HKSAR v. YANO HIROKI

CACC 195/2021

[2023] HKCA 1038

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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J U D G M E N T

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

1.  On 9 August 2021, the applicant was convicted after trial before Wong J (“the judge”) and a jury of 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 on the next day he was sentenced to 23 years and 3 months’ imprisonment. On 19 July 2022, he applied for leave to appeal against both his conviction and sentence, which were refused by a Single Judge[1]. On 26 July 2022, he renewed his application for leave to appeal against conviction only.

The renewal application

2.  The applicant originally put forward three grounds of appeal against conviction in his notice of appeal, which can be summarised as follows: the judge failed to give proper directions to the jury on the issue of his knowledge (or lack thereof) of the dangerous drugs inside the suitcase (Ground 1); 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 (Ground 2); and the Japanese interpreter at trial had not explained to him what was “going on in court” (Ground 3).  He later added two further grounds of appeal in his written submissions, which can be summarised as follows: the written handout given to the jury was not clear on the issue of knowledge, and the judge failed to direct the jury as to the status of the written handout when it was read in conjunction with his oral instructions (Ground 4); and the judge by inserting in the proforma given to the jury, Questions 3A and 3B, unfairly put pressure on the jury as the questions were premised on a guilty verdict (Ground 5).

The prosecution case

3.  On 14 August 2019, the applicant, a Japanese national, was intercepted at the Customs Arrival Hall of the Macau Ferry Terminal, having travelled from Manila via Macau^[2]. He was carrying a shoulder bag and pulling a red suitcase, which Customs officers examined.  Inside the shoulder bag they found money in 10 different currencies, including an amount of 508,013.30 Philippine pesos.  Inside the suitcase they found items of clothing but an x-ray examination detected a concealed compartment at the bottom of the suitcase.  It was found to contain a brown packet containing the cocaine particularised in the count.  The cocaine had an estimated street value of no less than $2,007,410.

4.  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. 

5.  The wrappings of the cocaine were examined for fingerprints.  Marks were found on the adhesive tape of the packet wrapping of the dangerous drugs, but none matched the fingerprints or palm prints of the applicant.  The key issue at trial was the applicant’s knowledge of the presence of dangerous drugs inside the suitcase he had in his possession.

6.  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 judge considered his participation in the controlled delivery operation in sentencing, for which the applicant was given a 21 months’ discount.

The defence case

7.  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. 

Grounds 1 and 2: The issue of knowledge and the fingerprint evidence

8.  The applicant generally complains that the judge failed to give proper directions to the jury on the issue of knowledge or his lack of knowledge of the dangerous drugs inside the suitcase, particularly as his fingerprints or DNA were not found on the drug exhibits.

9.  The summing-up to the jury was overall very fair and balanced and appropriately addressed the relevant matters.  The major issue for the jury to decide was whether or not the applicant knew dangerous drugs were contained inside the suitcase, and on this issue, the judge comprehensively canvassed the relevant evidence and gave very detailed directions.  There is no substance to the complaint that the judge’s directions on knowledge were unclear and confusing. 

10.  The judge explained that there were two questions in respect of the applicant’s knowledge.  First, 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[3].  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 a dangerous drug[4]. He 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[5]; and 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[6].

11.  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 contended that the applicant would have noticed he was carrying a suitcase almost 2 kilogrammes heavier than it should have been, while the defence submitted 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.  Furthermore, 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^[7].

12.  As for the fingerprint evidence, the judge discussed his draft direction with counsel, who took no issue with it.  Moreover, he directed the jury that the lack of the applicant’s fingerprints, and the presence of other persons’ fingerprints, were matters they had to take into account in the applicant’s favour.  Such a direction was favourable to the applicant.  He said[8]:

“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.

…

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 the defendant does not need to prove that there was not any of his fingerprint and that he had nothing to do with the dangerous drug. It is for the prosecution to prove so that you are sure that the defendant was in possession of the dangerous drug found.

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 added)

13.  As is apparent from the judge’s remarks, when addressing the fingerprint evidence, he emphasised with the jury that there was no identifiable fingerprint linking the applicant to the drugs, which was a matter in the applicant’s favour.  We can find no error of law or misstatement of fact in the judge’s directions to the jury on the issues of the applicant’s knowledge and the fingerprint evidence, and there is no basis for complaint.  These grounds of appeal are without merit.

Ground 3: The interpretation at trial

14.  The applicant broadly complains about the interpretation he received from the Japanese interpreter at trial without explaining how the interpretation was deficient so as to prejudice his fair trial.  As this Court held in HKSAR v Gutierrez^[9], the question is whether the interpretation was sufficient to safeguard the fairness of the trial by giving the defendant an adequate understanding of the proceedings and the case against him, so as to enable him effectively to play his part and put forward his defence.  It is for the applicant to show that the standard of interpretation fell below the standard required, and impacted on either his understanding of the case or his conduct of his defence such that there was a real risk that the fairness of the trial had been compromised. 

15.  On the first day of trial, the applicant asked 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 for the issue on the voir dire, namely the admissibility of the evidence of the controlled delivery operation, was resolved in the applicant’s favour so that the evidence was not led at trial before the jury. 

16.  There was nothing complex at all for the applicant to understand in this fairly straightforward case.  The prosecution only called two Customs officers to give evidence, and the rest of the prosecution case was agreed by way of admitted facts.  The sole issue for the jury was the question of the applicant’s knowledge of the drugs in his suitcase.  The applicant did not testify at trial, so there can be no issue with any interpretation in respect of his evidence.  There was no complaint 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.  Rather, after the new interpreter had been assigned to the case, defence counsel confirmed with the judge that the applicant was satisfied with the interpretation service.

17.  The applicant could not point to any deficiency in the interpretation provided by the new interpreter, which may have compromised the fairness of his trial.  Ironically, it was revealed during the judge’s summing-up that the new interpreter had previously provided interpretation services for the defence in meetings with the applicant.  This matter created no difficulties, and the interpreter continued to provide interpretation services for the remainder of the trial.  There is no merit in this ground of appeal.

Ground 4: The written handout

18.  A written handout was given to the jury when the judge gave directions in respect of the elements and issues of the trafficking offence[10]. The applicant complains that it was not clear on the issue of knowledge, and the judge misdirected the jury on the basis of trafficking, namely whether he imported the drugs into Hong Kong, or while in Hong Kong was bringing the drugs to another person, or both[11]. He further complains that the judge failed to tell the jury, according to the specimen direction concerning written handouts, that the oral directions were of equal importance with the written directions.

19.  The written handout given to the jury was consistent with the judge’s oral directions, and neither contained any inaccuracy.  The judge set out the ingredients of the offence that the prosecution had to prove and the steps the jury should take in deciding whether the applicant was knowingly in possession of the dangerous drug for the purpose of trafficking. He also set out the basis of the trafficking, which was consistent with his oral directions to the jury.[12]

20.  The specimen direction the applicant refers to is Specimen Direction 55A.1 of the Specimen Directions in Jury Trials, 2013[13], which addresses written material for jurors: directions and steps to verdict.  It states that a trial judge ought to raise with counsel written directions of law or written steps to verdict that he or she proposes to provide to the jury.  It further states that in the case of written directions of law, the judge ought to direct the jury that the directions of law given orally are of equal weight to those given in writing.  The applicant complains that the judge did not tell the jury that the oral directions were equally important to the written directions. 

21.  It is well settled that the specimen directions are a guide to judges and should be tailored appropriately to the individual case.  There is no absolute rule that the jury should be told that the directions of law given orally are of equal weight to those given in writing.  Whether this instruction should be given to the jury is fact and context sensitive and will very much depend upon the particular circumstances of the case.  As stated in the specimen direction, this will usually arise when the written directions do not cover all the directions of law given by the judge, and this may necessitate reminding the jury that the oral and written directions are of equal weight.  It is standard for a judge to instruct a jury that they must accept and follow the directions of law he or she gives them.  It would be understood that this includes both oral and written directions of law.  In the present case, the judge gave the standard direction[14], and the written handout was comprehensive, addressing the salient issues the jury had to decide whether the applicant was guilty or not guilty[15]. Furthermore, the written handout and the oral directions were consistent with each other.

22.  There is no basis for any complaint that the jury might have accorded greater prominence to the written handout over the oral directions.  This ground of appeal is without merit.

Ground 5: The questions in the return for verdict

23.  The applicant complains that the additional questions in the proforma of the return for verdict put pressure on the jury and created a presumption of guilt. 

24.  Before the judge summed up to the jury, he discussed with counsel whether it was appropriate to clarify with the jury on returning a guilty verdict on the basis of the trafficking.  The judge provided a proforma for returning the verdict, which was not objected to by defence counsel.  The document submitted to the jury set out a series of questions to assist them in returning a verdict and, if guilty, the basis of the verdict.  It read[16]:

“Returning the Verdict

Mr. Foreman, would you please stand up, I am going to ask you to return your verdict.

Question 1 On the sole count of Trafficking in a dangerous drug against the defendant, YANO Hiroki, have you reached a verdict?

[Yes] → go to Question 2

or

[No] → Judge will deal with the matter

Question 2 Is your verdict one upon which you all agreed?

[Yes] → go to Question 3

or

[No] → go to Question 2A

Question 2A By what majority have you arrived at such a verdict?

[6 : 1] → go to Question 3

or

[5 : 2] → go to Question 3

Question 3 What is your verdict?

[Guilty] → go to Question 3A

or

[Not Guilty] → (END OF MATTER)

Question 3A Is the basis of your guilty verdict that the Defendant imported the dangerous drug?

[Yes] → go to Question 3B

or

[No] → go to Question 3C

Question 3B Is the basis of your guilty verdict also that the Defendant’s purpose was to bring the dangerous drug to another person?

[Yes] → (END OF MATTER)

or

[No] → (END OF MATTER)

Question 3C Is the basis of your guilty verdict that the Defendant’s purpose was to bring the dangerous drug to another person?

[Yes] → (END OF MATTER)

or

[No] → Judge will deal with the matter”

25.  Questions 1 to 3 were questions addressing the verdict of the jury and whether it was a unanimous or majority verdict.  The jury were instructed that they had to be sure the prosecution had proved each and every matter, and if they were not sure, they were to find the applicant not guilty[17]. The questions were steps that the jury had to take to arrive at the verdict and that is made plain by the terms and sequence of the questions. 

26.  Questions 3A, 3B and 3C were questions addressing the basis of a guilty verdict, namely whether the applicant imported the drugs (Question 3A); whether his purpose was also to bring the drugs to another person (Question 3B); and whether his purpose was to bring the drugs to another person (Question 3C).  The questions relating to the basis of a guilty verdict were not 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 in Questions 3A and 3B proved[18]. 

27.  Relevantly, Specimen Direction 55 of the Specimen Directions for Jury Trial, 2013, suggests a series of suitable questions to assist the return of verdict by the jury, addressing whether the verdict is unanimous or by a majority and whether the verdict is guilty or not guilty.  In the specimen direction, an additional question after verdict is suggested in a murder case, when an alternative basis for a manslaughter verdict has been left for the jury’s consideration.  It is quite proper for the court to know the form of manslaughter on which the jury had returned a guilty verdict.  Equally, in the present case, after the jury had reached a guilty verdict for the offence of trafficking in a dangerous drug, they were asked the form of the trafficking.  There was nothing inappropriate in instructing the jury to answer these questions, given their terms and the sequence in which they were asked. It was part of the prosecution case that in order for the jury to be satisfied that the applicant was trafficking, they had to determine whether the applicant imported the drugs into Hong Kong, or while in Hong Kong was bringing the drugs to another person, or both.  This was explained to the jury by the judge on several occasions[19].

28.  The applicant has requested the transcript of the discussions between the judge and counsel, in the absence of the jury, on 5 August 2021 (after closing speeches), and on 6 August 2021 (during and after the judge’s summing-up).  On those occasions, the proforma for returning the verdict had been discussed.  The applicant did not mention an earlier time on 6 August 2021 (prior to the judge’s summing-up), where defence counsel raised no objection to an amendment to the proforma.  This confirms that the judge provided the written steps to verdict to the jury after consultation with counsel and without demur from defence counsel. 

29.  The judge in his summing-up, emphasised with the jury the elements of the offence of trafficking in a dangerous drug, and that they had to be satisfied so that they were sure of each element before they could convict the applicant.  He explained to them that they should try to reach a verdict on which they all agreed but if they could not, he could accept a majority verdict from them[20]. He referred them to the proforma and told them that after they had reached a verdict, the foreperson would be asked a series of questions so as to avoid any mistake or misunderstanding[21].

30.  There is no basis for complaint in the judge’s handling of this matter, nor of the contents of the document he provided to the jury for returning the verdict.  It is self-evident from the terms and sequence of the questions that there was no presumption of guilt and definitely no pressure on the jury to convict the applicant.  This ground of appeal is without substance.

Conclusion

31.  It follows from the reasons we have given that the renewal application for leave to appeal against conviction is refused, and the appeal is dismissed. 

32.  At the conclusion of the submissions, the applicant applied for the full transcript of his trial without specifying any reasons for his request.  We note that the applicant was provided with an audio recording of his trial on 31 January 2022, and his request for a full transcript of his trial is therefore refused. 

[1]  Macrae VP.

[2]  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.

[3]  Appeal Bundle (AB), 43O-Q.   

[4]  AB, 43Q-44A.

[5]  AB, 32Q.

[6]  AB, 32S-U.

[7]  AB, 44R-46U.

[8]  AB, 36E-37C.

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

[10]  AB, 18O-R. 

[11]  AB, 19B-N and 49F-51Q. 

[12]  AB, 74.  Marked C-MFI-5.  See also AB, 19B-N and 49F-51Q.

[13]  Specimen Direction 55A reads: “The trial judge must decide whether to reduce his directions of law, or some of them, into writing and/or whether written ‘steps to verdict’ are to be provided to the jury.  Before doing so, the judge ought to raise the matter with counsel, disclosing to them the proposed written draft, prior to closing speeches and the summing up.  If, as will usually be the case, the written directions do not cover all of the directions of law the judge ought to direct the jury that is the case and that, in any event, the directions of law given orally are of equal weight to those given in writing.  Finally, the judge must ensure that a copy of the written material provided to the jurors is preserved on the court file.” (Citations omitted)

[14]  AB, 17B-F.

[15]  AB, 74. 

[16]  AB, 75 and 76.

[17]  AB, 51L-Q and 52F-J and N-O. 

[18]  AB, 56N-Q.

[19]  AB, 19B-N and 49F-51Q.  See also the Written Handout, AB, 74.

[20]  AB, 53B-H. 

[21]  AB, 53S-54D.