Case Detail

HCCC 196/2020

[2021] HKCFI 2138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 196 OF 2020

______________

BETWEEN
	HKSAR
and
	PURUGGANAN Rogelio Garcia	Defendant

______________

Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 19 July 2021

Date of Ruling: 20 July 2021

______________

R U L I N G

______________

1. The defendant is charged with one count of trafficking in a dangerous drug contrary to s4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134, in that he imported 1.54kg of cocaine into Hong Kong on 12 July 2019. The issue before the jury is that of knowledge.

2. In order to succeed the prosecution must establish either from proven facts, or by way of an irresistible inference from proven facts, that the defendant knew that he was importing dangerous drugs. This is an application by Dr Mohamed on behalf of the defendant of ‘no case to answer’ in accordance with the principles laid down in R v Galbraith[1981]2 All ER 1060 at 1062[1].

3. Dr Mohamed’s primary argument is a straightforward application of the Galbraith test as defined in Attorney-General v Lee Fook-shiu Ronald [1990] 1 HKC 1. Her submission is quite simply that the prosecution’s case, taken at its highest is such that a jury properly directed could not properly convict upon it. For this purpose, the defence rely upon five elements which they say form the pillars of the prosecution case. They are: that the defendant suspected he was dealing with criminals; that he entertained the possibility that the bag he was given contained dangerous drugs; that he was entrusted with a large quantity of drugs because he was complicit; that he never expected to receive any inheritance funds and that he had lied to his family about what he was doing. All of which, the prosecution say, points to a guilty mind.

4. If they are unsuccessful on this point, the defence rely in the alternative, upon the point raised by Deputy High Court Judge McWalters in HKSAR v White Michael R HCCC 70/2020 and contemporaneously considered by this Court in HKSAR v Dinda Rabiatul Adwia & Anor in HCCC 136/2020. That is the test to be applied in an application to remove a matter from the consideration of the jury, where the prosecution case relies upon a limited set of proven facts from which they seek to draw an irresistible inference of guilt but where there is other credible evidence to support an irresistible inference in favour of the defence. Dr Mohamed submits there is other credible evidence before the jury in the Admitted Facts P43, the attached press release P64 and from the explanations of the defendant in the two VRIs, which is not inherently improbable and it follows that the prosecution cannot prove their case upon inferences beyond reasonable doubt and therefore the case should be withdrawn from the jury at half time.

The Law

5. The test in Galbraith is well known but for the avoidance of doubt I will recite it once more:

(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; (a) 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; (b) 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.

6. I commence therefore with the underlying principle that the assessment of the strength or weakness of the evidence should be left to the jury to decide, where, on one view of the facts, a properly directed jury could convict upon it. But the issue before the Court on a submission of ‘no case’ is one of law not fact. The issue of law the Court has to consider is whether there is some evidence (not inherently incredible) which, if accepted as accurate, would establish the material element of the alleged offence at issue i.e. knowledge. The Court does not have to make findings of fact beyond all reasonable doubt at this stage but must bear in mind the standard of proof to be applied by the jury when determining the question of law before the Court i.e. whether or not a reasonable jury might safely convict. In the words of Lord Edmund Davies[2]:

“When at the close of the case for the prosecution a submission is made that there is no case to answer, the question is not whether on the evidence as it stands the defendant ought to be convicted but whether …he could lawfully be convicted”

7. It follows that where the prosecution case relies upon an inference to be drawn, it is not for the Court to be satisfied such inference is to be drawn but whether, as a matter of law, it can be drawn[3] by the jury at the appropriate time[4]. The Court of Appeal in Li Fook-shiu Ronald supra, which was a pre-trial application under s22 of the Complex Commercial Crimes Ordinance Cap 394 in respect of prosecution inferences only, took this a step further by suggesting the approach of the trial judge where the prosecution relies upon an inference to be drawn, should be:

(i) 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 some evidence;
(ii) 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:
(iii) 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 a jury could, may or might so be satisfied he will rule against the submission or application.

8. This does not detract from the earlier authorities. It simply hones one’s mind to the principle that it is not whether the Court would convict that the Judge should put his or her mind to but whether at the appropriate time a jury ‘could, may or might’ convict to the requisite standard. The test is still that of a prima facie case.

9. There is no issue here of evidence of knowledge from primary facts. In what manner then is the test in Galbraith to be applied by this Court where the evidence relied upon is not as to primary facts but as to the drawing of inferences. According to Lord Carswell in Director of Public Prosecutions v Varlack [2009] 4 LRC 392, the test in Galbraith is equally applicable. There is no difficulty with that. What is the test however where there is not one inference relied upon but where there are competing inferences? In Varlack,His Lordship stated “Once it is accepted … that it was reasonably possible for the jury to accept the guilty inference and reject all possible innocent ones, then the submission of no case had to be rejected.” This is on all fours, although differently expressed, with R v Hedgcock[5] citing R v Jabber [2006] EWCA Crim 2694.

10. The correct approach at half time is for the judge to ask herself whether a reasonable jury properly directed as to the drawing of inferences would be able to draw an adverse inference? To draw such an inference, adverse to the defendant in law, necessarily involves the rejection of any realistic possibility consistent with innocence. In this case the rejection of those inferences said to be able to be relied upon by the defence as being inherently improbable. Or, put conversely, if at the close of the prosecution case, the trial judge concludes that a reasonable jury, properly directed could not reject all realistic explanations that would be consistent with innocence, because such inferences relied upon by the defence could not be said to be inherently improbable[6], then it would be his or her duty to stop the case. However, where there is more than one version of events to be inferred from proven facts and there was no inherent probability that one version of events was correct and the other not, it is not for the judge to resolve that issue but for the jury to decide upon the evidence which, if any they accept or reject based upon a proper direction in law as to the drawing of inferences.

11. It must be remembered that in considering that question, this trial is at the stage of a no case submission, the trial judge is not concerned only with the evidence at this stage of trial but with potential future proof to the requisite satisfaction of the jury. The jury’s view of the facts can be affected by future evidence within the defence case or, in certain circumstances from the lack of any such evidence[7], which is why the test is what the jury ‘could, may or might’ properly conclude when they are asked to retire to consider their verdict. This is the test which exercised the mind of Deputy High Court Judge McWalters in HKSAR v White supra at half time when considering whether there was sufficient evidence from which a jury could draw an irresistible inference of knowledge and having done so, whether a jury properly directed ‘could, may or might’ be satisfied beyond reasonable doubt that the defendant knew of the presence of the drugs.

12. This exercise involves a number of steps. Firstly, as to what direct evidence there is. Secondly, whether there is an irresistible inference adverse to the defendant which can be drawn from that direct evidence. Thirdly whether that inference and any primary facts it arises from is sufficient to prove beyond reasonable doubt the element of the offence sought to be proved. Fourthly, whether there is evidence to support a competing inference (which is not inherently improbable) for the drawing of an adverse inference by a jury must necessarily include the rejection of all other inferences consistent with innocence. Only if a jury could not in law draw the adverse inference should the case be stopped. For if they ‘could, may or might’ reach that conclusion, then it is a matter for them and not the trial judge.

13. This is not a case where there is no evidence of the crime alleged to be committed. All of the elements of trafficking in dangerous drugs have been admitted by the defendant save for that of knowledge. The issue therefore at this stage is whether there is evidence from primary facts of such quality that a jury ‘could, may or might’ be satisfied beyond reasonable doubt that the defendant knew he possessed dangerous drugs. In this case there is more than one version of events which can be inferred from the proven facts. The prosecution say his knowledge can be inferred from his personal financial situation; his lack of honesty with his family; his initial scepticism in respect of David Boyce and others; his consideration that he may be carrying drugs; his acceptance that it was unlikely he would receive the inheritance funds and the value of the drugs he was entrusted to carry. The inference sought to be relied upon by the defence is predominantly based upon his answers to questions in interview and only peripherally to the independent and neutral evidence that syndicates exist who have targeted the elderly to bring drugs into Hong Kong on the pretence of inheriting money. The relevant and substantive part of that evidence relies upon the view the jury take of the defendant. It is a matter entirely for them to decide what weight they give to the evidence given the gaps and conflicts arising within the VRIs. It is for the jury to assess whether the inference sought to be drawn by the prosecution is the only and irresistible one or whether the explanations given by the defendant are inherently improbable or not. If there is no inherent probability that one version is correct and the other not correct then that is a matter entirely for the jury to decide.

Conclusion

14. There is a prima facie case raised by the prosecution, from which the jury could be asked to infer knowledge on the part of the defendant. The competing inference relied upon by Dr Mohamed on behalf of the defendant relies predominantly upon the view the jury take of the defendant’s explanations in his two VRIs. What they make of those explanations is a matter for the jury and not for the Court at half time. This application is refused.

(A P Campbell‑Moffat)
Judge of the Court of First Instance
High Court

Mr James Sherry, counsel-on-fiat, on behalf of the HKSAR

Mr Michael Arthur and Dr Nisha Mohamed, instructed by Massie & Clement, assigned by Director of Legal Aid, and Ms Zoe McCoy, instructed by Massie & Clement, on pro bono basis, for the defendant

[1] As followed and approved in AG v Li Fook Shiu Ronald [1990] 1 HKC 1

[2]R v Governor of Pentonville Prison, ex parte Tarling (1978) Cr App R 77 at p136

[3]May v O’Sullivan (1955) 52 CLR 654 at p658

[4]Li Fook-shiu supra

[5] [2007] EWCA Crim 3486

[6]Hedgcock supra at §22

[7]AG v Li Fook-shiu Ronald [1990] 1 HKC 1

HCCC 196/2020

[2021] HKCFI 2340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 196 OF 2020

______________

BETWEEN
	HKSAR
and
	PURUGGANAN Rogelio Garcia	Defendant

______________

Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 8 July 2021

Date of Ruling: 9 July 2021

______________

R U L I N G

______________

1. This is an application by the defendant to have his two video-recorded interviews ruled inadmissible under the principles laid down in R v Sang [1980] AC 402. Ms Mohamed submits that the Court should, exceptionally, exercise its residual discretion to exclude both interviews on the basis of the unfair manner in which they were conducted. Mr Sherry opposes that application.

The Video Recorded Interviews

2. The first video recorded interview took place on 13 July 2019, between 1542 and 1754 hours. The defendant was unrepresented and did not initially wish to answer questions[1]. During the ensuing discussion about that issue, the defendant intimated that he wished to turn on his laptop[2]. However, Inspector Lam indicated that she would like to ask some questions first, before she turned on the computer, and cautioned him once more[3]. This is a common ploy by officers from the uniformed services. An initially unwilling interviewee is more likely to continue to answer questions which are safe, such as questions covering family, residence, employment etc. There is nothing in and of itself that would suggest anything underhand in doing so, even if the interview is emphatic in his desire to remain silent. At the stage in which the defendant suggests turning on his computer[4], I do not believe this request is a response to the officer’s questions, but rather a reaction driven by his desire to be able to access his own information, whether or not he intended to provide that information to the officer. I do not accept that at this stage the defendant did not understand that he was entitled not to answer questions and I find the officer dealt with his right of silence in these early stages on a number of occasions. This was not the stage at which the issue of informed consent truly arose. I do not accept that an interviewing officer should immediately stop an interview the moment an interviewee expresses a desire to remain silent. I see no reason, so long as it is done properly, for the interviewee to explore what areas, if any, an interviewee is prepared to answer and thereafter to continue. The interviewee can at any time decline to answer.

3. From Counter 158-380, the officer asked only background questions. That is clearly admissible. At Counter 381, the officer asked the defendant why he had come to Hong Kong, which resulted in further discussion about access to the computer up to Counter 538 at AE855. The interview proper does not commence until Counter 554. Between Counter 554 and 612 the defendant is speaking in vague terms. Counter 618 is the first reference to the facts at hand but unfortunately the defendant mentions that the trip to Hong Kong was the third time he had made a trip connected to the USD 10,500,000[5]. This was volunteered by the defendant by way of explanation. I do not criticise the officer for attempting to investigate these points. Without that context the defendant was in difficulty answering the initial question as to why he came to Hong Kong. On one view the background does explain his intentions and may be said to go to knowledge at the time of the alleged offending. The other trips however are not relevant to the issue before the Court and in any event are liable to be considered uncharged acts by the jury. Whilst that could be dealt with by way of a direction, it could easily be edited and parties agree that it can be dealt with in this way. The final trip in respect of the offending before the Court appears to start at Counter 1510 on AE935 and continue to Counter 2195, although there is further reference to irrelevant inadmissible matters.

4. The defence suggest that at the point that the interview turned to the specifics of the offending in question, the officer should have re-cautioned the defendant. I know of no guidelines which require this to be done nor any authority which suggests if it is not done, the admissions made would be rendered inadmissible. At least not on the facts of this case.

5. Reference is made once more to the defendant’s laptop at Counter 2242 when the Inspector asks “You want to turn on your computer and connect to the internet and then log in to your Gmail account, isn’t it?” In response the defendant replies “oh, okay”. The following conversation then takes place:

Counter 2253 A: Okay. So as this room we cannot connect to the wifi, and then after that we will go out, and then I will let you use the computer and you will log into your Gmail account and show me the correspondence with David Boyce”

Counter 2254 B: Uhm…

Counter 2265 A: So, how many person are you going to show me in the email?

Counter 2266 B: Ah, three

Counter 2267 A: … one is David Boyce, right?

Counter 2268 B: uh-huh

Counter 2269 A: … Is there any name for the other person?

Counter 2270 B: Godwin Emefiele

Counter 2306 A: …okay, so this is the second person you want to show me?

Counter 2307: B: yeah, I thought that’s the er, should be the third person, the ere er, there’s a name there which is deputy Governor of CBN, ahm, can’t remember now the name, Dr Kingsley.

Counter 2310: A: …so, these three person related to the trip?

Counter 2313: B: they are the one’s trying to coach me.

Counter 2318: A: so, after that, please show me about the correspondence with these guys.

Counter 2319: B: yeah, yeah.

Counter 2320: A: Yes, then after that we will print all the, we will print the correspondence now.

Counter 2321: B: Sure

Counter 2326: A: …I will print the hard copy first, and then we will bring it to this room again to have the video interview to just let you confirm this is the correspondence, [yeah], is between David Boyce and the other two person.

Counter 2327: B: Mm

Counter 2340: B: You are reasonable in trying to get me all the fact alright? And also thank you very much.

Counter 2341: A: You are welcome.

Counter 2357: C: Then all of your emails will be printed out by the person there which are in your computer and then we will have an interview again here and then you will be shown the emails, those emails.

6. There may very well have been no intention on the part of the officer to mislead the defendant at this point but it is apparent that they are talking at cross purposes. The officer is attempting to secure more evidence to make sense of the explanation of the defendant but no doubt with a view to relying upon against him if possible whereas the defendant believes this exercise is to assist him in explaining the complicated background to his relationship with the relevant third parties. He is thanking the officer at Counter 2340 because he believes she is carrying out this exercise to assist him. That belief looks as if it is strengthened with her response at Counter 2341. It was the responsibility of the interviewing officer to ensure that the defendant was not induced into providing assistance which might be to his disadvantage as a result of a misunderstanding. That responsibility was all the more onerous when taking into consideration all of the circumstances at the time e.g. his age, nationality, the period of time in custody etc.

7. Thereafter the officer takes the defendant to another room. In the presence of another C&E officer and the interpreter, she accesses the internet through a C&E desktop computer and enters the defendant’s Gmail account. She enters the search term ‘David Boyce’ and over 100 emails are generated in a list. She does not make any record of this list and does not attempt to copy or download it. Thereafter, the officer opens each email and asks the defendant to confirm the email address but no more. He is not provided with an opportunity to read the emails. As each is confirmed, it is printed out. The defendant is not provided with an opportunity to identify what has been printed out or read them. There is no record of what is printed out. No copy is made and they are not secured in a tamper proof envelope. This is because the officer releases to the defendant back into detention and spends the evening reading the emails to prepare for a further interview. I have already ruled out the emails extracted in this manner for the reasons given in my previous ruling.

8. The second VRI takes place on 14 July 2019 at 1108 hours and finishes at 1240 hours. It commences with the usual preliminaries and a further caution. At counters 28-31, the officer says: you told me that you want to turn on your computer and connect to the wifi and that you want to show me email correspondence with David Boyce. At counter 44, he says Yes. At counter 67 she confirms that she printed them out with “his consent and assistance”. She then seeks to have him confirm the whole bundle printed out but then goes on to show him a limited selection. The interview proper starts at counter 130 AE1255. Documents are put but they are not in context and the defendant is not given the opportunity to read them properly. The first document referred to at p.2439 of the committal bundle is not related to the trip in question and the transcript is generally irrelevant up to counter 197. Thereafter the degree of confusion of the defendant is apparent especially when the officer seeks to ask question relating to events in 2018. Time and again the defendant says “I am unsure”. Emails are being referred to which he has no opportunity to digest or contextualise. The officer jumps from the later part of the printout to the earlier part without warning and from the middle of 2018 to January 2019 at p.2214 of the committal bundle, which is possibly related to another syndicate or syndicates and which is therefore irrelevant. Much of the second VRI is in relation to other matters not relevant to the issue at hand but the latter part of the VRI covers the material events and is relevant.

The Law

9. A judge in a criminal trial has the discretion to refuse to admit evidence where the prejudicial effect outweighs its probative value[6]. A judge also discretion to refuse to admit otherwise relevant and admissible evidence where it has been obtained by unfair and improper means after the commission of the offence. In this case the emails obtained on 13 July 2019 between the two VRIs and the evidence relating to such emails which led to the second VRI may not otherwise have been permissible under the Rules & Directions for the Questioning of Suspects and for the reasons given elsewhere. In other circumstances the Court would not ordinarily concern itself with how evidence was obtained under the ‘fruit of the forbidden tree’ principle. But that is not the case here. The submission made includes evidence obtained post offence in what the defence submit was a wholly improper manner which the defence say was misleading.

10. I am being asked to exclude both VRIs. An out of court statement by a witness is generally inadmissible to prove the truth of its contents subject to well-known exceptions[7]. One such exception allows the prosecution to adduce a defendant’s out of court statement made against his interests for the purpose of relying upon the truth of the contents of that statement to incriminate him. The VRIs are prima facie admissible. Their purpose is to show firstly that they were in fact made and secondly that they were true in material respects where they can be shown to be inculpatory. The primary pre-conditions of admissibility of such an out of court statement is its authenticity and voluntariness, for a “free and voluntary confession is deserving of the highest credit”[8]. There is no confession as such in this case as the defendant denied any knowledge of the content of the suitcase although he did make admissions in so far as his possession of it. There are therefore admissions as to some of the elements of trafficking in dangerous drugs. For the most part however, the VRIs consist of the defendant explaining how he came to be in Hong Kong. Do those admissions, such as they are, suffice to categorise the two video-recorded interviews, when looked at individually, as mixed statements? In HKSAR v Yuen Man Tung CACC 442/2003, the Court of Appeal stated “If it is adverse to the person making it in relation to an important element of the offence charged…then, self-evidently, it is not wholly exculpatory”. If the inculpatory parts are such that they materially assist the prosecution to prove its case against the defendant, then the nature of the statement is mixed[9] and the whole of the statement is admissible as the evidence of the truth of its contents[10], although of course it is for the jury to decide whether the statement, when viewed as a whole, constitutes an admission but should take into account that the exculpatory parts were not made on oath or subject to cross examination if the defendant chooses not to give evidence[11] as is his right.

Conclusion

11. To advance her application, Ms Mohamed asks the Court to consider the manner in which the introductory part of the first recorded interview (“the first VRI”) was conducted, set against the background of the offending and particular characteristics of the defendant. Her primary submission therefore relied upon a close examination of counter 1-159 at AE809-825. The thrust of her submission is that the transcript clearly evidences a desire on the part of the defendant to remain silent. He became confused about that right, which was not dealt with appropriately by the officer, and which led to him answering questions amounting to admissions against interest when he would not otherwise have done so. She submits that the interview should have been stopped immediately upon the defendant indicating he wished to remain silent. Having continued, the officer should at least have further cautioned the defendant once the interview started to focus upon the material events in the same way she would do if she was moving on to a new offence.

12. Ms Mohamed’s second point is as to the references made by the defendant to the three other trips prior to the one in question. She posed the question: How is the prosecution intending to rely upon this evidence? The defence submit they are irrelevant to the issue before the Court i.e. knowledge. In the alternative, if not irrelevant, the circumstances of the three other trips and the introduction of the carrying of a gift bag are so prejudicial as to outweigh their probative value. She submits that even with a strongly worded direction to the jury, there is a serious risk that the jury will use this information inappropriately and infer that the defendant was carrying drugs prior to the material events. Lastly, because of the course of the questioning and the answers given, Ms Mohamed submits there is a lack of sufficient context to properly assess the relevance of the answers given by the defendant and it would be unfair to admit them. This is because the second VRI flows from the first and the harm done during the first VRI and intervening internet search, taints the second interview in the same way save for the fact that it becomes difficult to understand without the relevant emails to which the officer referred but which have been ruled inadmissible by the Court. It follows, she submits that large parts of the second VRI must be edited. Other parts are clearly wholly disconnected to any other events. What small part remains, Ms Mohamed suggests then lacks context in a similar way to that advanced in respect of the first VRI.

13. As to the introductory part of the first VRI, Mr Sherry on behalf of the prosecution, submits that it is clear from a reading of the whole of the transcript that the defendant understood his rights. The officer cautioned him clearly and properly at the beginning and attempted a further five times in a very short period of time to reinforce that caution prior to the defendant choosing to answer questions. The defendant can point to no behaviour of such egregious quality that it would warrant excluding not just one but two interviews.

14. I am with Mr Sherry upon this point. Whilst I accept there was a misunderstanding as between the officer and the defendant, it was not as to his right of silence. It was about the procedure to be employed and his desire to have access to his laptop to assist him with remembering events. This particular confusion continued throughout the first interview. I do not believe this submission has traction. I have been referred to no authority to suggest the Court would even have the discretion to exclude the interviews on the basis advanced. As for the remainder of the first VRI, Mr Sherry submits that it would be proper to edit out those references to the first, second and third trips where they relate to the fact of the trips but that there are references to the defendant’s state of mind which could properly be before the Court and which are relevant to his state of mind at the time of the offending. He has indicated where he says that is the case. Again, I am with Mr Sherry on this point. If an exercise can be done which does not prejudice the defendant and which can be read in context, then his state of mind in the build up to the events of 12 July 2019 is relevant.

15. Rightly, Mr Sherry accepts that he may have some difficulty with the second VRI. Not because he says it is inadmissible for the reasons advanced by Ms Mohamed but because of the effect of the Court’s ruling on the emails downloaded from the internet on the evening of 13 July 2019 and the further decision of the prosecution not to rely upon other digital evidence. However, the number of emails referred to within the second VRI was in fact quite limited and the manner in which the second VRI was carried out was such that a substantial part of the VRI remains even if the sections relating to the emails is edited out. Having conceded other editing in accordance with his approach to the fist VRI, there are still sections which deal with knowledge and with the material events and there is no reason why these should not be put before the jury.

16. I do not accept that the manner in which the first VRI was carried out, nor for that manner intervening events and the second VRI, was so prejudicial to the accused that it warrants both VRIs to be excluded. I have considered in what form the VRIs should go before the jury. Those parts which are irrelevant, indicate uncharged acts or which cover matters where the prejudicial effect outweighs their probative value must be edited so as not to prejudice either party but with a view to putting before the jury a document which is comprehensible. I have attached to this ruling a schedule of how that should be done subject to further submissions from the parties.

(A P Campbell‑Moffat)
Judge of the Court of First Instance
High Court

Mr James Sherry, counsel-on-fiat, for HKSAR

Mr Michael Arthur and Dr Nisha Mohamed, instructed by Massie & Clement, assigned by Director of Legal Aid, and Ms Zoe McCoy, instructed by Massie & Clement, on pro bono basis, for the defendant

[1] Counter 53 AE 814

[2] Counter 112 AE 820

[3] Counter 158 AE 825

[4] Counter 112

[5] Counter 634

[6] R v Sang [1980] AC 402

[7] Subramanium v DPP [1956] 1 WLR 956 at 970

[8] R v Warickshall (1978) 1 leach CC 263

[9] HKSAR v Lo Wai Ming [2007] 3 HKLRD 191

[10] R v Jones (1872) 2 C&P 629; R v Pearce (1979) 69 Cri App R 365; HKSAR v Wong Chi Wan CACC 156/2005

[11] R v Donaldson (1976) 64 Cr App R 59

HCCC 196/2020

[2021] HKCFI 2339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 196 OF 2020

______________

BETWEEN
	HKSAR
and
	PURUGGANAN Rogelio Garcia	Defendant

______________

Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 5 & 6 July 2021

Date of Ruling: 7 July 2021

______________

R U L I N G

______________

1. This is an application by the prosecution to adduce digital evidence obtained directly from the internet by means of a Gmail search carried out in the presence of the defendant on 13 July 2019. This evidence has been identified as P48 and covers p.2189-2478 of the committal bundle.

2. The defendant, a 78-year-old citizen of the United States of America, had been apprehended at 1720 hours on 12 July 2019 by officers of Customs & Excise when he arrived in Hong Kong via Hong Kong International Airport from Johannesburg. At that time, a search of his suitcase was carried out and 1.54kg of cocaine was found secreted within it. The defendant denied knowledge of it at the time of arrest and caution and refused to answer questions in the ensuing preliminary enquiry which took place at 1925 hours the same day. As is usual practice, the drugs and other relevant property were seized and ultimately sealed within tamper proof evidence bags. Included within these items were a number of documentary exhibits P3-10.

3. At 1535 hours on 13 July 2019 the defendant was interviewed by Customs Inspector Lam Lok-sze (“the first VRI”). This first VRI took some 2.5 hours. The defendant was unrepresented and did not initially wish to answer questions but did want access to his personal computer, which was not opened at that time but was apparently accessed later in the interview at the defendant’s request (Counter 394). There was no wifi within the interview room and therefore the officer suggested that the defendant told her what he wanted and after the interview they would connect his laptop to the wifi. This was referred to again at Counter 2242 (AE997). The officer suggested in her evidence that the defendant had asked to turn on his computer in order to access his Gmail account which is not what he actually said but, in any event, he agreed to her suggestion that he should do so. In the first VRI, Inspector Lam tells him they will carry out this exercise elsewhere and confirms with him that he wishes to access emails dealing with David Boyce, Godwin Emefiele and Dr Kingsley (Counter 2267-2307). At Counter 2326 the officer states:

“…I will print the hard copy first and then we will bring it to this room again to have the video interview to just let you confirm this is the correspondence between David Boyce and the other two person.”

4. It appears however that the defendant is under the impression that accessing the computer is being done to help him access the facts for his own use rather than as a recollection of evidence against him (Counter 2340)

“You are [A: Yeah] reasonable in trying to [A: Yeah] yeah [A: Yeah] get me all the facts, right? And also thank you very much.”

And at Counter 2357 he is led to believe he will be shown the emails which are to be printed out.

“…And then you will be shown the emails. Those emails.”

5. Thereafter, the evidence was obtained in an unorthodox manner. There was no recording of what occurred in Room 5T022, which is where they went to use a C&E computer. They did not access the defendant’s laptop. This was sensible as the laptop had been seized and required encasing. The officer made no note in her official notebook, nor did she make any other note of the exercise other than what had been forewarned within the first interview. In her witness statement dated 14 July 2019, the officer refers to ‘screening’ through the email correspondence between the defendant and David Boyce and subsequently those emails were printed out. In her evidence on the voire dire, the officer said that she entered a search term into the Gmail account which was ‘David Boyce’. This was the only search term she entered despite originally saying that she would search for two other names. She did not enter the other two names. A list was generated by the account. She did not screen shot or copy this list. It was never printed out. However, she said that she opened each email and “asked the defendant to verify whether it was between David Boyce and himself. There were a hundred odd emails”. The witness then said “I showed some to the defendant” but accepted she had now shown him the contents. There was no record of this procedure to identify which emails she had done this exercise with and therefore no record as to which he adopted as his own although she said that he accepted the email address of all the ones she showed him. The whole task took two hours. She printed each email out as she showed it to the defendant in soft copy. She did not allow the defendant to read the emails after print out. She did not take a copy of those emails and she did not make a list of them. She did not place any such emails in a tamper proof bag or have the defendant identify the printouts. She studied the original printouts later but not in his presence. She then selected some of the emails to put to the defendant in interview. When asked to identify which of the emails she used in interview the next day (“the second VRI”), she said that for the purposes of her latest statement she had guessed which ones they were from the references within the second VRI to the date and sometimes if there had been a reference to the time or to the content but thereafter it was a question of context and guesswork as she had made no note or any other record of what she had referred to in the interview and had no independent memory of them and she could not remember how many she had printed out. At no stage did she identify by marking them, any of the emails referred to despite having selected them the previous evening.

6. Thereafter, the bundle of documents which she says she had printed out on 13 July, remained within an envelope and were kept personally by the officer until 5 November 2020, at which point she handed them over to the exhibits officer along with all other exhibits. According to the officer no copies were made. At no stage were the documents now said to be P48 identified individually nor were they placed in a tamper proof envelope and sealed. Indeed, the officer said she accessed these original emails from time to time to work on the case. The exhibits officer fell into the same trap. He made no list of what he had received. There is no way of being able to check whether what was printed out that evening directly from the internet is one and the same as the contents of P48.

Access to the internet and email servers

7. This method of obtaining evidence is problematic. Clearly the messages are computer produced and stored on a computer. If relied upon for a hearsay purpose then s22A is triggered and the prosecution clearly cannot meet the hurdles which have been laid down by the section. There is no suggestion by Mr Sherry that they could do so. Not by this means in any event. If relied upon for a non-hearsay purpose, s22A is not triggered but the Court would nevertheless have to be satisfied of their authenticity and that they were not obtained in an inappropriate and unfair manner. They are not prima facie inadmissible but they are subject to scrutiny. Mr Sherry wishes to rely upon P48 for a non-hearsay purpose. He says he merely wishes to show what was produced in interview as a real exhibit. If that is the case then clearly the only emails he could rely upon would be the actual emails put in front of the witness during the second VRI as we know that the defendant was given no opportunity at any stage to read them for himself. That would not cover the 289 pages which are the subject of P48.

8. By reference to Annex 1 to the witness statement of Inspector Lam dated 3 July 2021, only the following pages would be potentially admissible. These are pp.2437, 2438, 2439, 2450, 2214, 2282, 2458, 2473, 2424 and 2302. Of these pages only the specific email would be admissible and not any other email on that page or which formed part of the string. Those not relevant to the immediate offending would also be excluded. As such that list would be reduced to 2437, 2438, 2282, 2458, 2473, 2424 and 2302. The Court is therefore left with 7 emails out of 289 pages of emails, to consider. Should these seven emails be placed before the jury for a non-hearsay purpose? Are they authentic? Have they been adopted by the defendant as authentic in the VRI? For if he accepts them as such, why should they not be placed before the jury on that basis? Taking each in turn. The first reference at Counter 98 is to email at p.2438 which the defendant did not read as by this time he had been apprehended and was in C&E custody. The same must be assumed for the email at p.2437 when he would have been disembarking. He cannot adopt something about which he knew nothing until such time as it is produced in interview. They are not admissible on the basis of adoption. The email at p.2282 is adopted at Counter 670 but is in relation to the first trip which is inadmissible as irrelevant to the events upon which the prosecution rely i.e. the last trip. P.2458 refers to the stop order, a copy of which the defendant has in his possession on arrest and would be prima facie admissible as a real exhibit. P.2473 is pure guesswork. P.2302 does not cover the relevant period and p.2424 refers to a hotel booking in Hong Kong for July 2019.

9. That exercise restricts the admissible documents to pp.2458 and 2424. If the prosecution are relying upon them for a purely non-hearsay purpose and wish to rely upon them, then as they have been adopted by the defendant, they should be admissible if it could been shown they had actually been derived from the exercise on 13 July 2019. Unfortunately, the prosecution cannot support the chain of evidence in respect of these emails and therefore none of the emails can go in. If I were incorrect in that, I find that the manner in which these emails were obtained, the lack of further caution and the clear misunderstanding of the defendant as to why this exercise was being carried out, produced an unfair outcome to the defendant especially in light of the fact that he was not allowed to read the emails when questioned nor was he allowed to refresh his memory from their content and context. This would have been particularly important given his age, the period of time over which the emails are said to have been generated, the complexity of the interactions and the fact he had been in custody for two days by the time the second VRI took place.

Other Digital Evidence

10. P48 was a bundle of emails from the Gmail account of the defendant downloaded directly from the Gmail server by Inspector Lam, without the aid of any forensic tool. PW22, SCO Wong Chung-man (AE 3-9) is the expert forensic examiner. He examined the defendant’s mobile phone and laptop computer. Data extraction from the laptop was not possible. However, the memory of the defendant’s Samsung mobile phone was also examined and a copy made. I refer the parties to HCCC 174/2020 for how that exercise could have been carried out. It is clear that the defendant’s mobile phone was accessed by officers after seizure and no record was made as to that. That should not have happened. No verification was made as to the status of the mobile phone when first opened by SCO Wong. There would have been a date time stamp to show when it was last accessed. No hash value was attributed to the data which was examined whilst still on the phone and no hash value was confirmed when the data was copied. There is no evidence of when this exercise was carried out or by whom. The witness statement merely states when the examination was completed. There is no evidence as to who carried out the exercise of searching for particular emails, and interestingly, why there was a request for items vii to xiii of paragraph 6 of the statement, which do not appear anywhere else in the papers and which suggests some other prior access of either the phone or the laptop, which has not been disclosed. Only 55 emails concerning David Boyce were retrieved from the memory of the Samsung mobile phone and these are not identified as such. Within the first AE bundle, 456 pages have been produced in one volume with no recognisable way to navigate around them. This is wholly unacceptable. As Mr Sherry now says that he is not relying upon any of his digital evidence, there is no application to adduce them. The Court wishes to make clear however that they are not currently in admissible form.

(A P Campbell‑Moffat)
Judge of the Court of First Instance
High Court

Mr James Sherry, counsel-on-fiat, for HKSAR

Mr Michael Arthur and Dr Nisha Mohamed, instructed by Massie & Clement, assigned by Director of Legal Aid, and Ms Zoe McCoy, instructed by Massie & Clement, on pro bono basis, for the defendant

HCCC 196/2020

[2021] HKCFI 2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 196 OF 2020

______________

BETWEEN
	HKSAR
and
	PURUGGANAN Rogelio Garcia	Defendant

______________

Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 6 July 2021

Date of Ruling: 6 July 2021

______________

R U L I N G

______________

1. This is an application by Mr Arthur for disclosure. He seeks disclosure of any evidential connection between characters and email addresses to be found in this matter, which are duplicated in other proceedings for trafficking in dangerous drugs by Customs & Excise.

2. This is not the first such application. Ms Mohamed raised the issue of disclosure at the first CMH on 29 April 2021. At that time defence counsel outlined the defence case in very general terms as one in which the defendant had been carefully groomed by fraudsters to unwittingly carry drugs when he believed what he was doing was travelling to obtain documentary confirmation in order to obtain an inheritance. Ms Mohamed submitted that a perusal of the email evidence indicated that there may be parallels to other proceedings where a defendant was the subject of an internet scam and unwittingly duped into carrying drugs. By way of example, defence counsel specifically identified the series of trials under Operation Cocoon but did not limit her application to that operation. The application therefore extended to prosecutions under the Department of Justice and was not limited to Customs & Excise. This had been the subject of a prior written requests on 22 January and 9 March 2021 but the prosecution had refused to make such a search or provide information. By way of a letter from prosecuting counsel dated 27 April 2021, at page 2 thereof, Ms Mohamed had identified specific email addresses, names, and telephone numbers, which she requested be subject to a search. Mr Sherry had informed the defence under cover of that letter that none of the email addresses were found to be contained in the Operation Cocoon file and declined to carry out any broader search without an order of the court, although the prosecution did share the information with various overseas law enforcement agencies. Mr Sherry objected to carrying out a further search because they were not relevant to the issue of knowledge and he submitted information from other cases not involving the defendant fell outside their common law duty of disclosure. Prosecuting counsel said his case was not that there was not a scam but whether the defendant was taken in by it. It was their case that he was not taken in. They say he was deeply skeptical at all times. He relied upon R v Flook [2010] 1 Cr App R 30 at para 35 and R v H and C [2004] UKHL 3, [2004] 2 Cr App Rep 179 at para 35. I note that Flook deals with operations carried out by the UK and South African police and defence requests for South African material. The Court of Appeal found that the prosecution should take reasonable steps to obtain the requested material but if such informal attempts came to nothing, there was little else the prosecution authorities could do. H and C concerned public interest immunity. Neither issue is pertinent here. On that occasion the Court attempted to take the middle road and did not go so far as directing that a search should take place by the prosecuting authorities but Mr Sherry, on behalf of the prosecution undertook to make enquiries within the jurisdiction in answer to the request made. Those enquiries however came to nought.

3. At the 2^nd CMH on 31 May 2021, the matter was raised again but with Mr Arthur representing the defendant along with Ms Mohamed. Mr Sherry submitted that C&E did not keep statistics of this nature and the database of both Customs & Excise and Department of Justice do not avail themselves of the type of search terms where an email address is used. The task would require a manual investigation of a considerable number of files. He submitted it is incredibly difficult and too extensive especially compared to how any such material could be relevant to the issue at hand. Mr Sherry suggested it was for the defence to raise the issue of the scam but accepted they could not deny such scams exist but nevertheless they intend at that time to rely upon those emails relating to the scam which were put before the defendant in the VRI.

4. There was considerable discussion on 31 May as to how this search could be made. Mr Sherry confirmed the search to date was only as to emails but not as to names. Mr Arthur submitted that the defendant wanted to be able to say there is in existence a scam industry from which he wishes to show that the defendant was a victim of a scam. He said, as he does now, such evidence is not within his ability to obtain. It is merely because of his professional practice that he could identify such possibilities exist. He rejected the submission that the authorities could not carry out a key word search as he has had cooperation to this extent in another matter he appears in. He maintained it was not a fishing expedition.

Does the prosecution have a duty to disclose the material requested?

5. It is not known whether the material requested actually exists. From experience and some degree of anecdotal evidence, it is possible that it does and today Mr Arthur was able to provide a document said to come from a prosecution which took place before the High Court recently which clearly evidences a name known within the current trial bundle. It is therefore possible that there is material within the prosecution’s possession which answers the application made. Mr Arthur has not gone so far as to allege mala fides on the part of the prosecution in not disclosing this material but he renews his application for the search exercise to be carried out with more diligence. Mr Sherry in response reminds the Court that the exercise to date was done in respect of email addresses only and went no further. He also reminds the Court that the prosecution’s duty covers matters which are relevant and admissible before the Court in the hands of the defence. The Court notes that it is not in a position to say what is admissible as it does not yet know, what if anything, is in the hands of the prosecution. However, despite repeated requests not just on this occasion but on 29 April and 31 May, the Court has asked the defence to justify how any such material would be used to advance its own case or say how the lack of it would prejudice the case of the defendant. This is not the test as to whether the Court should accede to the defence application but it is certainly a proper consideration in the circumstances as currently before the Court where the prosecution suggest it is all too difficult and in any event irrelevant and the defence say they are entitled to the material if it is available and it is for them to say within their own case how they rely upon it.

Conclusion

6. Both parties are entrenched. The Court, in the absence of submissions on the point, cannot say whether the material is relevant to the defence case or how it may be relevant to the issue in trial, and must rely upon the undertakings of experienced defence counsel that it is. Whether or not there is evidence to show that the parties cited in 196/2020 can be shown to be evidenced elsewhere is still at large because of the inability of the prosecution to carry out a comprehensive search. Mr Sherry submits they have now identified 11 cases falling within the criteria laid out by the Court on 31 May. An order from the Court to this effect could result in a costly exercise which fails to produce anything. On the other hand, if such material was available, is it for the Court to refuse this application because it cannot identify in what manner could it properly be relied upon? There is no doubt there is a duty upon the prosecuting authority to disclose relevant material which may undermine its case or advance the case of the defence[1]. It is not always known by the prosecution how material may advance the case of the defence and such material does not necessarily have to be admissible in its own right but might be relevant because it leads to some other train of inquiry. Whilst it is helpful in situations such as this to have some insight into how the defence say this would carry out this function in order to carry out the balancing exercise, there is no duty upon the defence to disclose its case in advance of trial. It is clearly not a fanciful application. Mr Arthur simply takes the risk of the Court taking a view adverse to him but the Court cannot order disclosure of his defence.

7. The duty of this Court is to ensure a fair trial. That means fair to both parties and with an eye upon the sensible use of government resources. But the prosecution brings this case against the defendant and they suffer the burden placed upon them by the rules as to disclosure. As Lawton LJ said in R v Hennessey (Timothy John) (1979) 68 Cr App R 419 “those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to the accused is either led by them or made available to the defence”. All relevant evidence of help to the accused is not limited to evidence which will obviously advance the defendant’s case[2]. They may not pick and choose when and how they disclose nor may they limit the defendant from running a proper defence if there is good reason for him to do so. It would appear that the latest document under MFI/3 indicates that the information Mr Arthur requires is indeed available.

8. It is unfortunate that it requires an order of this Court for that exercise now to be carried out. The prosecution will carry out a search of all prosecutions where an individual over the age of 40 has carried drugs into Hong Kong from abroad concealed within his or her luggage in the years 2018 and 2019 and where there is evidence of an internet fraud syndicate in operation within the papers. They will identify those cases by prosecution case reference where there is any evidence of an internet fraud and will search for similarities in the identity of any persons mentioned therein, email addresses, telephone numbers and by similarity of documentation templates. These will be produced to the defence by 4:30pm on 8 July 2021.

(A P Campbell‑Moffat)
Judge of the Court of First Instance
High Court

Mr James Sherry, counsel-on-fiat, for HKSAR

Mr Michael Arthur and Ms Nisha Mohamed, instructed by Massie & Clement, assigned by Director of Legal Aid, and Ms Zoe McCoy, instructed by Massie & Clement, on pro bono basis, for the defendant

[1]HKSAR v Lee Ming Tee (No 1 & No 2) (2003) 6 HKCFAR 336

[2]R v Ward (1993) 96 Cr App R 1

HCCC 196/2020

[2021] HKCFI 2338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 196 OF 2020

______________

BETWEEN
	HKSAR
and
	PURUGGANAN Rogelio Garcia	Defendant

______________

Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 2 July 2021

Date of Ruling: 2 July 2021

______________

R U L I N G

______________

1. This is an application by Mr Arthur on behalf of the defendant to place before the jury an expert report (‘the Report’) prepared by Professor Monica Whitty, a cyber-psychologist.

2. The defendant, a 78-year-old citizen of USA, faces one charge of trafficking in a dangerous drugs contrary to s4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap.134 (“the DDO”). The allegation against him is that he entered Hong Kong on 12 July 2019 with 1.54 kg of cocaine secreted inside his suitcase. It is his case that he was the subject of an email scam in which it was suggested that he was to inherit US$10,500,000 but that it would be necessary to travel abroad to obtain the necessary documents to release the funds. He refers in his VRI to four such trips, which he alleges were funded by the scammers. The first trip took place in February 2019, at a time when he was in Manila visiting his family. The scammers arranged for him to fly to Maputo in Mozambique to obtain a release order for the funds he was to inherit. In Maputo he collected the release order and was given a bag to take to Nice in France. In France he handed over the bag along with the signed release order but thereafter no funds were transferred into his US bank account and so he returned to Manila to await receipt. Subsequently, he received an email, purportedly from the European Union, which had, allegedly, blocked his funds and which required him to obtain two certificates to secure their release. Initially, he thought he was to do that by going to Buenos Aires via Ho Chi Minh City in Vietnam. That was later changed to Hanoi. He paid for this trip himself and for his hotel stay. Whilst there he was provided with a ticket from Hanoi to Buenos Aires via Qatar but the ticket was rejected at the airport and so he decided to return to Manila. He was later approached to go to Bologna in Italy via Maputo. In Maputo he was to pick up a bag and the certificates to release the funds. He flew to Bologna, handed over the bag and then returned to Manila. Some time passed before he was contacted again. On this occasion it was arranged that he would go to Addis Ababa via Paris to collect a bag and a certificate. He did so and was due to bring the bag from Addis Ababa via Johannesburg to hand over to someone in Hong Kong, at which point he was intercepted. He maintains that at no stage did he ever look inside the ‘gift’ bags.

3. In pursuance of that case, he wishes to call Professor Whitty, a cyber-psychologist. Mr Arthur submits on his behalf that he should be allowed to call expert evidence from a cyber-psychologist to explain what he refers to as the ‘Nigerian 419’ scam (“the 419 Scam”). He suggests that the 419 Scam is out-with the knowledge and experience of the jury and they will not know of the strategies employed by the scammers. He also wishes to call Professor Whitty to say that the emails before the Court evidence such a scam[1]. He further submits that the Professor’s evidence is relevant on the question of whether the defendant was or may have been the victim of a scam[2] and that he fits the profile of such a scam.

Does the jury require assistance as to the Nigerian 419 Scam?

What is a s419 scam?

4. The number 419 derives from s419 of the Nigerian Criminal Code (“the Code”) which is the offence of obtaining goods by false pretences and can be found under Chapter 38 of the Code[3]. It states:

419. Obtaining goods by false pretences
Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a felony and is liable to imprisonment for three years…

5. It is therefore clear on the face of the Code that s419 was not implemented to address internet fraud specially nor is it apposite to the facts at hand. It has however become used, incorrectly, by various international professional bodies, lawyers, law officers, and others to refer to internet fraud in general because of the historic suggestion as to where these types of fraud originated in the 1990s. In fact, the label ‘419 Scam’ refers to a type of fraud known as an ‘advance fee fraud’[4]. This type of fraud operates in accordance with its original definition. A fraudster requests help to move money and offers by false pretences a commission or reward for the services of the ‘dupe’. However, the fraudster then asks for a very small amount of money upfront in order to facilitate the transfer. It comes in many shapes and guises but it follows the pattern of asking for small sums of monies to be paid by the dupe in order to secure the commission or reward, hence its generic name of ‘advance fee fraud’. This is not what has happened on the facts before the Court.

What is the type of scam evidenced before the Court?

6. Professor Whitty has suggested that the 419 Scam now includes a vast range of other scams including inter alia investment, inheritance, lottery and romance scams. In essence, what she has referred to as a 419 Scam, is simply a modern day ‘obtaining by deception’, using the worldwide coverage of the internet to target victims susceptible to such deceit. But we are not here considering the usual obtaining by deception or fraud. The defence case is an allegation of manipulation by deception of a member of the public into providing a criminal service i.e. carrying drugs. The issue is whether the defendant did so knowingly, for that is what the prosecution must prove and is the primary issue for the jury to resolve. There is therefore no necessity to identify the particular type of scam being operated other than to outline its general characteristics as a scam or deception. Those characteristics are plain on the face of the documents. With respect to Professor Whitty, she is neither a criminal lawyer, investigator or specialist. That is evidenced inter alia by the over simplification of the label which has been attached to this offending. She is a psychologist of the scammers and the scammed. That should be the area of expertise which is to be sought to be relied upon and which must be justified if her report is to go before the jury.

Does the jury require assistance about the strategies employed by scammers?

7. Section 1 of the Report purports to deal with the ‘inheritance scam’ version of the 419 Scam as it would appear to be the most applicable upon the facts of the case. I have as yet found no evidence before me as to how this scam originated in respect of the defendant. The emails in the original committal bundle at p.2189 onwards commence in June 2018, at a stage when it appears the defendant has been corresponding with someone for some time. The emails contained within the additional evidence do not progress the matter. The Court currently has no evidence therefore upon which to be able to define the underlying scam as an inheritance scam and why, in the absence of trustworthy or verifiable facts, it should have been accepted as such by the defendant. Presumably, the Professor has access to something more? In any event, and upon the basis for these purposes that it is an inheritance scam, the Professor goes on to provide an overview of advance fee frauds form which the 419 Scam derived its name. She suggests that the inheritance scam is a derivative of the 419 Scam because it requires the victim to pay a small fee to release the relevant funds and thereafter continuing small sums of money are paid by him for a variety of reasons to a point at which the victim has invested a significant amount of his own funds. It only ends when the victim realises he has been deceived. The facts of this case, such as they are, do not sit easily, if at all, with this definition.

8. Section 2 deals with the methodology employed by scammers in advance fee frauds to develop trusting relationships. The Professor does not state whether the methodology described is relevant only to an advance fee fraud or to all internet fraud. She identifies 11 main strategies from deception, paltering, Cialdini’s persuasion techniques, sales and gambling techniques, urgency, alter casting, secrecy, distractions, developing trust, grooming and use of media. Unfortunately, Professor Whitty does not go on to say which of these strategies apply to the facts at hand, nor does she provide examples from the materials. From the definitions provided it would appear that only Cialdini’s persuasion techniques and the development of trust come close to describing the relationship between the defendant and the ‘scammers’ over a period of some 18 months. Subject to my comments at paragraph 16 below, if there is no empirical research upon the methodology employed specifically within the inheritance scam and as to the receptivity/gullibility of the victim of such scams, I cannot see how this can assist the jury. Nor do I see that this is something upon which they need to be assisted as it is unlikely to be out-with their everyday experience in the 21^st century.

Does the jury require assistance on whether the emails evidence a scam?

9. Section 5 of the Report, which purports to be an analysis of the materials provided to her, seeks to opine that the emails provided were the products of scammers. She bases her opinion that the emails were written by scammers upon five ‘indicators’. These are:

Transfer of Funds
Questioning Authority
Urgency
Person in Authority
Signing is Believing

10. The first ‘indicator’ refers to the transfer of funds and the difficulty tracing money transfers via Moneygram or Western Union especially if the bank accounts to which the money is sent changes frequently. This is indicative of money laundering. According to the Professor this is common. Unfortunately for the Professor, there was no such transfer of funds in this case. There was no attempt at money laundering and no monies were ever received by the defendant save for a small amount of some USD2-300 for expenses in cash.

11. Given that this section of the Report seeks to show that the emails were written by scammers, I am at a loss as to why the Professor has included the section on ‘Questioning Authority’ within it. She opines that victims commonly question the authenticity of a scam but are unable to distinguish between the authentic and the fake and when they are able to do so they become over confident that they will be able to do so again. How is this relevant to proving the emails were written by scammers? It appears to be misplaced. If it is relevant to the attitude of the defendant, then it should have been supported by reference to the materials and placed under a different section. Its current position and lack of support would be most confusing to the jury.

12. The third topic relied upon by the Professor to prove these emails were written by scammers is that of the use of ‘Urgency’. The Professor states that the word urgent is used in a number of communications. She does not identify the emails in question, the number of emails in which it is used or their context. If it were the case that the word urgent was used more than would be the norm, context is required from which a jury could understand and assess it. I have found the word used only three times[5] in the 360 pages within the committal bundle and then only as a header without any reference to urgency within the associated text. My understanding of the context of the emails provided is that this was a slow paced communication in which there were many delays, some of them at the behest of the defendant and at one point to the frustration of the defendant and not the scammers. I am not satisfied that this point has been made out on the papers.

13. The fourth topic refers to ‘Person in Authority’. This has been referred to previously under methodology. Again, if this section is to show that the emails came from scammers because the author of the email is an authority figure, why is it relevant to refer to the state of mind of the defendant in not realising that the email address [email protected] is obviously fake? This is a victim centric opinion and does not support the premise of the section.

14. Lastly ‘Signing is believing’. The Professor states it is common for victims to be required to sign documents to release funds. In doing so she provides no empirical research to support this. In what type of internet fraud does this occur and why? The Professor then goes on to suggest that certificates are often used without more. Lastly, she refers to “Psychological studies on consumer behaviour have found that signing acts as a general self-identity prime that facilitates the activation of a particular aspect of an individual’s self-identity, which results in actions that are congruent with that aspect”. What on earth is that supposed to mean and how does it help the jury here? In any event, how does it support the premise of the section that these emails were written by scammers?

15. Subject to the evidential limitations as to the emails available to go to the jury, it is beyond peradventure that there was an attempt to deceive the defendant and that such attempt appears to have been well orchestrated. There is no suggestion that he was part of the syndicate sending the emails. The issue is not that he received them, that they were written by scammers or that he responded to them, but whether in July 2019, he knew that what he was carrying were dangerous drugs. This is not something upon which the jury requires expert opinion. It is wholly within their own capabilities.

Does the jury require assistance on whether the defendant fits the profile of a victim of a scam?

16. Section 4 deals with the profile of the scam victim. It is a very short and succinct section as the Professor readily admits that her considerable research over 15 years does not reveal a typical profile. I presume therefore that there is no other research that does so, otherwise she would have been under a duty to refer to it. This section should be considered in conjunction with section 6 which deals with the defendant’s psychological report (not disclosed) and which, as it is undisclosed, presumably identifies no psychopathology. The defence therefore seek to place the opinion evidence of a psychologist before the court where the defendant has evidenced no psychopathology relevant to the situation at hand and where the expert cannot point to any psychological profile linking the defendant to the behaviour in question. This is of no assistance.

Does the jury require assistance on whether the defendant was a victim of such a scam?

17. Whether or not the defendant was a victim or target of a scam may be relevant to how he behaved over a period of some 18 months and may be relevant to the issue of knowledge as events unfolded. However, the fact that the defendant could be said to be a victim or target of a scam is not the issue before the jury. It may be circumstantial evidence which may be taken into account upon the issue of knowledge. The facts of this case are not so complicated, specialised or out-with the everyday human experience of the jury that they require the opinion of an expert psychologist to identify the role of the defendant.

The rules relating to opinion evidence

18. Professor Whitty has limited first-hand experience of the type of scam before the court. I say this because the Report lacks detail in this respect. It appears that her expertise is drawn from four cases in which she has been directly involved. She does not describe the circumstances of those cases and the manner in which they stand on all fours with the one at hand. Indeed, other than the fact that they were drug trafficking cases, the Professor has supplied no other information. Other references to legal proceedings are clearly hearsay. Nor is there sufficient evidence from her research and other materials to suggest that she has any particular expertise in the particular type of deception before the Court. Indeed, it would appear that the majority of her other research lies elsewhere.

19. Professor Whitty also falls into a common error in making a number of assumptions without any factual evidential basis. She has assumed that if there is a scam, it is operated by a West African syndicate. There is no evidence before the Court that the scam in question was operated by a West African syndicate. It is speculation. She refers to a ‘suckers list’ but has no direct evidence to show that was the case here. She goes further and speculates that the defendant is not on just one but several of these lists. This is conjecture. She suggests, that these West African syndicates operate in the rest of the world. We do not know if they are West African or indeed where they operate and in particular where this particular syndicate operates save that participants have appeared in Maputo, Addis Ababa, Paris, Nice and Hanoi. The telephone number given to the defendant is a UK number. For the avoidance of doubt, Mozambique and Ethiopia are in East Africa. I also take judicial notice that such syndicates also operate in China and Hong Kong.

20. I might also add that the statistics and over generalisations dotted around the Report are unhelpful. By way of example, on p.4 of the Report the Professor refers to 3.8 million fraud incidents in the UK but does not say over what period nor does she break them down by type. What percentage of these, if any, were inheritance scams? What methodology was employed? How is it connected to the scam at hand? She then maintains that the incidents referred to increased by 17% year on year. How does that assist the jury? Whilst opining that many individuals continue to be tricked, she does not say into what or how. At section 3 the Professor states that online scams are often committed by organised crime gangs. Who are these gangs; where are they and what type of scam do they operate? How does that knowledge assist the jury in the matter they have to consider? She goes on to say, “It is not unheard of for victims to unknowingly assist criminals in other crimes such as acting as money or drug mules…” and then relates that comment to an FBI report in respect of 145 romance scams. This is compounded by a short and unsubstantiated reference to 11 Australians in custody in China, all of whom she alleges were scam victims. From what body of knowledge do these references come and what special acquaintance does the Professor have with that body of knowledge to allow her to opine upon it? Rather than empirical research this appears to be hearsay upon hearsay. More importantly, how are such comments of assistance to the jury?

The Law

21. It is trite law that evidence put before the court must be both relevant and admissible[6]. Evidence is relevant if it is logically probative or disprobative of some element in dispute[7]. That is largely a matter of experience and common sense. Here Mr Arthur submits that the fact that there was a scam in operation and that the defendant was or may have been a victim or target of it, is relevant to his defence. That is accepted by the court. It is likely to be a relevant consideration. In R v Turner (1975) 60 Cr App R 80, Lawton CJ[8] said: “Relevance, however, does not result in evidence being admissible: it is a condition precedent to admissibility”. He went on:

“Our law excludes evidence of many matters which in life outside the courts sensible people take into consideration when making decisions. Two broad heads of exclusion are hearsay and opinion. As we have already pointed out, the psychiatrist’s report contained a lot of hearsay which was inadmissible. A ruling on this ground, however, would merely have trimmed the psychiatrist’s evidence: it would not have excluded it altogether.”

The issue therefore is whether the Report addresses the subject matter said to be relevant and, if so, whether it is admissible. Admissibility may be considered under several heads, one of which is the qualifications of the expert witness and the quality of the underlying academic research upon which his or her opinion is based[9], as well as the independence of that opinion[10].

“Whether the subject matter of the opinion forms part of a body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court”.

A witness must speak to the facts which occurred in his or her presence. This rule necessarily excludes hearsay but it also excludes the giving of opinion or of belief[11]. The giving of opinion evidence by an expert is an exception to this rule. The foundation for such an exception was laid down by Lord Mansfield in Folkes v Chad (1782) 3 Doug.K.B. 157, when he said “the opinion of scientific men upon proven facts may be given by men of science within their own science. An expert opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on proven facts a judge or jury can infer form their own conclusions without help, then the opinion of an expert is unnecessary.”

22. Whether expert opinion evidence can be adduced in any given trial may therefore depend, not upon the qualifications of the expert to given his or her opinion, but whether such evidence is necessary at all? If it is not necessary, that will be the end of the matter. Is the issue before the jury upon which they are asked to exercise their judgment, out-with their experience and knowledge[12]?

23. If it is necessary because the subject matter is likely to be out-with their experience or knowledge, the Court must be satisfied that the expert witness has the necessary expertise in the area of scientific or specialist research upon which his or her opinion is based; that the research is peer reviewed and tested such that it can be put before the jury as an established and predominant body of opinion upon which they should properly rely, and that the opinion is independent of the party instructing him. Lastly, the Court must consider whether the facts upon which the opinion is premised are, of themselves, admissible. This principle refers not only to the exception to the rule against hearsay which allows an expert witness to rely upon a body of work by other specialists in the same field as himself and upon which he bases his opinion[13] but also to any other fact which his opinion is premised[14].

Conclusion

24. As has been explained above, whilst I accept that the existence of a scam and the relationship of the defendant to it is relevant to his defence, I am not convinced on the facts before me that the jury require the assistance of Professor Whitty either in order to come to that conclusion nor to understand its relevance to the evidence as a whole. No part of the Report seeks to address the issue which is actually before the Court and that is the issue of knowledge of the dangerous drugs he was found to be carrying. Professor Whitty is not in a position to opine on that issue even if she wished to do so. There are a number of reasons why she would not be allowed to do so.

25. Firstly, it is ultimate issue and there is no exceptional reason on the facts of this case as to why an expert should be allowed to opine upon the ultimate issue. The legal position as to when an expert can testify upon the ultimate issue was summarised in HKSAR v Mo Sze Lung Thomsom & Anor [2003] 2 HKC 356 per Stock JA

“…depends upon the facts of the case; upon the expertise, whether the expertise is relevant to the ultimate question; whether the expert’s opinion on the ultimate question is a conclusion which depends upon his expertise or is proffered in some other capacity; and whether the court requires the assistance of an expert on the ultimate issue?”

26. Secondly, I have some considerable concerns about the Professor’s expertise. Her opinion, such as it is, is not being proffered purely as a psychologist nor has it been directed to the psychopathology of the defendant. The Professor has a considerable academic profile and an equally impressive background in advising upon internet fraud. However, a closer reading of the profile and academic research indicates that a significant proportion of the Professor’s expertise to date is broad based and where specific, is in romance scams. Leaving out those substantial parts of her expertise which are irrelevant to appearing in the High Court as a witness in a criminal trial i.e. those relating to internet dating, romance scams, male female relationships, gaming etc, I confess, without wishing to denigrate her considerable expertise elsewhere, to struggling to find any detailed research on any part of the very wide coverage of what she has referred to as the 419 Scam, save for the papers in 2020, 2019[15], on psychological profiling, and susceptibility of victims of cyber-fraud. I have not been provided with those papers and I do not know if they have been peer reviewed. In any event at section 4 the Professor stated that it is difficult to provide a typical profile of a scam victim and she has not referenced her research in this area.

27. This difficulty in seeking to define the Professor’s expertise in relation to the issues before the Court has been brought about by another underlying concern. The Report is far too ‘broad brush’. It lacks specificity and properly quantifiable reference to academic research. The Professor has not met with the defendant and has relied upon inadmissible hearsay in the form of other statements from connected parties and to unsubstantiated research. The materials should have been relied upon to make good the applicability of her general non-specific comments to the situation at hand.

28. Lastly, and by no means least, there is no sense of any impartiality or objectivity on her part. For example, there is no mention of the apparent dynamic between the defendant and the scammers. The very essence of why a psychologist would be of potential assistance. There are a considerable number of emails, if not the majority, which suggest that the defendant is exercising control and at times admonishing the scammers or simply refusing to travel. This appears to be in conflict with her suggestion that scammers gain control by exercising authority and urgency. I would have expected an independent expert witness to deal with this and other matters raised in the correspondence which conflict with her overarching descriptors.

(A P Campbell‑Moffat)
Judge of the Court of First Instance
High Court

Mr James Sherry, counsel-on-fiat, for HKSAR

Mr Michael Arthur and Dr Nisha Mohamed, instructed by Massie & Clement, assigned by Director of Legal Aid, and Ms Zoe McCoy, instructed by Massie & Clement, on pro bono basis, for the defendant

[1] §7 of defence written submissions dated 24 May 2021

[2] §7 of defence written submissions dated 24 May 2021

[3] Similar but by no means identical to s17 of the Theft Ordinance, Cap 210

[4] This is accepted by Professor Whitty at paragraph 1 (but at p.3) of her report

[5] pp2439, 2445 & 2447

[6] Blackstone Criminal Practice 2020 F1.11

[7] Lord Simon of Glaisedale in DPP v Kilbourne [1973] AC 729 at p.756

[8] [1975] QB 834

[9] The second limb of the R v Bonython (1984) 28 S.A.S.R.45

[10] The Ikarian Reefer [1993] 2 Lloyd’s Report 68

[11] There are exceptions as to the latter when dealing with everyday matters such as the age of a person, the speed of a car, recognition of handwriting etc.

[12] See R v Turner [1975] 843; R v Loughran [1999] Crim L.R, 404 below

[13] R v Abadom (1983) 76 Crim App R 48

[14] Gliski v McIver [1962] A.C. 726 p.780-1

[15] p.19

HKSAR v. PURUGGANAN ROGELIO GARCIA

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