HKSAR v. Kai Toyoko

CACC 342/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 342 OF 2004

(ON APPEAL FROM HCCC NO. 10 of 2004)

____________________

BETWEEN

____________________

Before : Hon Stuart-Moore Ag CJHC, Suffiad and Lugar-Mawson JJ

Date of Hearing : 31 May 2005

Date of Judgment : 31 May 2005

______________________

J U D G M E N T

______________________

Stuart-Moore, VP (giving the judgment of the Court):

1.On 19 July 2004, the applicant was convicted by a jury on 2 counts of trafficking in methamphetamine hydrochloride (ice) with a combined weight of 4.81 kilogrammes, valued at $1,797,860, following a trial before Mr Recorder C Y Wong, SC.  On 27 July 2004, she was sentenced to concurrent terms of 25 years’ imprisonment on these counts. 

2.The applicant now seeks leave to appeal against conviction on the grounds that she does not accept the guilty verdict and was unaware that she was carrying dangerous drugs at the time of her arrest.  Today, in addition to her earlier written grounds, she has merely stated that she would like a lower sentence and pointed out that there is only one other Japanese speaking prisoner with whom she can communicate.

3.The applicant was a visitor to Hong Kong who was arrested at the International Airport on 4 July 2003 shortly after she had been through the check-in procedure for Cathay flight CX 516 to Fukuoka, Japan.  She was accompanied by Matsuda Kenichi (“Matsuda”).  Neither the applicant nor Matsuda had checked in any luggage.  They were stopped by the police after a brief period of observation as they made their way towards the South Departure Hall.  Their hand luggage was then searched.

4.The applicant was carrying a small suitcase on wheels on top of which were hung a DFS Galleria plastic bag and a handbag.  Matsuda’s luggage was similar to this save that instead of a handbag he was carrying a shoulder bag.  The admitted facts (with references to the applicant as ‘D’) relating to the search of the applicant, Matsuda and their luggage were set out as follows:

“	6.	At about 11:40 hours on the same day (4.7.2003), DPC 47656, in the presence of the D and WDPC 15074, inside Police Report Centre, searched the luggage of the D and found the following:
		(a)	Inside a “DFS GALLERIA” plastic bag (Exhibit P24) contained a “DFS GALLERIA” plastic bag (Exhibit P25) containing some food items and 3 “DFS GALLERIA” plastic bags (Exhibits P26, P36, P37) and 1 “VIVA” plastic bag (Exhibit P38);
		(b)	Exhibit P26 contained an item wrapped in gift-wrapping paper (Exhibit P27).  Exhibit P27 was unwrapped and a newspaper (Exhibit P28) was found wrapping the item.  Exhibit P28 was unwrapped and a plastic document case (Exhibit P29) was found containing an item wrapped in newspaper (Exhibit P30).  Exhibit P30 was unwrapped and found to contain:
			(i)	a plastic bag (Exhibit P31) containing a plastic bag (Exhibit P32) containing white crystal substances suspected to be methamphetamine hydrochloride (Exhibit P4);
			(ii)	a plastic bag (Exhibit P33) containing a plastic bag (Exhibit P34) containing white crystal substances suspected to be methamphetamine hydrochloride (Exhibit P5);
			(iii)	a plastic bag (Exhibit P35) containing white crystal substances suspected to be methamphetamine hydrochloride (Exhibit P6).
		(c)	Exhibits P36, P37 and P38 contained nothing inside.
		(d)	Inside the D’s suitcase (Exhibit P43) contained, amongst other things, the following:
			(i)	a transfer boarding pass folder of China Airlines (Exhibit P44) containing airline ticket of China Airlines in the name of MATSUDA Kenichi (Exhibit P45), airline ticket of China Airlines in the name of D (Exhibit P46) and a piece of paper, with CX 516 flight particulars (Exhibit P47);
			(ii)	4 sheets of paper of BP International House (Exhibit P48);
			(iii)	18 resealable plastic bags (Exhibit P49);
			(iv)	clothing and personal items of the D.
		(d)	Inside the D’s handbag contained the D’s wallet containing Y10,697 and HK$282, diary, pens, a mobile phone and other personal items.
	7.	Upon search, DPC 47656 also found, amongst other things, on the D’s person, the following:
		(a)	airline ticket receipt of Cathay Pacific in name of D (Exhibit P39);
		(b)	boarding pass of Cathay Pacific in name of D (Exhibit P40A);
		(c)	airline passenger ticket of Cathay Pacific in name of D (Exhibit P40B);
		(d)	Departure Card of HK Immigration Department in name of D (Exhibit P41); and
		(e)	Health Declaration on Departure in name of D (Exhibit P42);
		(f)	Japan Passport No. TE1145087 in name of D (Exhibit P91).
	8.	At about 11:36 hours on the same day (4.7.2003), in the presence of MATSUDA, inside Room C of the Police Report Centre, DPC 46340 (NG Chi-ming) searched the luggage of MATSUDA and found the following:
		(a)	Inside a “DFS GALLERIA” plastic bag (Exhibit P7) contained a “DFS GALLERIA” plastic bag (Exhibit P8) containing some food items and toys; and
		(b)	a “DFS GALLERlA” plastic bag (Exhibit P9) containing an item wrapped in gift-wrapping paper (Exhibit P10).
		(c)	Exhibit P10 was unwrapped and found was a newspaper (Exhibit P11) wrapping the item.  Exhibit P11 was unwrapped and a plastic document case (Exhibit P12) was found containing an item wrapped in newspaper (Exhibit P13).  Exhibit P13 was unwrapped and found to contain:
			(i)	a plastic bag (Exhibit P14) containing a plastic bag (Exhibit P15) containing white crystal substances suspected to be methamphetamine hydrochloride (Exhibit P1);
			(ii)	a plastic bag (Exhibit P16) containing white crystal substances suspected to be methamphetamine hydrochloride (Exhibit P2);
			(iii)	a plastic bag (Exhibit P17) containing a plastic bag (Exhibit P18) containing white crystal substances suspected to be methamphetamine hydrochloride (Exhibit P3).
		The remainder of [MATSUDA’s] luggage was searched and personal items were found therein but no suspected dangerous drugs were found.
	9.	Upon search, DPC 46340 also found, amongst other things, on MATSUDA’s person, the following:
		(a)	airline ticket receipt of Cathay Pacific in name of MATSUDA (Exhibit P19);
		(b)	boarding pass of Cathay Pacific in the name of MATSUDA (Exhibit P20A);
		(c)	airline passenger ticket of Cathay Pacific in name of MATSUDA (Exhibit P20B);
		(d)	Departure Card of Immigration Department in the name of MATSUDA (Exhibit P21);
		(e)	Health Declaration on Departure in name of MATSUDA (Exhibit P22);
		(f)	Japan Passport No.MR4025923 in name of MATSUDA (Exhibit P92);
		(g)	a mobile phone;
		(h)	Y51,027 and HKD$772.30.” (Appeal bundle pp. VII-X)

5.The ice found in the applicant’s luggage was approximately half of the total amount recovered by the police from the luggage carried by herself and Matsuda, as represented in the two counts of the indictment.

6.The applicant gave evidence, following more or less the account she had given to police on 5 July 2003, saying that she had travelled on 2 July 2003 to Hong Kong on vacation with Matsuda originally intending to stay until 5 July 2003.  She had not previously known Matsuda but he was a friend of someone with whom she had previously travelled to Hong Kong.  They stayed at different hotels in close proximity to each other which had been arranged by a man named ‘Li’.

7.The applicant, aged 44, had a job working for a travel agency in Japan.  In order to come to Hong Kong, she had given the president of her company a story about needing a few days away as her son had been involved in an accident.  In fact, according to her, she had had an argument with her boyfriend and wanted to take a holiday. 

8.It seems that after her arrival on 2 July 2003, the applicant dined with Matsuda and Mr Li.  Continuing the applicant’s account,  on 3 July 2003, Matsuda said that they would have to leave a day earlier than originally intended.  This suited the applicant as she had just started in a new job.  She then went shopping with Matsuda, for such items as chocolates and shoes. 

9.On her return to the hotel, the applicant described taking the lift to the 20^th floor where she was greeted by a complete stranger who called out her name.  The man asked her if she was going to Japan, and she thought she replied ‘yes’.  The stranger then pointed to the blue case he was carrying, which was slightly larger but similar to her own black case, and he said: “Go to Japan, Japan … present, present”.  The applicant replied ‘no’ and went to her room.  After that, the stranger knocked on her door.  When she opened it, she saw the suitcase on the floor outside and the stranger walking away towards the lift.  She took the suitcase to go after him but he had gone already.  The applicant said that it was her impression that she was supposed to take the bag to Fukuoka Airport although she had no idea to whom it should be given on her arrival there.

10.Later, when Matsuda came to her room, the applicant told him what had happened and it was decided to take the item to Japan.  They opened the suitcase and found two gift packages inside, together with two chocolate boxes and a box containing plastic bags.  Nothing more was done with them until the morning of 4 July 2003 and at no stage were the gift packages containing the ice unwrapped. 

11.The applicant’s account continued by saying that she and Matsuda then went on another shopping expedition buying, amongst other things, chocolates and souvenirs.  That evening, the applicant dined alone, having arranged with Matsuda that he would pick her up the next day at about 8:30 a.m.. 

12.Matsuda arrived at the applicant’s room, a little earlier than arranged, between 8:10 a.m. and 8:20 a.m.  They divided the packages from the stranger’s suitcase and put some into the DFS Galleria bag that the applicant was carrying on her arrest and some into a similar bag which was carried by Matsuda.  The applicant said that Matsuda suggested leaving the stranger’s suitcase three floors below the applicant’s room in the hotel because someone might make use of it. (As to this, the prosecution called evidence from a member of the cleaning staff which showed that no such case was ever recovered in the hotel).  The applicant also said that she packed the 18 resealable plastic bags (Exhibit P49) into her own case as she did not want to waste them.

13.At the airport, she described going to the China Airlines desk to confirm a change of date to her flight from 5 July 2003 to 4 July 2003 but was told that no change was possible.  This was borne out by evidence called by the prosecution.  It was then decided that new tickets should be purchased for a direct flight to Fukuoda.  Later, the police intercepted her.

14.Plainly, the only real issue to be decided by the jury was whether the applicant was aware that her luggage and Matsuda contained the dangerous drugs in counts 1 and 2.  The verdicts are a clear indication that the applicant’s account was not accepted by the jury.

15.Mr Tam Sze-lok, counsel for the respondent, was right to have pointed out that at the very outset of the summing up the Recorder gave, with respect, a poorly phrased direction which might have been regarded, standing alone, to have equally applied to evidence called by the prosecution or the defence.  It was in these terms:

“You must arrive at your verdicts upon the evidence you have heard and seen.  Of course, it must be evidence which you accept and are sure to be true.  You do not rely on evidence which you regard as not true or have doubts about.  I shall tell you more about that later.” (Appeal bundle p. 1)

However, this direction was immediately put into proper context by the following somewhat prolix directions which made it plain to the jury that any doubts were to be resolved in the applicant’s favour.  For future reference, it would be better if the Specimen Directions were followed. The Recorder said:

“So we start with the general and basic principle of the criminal law, and that is an accused is presumed to be innocent unless and until he is proven guilty.  The task of proving his guilt rests upon the prosecution and the prosecution only.  The prosecution has the burden, the responsibility of proving the charge and the guilt of an accused to a charge.  This will entail proving of each and every allegation made.

The accused need not prove anything, not his innocence, not his defence, nothing.  He is presumed to be innocent unless and until he is proved guilty.  And it is very important, members of the jury, that you keep that in mind all the time.  When an accused offers a defence, it is not for him to prove it.  It is for the prosecution to prove his guilt by perhaps showing by their evidence that the defence was not good or was not really a situation.

The standard to which the prosecution must prove the accused’s guilt to the charge is high and is what is called “beyond reasonable doubt”.  There is nothing difficult about this because it simply means to prove to you, as judges of facts, so that you are sure about her guilt.

So the prosecution has to prove the accused’s guilt to the standard so that you are sure.  What it means is that, of course, if you are not sure, then you must return a verdict of not guilty.  You will only return a verdict of guilty if you are sure of the accused’s guilt.

And of course, it is not a matter on which you should guess.  If you do that, it can hardly be said that you are sure.  You have to consider the entire evidence before you, both the evidence from the prosecution and the defence and in the light of the evidence which you accept, to decide whether you are sure of the accused’s guilt to the counts.

However, members of the jury, remember that the accused is not required by law to prove anything at all.  It is for the prosecution to prove everything and, therefore, in respect of evidence adduced, that is, brought forward by the prosecution, you must be sure of them before you rely on them.  If you accept what the defendant has said to you, you will acquit.  If you cannot decide which version, that is, the prosecution’s or the defence version to accept, you will acquit.  There is one other situation.  If you do not believe either version, again, you will acquit.

So let me repeat to you.  If you do not believe the prosecution’s version or you believe the defendant’s version or you do not know which version to believe, or you disbelieve both versions, under all four circumstances, you must return a verdict of not guilty because either one of those circumstances means that you cannot be sure of the defendant’s guilt to the counts.

So just to remind you of the burden and standard of proof again, the prosecution is required by law to carry that responsibility of proving the guilt of the accused to the charge beyond reasonable doubt, that is, so that you are sure of it.  If you are in doubt, you cannot be sure, then you must return a verdict of not guilty.  If you are sure, then you must return a verdict of guilty. That is your duty.

There is a great difference between the prosecution and the defence.  As I have told you already, the accused is not required to prove her innocence at all.  This is the law and you must bear that in mind at all times.  This applies to everything and, in particular, the defendant’s guilt to the counts.  That is, the accused is not required by the law to prove anything, not even her innocence to the counts.  There is no such responsibility upon the accused.” (Appeal bundle pp. 2-4)

16.The applicant faced a formidable case based upon the direct evidence of what was found in her luggage and the luggage of her travelling companion, Matsuda (who pleaded guilty), coupled with other circumstances which only added strength to an inference that she was a knowing party to trafficking in this valuable consignment of ice.  In short, the account she gave to the police, and later to the jury, was highly implausible and it is not surprising that the jury rejected it.

17.Accordingly, we decline to give leave and the application is dismissed.

Mr Tam Sze-lok, SGC, of the Department of Justice, for the Respondent.

The Applicant, in person.