HKSAR v. Yano Hiroki

CACC 195 /2021

[2022] HKCA 1082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 195 OF 2021

(ON APPEAL FROM HCCC NO 84 OF 2020)

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Before:  Hon Macrae VP in Court

Date of Hearing:  13 July 2022

Date of Judgment:  19 July 2022

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J U D G M E N T

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1.The applicant applied for leave to appeal against his unanimous conviction, following his trial before Wong J (“the judge”) and a jury, on a single count of trafficking in a dangerous drug, namely 1.91 kilogrammes of a solid containing 1.24 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134; and against his resulting sentence of 23 years and 3 months’ imprisonment.

The applicant’s grounds of appeal against conviction

2.Acting in person, the applicant originally put forward three grounds of appeal against conviction in his Form XI Notice of application for leave to appeal, which may be summarised as follows: (i) there was insufficient evidence to prove his knowledge of the dangerous drugs, given that there was no fingerprint or DNA evidence found on the exhibits; (ii) the judge failed to give proper directions on the issue of his knowledge (or lack thereof) of the dangerous drugs inside the suitcase; and (iii) the Japanese interpreter at trial had not explained to him what was “going on in court”.

3.However, on the morning of the hearing of the application for leave to appeal, the applicant produced a further 5-page written document dated 11 July 2022, written in English in someone else’s hand, whom he identified as a fellow inmate at Stanley prison, outlining other grounds of appeal and asking for further documents and transcript, which had earlier been refused by the court.

4.He complained, in a further ground, that in giving a written hand-out to the jury, the judge did not make the status of the hand-out clear to the jury when it was read in conjunction with his oral instructions.  Accordingly, I called for the hand-out in question and gave copies to the applicant and the respondent before the hearing. 

5.Another ground complained that the judge specifically included, in the proforma given to the jury, two questions: namely Questions 3A and 3B, which were designed to elicit the basis on which the applicant had trafficked in the dangerous drugs, of which trafficking they would have already found him guilty by their answer to Question 3.  I also provided a copy of the proforma to both the applicant and the respondent before the hearing.

6.I should here record that the Japanese interpreter assigned to the court for the purposes of the hearing of the leave application was the same interpreter whom the applicant had asked to be replaced at the end of the voir dire during the trial.  She was a fluent Japanese speaker, but clearly the applicant had lost confidence in her for whatever reason.  However, I took the view that for the limited purpose of a leave application, it not being the appeal proper, the applicant was able to communicate with me effectively both through the interpreter and in perfectly understandable English, which he was clearly able to speak.  Moreover, all his written submissions before the court were in fluent and entirely comprehensible English.  However, should this matter go further, I should record that a new interpreter should be provided to the applicant.

The applicant’s grounds of appeal against sentence

7.In relation to the sentence, the applicant had originally contended that it was excessive and suggested that he had evidence to justify a discount of sentence.  However, on the morning of the hearing of the application for leave to appeal, the applicant said he was abandoning his appeal against sentence.  I explained that given the lateness of the proposed abandonment, namely the day of the hearing, I would not accede to the application to abandon but proceed to hear the application in relation to sentence as well.

The prosecution case

8.On 14 August 2019, the applicant was intercepted at the Customs Arrival Hall of the Macau Ferry Terminal, having travelled from (Manila via^[1]) Macau pulling a suitcase, which was subsequently found to contain, in a concealed part of the suitcase, a brown packet containing the cocaine particularised in the indictment.  The key issue at trial was the applicant’s knowledge of the presence of dangerous drugs inside the suitcase he was carrying.

9.Marks were subsequently found on the adhesive tape of the packet wrapping of the dangerous drugs, but none of them matched the fingerprints or palm prints of the applicant.  The cocaine had an estimated street value of no less than HK$2,007,410.

10.In a shoulder bag being carried by the applicant at the time was found money in 10 different currencies.  Amongst the currencies was an amount of 508,013.30 Philippine pesos.  Nothing illegal was found in the said shoulder bag.

11.Upon arrest and caution, the applicant was asked what the packet was, to which he replied “I don’t know”.  He further maintained that the suitcase belonged to a friend, called “Amu”, with whom he made contact via Facebook, and he had brought it to Hong Kong for this person.  He said the clothes in the suitcase were his.  The applicant’s answers were post-recorded by a Customs officer. 

12.It may be noted that the judge conducted a voir dire, at the end of which he excluded the evidence of the applicant’s participation in the controlled delivery operation following his arrest.  However, the matter of his participation in the controlled delivery operation was considered by the judge in sentencing, for which the applicant was given a 21 months’ discount.

13.The applicant elected not to give evidence nor did he call any witnesses.  His case was that he had nothing to do with the cocaine and had no knowledge of its presence inside the suitcase. 

Summing-up

14.The judge gave legal directions to the jury on, amongst other things: the burden and standard of proof; the right of silence; inferences and circumstantial evidence; the approach to “mixed” statements; the applicant’s good character; and the legal elements of the offence. 

15.On the matter of fingerprint evidence, the judge directed that the lack of the applicant’s fingerprints, and the presence of fingerprints of other persons, were matters they had to take into account in favour of the applicant[2]:

“Now, if fingerprint of the defendant was found, you are entitled to think that it is evidence against him. Now, if fingerprints of other persons were found on the packing of the dangerous drug, as in the present case, it may be evidence in favour of the defendant. Then you must take it into account. In the present case, no fingerprint of the defendant has been found.

However, the important issue in the present case is knowledge ...

The lack of fingerprint of the defendant and the presence of the fingerprint from other persons are matters you must take into account in favour of the defendant. How much weight you are to put on each piece of evidence is a matter for you. As I have told you, it is for the prosecution to prove its case against the defendant. The defendant does not need to prove anything and on this aspect …

Now, since in the present case there was no identifiable fingerprint linking the defendant to the drug, so this area of evidence does not assist the prosecution in proving its case against the defendant ...” (Emphasis supplied)

16.On the central issue of the applicant’s knowledge, the judge explained that there were two questions: firstly, whether the applicant at the time knew that there was an “extra” object concealed in the suitcase he was carrying; and, secondly, whether he knew that object was a dangerous drug.  The judge pointed out there was no direct evidence to prove knowledge and asked the jury to bear in mind his directions on the drawing of inferences, and ultimately to decide whether the only reasonable inference from the evidence was that the applicant knew he was carrying dangerous drugs[3].  He specifically directed the jury that if the applicant’s initial answer of “I don’t know” when asked about the packet was or may be true, they must find him not guilty[4]; moreover, even if the jury rejected his exculpatory statement, that did not relieve the prosecution of its duty to make the jury sure of the applicant’s guilt[5].

17.The judge referred to the submissions concerning the weight of the packet made by both counsel in their closing addresses to the jury: the prosecution effectively contending that the applicant would have noticed he was carrying a suitcase almost 2 kilogrammes heavier than it should have been; the defence pointing out that the packet was flat, not thick and was concealed beneath a plastic board screwed to the suitcase under the lining, and was not noticeable.  Moreover, there were other things in the suitcase.  The jury were reminded that even if they found the applicant “must have realised that the suitcase contained something extra”, they must not jump to the conclusion that he knew the suitcase contained a dangerous drug; they still had to decide whether the evidence supported the sure conclusion that the applicant knew it contained a dangerous drug^[6].

Reasons for sentence

18.The judge accepted the defence submissions concerning the role of the applicant and that he had done his best to assist the authorities by participating in a controlled delivery.  The judge adopted a starting point consistent with the guidelines in HKSAR v Abdallah^[7], before enhancing it by 2 years for the international element, resulting in the notional sentence after trial of 25 years’ imprisonment.

19.The judge was satisfied that the applicant had been cooperative in the controlled delivery operation throughout and its lack of success could not be said to have been his fault.  He discounted the sentence by 21 months for the applicant’s assistance to the Customs & Excise authority, resulting in an ultimate sentence of 23 years and 3 months’ imprisonment.

Respondent’s submissions

20.Ms Florrie Chan, on behalf of the respondent, submitted that the judge had fairly and accurately summarised the evidence relevant to the issue of knowledge and possession; and, moreover, had given a fair, accurate and balanced summing-up.

21.In respect of the complaint concerning the Japanese interpreter, Ms Chan relied on the Court’s decision in HKSAR v Gutierrez^[8], submitting that the applicant had not demonstrated any deficiency on the part of the interpreter which fell short of the standard expected of him/her such that there was a real risk that the fairness of the trial had been compromised. She maintained that the applicant was competently represented throughout the trial and she initially suggested that no complaint had been raised either by the applicant or his counsel to the judge about the standard or quality of the interpreter[9].

22.Ms Chan submitted that, by returning a unanimous verdict, the jury must have rejected the defence case and found the applicant did have the necessary knowledge of the presence of dangerous drugs.  Therefore, there was nothing to render the conviction unsafe and unsatisfactory.  As for the questions in the proforma, they followed the finding of a guilty verdict and were merely designed to elicit from the jury whether the basis of trafficking was by importation or bringing the dangerous drugs to another person.  In the event, the jury confirmed that they had found both bases proved[10].

23.In relation to the sentence passed, Ms Chan submitted that the judge had correctly applied the sentencing tariff and made the enhancement according to authority.  She noted that the discount granted for participation in the controlled delivery operation had been 7%.  Of such a discount, the Court in HKSAR v Lo Sze Tung Stephanie^[11] had said “there would need to be something quite exceptional about it to justify awarding the defendant a discount of 40% (including the one-third discount for plea)”, which was to be regarded as the “high water mark” for such assistance.  Here, there was nothing exceptional about the operation, which was, in any event, unsuccessful. 

Consideration

24.I shall address both sets of grounds of appeal; that is those in the applicant’s Form XI and those in his latest hand-written document, dated 11 July 2022.  I have also borne in mind the further submissions made to me by the applicant in person.

25.The summing-up in this case was exceptionally fair and balanced, and I can detect no error of law or misstatement of fact on the part of the judge.  There are no reasonably arguable grounds of appeal in respect of the directions on knowledge or the issue of fingerprints (or lack of them), both of which were very full and fair.  I do not regard it as reasonably arguable that the overall effect of the directions on knowledge were unclear and confusing.

26.As for the written hand-out, there is no difference between what the judge handed to the jury and what he told them orally.  Therefore, there can be no complaint that the jury might have accorded the written directions precedence over, or greater importance than, the oral directions or vice versa.  Neither contains any inaccuracy and both are consistent with each other.

27.In respect of the posing of Questions 3A and 3B on the proforma, I do not accept that it is reasonable arguable that these questions were unfair to the applicant.  The jury had unanimously found the applicant guilty of trafficking by virtue of the answer to Question 3 on the proforma.  The ensuing questions were simply designed to make clear the basis of his trafficking, since trafficking may be conducted in a number of different ways.  In the event, the jury found both bases proved.  This point is not reasonably arguable.

28.As for the complaint about the interpreter, this a vague assertion, which does not begin to explain how it was that any alleged deficiency in the interpretation prejudiced the applicant’s fair trial.  I have noted that the applicant did ask for the original interpreter to be replaced following the voir dire, to which application the judge acceded.  There was no conceivable prejudice to the applicant, even if there was any merit in his complaint about the original interpreter: the issue on the voir dire, namely the admissibility of the evidence of the controlled delivery operation, was actually resolved in the applicant’s favour, so that the evidence was not led at trial before the jury.  By the time the jury were empanelled, a new interpreter was in position, about whom there was never any complaint.

29.The sole issue for the jury at trial was very simple: knowledge.  On that issue, the applicant did not challenge what he had told Customs officers upon arrest.  Moreover, he chose not to testify at trial, so there can be no issue about any interpretation in respect of his evidence. 

30.There was nothing complex at all for the applicant to understand in this very short trial.  The one issue in dispute, namely the applicant’s participation in the controlled delivery operation, was resolved by the judge in his favour.  No complaint was ever made to the judge at any stage by either the applicant or his counsel in respect of the interpretation provided by the interpreter who replaced the original interpreter.  Moreover, the applicant was at all times represented by perfectly competent counsel and it is clear to me, in any event, that he understands English.

31.Finally, the applicant has again asked for certain items of transcript.  Yet, on my specific enquiry, he was unable to say what he needed them for and to which ground of appeal they related.  It rather seems to me that the application is a “fishing expedition” by whomsoever is assisting the applicant with his grounds of appeal.  Inasmuch as the further transcript relates to the issue of Questions 3A and 3B on the proforma, the point about the judge’s eliciting the basis of the applicant’s trafficking is not reasonable arguable in any event.  I can see no other reasonably arguable grounds of appeal against conviction.

32.In respect of sentence, the starting point and enhancement for the international element are both unexceptional.  However, it has been argued by the respondent that the discount for the applicant’s involvement in an unsuccessful controlled delivery operation was exceptional in that it was very generous.  Indeed, the applicant could not have complained if he had received significantly less by way of discount for that factor.  I can see no reasonably arguable grounds of appeal against sentence.

Conclusion

33.The applications for leave to appeal are both refused.  The applicant is advised that he has the right to renew either or both applications for leave before the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time which the applicant has spent in custody pending his appeal, it is were to come to the conclusion that there was no justification for the renewal of the particular application.

Ms Florrie Chan SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person

[1]  The ticket and boarding pass found in the applicant’s possession showed that he had taken a flight from Manila to Macau and then travelled by ferry from Macau to Hong Kong.  It was left to the jury to decide if the applicant had in fact taken this route.

[2]  AB, pp 36E-37C.

[3]  AB, pp 43Q-44A.

[4]  AB, p 32Q.

[5]  AB, p 32S-U.

[6]  AB, pp 44R-46U.

[7]  HKSAR v Abdallah [2002] 1 HKLRD 486.

[8]  HKSAR v Gutierrez [2020] 2 HKLRD 720.

[9]  However, see [6] supra.

[10]  AB, p 56N-Q.

[11]  HKSAR v Lo Sze Tung Stephanie [2019] 1 HKC 309, at [51].