HKSAR v. Reznikova Anastasiia and Another

HCCC 51/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 51 OF 2016

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT: Ms Reznikova, you pleaded guilty to Count 2 on the indictment which is a charge of trafficking in dangerous drugs, in 7,543 grammes of cocaine, on 23 September 2015, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

You pleaded not guilty to Count 1 which is a joint charge of trafficking in dangerous drugs with Ms Likhacheva in respect of a total quantity of 12,166 grammes of cocaine which included the 7,543 grammes for which you have entered a plea of guilty.

Those pleas are acceptable to the prosecution. Count 1 as against you will remain on the file, not to be proceeded with without the leave of this court or the Court of Appeal.

Ms Likhacheva, you pleaded guilty to Count 3 on the indictment. Count 3 is a charge of trafficking in dangerous drugs, in 4,623 grammes of cocaine on 23 September 2015, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

You also pleaded not guilty to Count 1 which is the joint charge of trafficking in dangerous drugs with Ms Reznikova in respect of a total of 12,166 grammes of cocaine.

The prosecution have accepted those pleas. Count 1 as against you will remain on the file, not to be proceeded with without leave of this court or the Court of Appeal.

You are both Russian nationals and 34 years of age. Despite being Russian, you had commenced your journey to Hong Kong from Peru, travelling through Brazil, Ethiopia and Bangkok, and then from Bangkok to Hong Kong, arriving on 23 September 2015 whereupon you were detained at Chek Lap Kok International Airport as a result of a tip off.

You, Ms Reznikova, had a hard suitcase which contained sealed bags of coffee, soya and bedding. All of those bags had cocaine professionally hidden within them. In all, there was 9,811 grammes of a solid, which was found to contain the 7,543 grammes of cocaine I have referred to.

The street value of the drugs you were carrying alone was HK$10,360,416.

You, Ms Likhacheva, brought with you a soft bag, carrying similar brands of coffee, soya and bedding. The only difference being that the bedding which you had in your possession was less than that of your co-defendant. It was just as professionally packed and clearly came from an identical source. In all, there was 5,923 grammes of a solid containing the 4,623 grammes of cocaine I have referred to.

The street value of the drugs you alone were carrying was $6,254,688.

Under interview on 25 September, Ms Reznikova, you said that you had no job in Saint Petersburg but worked as a freelance. Interestingly, you refused to say what it was you were freelancing at. You said you were single with a mother and brother and that you lived with your brother. You had gone to college but not graduated. You said a Nigerian called Felix Ivan, whom you had previously met in Bangkok, had offered you a deal to transport coffee, soya and bedding from Peru to Hong Kong. He had paid for your flights and he booked your hotel accommodation. You say you picked up all of the dangerous drugs from a woman in Peru and that you put them into your suitcase and Anna’s suitcase. You sent a photograph of the goods to Felix before you left Peru.

Through Ms Crebbin, you now say that this was the moment in time when you realised that you were being asked to traffic in dangerous drugs, but you needed transport back from Peru and you felt you needed to comply with Felix’s request to go to Hong Kong. That is not an attractive explanation. You were to get US$5,000 for this deal which you agreed to split with Ms Likhacheva.

You have been frank with the court about her participation in this offence. Whilst you accepted you had travelled internationally before and you clearly speak some English, you said that Anna did not speak any English and had never been outside of Russia before. You also said that you had not told Anna about your deal with Felix before you went to Peru and that she was not happy about being asked to carry the goods but you told her you did not know what it was and that you would be paid for it. She was to get half. She trusted you and that is why she agreed to carry the goods.

By reason of both your pleas, that is not entirely correct, is it? And both of you now accept that, at some stage, you did both know you were importing dangerous drugs into Hong Kong and you both took the risk of it.

After you were arrested, you agreed to take part in a controlled delivery as a result of which, a person was arrested but not proceeded against. That decision is not your fault. You were prepared to assist at that stage but subsequent to that, you maintained a not guilty plea until a very late stage because you only finally pleaded guilty on 7 February 2017 and only after the non-prejudicial statement was taken from your co-defendant.

Ms Likhacheva, you were also interviewed. You were also single and also from Saint Petersburg. You said you did not have a job at the time of this offending although you had previously worked as a sales assistant. Mr Adams has told the court you had been required to care for your grandmother and I have a reference from L’Occitane which shows you had been working for them at some stage.

You said that you travelled to Peru because you wanted to see it and you told Customs and Excise that you had both gone to collect the goods from an old woman and that she had given you two plastic bags of goods, one for each of you, and you had packed yours into your own bag. Whilst I can see that, at first blush, these goods do look real, there came a point in time when you accept that you knew that they must contain dangerous drugs, not least because you were to be paid US$2,500 for importing bedding, coffee and soya. You also took the risk of it.

You did not take part in a controlled delivery. You may not have been asked to, but you did provide non-prejudicial statements after interview on 9 and 13 December 2016, which was over a year after you had been arrested, although Mr Adams has told me that he first indicated that plea in July of 2016. You pleaded guilty before this court on 15 December 2016, shortly after providing that assistance.

Those non-prejudicial statements indicate that this is not the first time Ms Reznikova had been to Peru and that you knew that Felix had paid for your trip which included $2,000 for travel expenses mistakenly sent to you. They do not take the matter much further. But I am surprised the prosecution had no intention of calling you as a witness, given that you had offered to do so. But of course, in the event, Ms Reznikova pleaded guilty and you were not required to. So far as I know, given that the prosecution have not explained their stance, they may have been waiting to see if the 1st defendant pleaded after service of your non-prejudicial statement.

There has been no suggestion by Ms Crebbin as to why her client had a sudden change of heart and given the chronology of events, I can only assume it was as a result of the non-prejudicial statements and therefore you will receive some credit for providing them and for being willing to give evidence. They were not very detailed and would not have assisted the prosecution to track down other syndicate members any more than the information you had already provided in video-recorded interview, but your testimony would have been invaluable and I consider it the catalyst for the 1st defendant’s plea.

On the other hand, your family is in Russia, you are in Hong Kong and your handler is in Thailand. I therefore do not think the risk to you is particularly significant, other than the risk from your co-defendant, and I do not find any suggestion of that now, given that she has at all times attempted to minimise your involvement.

You were both of good character. You have made considerable efforts whilst on remand to show your remorse and to assist in the program operated by Father Wotherspoon, which is a good thing. The email evidence of the identity of Felix is also a step forward and it should be provided to the police if they do not already have it.

Neither of you are robust in health. I asked on the previous occasion for medical reports upon you both and, in particular, for reports upon your eye health. I do not know who was responsible for ensuring that that was done or for passing on the requirements of the court, but the reports which were submitted at the time of mitigation were unintelligible and I asked the CSD to ensure that, in future, when a court asks for a report about someone in their care, they ensure that the report is presented in a form which can assist and not hinder the court.

I am grateful to Ms Crebbin for interpreting the report in respect of her client. In the absence of an acceptable medical report provided by the prosecution, I am going to give the 1st defendant full credit for what she asserts, which is that she is likely to go blind within the next two years. That will significantly affect the manner of her incarceration and the quality of her life, limited as it will be anyway in a Hong Kong prison.

Whilst the 2nd defendant’s state of health is not as significantly impaired, she is not physically fit and also has eye problems which are not, or were not, being properly addressed by the Correctional Services Department.

I am truly disappointed to hear this and would ask the prosecution to pass on my comments that it is not to our credit that foreign prisoners are treated in this manner. We have a first-class health care system and they are entitled to be dealt with as promptly and professionally as any Hong Kong citizen.

The leading authority for sentencing in respect of the trafficking of large amounts of cocaine is HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437. In that case, the Court of Appeal also stated that if there is an international element to the trafficking of drugs, there should be an enhancement of at least 2 years if the drugs are over 1,000 grammes.

Ms Reznikova, you had 7,543 grammes in your suitcase. The starting point after trial under Abdallah, for between 4,000 and 15,000 grammes, is in the range of 26 to 30 years. For 7,543 grammes of cocaine, I consider the appropriate starting point after trial to be 27 years and 3 months.

There is also the aggravating feature of the importation of these drugs. The quantity of drugs you imported was several times greater than the 1 kilogramme referred to in Abdallah and it is open to this court to enhance your sentence by substantially more than 2 years if the facts of the case warranted such course.

However, you are already facing a substantial sentence, a considerable way from home and in an alien culture. I will therefore, in my discretion, enhance your sentence by only the 2 years, not because of foreignness alone but because of all of the general facts of the case and because of the length of sentence you must inevitably serve. Justice is not done by adding several more years to a sentence which will take up a considerable part of your young adult life and the remainder of your sighted life.

As a consequence of those guidelines and bearing in mind the facts of this case, including everything I have been told by your counsel, under Count 2, Ms Reznikova, for trafficking in 7,543 grammes of cocaine, the starting point is 27 years 3 months and including the international element, which I will not enhance by more than 2 years, is 29 years 3 months.

There are a number of matters in mitigation for which I am prepared to give you a discount. It is now a question of in what order they are done. I am prepared to reduce that starting point by 2 years because of your ill health and possible loss of sight which will then make 27 years and 3 months. I am prepared to reduce that by 3 months for the considerable efforts you have made in recent months to identify and publicise Felix and to stop others from offending. That makes 27 years.

You did assist with a controlled delivery for which I am prepared to give you a small further discount. Although no one was ultimately proceeded against, someone was arrested and interviewed. In doing so, I take into consideration the Court of Appeal’s decision in HKSAR v Smit Hector Edward [2017] 1 HKLRD 28 and the authorities referred to therein including, but not limited to, HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692 and HKSAR v Jardin Rodela Maningas, CACC 278/2011.

I have considered the nature and effect of your voluntary participation in that controlled delivery, the outcome of that assistance, the degree and extent of that assistance and the degree of risk to you and your family. I have not been provided with all of the facts surrounding the delivery but I am prepared to give you some credit for volunteering to do so and for the fact that another member of the syndicate was arrested. He was clearly involved. The prosecution did not suggest otherwise. But I am told that he was not proceeded with because his arrest had been premature.

Although I also bear in mind that you chose to plead not guilty until very late in the day, despite having taken part in that controlled delivery, in so doing, you took up, Ms Reznikova, limited judicial resources when you knew full well that you were guilty and had been caught red-handed. Whoever suggested to you that you should do so did not serve you well.

With the discount I am able to give you which includes a full one-third and a further discount for the assistance you gave, you will go to prison for 16 years and 9 months.

Under Count 3, Ms Likhacheva, the starting point after trial for trafficking in 4,623 grammes of cocaine is 26 years and 3 months, and including the international element and for the same reasons as I have given previously, that would increase by 2 years to 28 years and 3 months. I have not differentiated between the two of you even though you carried far less than your co-defendant, because I have taken the view that that was by chance.

You pleaded guilty early. You were recruited into this by the 1st defendant and were not aware of what you had gotten yourself into until you were in Peru, although you went ahead regardless.

You are also taking an active part in Father Wotherspoon’s programme. You are also not well and your state of health, although it is not as significant as the 1st defendant, will affect the quality of your life whilst imprisoned and you will suffer more hardship than an able-bodied person, as made out by the fact that both you and the 1st defendant have not been receiving prompt medical care and support. Although the Correctional Services Department are now alerted to this and I am informed they are reacting to it.

For those factors, I intend to reduce the starting point by 1 year to 27 years and 3 months. More significantly, you also provided two non-prejudicial statements which I have referred to and you did so at the earliest practical opportunity.

It may be that this is the reason for the guilty plea of Ms Reznikova although, in all likelihood, that may have happened in any event, given the overwhelming evidence against her. But I am prepared to give you credit for that because the timing of her plea suggests that your non-prejudicial statements may have been the trigger. I will also give you some discount for your sentence for being willing to give evidence against her if she had in fact gone to trial.

I have already said that the starting point after trial under Abdallah for 4,623 grammes of cocaine, including the international element and deducting the mitigating factors referred to, is 27 years and 3 months.

Giving you a further discount beyond the one-third which I think appropriate for all of the actions you have taken, you will go to prison for 15 years and 6 months.