HKSAR v. Sysoev Igorevich Iurii

CACC 366/2018

[2021] HKCA 465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 366 OF 2018

(ON APPEAL FROM HCCC NO 22 OF 2018)

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Before:  Hon Macrae VP in Court

Date of Hearing: 23 March 2021

Date of Judgment:  23 March 2021

Date of Reasons for Judgment: 1 April 2021

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R E A S O N S  F O R  J U D G M E N T

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1.The applicant pleaded not guilty before Deputy Judge Lugar‑Mawson (“the judge”) and a jury in the High Court to an indictment alleging a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 29 November 2018, the applicant was convicted and sentenced to 26 years’ imprisonment.

2.The particulars of the indictment averred that, on 14 December 2016, at Customs Arrival Hall A of Hong Kong International Airport, the applicant unlawfully trafficked in a dangerous drug, namely 3.06 kilogrammes of a solid containing 2.53 kilogrammes of cocaine.

3.On 12 December 2018, the applicant filed a formal Notice of Application for Leave to Appeal against both conviction and sentence.  On 23 March 2021, I refused leave to appeal against conviction, but granted leave to appeal against sentence.  These are the reasons for my decision.

The prosecution case

4.Much of the prosecution case was not in dispute.  The applicant, who had a clear criminal record at the time, had flown, on 20 November 2016, from St Petersburg in Russia to Dubai in the United Arab Emirates.  On the following day, he flew from Dubai to São Paulo in Brazil.  Just over three weeks later, on 13 December 2016, the applicant flew to Hong Kong from São Paulo, via Addis Ababa in Ethiopia, arriving at Hong Kong International Airport on the following day, 14 December 2016. 

5.At about 2:05 pm on 14 December 2016, the applicant was intercepted while proceeding through the Green Channel of Customs Arrival Hall A at the Airport.  At the time, he was carrying a shoulder bag and pulling a suitcase, which had been padlocked. Upon the request of Customs officers, the applicant used a code to unlock the suitcase for inspection.  An X-ray examination of the suitcase revealed a hidden compartment inside the suitcase.  When Customs officers made a small hole in the concealed compartment, white power was detected, which proved positive for suspected cocaine.  Upon further examination of the suitcase, one packet of suspected dangerous drugs was found concealed inside the hidden compartment. The packet of dangerous drugs was subsequently confirmed by the Government Chemist to be cocaine, in the quantities particularized in the indictment. The average retail price for the seized cocaine, as at December 2016, was HK$3,124,260.

6.The applicant was arrested and cautioned.  Under caution, and in response to questions from a Custom officer, the applicant said that he did not know what the white powder was.  He further stated that an unknown person had given him the suitcase, which was empty when he received it in Brazil, and he had then packed his personal belongings inside.  The applicant later gave a post-recorded statement confirming what he had said upon arrest.

7.The applicant then agreed to participate in a controlled delivery operation.  Between 5:55 pm on 14 December 2016 and 9:15 am on 15 December 2016, the said operation was carried out in a room at the Kimberly Hotel in Tsim Sha Tsui, Kowloon.  An Indonesian woman was arrested when she came to the hotel room to collect the suitcase.

8.Subsequently, between 9:44 pm on 15 December and 12:30 am on 16 December 2016, the applicant gave a video recorded interview under caution with the assistance of a Russian interpreter.  There was no issue as to the voluntariness of the interview.  During the interview, the applicant stated the following matters, inter alia:

(1) He had spent three weeks in Brazil with someone called “Nikita”^[1], whom he had met during the flight.  A person called “Aries” was controlling the whole trip^[2] and it was a friend who had given his contact details to Aries^[3].  He did not know Aries in person, but they had made contact with each other by text messages^[4]. 

(2) During his trip in Brazil, Nikita had given him some money as living expenses^[5]. The applicant and Nikita followed the instructions they were given and travelled to a hotel to collect two suitcases^[6]. When the applicant received his suitcase, he saw that it was brand new, with a rolled-up blanket inside^[7]. On opening the suitcase, he noticed that a zipper inside had been glued.  He could not open the zipper and, in trying to do so, he tore off the pull-tab^[8]. The applicant found the circumstances of the giving of the suitcase very unusual^[9]; besides, he understood the original arrangement had been to buy sports hormones to bring back to Russia^[10]. Nevertheless, Nikita told him it was “OK” to take the suitcase^[11]. 

(3) When he arrived in Hong Kong, he was to wait for instructions from Aries^[12]. He did not know the woman who came to the hotel room to collect the suitcase[13].

(4) The applicant was apprehensive about many things in Brazil.  He felt that he was being spied upon.  He had no money to buy a return flight to Russia.  So, he took the flight to Hong Kong with the suitcase.  He did not know what would happen to the suitcase, or what he had to do with it at the time^[14].  Although Nikita did not threaten him in any way^[15], the applicant found his presence disturbing^[16], and he did not completely trust him[17].

9.At the time of the arrest, the applicant had with him US$286, 6,920 Russian roubles (about HK$950) and two mobile telephones, one of which was brand-named “Prestigo” (“the Prestigo telephone”). Text messages and voice messages from a person call “Aries Sunflame” were subsequently retrieved from the Prestigo telephone.  Amongst the messages retrieved was one from Aries Sunflame on 18 November 2016, stating that the applicant could not deviate or go to random places in Brazil, and that he needed to travel somewhere to receive a suitcase^[18].

The defence case

10.The applicant elected to testify in his defence and called his mother (DW3) and his wife (DW4) as defence witnesses.  It was the applicant’s position at trial that he had been tricked into believing that he was sending growth hormones back to Russia^[19]. His medical condition rendered him more susceptible to being “fooled” than others[20], and this had affected his ability to make decisions^[21].  A lack of medication at the time may also have had a bearing on whether he actually knew that he had dangerous drugs with him at the time^[22].

11.The applicant had intended to call Dr Wong Yee Him (“Dr Wong”), a psychiatrist, and Dr Fredriech Chan (“Dr Chan”), an endocrinologist, as two defence expert witnesses.  However, having heard full submissions from the parties and perused the two intended defence expert witnesses’ respective written reports as well as relevant authorities, the judge ruled that the expert opinion of Dr Wong was irrelevant and inadmissible; while that of Dr Chan was admissible, but with limitations or qualifications.

The ruling on the inadmissibility of Dr Wong’s evidence

12.Dr Wong was a psychiatrist.  He had interviewed the applicant in custody and had perused the applicant’s medical records from Russia.  In an expert report, dated 28 October 2018^[23], Dr Wong stated that one of the issues he had addressed was “the impact on (the applicant) if he were to cease or not receive any medical treatment for a prolonged period of not less than 2 weeks”^[24]. With reference to the applicant’s Russian medical records, Dr Wong noted that the applicant had suffered from childhood anxieties, phobias and communication problems^[25]. In respect of his mental state in 2016, Dr Wong commented that the applicant was suffering from the combined effect of low thyroid hormone and a Major Depressive Disorder (MDD)^[26]. Since the applicant could still function at work and socially, however, Dr Wong thought that his MDD was of a mild intensity^[27]. However, Dr Wong said it was difficult for him to comment on the applicant’s mental state at the time of the alleged offence.  Nevertheless, in his view, the applicant was still of sound mind and could make rational decisions.  His ability to think effectively and promptly might have been affected by the MDD features of poor concentration and fatigue^[28].

13.In respect of the impact on the applicant of ceasing or not receiving medical treatment for a period of not less than 2 weeks, Dr Wong frankly conceded that the effect of the omission of thyroxine treatment for such a period was outside his expertise^[29]. He further commented that he did not think that Phenotropil was an effective drug for the treatment of anxiety disorders or MDD.  Dr Wong thought that it might help partially to alleviate anxiety and depressive disorders and thus lessen the intensity of symptoms such as poor concentration and fatigue^[30]. Finally, he declared the applicant to be currently free from mental symptoms[31].

14.Having considered Dr Wong’s report and the submissions of the applicant’s trial counsel, the judge considered that the applicant’s childhood anxieties were common amongst most children.  The judge did not see how, in December 2016, they could have had any bearing on the questions of the applicant’s ability to form the intention to traffic in dangerous drugs, or of his knowledge that dangerous drugs were concealed in the suitcase he had brought into Hong Kong^[32]. Depression, be it mild or otherwise, was within the experience of the ordinary person, and the jury did not need Dr Wong’s assistance to understand and evaluate its effects^[33]. It was also impermissible for Dr Wong, or Dr Chan for that matter, to give their opinions as to whether the applicant’s claimed failure to take thyroxine before the alleged offence was or was not such as to negate the finding of an intention on his part to commit the offence alleged^[34].  Accordingly, the judge ruled that the whole of Dr Wong’s evidence was irrelevant and inadmissible^[35]. In passing, given Dr Wong’s opinion that the applicant still possessed a sound mind and could make rational decisions, the judge commented that he found it surprising the defence should have wished to place Dr Wong’s evidence before the jury^[36].

The ruling on the admissibility of Dr Chan’s evidence

15.The judge ruled that part of the conclusion^[37] in Dr Chan’s report, dated 1 November 2018^[38], concerning the applicant’s reported claim to him that “he also omitted thyroxine hormones for several days”, could not be given in evidence^[39].  Further, Dr Chan could not comment on the effect which depression, however caused, had or may have had on the applicant^[40].  Evidence in respect of the applicant’s medical history concerning his thyroid gland could be led but without mentioning the applicant’s claim about changing his dosage of thyroxine himself and the prescription of Phenotropil in 2016^[41].  Ultimately, Dr Chan gave live evidence and his report was not adduced before the jury.

The applicant’s evidence

16.The applicant testified that he was 38 years of age, and a married man with two children.  He lived with his mother in St Petersburg and worked as an architectural designer.  In about June 2016, one of the applicant’s friends called Yuri had suggested bringing growth hormones to Russia.  Yuri and the applicant did research on the Internet and found that growth hormones were not prohibited substances when imported into Russia. Later, the applicant, Yuri and three other persons, including a person called Ernest, met at a cafe to discuss the matter.  Ernest said that a large quantity of growth hormones was needed in Russia and he had previously made trips to Brazil, and then to another country in order to bring them back to Russia.  The applicant understood that others had also been travelling regularly between Russia and Brazil.  Ernest mentioned to the applicant that the trip normally took about two weeks, with one week in Brazil, and then another somewhere in Asia.  The applicant learned from Yuri that he would be paid the sum of 50,000 Russian roubles for the trip^[42]. In November 2016, Ernest told the applicant that someone was required to travel and that the nickname of the coordinator of the trip was called Aries Sunflame (Aries).  The applicant initially declined, but subsequently accepted, the opportunity to travel.  As far as he understood, he was to receive spending money throughout the trip and would receive the 50,000 Russian roubles after returning to Russia.  Following Aries’ instruction, the applicant opened a new bank account and acquired a bank card specifically for the trip. Subsequently, he received an e-ticket for a flight to São Paulo in Brazil and was told to find a person called “Nikita” travelling on the same flight.  This person would provide him with money for the trip. 

17.The applicant met Nikita, as indicated, on the flight to São Paulo.  After they had arrived in Brazil, the applicant and Nikita spent a week in São Paulo and another town called Santos.  On 28 November 2016, Aries instructed them through a voice message to travel to the town of Campo Grande in Brazil, and to check into a hotel where they would each be given a suitcase^[43].  They followed their instructions and travelled to Campo Grande by bus.  Upon their arrival, they each received a suitcase in the hotel.  However, the applicant was surprised to find that the suitcase had a padlock, yet only contained a rolled up blanket.  He also became concerned when he found that there were no growth hormones in the suitcase and that the zip of the inside lining had been glued.  He expected that there could be something illegal like drugs, weapons or medicine inside the suitcase^[44]. When he asked Nikita what it could be, Nikita told him not to worry.  At the time, Aries told the applicant, through another voice message, to put his own belongings into the suitcase.

18.The applicant and Nikita stayed in Campo Grande for a week before returning to São Paulo by aeroplane^[45].  Upon their return, the applicant attended the Russian Consulate in São Paulo, accompanied by Nikita.  Initially, he intended to ask the Consulate for advice about the suitcase^[46]. However, he ended up merely making enquiries about his passport, since Nikita was standing next to him throughout^[47].

19.Whilst waiting for his transit flight from Addis Ababa to Hong Kong, the applicant became very worried^[48].  Since there was no Wi‑Fi inside the airport, he could not connect to the Internet to buy a ticket home to Russia, nor could he abandon the suitcase, which had been checked through from São Paulo.  At the time, he felt very confused as to what he should do^[49].

20.The applicant explained that he had had an operation to remove his thyroid gland in 2014^[50]. Since then, he had been taking thyroxine, a thyroid hormone, on a daily basis^[51]. To deal with his depression, he had also been prescribed Phenotropil by a doctor in Russia^[52]. The applicant said that throughout his entire time in Brazil, he did not run out of thyroxine^[53]. He had only failed to take thyroxine for a couple of days when he was in Campo Grande, and another couple of days in Santos^[54]. He ran out of Phenotropil sometime during the second week in Brazil^[55].

The evidence of Dr Chan (DW2)

21.Dr Chan’s evidence consisted of his oral testimony only.  He confirmed that the applicant had undergone a thyroidectomy in 2014.  He explained that a person who has had his thyroid gland removed would suffer from permanent hypothyroidism because of a shortage of the thyroid hormone^[56]. A sufferer would experience slowness of thought and speech processing, as well as decreased attentiveness and apathy^[57]; memory and psychomotor and executive functioning would also be affected, resulting in the sufferer sometimes being unable to do what he wanted to do^[58]. The long-term replacement of the thyroid hormone, thyroxine, was necessary to keep the thyroid level normal and to deal with the symptoms of hypothyroidism^[59]. Studies showed that if a patient had a history of thyroid disease, there was increased complaint of neuro-psychiatric symptoms, for example, tiredness and cognitive and memory impairment^[60].

22.In respect of the drug Phenotropil, Dr Chan was told by the applicant that the drug was prescribed by a doctor in Russia in 2016 to deal with his depression and negative ideation.  Phenotropil was a psycho‑stimulant, which was only available in Russia as a prescription medicine until April 2017.  It was not approved, and hence was unavailable, in Hong Kong.  Dr Chan testified that he was only able to speak about Phenotropil from what he had gleaned from literature^[61]. He had never had a patient, other than the applicant, who had taken such a drug^[62].

Discussions between defence counsel and the judge during the summing‑up

23.The judge commenced his summing-up in the morning of 28 November 2018.  Before the lunch break on the same day, and in the absence of the jury, defence counsel requested the judge to give a direction on inferences^[63]:

“COUNSEL: The one other thing, there’s been a case early last year in the Court of Final Appeal where the Court of Final Appeal said that at least once in the summing-up the jury must be told by way of an example what’s an inference to be drawn and what’s an inference for which no reasonable counterpart inference could be drawn.

COURT: Yes.

COUNSEL: And I don’t think in the summing-up we had that kind of everyday example.

COURT: The normal one is...

COUNSEL: Flying, seeing someone and an hour later you see them in another country and you go there.

COURT: Say that again, which one?

COUNSEL: The one where you see someone in Singapore, an hour later or two hours later you see the same person in Hong Kong, so you can presume an irresistible inference that they travelled by plane to get to Hong Kong.

COURT: Yes, well, you can, yes.

COUNSEL: Something along those lines.”

Summing-up

24.The judge summarised Dr Chan’s evidence regarding the removal of the applicant’s thyroid gland as follows^[64]:

“Dr Chan confirmed that the defendant had undergone a thyroidectomy, the surgical removal of the thyroid gland after suffering from a medical condition known as thyrotoxicosis. He told you that people who have thyrotoxicosis can suffer a raft of disabilities. They can suffer anxiety and tiredness. There is a decrement -- a reduction -- in speech -- it slows down. There is a decrement in thought. There is a lessening of general intellect, a loss of attention, concentration and memory. He said there can be a deterioration in language and a loss of perceptual function, psychomotor function and executive function and he put that very succinctly as ‘you want to do something, but you cannot.’”

25.Towards the end of his summing-up, following defence counsel’s earlier request, the judge provided the jury with an illustration of the drawing of inferences^[65]:

“Now, the other matter is that [defence counsel] has asked me to give you a basic - or very simple - illustration of what an inference may be. I will give you two actually. I do not know if it is raining at the moment, but if a person was to come through that door now wearing a raincoat and shaking an umbrella, you could infer that it is raining outside. Okay? Although, you cannot see the rain.

The other illustration that I can give you of what an inference can be is, assume you are in Changi Airport in Singapore and you see your friend, William Chan.  And you flew to Singapore -- You flew from Singapore to Hong Kong and while you were waiting for your luggage, you saw William Chan again.  The inference there is that William Chan flew from Singapore to Hong Kong.  He could not have got there in two hours any other way.  If you saw William Chan somewhere else a week later, say, in Central, you could not infer that he had flown from Singapore to Hong Kong on the same day that you flew.  So that is the best -- those are the best -- illustrations I can give of what inferences can be…”

Mitigation

26.In mitigation, defence counsel invited the judge to take into account by way of specific discount the co-operation the applicant had given, which had led to the arrest of Nikita, who had subsequently pleaded guilty to a charge of trafficking in a dangerous drug on 16 May 2018^[66].

The reasons for sentence

27.The judge noted that the applicant had co-operated with Customs officers^[67]. He adopted a starting point of 24 years and 5 months’ imprisonment for the quantity of cocaine concerned^[68], which he enhanced by 2 years for the international element^[69].  Concerning his assistance leading to Nikita’s arrest, the judge gave a discount of 5 months from the enhanced starting point^[70], resulting in a sentence of 26 years’ imprisonment.  No mention was made, either by defence counsel in mitigation or by the judge in sentencing, of the applicant’s participation in the controlled delivery operation.

The grounds of appeal

28.In his Perfected Grounds of Appeal filed on 8 October 2019, Mr McGowan has put forward six grounds of appeal against conviction on behalf of the applicant.  Ground 1 avers that the evidence of Nikita, whose full name is Nikita Stefanovich, for which leave to adduce fresh evidence is sought under section 83V of the Criminal Procedure Ordinance, Cap 221, demonstrates that the applicant’s conviction is unsafe and unsatisfactory.  Ground 2 alleges that prosecuting counsel at trial had wrongly used the post-arrest messages from Aries to the applicant’s telephone to support the prosecution case that the applicant knew he was carrying dangerous drugs before his arrest.  Ground 3 avers that the judge wrongly ruled the expert evidence of Dr Wong to be inadmissible.  Ground 4 complains that prosecuting counsel at trial had unfairly criticised the defence for not calling psychiatric evidence in his defence.  Ground 5 alleges that the judge failed to direct the jury as to the relevance of Dr Chan’s evidence, in particular that the applicant was not able to do what he thought he should have done, so as to explain why he did not do more after suspecting that drugs might be involved.  Ground 6 is a complaint that the judge did not properly base his direction on inferences on the evidence.

29.In respect of the appeal against sentence, Mr McGowan advanced three grounds of appeal.  Ground 1 alleges that the applicant received no credit for his participation in a successful controlled delivery operation, in which the person who eventually came to collect the suitcase from the hotel was arrested.  Ground 2 complains that the applicant received only 5 months’ discount from a starting point of 26 years and 5 months’ imprisonment, notwithstanding that his information had resulted in the arrest of Nikita and his early plea. Ground 3 is a complaint that the applicant was accorded no consideration in sentencing for his medical condition, and the additional vulnerability which it may have generated in the applicant.  Ground 4 is a general ground of appeal alleging that the applicant’s sentence is manifestly excessive and/or wrong in principle.

The applicant’s Notice of Motion to adduce fresh evidence on appeal

30.By way of a notice of motion and an affirmation in support, the applicant applies for leave to adduce the affirmation of Nikita, affirmed on 17 August 2020, as fresh evidence in his appeal, under section 83V of the Criminal Procedure Ordinance.

31.In his affirmation in support of the application, the solicitor representing the applicant in the present application has stated that both the solicitor and counsel assigned to represent the applicant at trial had advised the applicant against calling Nikita at the applicant’s trial, since Nikita had pleaded guilty to a similar offence and his evidence would not be to the benefit the applicant^[71].

32.In his affirmation, Nikita has deposed that after he and the applicant had collected their respective suitcases in Campo Grande and returned to São Paulo to await their onward flight from Brazil, he had reassured the applicant that everything was alright and that there was no need to worry, so as to discourage the applicant from doing anything that would prejudice their getting back to Russia as soon as possible^[72].  He claims that he did not know the suitcase contained dangerous drug before and during the trip in Brazil^[73]. He was told for the first time by Aries that his suitcase contained dangerous drugs whilst waiting in transit in Addis Ababa for his connecting flight to Hong Kong^[74].  Finally, Nikita claims that having spent three weeks in Brazil with the applicant, he can say that the applicant was very concerned about what was happening to them, and he is sure that the applicant (a) had expected the suitcase to contain growth hormones; (b) was unaware at any time that he was to transport dangerous drugs; (c) had no knowledge that either or both of the respective suitcases contained dangerous drugs; and (d) was not part of any drug trafficking organisation^[75].

Applicant’s submissions on appeal against conviction

Ground 1 against conviction

33.Mr McGowan argued that Nikita’s proposed evidence in its totality raises at least a reasonable doubt as to whether the applicant had the essential knowledge that there were, indeed, dangerous drugs in the suitcase he was carrying.  Not only does Nikita’s evidence support the applicant’s testimony, it also helps to fill the lacuna as to what medication the applicant took or failed to take, and how that failure had affected his behaviour.  Mr McGowan further submitted that Nikita’s proposed evidence touches upon the safety of the applicant’s conviction.  Relying on R v Huckerby^[76], it is argued that Nikita’s evidence, which could have been called at trial, should be admitted in the overall interests of justice.

Ground 2 against conviction

34.In the absence of any confession by the applicant, the prosecution case depended upon various voice and text messages retrieved from the Prestigo telephone to infer knowledge.  In his closing speech, prosecuting counsel had reminded the jury of the messages which the applicant had sent upon his arrival in Hong Kong prior to his arrest.  However, the prosecutor went on to urge the jury to consider the post-arrest messages from Aries and invited them to infer the applicant’s knowledge from the words and tone of the sender.  Prosecuting counsel also posed for the jury a series of questions arising out of what Aries had said.  It is suggested by Mr McGowan that these post-arrest messages should not have been used to prove the applicant’s previous knowledge, since the messages were generated by Aries, at a time when the applicant was under the control of Customs officers.  Such usage rendered the trial unfair.

Ground 3 against conviction

35.Mr McGowan referred to Dr Wong’s expert report, which had suggested that the applicant was suffering from a recognised medical condition, namely Major Depressive Disorder (MDD), albeit of mild intensity.  The combined effect of MDD, the abnormalities arising from his thyroidectomy/thyroxine therapy and the absence of Phenotropil were matters on which the jury were entitled to receive expert assistance, in order to establish in general terms what that effect was or may have been on the applicant, and whether he was a knowing and/or willing participant from the events in Campo Grande onwards.  Mr McGowan submits that the applicant was in a situation akin to the appellant in Huckerby, and the jury would equally have been assisted by Dr Wong’s expert opinion, as well as Dr Chan’s, as being relevant evidence of an affliction outside the norm.  It was submitted the applicant was not an ordinary person, but rather one about whom the jury would be unable to draw on their everyday experience of life.  Accordingly, the judge should not have ruled Dr Wong’s evidence to be inadmissible.  His ruling rendered the conviction unsafe and unsatisfactory.

Ground 4 against conviction

36.It is further argued that whilst Dr Wong’s evidence was ruled inadmissible, the prosecution had his report and must have been aware of Dr Wong’s conclusion and diagnosis.  Yet, prosecuting counsel in his closing speech had suggested that the applicant was normal and had called no psychiatrist to give evidence on his behalf.  It was submitted that such a suggestion was both misleading and unfair in all the circumstances.

Ground 5 against conviction

37.The prosecution attacked the applicant’s failure to act on his suspicions from the time he received the suitcase.  In summing-up, the judge should not merely have reminded the jury of what Dr Chan had said, but should also have related it to the applicant’s evidence about his inability to do what he thought he should have done, and his impaired ability to act on his intentions; particularly when prosecuting counsel asserted that the applicant had not called any psychiatrist on his behalf.

Ground 6 against conviction

38.Mr McGowan submits that neither of the two illustrations of inferences given by the judge were, as the Court of Final Appeal had proposed in Nguyen Anh Nga v HKSAR^[77], properly set in the context of the evidence and submissions.  Accordingly, such directions were inadequate.

Applicant’s submission on appeal against sentence

39.Mr McGowan does not take issue with the starting point adopted by the judge, given the quantity of narcotic concerned, or the two years’ enhancement for the international element.  Complaint is made that the judge failed to give a sufficient discount to the applicant for (i) his participation in the controlled delivery, in circumstances where the person who came to collect the suitcase had been arrested (Ground 1); (ii) his provision of information leading to Nikita’s arrest and his early guilty plea (Ground 2); and (iii) his medical condition (Ground 3).

Ground 1 against sentence

40.It was submitted that the controlled delivery in which the applicant participated had been a successful one.  An Indonesian woman had been arrested, even though she was subsequently discharged.  Mr McGowan contended that the applicant’s assistance in the controlled delivery went further than that of the appellant in HKSAR v Jardin Rodela Maningas^[78], where the Court gave the appellant a reduction of 18 months on her 20-year sentence of imprisonment, which was equivalent to a discount of 7.5%.

Ground 2 against sentence

41.It is argued that as a matter of principle, a defendant who provides information leading to a further successful arrest was deserving of an additional discount on sentence.  A reduction of only 5 months for this factor, the equivalent of 1.578% from the enhanced starting point, was manifestly inadequate.

Ground 3 against sentence

42.It was argued that even if the applicant’s personality and behavioural changes did not raise a reasonable doubt about his guilt, it was still a matter which could and should have been taken into account in mitigation.  Both the reports of Dr Chan and Dr Wong, albeit the latter was ruled inadmissible at trial, were available for sentencing purposes.  Yet, both reports were never referred to by the judge, or indeed by defence counsel.  The Court should nevertheless consider them on appeal. 

Respondent’s submissions

On Ground 1 against conviction

43.Mr Tam, on behalf of the respondent, argued that Nikita’s proposed evidence as to his observations of the applicant did not render the applicant’s conviction unsafe.  Such evidence should not be permitted now on appeal, when it could have been called at trial.  Even if it were adduced as fresh evidence on appeal, there was other contradictory evidence from the applicant himself, to the effect that the applicant and Nikita had discussed the possibility of illegal drugs inside the suitcase in Campo Grande.

On Ground 2 against conviction

44.It was submitted that defence counsel could have dealt with or mitigated the supposed effect of prosecuting counsel’s comment in the same way that he addressed other comments from prosecuting counsel; for example, concerning the post-arrest text messages.  He did not.

On Ground 3 against conviction

45.Mr Tam pointed out that, in his ruling, the judge had gone to great lengths to consider the contents of the two expert reports concerned and the issues they raised.  It was also submitted that Mr McGowan’s submission that the applicant’s action or inaction was similar to the appellant in Huckerby disregarded the experts’ conclusion that the applicant could still function properly both at work and socially; furthermore, the intensity of the applicant’s MDD was mild, whereas the diagnosis of the appellant in Huckerby was moderate/severe PTSD, resulting from his being the victim of two robberies in close succession.  The judge’s ruling on the evidence was not wrong, nor did it render the conviction unsafe.

On Ground 4 against conviction

46.Having highlighted Dr Wong’s comments that the applicant was only suffering from mild MDD at the time and that he could still make rational decisions, Mr Tam argued that Dr Wong’s evidence did not assist the applicant’s case.  Had it been adduced before the jury, it may well have cast doubt on the defence case.

On Ground 5 against conviction

47.Mr Tam submitted that the applicant’s reliance on Nguyen Anh Nga was misguided.  There, the jury had been invited to draw an inference from the fact that the appellant suddenly shouted “Wah!” and then sat down and cried when Customs officers asked her if the luggage in question was hers.  The appellant did not testify and relied on her out‑of‑court statement that she was duped into believing that she was smuggling US dollars from South Africa to Cambodia.  The Court of Final Appeal stated that the appellant’s response could equally have been a reaction to her being discovered smuggling US dollars.  The Court noted^[79]:

“…A trial judge’s assessment on how jurors ought to be directed in any given case is not lightly to be disturbed. Nor is an intermediate appellate court’s view that the way in which jurors were directed in any given case is acceptable or at least not fatal. But in the particular circumstances of the present case, it was vital that there be a direction on inferential reasoning specifically set in the context of the evidence and the arguments thereon. The absence of any such direction in the present case is, therefore, fatal to the conviction.”

48.Mr Tam argues that the facts in the present case bear no resemblance at all to those in Nguyen Anh Nga.  Moreover, it was defence counsel himself who proposed the inference illustration to the judge.

On Grounds 1 and 2 against sentence

49.The respondent pointed out that no mention of the controlled delivery was made in defence counsel’s mitigation.  It was not surprising, therefore, that the judge only mentioned the applicant’s assistance in respect of the arrest of Nikita, and not his participation in the controlled delivery.  Nevertheless, Mr Tam accepted that the applicant’s assistance to the authorities was of practical use in both respects.  In particular, his information regarding Nikita had effectively prevented 2.43 kilogrammes of cocaine narcotic from reaching the streets of Hong Kong. 

50.Regarding the applicant’s provision of information about Nikita, Mr Tam submitted that, in accordance with HKSAR v Lo Sze Tung, Stephanie[80], the overall discount on the applicant’s sentence should have been within the range of 7%‑12%, if one removed the one-third quotient from the 40%‑45% discount range applicable to those pleading guilty.  Accordingly, he accepted that it is reasonably arguable that the 5 months’ reduction accorded by the judge was wrong in principle, resulting in a sentence which could be said to be manifestly excessive.  Leave to appeal against sentence on that basis was not opposed.

On Ground 3 against sentence

51.Mr Tam submitted that the applicant failed to understand that the expert reports for the applicant at trial had both confirmed that the applicant could function at work and socially, and that he should still possess a sound mind and could make rational decisions.  In the circumstances, there was nothing to indicate that the applicant was of a lower cognitive standard at the time of committing the offence.  Accordingly, his medical condition did not amount to a mitigating factor.

On Ground 4 against sentence

52.Since this ground was a general statement in support of the applicant’s appeal against sentence, Mr Tam relied on his other arguments in respect of Grounds 1 to 3 in response.

Consideration

53.I do not consider that there are any reasonably arguable grounds of appeal against conviction and I refuse leave to appeal against conviction.  However, I do regard Grounds 1 and 2 (and, therefore 4) of the appeal against sentence to be reasonably arguable, and I grant leave to appeal on those grounds only.  I do not consider Ground 3 of the appeal against sentence to be reasonably arguable as a substantive ground of appeal.

54.In respect of Ground 1 of the appeal against conviction, a decision was evidently made by the applicant’s legal representatives that Nikita should not be called to give evidence.  This fact is also alluded to in Nikita’s own affirmation[81]. Having read his affirmation on a de bene esse basis, and assuming that this was to be the substance of what he would have said at trial, I can well see why.  It should be remembered that the applicant’s information had led directly to the arrest of Nikita and the seizure of 2.43 kilogrammes of cocaine narcotic, resulting in Nikita pleading guilty to a charge of trafficking in a dangerous drug, for which he received a sentence of 17½ years’ imprisonment on 16 May 2018.  Nevertheless, he maintains that he does not blame the applicant for his predicament[82].

55.Be that as it may, it is not credible that Nikita should be contending that it did not even cross his mind that there might be drugs inside the suitcases which he and the applicant collected at Campo Grande on 2 December 2016, or that he did not know at any stage before his arrival in Addis Ababa on 13 December 2016 that there were dangerous drugs inside the suitcases, when the applicant’s own evidence is that he expected there may have been drugs in his suitcase at the time he first received and examined it, and that he had actually discussed his concerns with Nikita[83].  This discussion would have taken place some 12 days before his (and Nikita’s) arrival in Hong Kong with their respective suitcases containing cocaine.  Furthermore, I note that in mitigation it was put on Nikita’s behalf that he had been influenced by a friend to bring drugs to Hong Kong for a reward of US$1,000.

56.The onus is on the applicant to demonstrate that the fresh evidence sought to be relied upon at appeal is likely to be credible, and that there is a reasonable explanation why it was not adduced at trial.  To my mind, neither condition can be satisfied.  The time to call Nikita would have been at the trial, when the applicant’s legal representatives knew what he was likely to say.  A tactical decision was, however, made at the time not to call him as a defence witness and it is neither proper nor realistic to go behind that decision now on appeal.  Ground 1 is not reasonably arguable.

57.So far as Ground 2 is concerned, it is not averred that the text messages received from Aries following the applicant’s arrest were inadmissible: the basis of the complaint is that prosecuting counsel unfairly utilised them to support an inference of knowledge by the applicant. Certainly, defence counsel at trial never mounted an argument that the text messages were inadmissible and Mr McGowan has not suggested he was incompetent in failing to do so.  Nor can I see why instructions given to the applicant by the man who had been orchestrating events by text since 16 November 2016 should suddenly become inadmissible because the applicant has been arrested.

58.Mr McGowan accepted that he had made no enquiries of defence counsel at trial as to why he should have allowed the post-arrest text messages to be introduced without objection, in accordance with the duty now cast upon fresh counsel on appeal as set out in HKSAR v Apelete (No 1)[84], in which it may be observed Mr McGowan was also counsel.  However, Mr Tam has supplied an obvious and credible answer as to why there was no objection: defence counsel at trial would have wanted them in evidence because they allowed him to make a telling point in the applicant’s favour.  The text messages from Aries amounted to a steady trickle of instructions to the applicant over some four weeks beginning on 16 November 2016.  However, it was only after the applicant has been arrested (unknown to Aries) that for the first time the applicant was explicitly told that he was to hand over a suitcase to someone at a hotel in Tsim Sha Tsui.  Thus, defence counsel was able to make a pertinent point to the jury in his closing address in respect of these particular text messages:

“So Aries, because he’s frustrated he hasn’t heard from the defendant, is for the first time telling the defendant that this is the essence of his job. The defendant doesn’t know, I’d suggest, at this stage that the whole essence of his job is to get that -- is to get that suitcase on to someone else. “Do it accurately and immediately. Pass it. That’s all. You are free.” In other words, pass the suitcase. “Let us not fool around. We’re all grown-ups here, am I right?” So he’s getting frustrated he’s not getting communication from the defendant, but he’s telling him in essence that the essence of his job, the main part of his job, he’s telling him for the first time, is to pass the suitcase on and this is the first time we actually see that in the chats.

So I’d suggest that these -- this has been a big scheme to trick the defendant into believing he’s sending growth hormones.” (Emphasis supplied)

59.The text messages from Aries were not inadmissible, since they formed part of the continuing instructions to the applicant to execute the crime on which he had embarked.  There is no mention of dangerous drugs by Aries in these text messages; nor for that matter, is there any mention of growth hormones.  Nor is there any response from the applicant after his arrest.  The text messages in question, however, allowed the defence to make a legitimate point about the absence of his knowledge of the presence of dangerous drugs, because he had no idea until after his arrest that he was to hand the suitcase over to someone else.  This ground of appeal is not properly advanced, nor is it reasonably arguable.

60.In addressing Ground 3, concerning the judge’s ruling that the evidence of Dr Wong was inadmissible, it is necessary to stand back and see the applicant’s actions in their full context.  He had travelled from Russia to the United Arab Emirates to Brazil, where he remained for some two weeks.  He then travelled from Brazil to Ethiopia to Hong Kong.  The entire journey from Russia to Hong Kong took just short of 4 weeks.  Upon his arrest in Hong Kong, he was interviewed under caution at Hong Kong International Airport for over 3½ hours during which, as Mr Tam has demonstrated, he was clearly capable of deciding which questions he would answer, which questions he would not answer and which questions he required legal advice before answering.  His “expectation” that he may have been carrying dangerous drugs, even on his own case, began on 2 December 2016, some 12 days before he actually arrived in Hong Kong with the drugs.

61.Against this background Dr Wong, who had met the applicant only once for 3 hours through an interpreter, on 11 October 2018, concluded:

“It would be difficult for me to comment on (the applicant’s) mental state at the juncture of the alleged offence. As it is likely that he was only suffering from MDD (Major Depressive Disorder) of mild intensity at that moment, he should still possess a sound mind and could make rational decisions. At the same time, his mindset would be preoccupied by negative and anxious thoughts. His ability to think effectively and promptly might be affected by MDD features of poor concentration and fatigue.”

62.In a comprehensive and considered ruling, with the benefit of full argument and recourse to case authorities (including Huckerby, where the Court said the circumstances were analogous to duress[85]), the judge commented that it was surprising, given the conclusion in the second sentence of the above passage, that the defence would ever want to put Dr Wong in front of the jury[86].  Be that as it may, the judge found the evidence of Dr Wong irrelevant and inadmissible.  Juries hardly needed expert assistance on the effects of mild episodes of depression, when the proposed expert was unable to comment on the applicant’s state of mind in December 2016 and when, even accepting a mild case of depression, the applicant would still possess a sound mind and be able to make rational decisions.  It is not reasonably arguable that the judge erred in not allowing the defence to call irrelevant expert evidence for the reasons that he gave. 

63.I might add that, according to his report, Dr Wong’s had been asked to consider “the impact on (the applicant) if he were to cease or not receive any medical treatment for a prolonged period of not less than 2 weeks”[87].  Yet, it was never the applicant’s evidence that he had ceased any medical treatment for such a period. He claimed to have stopped taking Phenotropil, a drug that is not prescribed in Hong Kong, during the second week in Brazil: he had never stopped taking Thyroxine, save on a couple of occasions, before resuming it.

64.By Ground 4, prosecuting counsel was criticised for making a point to the jury in his closing address that the applicant had not called any psychiatric evidence, when, as I have just explained, the judge had ruled the evidence of Dr Wong to be irrelevant and inadmissible.  Yet, it was a fact that no psychiatric evidence was called by the defence.  Moreover, what psychiatric evidence the defence had wanted to call was both irrelevant and inadmissible to the issues the jury had to decide.  Defence counsel at trial made no complaint about this comment from prosecuting counsel, perhaps because the applicant’s mother, in her evidence, had referred to the applicant receiving psychiatric treatment in Russia.  Indeed, looked at in context, it seems to have been the mother’s evidence that prompted prosecuting counsel’s remark that, nevertheless, no expert psychiatric evidence had been called on the matter[88]. I do not see this remark as founding a reasonably arguable ground of appeal.

65.In respect of Ground 5, Mr McGowan fairly accepted that the highest he could perhaps put this complaint is that the judge did not say what he might have said.  That may be so, but it does not afford a reasonably arguable ground of appeal.  The judge had given an adequate summary of Dr Chan’s evidence to the jury[89]. Certainly, defence counsel at trial saw no reason to invite the judge to give the direction that is now proposed, when specifically asked if he had anything to say at the conclusion of the summing-up[90].

66.Finally, in respect of Ground 6, the judge gave the very illustration of the application of an inference, which defence counsel had asked him to give.  Reading the summing-up as a whole, it is not reasonably arguable that the jury would not have properly understood the concept of inferences and how to draw them.  The problem exposed in Nguyen Anh Nga has no application to the present case.

67.Accordingly, I refused leave to appeal against conviction on all grounds advanced.

68.On the matter of sentence, I considered it to be reasonably arguable that the judge did not give the applicant sufficient credit for (i) his effective participation in a successful controlled delivery; and (ii) his assistance leading to the arrest of Nikita and, consequently, the prevention of 2.43 kilogrammes of cocaine narcotic reaching the streets of Hong Kong.  Accordingly, I granted leave to appeal on Grounds 1 and 2 of the applicant’s grounds of appeal against sentence; as a result of which leave should follow on Ground 4 as well.

69.I did not grant leave to appeal in respect of Ground 3, which I regarded as not reasonably arguable as a substantive ground of appeal against sentence.  However, I explained to the applicant that his counsel would certainly be entitled to refer to any relevant evidence or material that was before the judge for the purpose of addressing the question of the applicant’s culpability and role in the offence, in the event that the Court should accede to either or both of Grounds 1 and 2.

70.Finally, I should advise the applicant that he has the right to renew his application for leave to appeal against conviction before the full Court of Appeal.  However, he should also be warned that the full Court has the power to make an order for the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of that application.

Mr Felix Tam SPP, of the Department of Justice, for the Respondent

Mr James H M McGowan, instructed by Krishnan & Tsang, assigned by the Director of Legal Aid, for the Applicant

[1]  Counter 562, Appeal Bundle (“AB”), p 118.

[2]  Counter 570, AB, p 119.

[3]  Counter 596, AB, p 122.

[4]  Counter 591, AB, p 121.

[5]  Counters 815-820, AB, p 147.

[6]  Counter 1186, AB, p 186; and Counter 1211, AB, p 189.

[7]  Counter 1287, AB, p 197.

[8]  Counter 1307, AB, p 199-200

[9]  Counter 1313, AB, p 200; and Counter 1375, AB, p 208.

[10]   Counters 1317 and 1321, AB, p 201.

[11]   Counter 1389, AB, p 210.

[12]   Counters 701-706, AB, p 134.

[13]   Counter 904, AB, p 156.

[14]   Counter 1379, AB, p 209.

[15]   Counter 1405, AB, p 212.

[16]   Counter 1414, AB, p 214.

[17]  Counter 1391, AB, p 210.

[18]   AB, p 304C-J.

[19]   AB, p 365R.

[20]   AB, p 365S.

[21]   AB, p 366E-F.

[22]   AB, p 366F-G.

[23]   AB, pp 418-440.

[24]   AB, p 418, para 1d.

[25]   AB, p 422, para 13a.

[26]   AB, p 429, para 45.

[27]   AB, p 431, para 51f.

[28]   AB, p 431, para 53.

[29]   AB, p 432, para 56.

[30]   AB, p 432, para 57.

[31]   AB, p 432, para 58.

[32]   AB, p 400I-K.

[33]   AB, p 406G-H.

[34]   AB, p 406N-P.

[35]   AB, p 407H.

[36]   AB, p 407F-G.

[37]   AB, p 415, from “omission of thyroxine during the trip…for sale”.

[38]   AB, p 409-417.

[39]   AB, p 407M-P.

[40]   AB, p 407Q-S.

[41]   AB, pp 407S-U and 415.

[42]   AB, pp 254S-255D.

[43]   AB, p 26B-D.

[44]   AB, p 273C-D.

[45]   AB, pp 270Q-271G.

[46]   AB, p 272G.

[47]   AB, p 272J-M.

[48]   AB, p 277B-C.

[49]   AB, p 277F-G.

[50]   AB, p 263K-L.

[51]   AB, p 263G.

[52]   AB, p 264E-G.

[53]   AB, p 330C-D.

[54]   AB, p 330Q.

[55]   AB, p 265N-P.

[56]   AB, p 443D-E.

[57]   AB, p 443F-G.

[58]   AB, p 443J.

[59]   AB, p 443C-E.

[60]   AB, p 447Q-S.

[61]   AB, p 446E.

[62]   AB, p 446J.

[63]   AB, p 376G-Q.

[64]   AB. P 42H-N.

[65]   AB, p 54D-O.

[66]   HCCC 33/2018.

[67]   AB p 243D.

[68]   AB, p 243G.

[69]   AB p 243H-I.

[70]   AB p 243J.

[71]   Affirmation of Krishnan Sundaramoothy, p 4, para 13.

[72]   Affirmation of Nikita Stefanovich, para 45.

[73]   Affirmation of Nikita Stefanovich, para 55.

[74]   Affirmation of Nikita Stefanovich, para 69.

[75]   Affirmation of Nikita Stefanovich, para 81.

[76]   R v Huckerby [2004] EWCA Crim 3251.

[77]   Nguyen Anh Nga v HKSAR (2017) 20 HKCFAR 149.

[78]   HKSAR v Jardin Rodela Maningas (Unrep., CACC 278/2011, 29 May 2012).

[79]   Nguyen Anh Nga, at [62].

[80]   HKSAR v Lo Sze Tung Stephanie (Unrep., CACC 190/2017, 25 July 2018).

[81]   See the Affirmation of Nikita Stefanovich, filed on 18 August 2020, para 80, in which he deposed that the applicant had written to him to say that the applicant’s legal team did not particularly like the statement he (Nikita) had given and would not be using it.  According to para 76, the applicant’s lawyers had earlier seen Nikita in custody at an interview lasting no more than an hour.

[82]   Ibid., at para 72.

[83]   AB, p 269K-L; p 273B-D.

[84]   HKSAR v Apelete (No 1) [2019] 5 HKLRD 574, at [69]-[71].

[85]   Huckerby, at [105].

[86]   AB, p 407E-G.

[87]   AB, p 418, para 1(d).

[88]   AB, p 352E-G.

[89]   At para 24 supra.

[90]   AB, p 54N-P.