HKSAR v. Vorobeva Anna

CACC 201/2017

[2019] HKCA 425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 201 OF 2017

(ON APPEAL FROM HCCC NO 372 OF 2011)

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REASONS FOR JUDGMENT

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Hon Pang JA (giving the Reasons for Judgment of the Court) :

1.On 16 December 2011, having previously pleaded guilty to trafficking in 1,240 grammes of heroin before a magistrate,[1] the applicant was sentenced by McWalters J, as McWalters JA then was (‘the Judge’), to 16 years and 8 months’ imprisonment.  On 6 July 2017, after a delay of 5½ years, she applied for leave to appeal her sentence out of time and, when she was refused legal aid to do so, applied on 2 August 2018 to appeal her conviction out of time.   Having heard her submissions on 15 March 2019, we dismissed both her applications.  These are our reasons.

The Facts

2.The facts of the case were as summarised by the Judge in his reasons for sentence :[2]

“ On 16 March 2011 the defendant with two of her three children, those were 7 years old and 10 months old, and another Russian woman boarded flight AK 070 from Kuala Lumpur, Malaysia to Hong Kong.

At Kuala Lumpur they checked-in four pieces of luggage but when they arrived at Hong Kong International Airport at about 10.20 am they only collected three of these pieces of luggage.

Before they left the airport they were stopped for a random check. The three pieces of luggage were examined but no irregularities were found. They then left Hong Kong for the Mainland via Lok Ma Chau at 12 noon the same day.

At 3.05 pm on that day an employee of Jardine Air Services Limited presented an unclaimed suitcase to Customs & Excise for clearance. Affixed to the suitcase was a luggage tag, SDK 0179757, which showed that the suitcase was checked in by a passenger on flight AK 070 from Kuala Lumpur, Malaysia.

The Customs & Excise Officers noticed that the cover of the suitcase was unusually thick which prompted them to do an X-ray scan of the suitcase. The scan revealed a false compartment and when this was accessed there was found inside it 2,030 grammes of a mixture containing 1,240 grammes of heroin hydrochloride.

Enquiries with Air Asia revealed that the suitcase had been checked-in under the name of the woman accompanying the defendant and related to the air tickets of this woman, the defendant, and the two children. Also within the suitcase were clothes, infant food, diapers and other personal belongings.

On 20 March 2011, the defendant together with her two children and the Russian woman travelling with her returned to Hong Kong. They were intercepted at Lok Ma Chau and subsequently arrested for trafficking in a dangerous drug.

On 21 March 2011 the defendant in a video-recorded interview admitted that she had not claimed the suitcase containing the drugs and that inside the suitcase there were items belonging to her and her children. She further admitted that it was her intention to claim the suitcase on her return to Hong Kong on 20 March 2011.

The defendant now admits and accepts that she knowingly had all the dangerous drugs particularised in the charge for the purpose of unlawful trafficking.  The seized drug had an estimated retail value at the time of its seizure of $1,390,000 Hong Kong currency.”

Mitigation

3.The applicant is a Russian national.  It was told to the Judge at the time of the sentence that she was aged 37, that she was educated up to secondary level, that she was trained in the food and beverage industry and that she and a friend operated a Russian restaurant in Guangzhou between 2007 and 2010.  The applicant, counsel added, had three children: two with her divorced husband and one, the youngest, with an African national.  “It was the youngest child’s father who organised and prepared the suitcase,” counsel stated.  “Suffice it to say he has now vanished,” he said.[3] That in effect was the totality of what was pleaded on the applicant’s behalf in mitigation.  It was taken by the Judge to mean that the applicant “became involved in this drug trafficking at the instigation of her partner”, which he accepted.[4]

As against Conviction

(ground of appeal)

4.Apart from the notes that were attached to her Notices of Application for Leave to Appeal, the applicant had filed no less than seven letters to the Court.  Their contents were mostly repetitive.  They asserted a version of events that is wholly inconsistent with her plea of guilty, roughly as follows :

(a)  At the Hong Kong airport, she did not pick up the suitcase in question because, in Malaysia, she had not paid for its extra weight and did not think it would be flown to Hong Kong.

(b)  Only when back in Mainland China did she find out from her boyfriend that she had taken part in illegal smuggling.  Even then, she thought it was just diamonds because that was what her boyfriend said were concealed in the suitcase.

(c)  Having been threatened by her boyfriend and his gang, and being aware that they would not leave her alone, she came back to Hong Kong in the pretense of retrieving the suitcase.  Her plan was to just get the immigration stamp on her passport at Lok Ma Chau and return to the Mainland.

(d)  At Lok Ma Chau, she made the relevant admissions under caution because she, her sister and her children were all tired, hungry and in need of a wash.  She thought by admitting the intention to reclaim the suitcase, she would at least have access to the baby food and clothes that were in it.  She was also advised by the Russian consul whom she was allowed to contact that the sooner she signed the statement, the quicker she and her sister and children would be taken to another place where they could wash and have proper food.  In making her admissions, she was not mindful of the consequences.  She was on the brink of a nervous breakdown.

(e)  When, much later in the process, she informed her lawyer about what happened, she was told that because she had admitted to coming back to Hong Kong to reclaim the suitcase, no one would now believe her and nothing could be changed.

5.Thus characterising herself as a “victim of circumstances”, the applicant went on to assert first, her lack of motive to commit the offence, because she was from a well-to-do family and had a clear record, and second, the “absolute irrationality” of someone doing what she did, if he or she had really known that the suitcase contained drugs.  Rhetorical questions were asked such as if she was knowingly bringing drugs into Hong Kong, why would she have put personal belongings that were traceable to her in the suitcase?  Or having abandoned the suitcase at the Hong Kong airport, why would she have so foolishly travelled back to reclaim it?

6.Rounding off, the applicant complained that she was charged with the offence because there was no one else for the authorities to charge. She said she was aggrieved that here in Hong Kong, no one was interested in finding the true culprit, namely her boyfriend.

(discussion)

7.The law in this area is clear.  It has been the subject of discussion in a number of recent cases one of which was HKSAR v Manjaiarraya Natthasiri CACC 171/2015 (30 August 2017).  Succinctly put, where there is unequivocal plea of guilty, there must to the satisfaction of the Court be “some overriding factor” which renders the conviction unsafe and unsatisfactory before the Court would intervene, plus it is a claim for which the burden of establishing is on the defendant.

8.As regards what constitutes an overriding factor, there is not an exhaustive list.  But the case law does advise “caution bordering circumspection” when approaching such a matter, and that it should be “rare” for such a claim to succeed: lest it should be open to abuse.  It also makes the point that if the guilty plea can be shown to be a nullity for any of the reasons set out in HKSAR v Wong Chi Yuk [2003] 3 HKLRD 125, then the Court’s jurisdiction is engaged.  Insofar as it is relevant to our case, those reasons (three out of the six listed in Wong) are :

(a)  The plea was tendered involuntarily, eg induced by duress or misrepresentation or was not an exercise of free choice.

(b)  The plea was induced by fraud or made under a fundamental mistake.

(c)  The plea did not result from a deliberate and informed decision.

9.Having carefully considered the applicant’s letters, and her oral submissions, we are in no doubt that her plea of guilty was an informed decision.  As was pointed out by the respondent, the details of which are unnecessary to set out, the applicant was throughout the entire process legally represented: first by the Duty Lawyer Service, then the Legal Aid Department and then her own private lawyers, all of whom were assisted by a Russian interpreter.  The lower court papers also show that in the magistracy, the applicant was asked who then confirmed that not only was she admitting to the facts, but she also understood the ingredients of the offence and was pleading guilty voluntarily.  Likewise, there was nothing in the proceedings before the Judge to indicate that the applicant was not fully aware of what was taking place.  Present in court was a representative of the Russian Consulate “to look out for her interest”, as counsel put it.[5]

10.That leaves the question of whether there remains any other overriding factor that would trigger the Court’s concern about the applicant’s conviction.  We think not. Her present version, as we have pointed out during the hearing, is not the only version of events that could explain the state of affairs as the authorities found it.  There are other versions, not all of them innocent, that could explain why someone who had knowingly secreted drugs into Hong Kong, in a suitcase that also contained his or her personal belongings, who then left it unclaimed at the airport, would return to collect it whilst being fully aware of the risks involved.  There is, in other words, nothing inherently improbable in the summary of facts that the applicant admitted to some 6½ years ago and her attempt to overturn her conviction must fail.

As against Sentence

(ground of appeal)

11.It is not entirely clear on what ground or grounds was the applicant complaining about her sentence.  They seemed inseparable from her assertion that she was not guilty of the offence, plus there were remarks about her missing the children.  We also note that on 17 January 2017, the applicant had provided a non-prejudicial statement to the Customs and Excise Department regarding her boyfriend.  The details, such as they are, were conveyed to the Guangdong Customs on 13 April 2017, with two chasers sent on 15 August 2017 and 26 February 2019.  They have, to date, prompted “no reply” from the Mainland authorities.

(discussion)

12.As we have explained to the applicant during the hearing, her complaint about the sentence, to the extent that it was based on her claim of innocence, is not a valid ground of appeal.  That same sentence, we might add, we have checked to be correct and unassailable. As regards her information on the boyfriend, it is clear from the Guangdong Custom’s response that it has not proven to be useful.  If, one day, it does, the matter can be referred to the Chief Executive for consideration under section 83P of the Criminal Procedure Ordinance, Cap 221; this too we have explained to the applicant during the hearing.  For now, it is simply not a matter we can take into account.

Disposal

13.For the above reasons, we refused the applicant leave to appeal her conviction and sentence out of time and dismissed her appeals.

The Applicant-in person, present

Mr Ira Lui, ADPP (Ag) of Department of Justice, for the Respondent