10.  Mr McCoy complains that in light of the public comments and the information so far provided there appears to be material relating to the operations of the syndicate or syndicates and how they targeted and groomed potential couriers generally as well as the defendants specifically.  Mr David Leung, SC, for the prosecution, has indicated that the position of the Prosecutions Divisions is as stated in the above letter but he acknowledges that further inquiries will be made in light of matters raised in the hearing and this could take some time to address either way.  This means that the cases set down to be heard this year will have to be vacated. 

11.  The prosecution have a duty of disclosure which is part of a defendant’s fundamental right to a fair trial.  It requires the prosecution to make full and timely disclosure to the defence of all relevant or possibly relevant material available or known to it whether it is here or abroad.  In general terms, it is material that may in some way advance the defence case or weaken the prosecution case.  It is not enough to say that inquiries have been made and to leave the matter there.  I have to agree with Mr McCoy that there appears to be in existence information or material relating to the operations of the syndicate or syndicates involved in these drug trafficking cases that would be relevant to the defence in how the individual defendant was targeted and groomed to become a drug courier.  This seems to be evident from the public statements that have been made by members of the joint operation.  The prosecution are therefore on notice to take all reasonable steps to identify and obtain such material.  In the course of the mention hearings and from the exchange of correspondence between the parties enough has been said for the prosecution to know exactly what material it needs to make sure should be disclosed.

12.  I have fixed a further mention hearing for 10am on 23 October 2015 to monitor the progress of the disclosure issue.  The parties have no objection to the question of disclosure being addressed as a preliminary issue by me even though I may not be the trial judge in each and every case.

Defendants’ cases

13.  Subject to the disclosure issue, most cases could or should be ready for trial as scheduled.  It appears that in each case the prosecution has not served a witness statement accounting for the actions from receipt of intelligence to the arrest of the defendant.  I am informed that a witness statement has been served on the Prosecutions Division but is pending legal advice. 

14.  Ms Eberhard’s trial (HCCC 498/2014) is fixed for the 5 October. Her medical condition will not permit her to stand trial on this date.  The trial dates are therefore vacated. 

15.  Mr Toner’s trial (HCCC 488/2014) is fixed for the 9 October.  The defence would be ready to commence the trial but because of the disclosure issue the trial dates are vacated and I direct that the case be brought on as soon as possible in 2016. 

16.  Mr Ulitzka’s trial (HCCC 487/2014) is fixed for the 3 November.  The defence would be ready to commence the trial but because of the disclosure issue the trial dates are vacated and I direct that the case be brought on as soon as possible in 2016. 

17.  Mr Un’s trial (HCCC 10/2015) is fixed for the 18 November.  There are medical records relating to the defendant to be obtained from the United States which will need to be studied by a specialist in Hong Kong.  This I am informed would delay the start of the trial and the defence would not be in a position to commence the trial until these matters have been fully investigated.  Mr Un has been placed under assessment at the Siu Lam Psychiatric Centre but is presently detained in Lai Chi Kok Reception Centre.  The trial dates are therefore vacated.

18.  Mr Teutscher’s trial (HCCC 38/2015) is fixed for the 11 December. I am informed that there are medical issues to be explored in relation to this defendant and there is likely to be the need to obtain overseas evidence.  This could delay the start to his trial and the defence would not be in a position to commence the trial until these matters have been fully investigated.  The pre-trial review fixed for 30 September and the trial dates are therefore vacated.

19.  Ms Luu’s trial (HCCC 74/2015) is fixed for the 18 January 2016.  I am informed that the defence could be ready to commence the trial on that date. There is a pre-trial review fixed for 12 November.

20.  Mr Clifford’s trial (HCCC 259/2015) is fixed for the 8 August 2016. A pre-trial review is also fixed for 23 June 2016.  I am informed that the defence would be ready to commence the trial on that date.  I direct however that all reasonable efforts be made to fix an earlier trial date.

21.  Mr Moorman’s trial (HCCC 310/2015) does not yet have a fixture.  

22.  Mr Walsh (HCCC 368/2015) was committed for trial on 11 September and there is no fixture for his trial.  

Issue of bail

23.  I will now address the issue of bail. 

24.  The principles of bail I have addressed in HKSAR v Vu Thang Duong, HCMP 249 and 477/2015, dated 16 March 2015, unreported, where I said:

“13. Bail is the conditional grant of liberty to a person suspected of committing or alleged to have committed a criminal offence.  A defendant’s right to bail is enshrined in Article 5(3) of the Hong Kong Bill of Rights Ordinance, Cap 383, which addresses the liberty and security of persons.  The material part states that “… it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial…”.  The right to bail is premised on the presumption of innocence and the entitlement to an early trial.  The fundamental objective of bail is to ensure that the defendant appears at his trial and that the public are protected from further offences in the meantime.  Although there are specific provisions that authorise the granting of bail in the courts, the question of bail is primarily governed by Part 1A, sections 9C to 9Q, of the Criminal Procedure Ordinance Cap 221. 

14. Section 9G(1) provides:

‘The court need not admit an accused person to bail if it appears to the court that there are substantial grounds of believing, whether or not an admission were to be subject to conditions under section 9D(2), that the accused person would –

(a) fail to surrender to custody as the court may appoint; or

(b) commit an offence while on bail; or

(c) interfere with a witness or pervert or obstruct the course of justice.’

15.   The section creates a rebuttable presumption in favour of bail and where it appears to the court that an accused would fail to comply with the conditions set out in section 9D(2) then bail may be refused and in forming that view the court may have regard to the matters set out in section 9G(2) which are as follows:

‘a) the nature and seriousness of the alleged offence and, in the event of conviction, the manner in which the accused person is likely to be dealt with;

b) the behaviour, demeanour and conduct of the accused person;

c) the background, associations, employment, occupation, home environment, community ties and financial position of the accused person;

d) the health, physical and mental condition and age of the accused person;

e) the history of any previous admissions to bail of the accused person;

f) the character, antecedents any previous convictions, if any, of the accused person;

g) the nature and weight of the evidence of the commission of the alleged offence by the accused person;

h) and any other thing that appears to the court to be relevant.’

16.   The relevant provisions allow the court to take into account a range of relevant matters when deciding whether or not to grant bail.  The presumption of bail can be rebutted by the nature of the offence, the risk of danger to the public, or the likelihood that the trial could be affected by the defendant absconding or influencing a witness.  An unreasonable delay in custody, in the particular circumstances of the case, may be a factor in favour of bail.  Of course, such a factor would be taken into account together with all other relevant factors in deciding whether or not to grant bail.”

25.  The prosecution does not object to bail for any of the defendants subject to suitable conditions being attached which include:

1) residence at a particular location and with notification to be given to the Police in writing at least 24 hours before of any change of residential address;

2) reporting once a week to the Police;

3) surrender of all travel documents and not to apply for any replacement travel documents; and

4) not to leave Hong Kong.

26.  It is proposed that all the defendants, except for Mr Toner, will reside at the Siu Hing Hostel, Jordan and report to the Tsim Sha Tsui Police Station. Mr Toner will reside at the Grand City Hotel and report to the Western Police Station. 

27.  Even though the prosecution have not objected to the grant of bail for the defendants I still have to be satisfied that it is firstly appropriate to grant the individual defendant bail and if I do so decide, secondly, what terms and conditions should be imposed if any.  In the course of the hearing and upon inquiry, I was informed that some of the defendants have a prior criminal record.  In the cases of Mr Toner and Mr Moorman, they were relatively minor offences that were committed a long time ago and when they were young.  I therefore did not consider they had a bearing on the question of bail.  In the case of Mr Teutscher, I was informed that he has a number of previous convictions in the Netherlands for dishonesty and forgery, including false passports.  I therefore adjourned his bail application to today in order to give the defence an opportunity to obtain instructions and seek any clarification about these matters.

28.  In relation to the other cases, I decided to grant bail to the defendants notwithstanding they were apprehended with a large quantity of drugs in their possession.  It is clear from the account that I have given of these cases that there are matters that need to be explored to determine the extent to which each and every one of them was knowingly involved in the transportation of the drugs found in their possession.  It is also clear that given their backgrounds and circumstances that on the whole they are persons of hitherto good character who may have either naïvely or unwittingly got involved in a very serious crime.  There is the outstanding issue of disclosure of material that may, and that is the highest it can be put at this stage, assist the defendants in supporting their claimed defence.  Overall I do not consider in light of the background of each of the defendants, that they are a flight risk and in the unusual circumstances of these cases, I am prepared to grant them bail subject to the terms and conditions as proposed.

29.  At the adjourned hearing, it is submitted by Mr Arthur on behalf of Mr Teutscher that the matters disclosed are not a record of any prior convictions and are in the nature of intelligence which are denied.  He acknowledges that his client has a prior conviction in Germany in relation to the opening of a bank account for which he was fined.  He also points out that he has mental health issues and is undergoing psychiatric assessment.  Mr Leung, for the prosecution, has been unable to clarify the situation with regards to Mr Teutscher’s criminal record, but has no objection to bail being granted with additional reporting conditions.  I am prepared to grant Mr Teutscher bail on this basis and in addition to the other terms and conditions as proposed, I order that he report every Tuesday, Thursday and Sunday of each week between the hours of 9 to 11 am. 

30.  All the defendants are bailed to appear at the next mention hearing fixed for 10 am on 23 October 2015.

 (Kevin Zervos)
 Judge of the Court of First Instance
High Court

Mr David Leung, SC, DDPP, Mr Peter J Power, SADPP, and Mr Andrew Cheng, SPP of Department of Justice, for HKSAR

Mr Gerard McCoy, SC, and Mr Michael JB Arthur, variously instructed by Morley Chow Seto and Robinsons, assigned by Director of Legal Aid, for the defendants