HKSAR v. Yamaguchi Masaki

CACC 172/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 172 OF 2015

(ON APPEAL FROM HCCC NO. 37 OF 2014)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Macrae JA (giving the Judgment of the Court):

1.The applicant and the 2^nd defendant, OKUYAMA Yoshihiro (“OKUYAMA”), were each charged with a single count of trafficking in a dangerous drug, arising out of the contents of their respective suitcases at Hong Kong International Airport on 22 March 2013. The charge faced by the applicant alleged that he had trafficked on the date in question in 5.90 kilogrammes of a crystalline solid containing 5.79 kilogrammes of methamphetamine hydrochloride (commonly known as ‘Ice’), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. They originally both pleaded guilty to their respective charges on 17 January 2014 in the Magistrates’ Court.

2.After committal, at a mention hearing on 16 March 2015, OKUYAMA decided to reverse his plea and the matter was remitted to the Magistrates’ Court; he was subsequently committed to the High Court to face trial by jury under another case number HCCC 181/2015.

3.On 14 May 2015, the applicant alone appeared before Andrew Chan J (“the judge”) in the High Court in respect of his charge and, having confirmed his plea of guilty, was sentenced to 17 years and 4 months’ imprisonment.

4.On 6 June 2016, the applicant testified as a prosecution witness in HCCC 181/2015 before Deputy Judge Woo and a jury.  OKUYAMA was found guilty by the jury and, on 15 June 2016, sentenced to 26 years’ imprisonment.

The facts

5.On 21 March 2013, the applicant and OKUYAMA, having checked in their respective suitcases at the Korean Air check-in counter of the Departure Hall at Hong Kong International Airport, were intercepted by Custom officers.  Both suitcases were examined and in each suitcase were found a diving suit and diving equipment.  The diving suits were of similar appearance and each one had six packets of suspected dangerous drugs secreted within it.

6.The Travel Movement Record of the applicant showed that he had entered Hong Kong two days earlier, on 19 March 2013.

7.The suspected dangerous drugs found in the applicant’s suitcase were examined by a Government Chemist and in due course particularised in the charge and the Summary of Facts admitted by the applicant as 5.90 kilogrammes of a crystalline solid containing 5.79 kilogrammes of methamphetamine hydrochloride.  The estimated street value of the drugs in the applicant’s suitcase was at the time $4,690,500.  The applicant subsequently admitted and accepted that at all material times he had intended to export the ‘Ice’ from Hong Kong.

Mitigation

8.During mitigation, Mr Boyton, who also appears before us today, submitted that the applicant was an unemployed, divorced man with three children.  Before becoming unemployed, he had been a salesman and a real estate agent in Japan. Mr Boyton inititally applied before the judge to reserve his mitigation until the conclusion of the trial in HCCC 181/2015; however, the judge refused the application, saying that the applicant “can, of course, always appeal out of time”.

Reasons for sentence

9.The judge noted that the applicant was a Japanese national aged 46, and that a medical report showed that he was suffering from cirrhosis of the liver.  However, he stressed that personal circumstances played little role in such a serious case.

10.He acknowledged that the date of commission of the present offence pre-dated the guidelines in HKSAR v Tam Yi Chun[1], which had established new guidelines for trafficking in quantities of ‘Ice’ in excess of 600 grammes of narcotic as from 9 June 2014.  He noted, nevertheless, that for trafficking in quantities above 600 grammes of narcotic, the starting point under the previous existing guidelines had to be at least 18 years’ imprisonment.

11.Having considered the differences between the old and the new guidelines, the judge said he would allow the applicant “the maximum benefit” of that difference, pointing out that had the offence been committed after June 2014, the starting point for sentence would have been at least 26 years’ imprisonment for the quantity of narcotic alone.  Instead, he adopted a starting point of 24 years’ imprisonment, which he then enhanced by 2 years’ imprisonment for the international element involved in trafficking in dangerous drugs across Hong Kong’s borders, resulting in an ultimate sentence after trial of 26 years’ imprisonment.  Indeed, that had been the notional sentence after trial advocated by Mr Boyton in mitigation.

Ground of appeal

12.The sole ground of appeal advanced by Mr Boyton is that the Court is now in a position to assess the appropriate discount of the notional sentence after trial in the light of the assistance given by the applicant to the authorities in testifying as a prosecution witness at the trial of OKUYAMA in HCCC 181/2015.

13.Mr Boyton argues that it is clear from a perusal of the summing-up by the trial judge at OKUYAMA’s trial that the applicant had been cross-examined at some length, and that his testimony had contained direct evidence that OKUYAMA knew he was carrying ‘Ice’.  It is also submitted that the applicant was a mere courier and there was no suggestion that he was higher up in the criminal hierarchy.

14.Mr Boyton stresses that the jury had accepted the applicant’s evidence about OKUYAMA’s knowledge in convicting him and submits that the applicant should receive a 50% discount from the starting point in accordance with the practice of these courts as considered and approved by the Court of Final Appeal in Z v HKSAR[2].  Accordingly, he submits that the sentence should be reduced from the starting point of 26 years’ imprisonment to 13 years’ imprisonment.

Respondent’s submissions

15.Mr Raymond Cheng, on behalf of the respondent, accepts that the application for leave to appeal against sentence should be allowed and the sentence reduced to 13 years’ imprisonment, in line with authority: see HKSAR v Choi Wing Kuen[3], HKSAR v Chan Tin Yu[4], HKSAR v Chui Tak Man[5], HKSAR v Lee Wai Kwan[6] and, of course, Z v HKSAR.

16.The respondent further seeks to adduce fresh evidence from a Government Chemist by way of notice of motion dated 31 October 2016, to the effect that the quantities of dangerous drugs contained in the applicant’s suitcase were 5.94 kilogrammes of a crystalline solid containing 5.80 kilogrammes of methamphetamine hydrochloride, not 5.90 kilogrammes of a crystalline solid containing 5.79 kilogrammes of methamphetamine hydrochloride as set out in the charge and the Summary of Facts; pursuant to section 83V(1)(a) of the Criminal Procedure Ordinance, Cap 221.  Accordingly, he seeks to amend the charge to which the applicant pleaded guilty.

17.It was submitted that the new evidence is necessary in the interests of justice; and that the Court has power to amend a charge on appeal, see HKSAR v Huynh Bat Muoi[7], HKSAR v Cheng Chi Yung & Another[8] and HKSAR v Yeung Kam Yuen[9].

18.He accepts that the applicant’s sentence could not be increased by reason of the fresh evidence sought to be adduced, and accordingly argues that there can be no injustice or unfairness to the applicant: see HKSAR v Tam Chi Choi[10].

Consideration

19.We are not prepared to allow the amendment of the charge at this late stage, particularly where it can have no impact whatsoever on these proceedings or any other proceedings, and its only purpose is to regularise the exact quantities involved.  Moreover, the applicant has pleaded guilty and made admissions of fact based on the charge and the Summary of Facts.  Those admissions are not incorrect as far as they go, since the greater quantities actually found by the Government Chemist according to the new evidence would include the slightly lesser quantities to which the applicant pleaded guilty.  We do not in the circumstances see that it is either necessary or expedient in the interests of justice for the determination of the case to allow any amendment to be made at this stage and we refuse the application.

20.In relation to the substantive merits of the application for leave to appeal against sentence, it is clear that the applicant’s evidence was instrumental in securing the conviction of OKUYAMA, he having given evidence at OKUYAMA’s trial in accordance with his witness statements.  In the circumstances, we agree with the submissions of both parties that the applicant is entitled to an overall reduction of 50% from the notional sentence after trial.

Conclusion

21.In the circumstances, we grant the applicant’s application for leave to appeal against sentence, allow his appeal and reduce his sentence from 17 years and 4 months’ imprisonment to 13 years’ imprisonment.

Mr Raymond Cheng ADPP (Ag), of the Department of Justice, for the Respondent

Mr David Boyton, instructed by Johnnie Yam, Jacky Lee & Co, assigned by Director of Legal Aid, for the Applicant