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Hksar v Purugganan Rogelio Garcia

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date06 July 2021
Neutral Citation[2021] HKCFI 2015
Judgement NumberHCCC196/2020
Citation[2021] 4 HKLRD 24
Year2021
Subject MatterCriminal Case
CourtCourt of First Instance (Hong Kong)
HCCC196A/2020 HKSAR v. PURUGGANAN ROGELIO GARCIA

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

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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 2nd 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...

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