Case Detail

CACC239/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 239 OF 2002

(ON APPEAL FROM HCCC NO. 75 OF 2002)

________________________

BETWEEN

	HKSAR	Respondent
	And
	Sarkuna	Applicant

________________________

and

CACC342/2004

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

	HKSAR	Respondent
	And
	Matsuda Kenichi (松田健一)	Applicant

________________________

Before: Hon Stock VP, Lunn JA and McWalters J in Court

Date of Hearing: 7 November 2012

Date of Judgment: 7 November 2012

________________________

J U D G M E N T

________________________

Hon Stock VP (giving the judgment of the Court):

Introduction

1. There are two applications before us which have been consolidated because they raise the same point, namely, whether a judge sentencing an immigrant or visitor ought to take into account the fact that such a defendant is unlikely to be released under supervision pursuant to the provisions of the Prisoners (Release Under Supervision) Ordinance Cap. 325 (“the Ordinance”), even if statutorily eligible, whereas his Hong Kong permanent resident counterpart does not suffer that practical disadvantage.

Sarkuna

2. The applicant Sarkuna was charged upon an indictment containing, as against him, two counts: first, that he and another on 4 September 2001 at the Departure Hall of the Hong Kong International Airport unlawfully trafficked in a dangerous drug namely 3,889.43 g of a crystalline solid containing 3,868.36 g of methamphetamine hydrochloride (ICE); and, second, that he alone on the same date and at the same place unlawfully trafficked in 13.22 g of mixture containing 11.33 g of cocaine. To both these counts he pleaded guilty before a magistrate and was sentenced by Bokhary J on 6 May 2002 to a total of 17 years’ imprisonment. He applied for leave to appeal that sentence but then abandoned the application in July 2002. However he sought to revive the application and for reasons delivered by this Court in a judgment dated 11 January 2011, this Court, differently constituted in part, treated the abandonment as a nullity as a result of which ruling his application is now before us.

3. Sarkuna is a national of Indonesia. He and the other defendant in his case, also a resident of Indonesia, arrived in Hong Kong on 3 September 2001 and went to a hotel in Tsim Sha Tsui where they were supplied with drugs which they strapped to their respective bodies. Eight plastic bags were strapped to the other man’s body and they contained 1,996.64 g of ICE and seven bags were strapped to this applicant’s body with 1,871.72 g of ICE. But, in addition, this applicant was given a plastic packet which he placed inside his jacket pocket and that contained the quantity of cocaine. They checked out from the hotel and were duly arrested at the airport intending to export this substantial quantity of drugs.

4. In relation to the other defendant, the judge took a starting point of 25 years’ imprisonment for the first count, gave a discount of slightly more than the usual one-third to take into account the plea of guilty and some suggested co-operation with the police, thereby arriving at a sentence in his case of 16 years’ imprisonment.

5. In relation to this applicant, she adopted the same approach in relation to count 1, sentencing him to 16 years’ imprisonment. However, in relation to count 2, she took a starting point of 5 years’ imprisonment and reduced that to 3 years’ imprisonment to take into account his plea of guilty and his suggested co-operation with the police and ordered one year of that term to run consecutively to, the remainder concurrently with, the term of 16 years’ imprisonment, making a total of 17 years’ imprisonment.

Matsuda

6. Matsuda is a national of Japan. He was charged upon one count of an indictment, together with another, that on 4 July 2003 at the Hong Kong International Airport, he unlawfully trafficked in a dangerous drug, namely 2.51 kg of a crystalline solid containing 2.50 kg of methamphetamine hydrochloride (ICE). He pleaded guilty before Mr Recorder C Y Wong, SC on 7 July 2004 and was sentenced to a term of 14 years 8 months’ imprisonment.

7. The facts in his case were that he and his female co-defendant had checked in for a flight to Japan but a bag which the applicant was carrying and which he suggested contained soap in fact contained the drugs in question.

8. The Recorder took a rather low starting point – low, given the quantity and the international element – of 22 years’ imprisonment and reduced that, on account of the plea, to a term of 14 years 8 months’ imprisonment.

9. This application is substantially out of time, the reasons for which are explained by the applicant in papers which he has put before the court. No point is taken by the respondent in relation to the time issue, no doubt because of the primary point of law common to both these applications.

The Release under Supervision issue

10. The Ordinance in question makes provision for two forms of early release, namely, a release under supervision scheme and a pre- release employment scheme.

11. Section 7(1) and (2) of the Ordinance provide as follows:

“(1) The Chief Executive may, if the Board so recommends, order that a prisoner who-
(a) is serving a sentence of imprisonment of 3 years or more (other than imprisonment for life); and
(b) has served not less than one-half or 20 months of that sentence (whichever is the greater),
be released from that imprisonment and be subject to supervision under this Ordinance.
(2) The Chief Executive may, if the Board so recommends, order that a prisoner who-
(a) is serving a sentence of imprisonment of 2 years or more (other than imprisonment for life); and
(b) is within 6 months of the expiry of his imprisonment (taking into account remission under the Prison Rules (Cap 234 sub. leg. A)),
be released from that imprisonment subject to supervision under this Ordinance, and be required whilst under such supervision to reside in a hostel and, as far as practicable, to obtain and remain in employment whilst so residing.”

12. The Board to which reference is there made is the Release under Supervision Board established by section 3 of the Ordinance which, according to that statutory provision, shall consist of no less than five members including, as chairman, a person who holds or has held judicial office, a medical practitioner with experience in psychiatry and a person with experience of or an active interest in the rehabilitation of offenders.

13. A supervision order under section 7(1) will be subject to conditions such as requirements relating to residence, employment, and reporting to a supervising officer. An order under section 7(2) will contain a condition of residence in a supervised hostel and conditions relating to obtaining and remaining in employment.

14. Section 7(4) of the Ordinance specifies those who are not eligible for either scheme and that includes any person who is “subject to a removal order or a deportation order made under the Immigration Ordinance Cap. 115”.

15. It is unnecessary for present purposes to go into the detail of those who might be subject to a removal or deportation order but, put very broadly, a removal order may be made against persons falling within categories specified by section 19 of the Immigration Ordinance and they include those classified as undesirable immigrants who have not been ordinarily resident in Hong Kong for three years or those who have landed unlawfully; and a deportation order may be made under section 20 of the Immigration Ordinance against an immigrant (defined by section 2(1) as a person who is not a Hong Kong permanent resident) who has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years or in respect of whom the Chief Executive deems it to be conducive to the public good to make such an order.

16. It follows that unless and until a removal or deportation order is made an immigrant or visitor who is a prisoner is entitled, if otherwise he falls within the categories covered by section 7(1) and (2) of the Ordinance, to make an application for early release under supervision.

17. In a most helpful submission by Mr Hui on behalf of the respondent, we are informed that upon a prisoner’s admission to a correctional institution, he or she is provided with an information booklet about the release under supervision schemes and that for those who are eligible for the release under supervision scheme an application may be made six months prior to the earliest date upon which they might be released under the scheme and for those who are eligible for release under the pre-release employment scheme, an application may be made within 12 months of the earliest date of discharge. We pause to comment that the booklet, a copy of which has been provided to us, is potentially misleading in that it specifies amongst those not eligible for either scheme “those who are held under the Immigration Ordinance provisions or who will not be allowed to remain in Hong Kong after serving a sentence.” The phrase which we have there emphasized is not quite accurate, for eligibility to apply does not depend upon the prospect of being allowed to remain in the long-term but upon whether a removal or deportation order is, at the time of the application, already in place. Those with responsibility for preparing the booklet will wish to re-examine the wording of that representation.

18. Upon submission of an application, investigations are then carried out designed to ascertain suitability for rehabilitation through either scheme. This is likely to include a home visit to verify the prisoner’s family background and, where applicable, to contact a potential employer to confirm the availability of the proposed employment.

19. In determining whether to make a recommendation for release under either scheme, the Board is required, pursuant to the Prisoners (Release under Supervision) Regulations, to study the various reports that are specified and to take into account a list of factors particularised under the First Schedule to those Regulations which will include the applicant’s family circumstances; where he proposes to reside on release; and his conduct during any previous period on probation, care, supervision or licence.

20. Breach of a supervision order is an offence for which the offender is liable to a further term of imprisonment of up to 12 months and for which breach a supervision order may be revoked and the prisoner re-imprisoned to serve the remainder of the imprisonment imposed in respect of the original offence: see sections 13 and 14 of the Ordinance. We have been provided with figures for the prison population as at 4 March 2011 and there is a sizeable proportion composed of non-Hong Kong residents. The numbers of applications for release under supervision in respect of either scheme are relatively small and far from all of those applications are approved.

21. In respect of deportation orders, the usual course is for the process to be instigated by the Director of Immigration towards the end of a prisoner’s effective term of imprisonment; normally, we are told, about three months prior to the prisoner’s earliest date of discharge from prison.

22. Whatever the theory of the matter, it can readily be seen why a prisoner who is a mere visitor is unlikely to succeed in an application for release under supervision even though a deportation order has not yet been made. It is unlikely that a person with no roots in Hong Kong and with a criminal record, to boot, will be permitted to take up employment here or will have, in the case of an application for a s 7(1) order, the kind of stable residential and/or family environment conducive to the making of such an order.

23. Nonetheless, we are satisfied that it would be inappropriate for a sentencing court to take into account, when sentencing, the assumed practical non-availability of a supervision order to the offender who falls to be sentenced. This is because sentencing proceeds upon known facts and a system whereby a non-resident is given some automatic discount because of the supposed disadvantage under which he labours is one that would presuppose that all other prisoners, provided the term imposed is at least three or two years as the case may be, are in fact routinely released early under one of the two schemes; a supposition which would be wholly erroneous. Release under either scheme is a question of discretion to be considered according to a prisoner’s suitability at the time of eligibility; suitability that cannot possibly be predicted at the time of sentence.

24. The point we make is an echo of the point made elsewhere, albeit in different statutory contexts. In R v Abdullah Al-Buhairi [2004] 1 Cr App R (S) 83 p 496, the appellant was a citizen of Saudi Arabia convicted of conspiracy to handle stolen goods. It was argued on his behalf that since as a foreign national he would not be considered for the home detention curfew scheme available under the relevant legislation, his sentence should be reduced to reflect that fact. Hallett J (as she then was) said in this regard, at p 499:

“We ask ourselves ... whether or not it is incumbent upon a sentencing judge to reduce what would otherwise be a perfectly proper sentence because he may or may not be eligible for early release under this new administrative procedure. We remind ourselves that release on home detention curfew is a matter for the discretion of the governor of the relevant prison. He or she is charged with the responsibility of assessing the circumstances of each case of each prisoner and then coming to the decision as to whether or not to release. Plainly the governor must exercise that discretion rationally and reasonably. But it is not the case that necessarily all foreign nationals will be excluded from the scheme: it will depend upon their circumstances. There is no certainty as to the release of any particular prisoner, whatever their nationality. The governor is obliged to carry out a risk assessment and decide whether or not it is likely the prisoner will complete the period of curfew successfully.
Having considered all those matters we are satisfied that this is far too speculative an area and basis upon which this court should direct sentencers to proceed. It would leave sentencing judges all over the country in an impossible position when asked to speculate as to when any particular accused person may or may not be released under this scheme. Accordingly we are not persuaded that the sentence is excessive. Similarly we are not persuaded that it would be appropriate in the circumstances of this case to make any allowance for the fact that this appellant will not benefit from this procedure.”

25. All prisoners liable to a removal or deportation order are, by virtue of the provisions of the Ordinance, eligible for release under supervision unless they are subject to a removal or deportation order; although we recognise that the chances of such an order in favour of those non-residents who are not subject to such an order is likely, in practical terms, to be remote. That said, the chance of success of resident applicants is far from assured and the figures suggest that the success rate is relatively low. It would be an exercise in speculation and one also based upon a false premise to permit sentencers to take into account the lack of availability in practice of release under supervision to non-residents.

26. This ground does not therefore avail either applicant.

The consecutive sentence

27. The applicant Sarkuna complains that the sentence for count 2 in his case, that is, the sentence for trafficking in the quantity of cocaine, ought to have been ordered to run concurrently because if one treats the quantity of cocaine as if it too were ICE, the total quantity of all drugs carried by this applicant would still fall within the band which the judge adopted for the first count; and reliance is placed on the thinking in HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42. Counsel for the respondent has drawn to our attention some recent authority, HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, which suggests that there may be cases where it is appropriate to take what is there called an individual approach rather than the combined approach suggested by Yip Pik Kwai; and he points out that this applicant was given the cocaine as a package quite separate from the ICE strapped to his body and that the other accused person was not in possession of any cocaine.

28. In our opinion the sentencing judge took too technical and artificial an approach. Given the massive quantity of ICE in the possession of this applicant; the very large sentence which trafficking in that quantity attracted; the relatively small amount of cocaine – relative, that is, in relation to the amount of ICE; the fact that the combination of the two, had they been treated as one, would make no difference to the sentence – given these factors, an additional one-year sentence was not, in our judgment, justified.

Conclusion

29. Accordingly, in the case of Sarkuna, we grant him leave to appeal against sentence, treat the hearing of his application as the appeal, and allow the appeal to the extent only that we order the three-year sentence on count 2 to run concurrently with a 16-year sentence on count 1; making a total in his case of 16 years’ imprisonment.

30. The application for leave to appeal in the case of Matsuda is dismissed.

(Frank Stock)	(Michael Lunn)	(Ian McWalters)
Vice-President	Justice of Appeal	Judge of the Court of First Instance

Mr Martin Hui, SADPP & Ms Peggy Leung, SPP of Department of Justice for the Respondent

Mr Paul Loughran, instructed by Krishnan & Tsang, assigned by DLA, for both Applicants

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

	HKSAR	Respondent
	and
	KAI TOYOKO (甲斐豐洋子)	Applicant

____________________

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.

(M. Stuart-Moore)
Ag Chief Judge,
High Court

(A.R. Suffiad)
Judge of the Court of First Instance

(G.J. Lugar-Mawson)
Judge of the Court of First Instance

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

The Applicant, in person.

HKSAR v. MATSUDA KENICHI

Related cases with same parties

Files (2)

“	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)