HKSAR v. Sysoev Igorevich Iurii
Read the full judgment text of CACC 366/2018 on BabelCite. This Court of Appeal judgment was delivered on 7 October 2022.
1. On 29 November 2018, the appellant was convicted after trial before Deputy High Court Judge Lugar‑Mawson (“the judge”) and a jury of a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced to 26 years’ imprisonment.
Cited by 9 cases · Cites 13 cases
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CACC 366/2018, [2023] HKCA 638 On appeal from [2019] HKCFI 306 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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______________________________________________ REASONS FOR JUDGMENT AND JUDGMENT ______________________________________________ Hon Zervos JA (giving the Reasons for Judgment and Judgment of the Court): 1.On 29 November 2018, the appellant was convicted after trial before Deputy High Court Judge Lugar‑Mawson (“the judge”) and a jury of a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced to 26 years’ imprisonment. 2.The particulars of the count averred that, on 14 December 2016, at Customs Arrival Hall A of Hong Kong International Airport, the appellant 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 appellant filed a notice of application for leave to appeal against conviction and sentence. The hearing of the leave application was inordinately delayed due to the time taken by the legal representatives for the appellant to settle the grounds of appeal and arrange supporting materials. The leave hearing took place on 23 March 2021, with Mr James McGowan representing the appellant. The Single Judge[1] considered the grounds of appeal against conviction and sentence contained in the Amended Perfected Grounds of Appeal dated 8 June 2020. He refused leave to appeal against conviction on the grounds advanced, namely Grounds 1 to 6, but granted leave to appeal against sentence on Grounds 1, 2 and 4, having refused leave on Ground 3. 4.On 13 April 2021, the appellant filed a notice to renew his leave application in respect of the grounds of appeal against conviction and sentence for which the Single Judge had refused leave. 5.Subsequently, the appellant applied to the Court for leave to further amend his Amended Perfected Grounds of Appeal. In the Re-amended Perfected Grounds of Appeal filed on 16 November 2021, the appellant advanced two new grounds of appeal against conviction, namely Grounds 1 and 5, and one new ground of appeal against sentence, namely Ground 3, none of which had been argued before the Single Judge. 6.At the conclusion of the hearing, we refused the appellant leave to appeal against conviction on his renewed and new grounds and dismissed his appeal. We said we would hand down our reasons in due course, which we now do. We reserved our judgment on the appellant’s appeal against sentence, which we now hand down. The prosecution case 7.Much of the prosecution case was not in dispute. The appellant, who had a clear criminal record at the time of the offence, had flown, on 20 November 2016, from St Petersburg in Russia to Dubai in the United Arab Emirates. The following day, he flew from Dubai to São Paulo in Brazil. About three weeks later, on 13 December 2016, the appellant 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. 8.At about 2:05 pm on 14 December 2016, the appellant was intercepted by Customs officers when proceeding through the Green Channel of Customs Arrival Hall A. At the time, he was carrying a shoulder bag and pulling a suitcase, which had been padlocked. Upon request, the appellant unlocked the suitcase for inspection by entering the code on the padlock. 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 contents of the packet were subsequently confirmed by the government chemist to be cocaine, in the quantities particularized in the indictment. The average retail price for the seized cocaine at the time of the offence was $3,124,260. 9.The appellant was arrested and cautioned, and in response to questions from a Customs officer, he said that he did not know what the white powder was in the suitcase. He explained 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. He later gave a post-recorded statement confirming what he said upon arrest. 10.The appellant then agreed to participate in a controlled delivery operation. Between 5:55 pm on 14 December and 9:15 am on 15 December, the 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. 11.After the controlled delivery operation, the appellant 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 appellant stated, amongst other things, the following matters:
12.At the time of the arrest, the appellant had with him US$286, 6,920 Russian roubles (about HK$950) and two mobile telephones, one with the brand name “Prestigo” (“the Prestigo telephone”). Text and voice messages from a person called “Aries Sunflame” were retrieved from the Prestigo telephone. Among the messages retrieved was one from Aries Sunflame on 18 November 2016, stating that the appellant could not deviate or go to random places in Brazil and needed to travel somewhere to receive a suitcase[19]. The defence case 13.The appellant elected to testify in his defence and called his mother (“DW3”) and wife (“DW4”) as defence witnesses. It was the appellant’s position that he had been tricked into believing that he was bringing growth hormones back to Russia[20]. Moreover, his medical condition made him more susceptible to being “fooled” than others[21], affecting his ability to make decisions[22]. A lack of medication at the time may also have affected whether he knew that he had dangerous drugs with him[23]. 14.The appellant 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, the relevance and admissibility of this evidence were the subject of submissions from the parties and a ruling from the judge[24]. The ruling on Dr Wong’s evidence 15.After perusing the appellant’s medical records from Russia, Dr Wong interviewed the appellant in custody. He produced a report dated 28 October 2018[25] (“the 2018 report”), in which he stated that one of the issues he had addressed was “the impact on (the appellant) if he were to cease or not receive any medical treatment for a prolonged period of not less than two weeks”[26]. Referring to the appellant’s Russian medical records, he noted that the appellant had suffered from childhood anxieties, phobias and communication problems[27]. Regarding his mental state in 2016, he commented that the appellant suffered from the combined effect of low thyroid hormone and a Major Depressive Disorder (“MDD”)[28]. However, he was of the view that the appellant’s MDD was of a mild intensity because he was able to function at work and socially[29]. He said it was difficult for him to comment on the appellant’s mental state at the time of the alleged offence. Even so, he expressed the view that the appellant was still of sound mind and could make rational decisions. However, his ability to think effectively and promptly might have been affected by the MDD features of poor concentration and fatigue[30]. 16.Regarding the impact on the appellant of not taking medication for not less than two weeks, Dr Wong conceded that the effect of the omission of thyroxine for such a period was outside his expertise[31]. He further commented that he did not think Phenotropil was an effective drug for treating anxiety disorders or MDD. He considered that it might partially help to alleviate anxiety and depressive disorders and thus lessen the intensity of symptoms such as poor concentration and fatigue[32]. He assessed that the appellant was currently free from mental symptoms[33]. 17.Referring to Dr Wong’s report and the submissions of the appellant’s trial counsel, the judge considered that the appellant’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 appellant’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[34]. He considered that depression, whether mild or otherwise, was within the ordinary person’s experience, and the jury did not need Dr Wong’s assistance to understand and evaluate its effects[35]. He also considered it was impermissible for Dr Wong or Dr Chan to give their opinions as to whether the appellant’s claimed failure to take thyroxine before the alleged offence would have negated a finding of an intention on his part to commit the offence alleged[36]. 18.Accordingly, the judge ruled that Dr Wong’s evidence was irrelevant and inadmissible[37]. He added that he found it surprising that the defence would wish to place Dr Wong’s evidence before the jury when he was of the opinion that the appellant still possessed a sound mind and could make rational decisions[38]. The ruling on Dr Chan’s evidence 19.The judge ruled that part of the conclusion[39] in Dr Chan’s report, dated 1 November 2018[40], concerning the appellant’s reported claim to him that “he also omitted thyroxine hormones for several days” could not be given in evidence[41]. He further ruled that Dr Chan could not comment on the effect that depression, however caused, had or may have had on the appellant[42]. Evidence regarding the appellant’s medical history concerning his thyroid gland could be led without mentioning the appellant’s claim about changing his dosage of thyroxine and the prescription of Phenotropil in 2016[43]. Ultimately, Dr Chan gave live evidence, but his report was not adduced before the jury. The appellant’s evidence 20.The appellant (DW1 at trial) 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 June 2016, one of his friends called “Yuri”, suggested bringing growth hormones to Russia. Yuri and the appellant researched on the Internet and found that growth hormones were not prohibited substances when imported into Russia. Later, the appellant, Yuri and three other persons, including “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 another country to bring them back to Russia. The appellant understood that others had also regularly travelled between Russia and Brazil. Ernest mentioned to the appellant that the trip usually took about two weeks, one week in Brazil and another somewhere in Asia. The appellant learned from Yuri that he would be paid the sum of 50,000 Russian roubles for the trip[44]. 21.In November 2016, Ernest told the appellant that someone was required to travel and that the nickname of the coordinator of the trip was Aries Sunflame. The appellant initially declined but subsequently accepted the opportunity to travel. As far as he understood, he would receive spending money throughout the trip and 50,000 Russian roubles after returning to Russia. As instructed by Aries, the appellant opened a new bank account and acquired a bank card specifically for the trip. He then 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. 22.As he had been told, the appellant met Nikita on the flight to São Paulo. After arriving in Brazil, the appellant and Nikita spent a week in São Paulo and another town called Santos. On 28 November 2016, Aries instructed them in a voice message to travel to the town of Campo Grande in Brazil and check into a hotel. They travelled to Campo Grande by bus. On 1 December, they were instructed to go to another hotel where they each received a suitcase[45]. However, the appellant was surprised that the suitcase had a padlock and only contained a rolled blanket. He also became concerned when he discovered no growth hormones in the suitcase and the zip of the inside lining had been glued. He discussed his concerns with Nikita as the suitcase seemed heavy to him. Nikita told him not to worry and that it was okay. He said that from that moment, he became suspicious of Nikita[46]. At the time, Aries told the appellant in a voice message to put his belongings into the suitcase in a voice message. He thought there was something illegal in the suitcase, “drugs, weapons, medicine, anything”[47]. 23.The appellant and Nikita stayed in Campo Grande for a week before returning to São Paulo by aeroplane[48]. Upon their return, the appellant attended the Russian Consulate in São Paulo, accompanied by Nikita. Initially, he intended to ask the Consulate for advice about the suitcase[49]. However, he ended up merely making enquiries about his passport since Nikita was standing next to him throughout his time there[50]. 24.Whilst waiting for his transit flight from Addis Ababa to Hong Kong, the appellant became very worried[51]. Since there was no WiFi inside the airport, he could not connect to the Internet to buy a return ticket to Russia, nor could he abandon the suitcase, which had been checked through from São Paulo. At the time, he felt very confused about what he should do[52]. 25.As for his medical condition, the appellant explained that he had had an operation to remove his thyroid gland in 2014[53]. Since then, he had been taking thyroxine, a thyroid hormone daily[54]. To deal with his depression, increase his concentration, and improve his energy levels and brain function, he had also been prescribed Phenotropil by a doctor in Russia[55]. The appellant said that throughout his entire time in Brazil, he did not run out of thyroxine[56]. He had only failed to take thyroxine for a couple of days in Campo Grande, and another in Santos[57]. He ran out of Phenotropil sometime during the second week in Brazil[58]. The evidence of Dr Chan 26.The evidence of Dr Chan (DW2 at trial) consisted of his oral testimony only. He confirmed that the appellant had undergone a thyroidectomy in 2014. He explained that a person with his thyroid gland removed would suffer from permanent hypothyroidism because of a shortage of thyroid hormone[59]. A sufferer would experience slowness of thought and speech processing, and decreased attentiveness and apathy[60]; memory, psychomotor and executive functioning would also be affected, resulting in the sufferer sometimes being unable to do what he wanted to do[61]. The long-term replacement of the thyroid hormone, thyroxine, was necessary to keep the thyroid level normal and deal with hypothyroidism symptoms[62]. 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[63]. 27.Regarding the drug Phenotropil, Dr Chan was told by the appellant that the medication was prescribed by a doctor in Russia in 2016 to deal with his depression and negative ideation. Phenotropil was a psycho‑stimulant only available in Russia as a prescription medicine until April 2017. It was not approved and hence unavailable in Hong Kong. Dr Chan testified that he could only speak about Phenotropil from what he had gleaned from the literature[64]. Other than the appellant, he had never had a patient who had taken such a drug[65]. 28.In addressing Dr Chan’s evidence to the jury, the judge first explained to them the nature of expert evidence and how it was permitted for someone like Dr Chan to express an opinion, emphasising that this evidence should be considered together with all the other evidence before them. He further explained that Dr Chan’s evidence was to assist them[66]:
29.He went on to tell the jury[67]:
30.He reminded the jury that Dr Chan could only tell them about the effects of thyrotoxicosis and the need to take thyroxine following a thyroidectomy and that he could not give evidence on whether the appellant failed to take thyroxine whilst he was in Brazil and if he had, the effect it had on him[68]. The mitigation 31.In mitigation, defence counsel invited the judge to take into account by way of specific discount the appellant’s co-operation, 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[69]. The reasons for sentence 32.The judge noted that the appellant had co-operated with Customs officers[70]. He adopted a starting point of 24 years and 5 months’ imprisonment for the quantity of cocaine concerned[71], which he enhanced by 2 years for the international element[72]. Concerning his assistance leading to Nikita’s arrest, the judge gave a discount of 5 months from the enhanced starting point[73], resulting in a sentence of 26 years’ imprisonment. No mention of the appellant’s participation in the controlled delivery operation was made, either by defence counsel in mitigation or by the judge in sentencing. The grounds of appeal 33.Regarding the renewal for leave to appeal against conviction, Mr McGowan advances six grounds of appeal. Grounds 1 and 5 are new grounds which were not argued before the Single Judge. 34.Ground 1 relies on the evidence of Ms Ekaterina Woodham-Mostovaya (“Ms Woodham-Mostovaya”), a registered court interpreter for the Russian and English languages of some 16 years standing, for which leave to adduce fresh evidence is sought, and alleges that some crucial parts of the appellant’s evidence at trial were either mistranslated or non-translated, giving rise to at least a reasonable doubt as to the safety of the appellant’s conviction. 35.Ground 2, which had been argued before the Single Judge as Ground 3, relies on a further expert report by Dr Wong dated 29 December 2021 (the 2021 Report) for which leave to adduce fresh evidence is sought, and alleges that the judge wrongly ruled the expert evidence of Dr Wong to be inadmissible. 36.Ground 3, which had been argued before the Single Judge as Ground 4, complains that prosecuting counsel at trial had unfairly criticised the defence for not calling psychiatric evidence in his defence. 37.Ground 4, which had been argued before the Single Judge as Ground 5, avers that the judge failed to direct the jury as to the relevance of Dr Chan’s evidence; namely, that the appellant was not able to do what he thought he should have done, or to explain why he did not do more after suspecting that drugs might be involved. 38.Ground 5 avers that the evidence of Nikita, whose full name is Nikita Stefanovich, Dr Wong’s 2021 Report, the expert report by Dr Brian Tomlinson in respect of the drug “Phenotropil” and the evidence of Ms Woodham-Mostovaya, for all of which leave to adduce fresh evidence is sought, demonstrate that the appellant’s conviction is unsafe and unsatisfactory. 39.Ground 6 is a general ground that complains that the conviction is “manifestly excessive and/or wrong in principle” as a result of the above grounds. Obviously this is a mistake as this is the general ground of appeal commonly raised when appealing sentence. 40.As to the appeal against sentence, Mr McGowan advances three grounds of appeal, in respect of which only Grounds 1 and 2 have been granted leave. 41.Ground 1 alleges that the appellant received no credit for participating in a successful controlled delivery operation, in which the person who eventually came to collect the suitcase from the hotel was arrested. 42.Ground 2 complains that the appellant 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. 43.Ground 3, which had not been argued before the Single Judge, avers that the evidence from a statement of Mr Rinchen Rakshaev (“Mr Rakshaev”), Deputy Russian Consul-General Hong Kong and Macau, for which leave to adduce fresh evidence is sought, demonstrates that the appellant should receive post-sentencing credit for the assistance he rendered to the Russian law enforcement agency and the wide publicity his case had received in Russia. The applications to adduce fresh evidence 44.By way of a notice of motion and affirmation in support[74], filed on 31 December 2021, the appellant applies for leave to adduce the fresh evidence in his appeal under s.83V of the Criminal Procedure Ordinance, Cap 221:
45.We will comment about the unsatisfactory nature of this application to adduce fresh evidence later in the judgment. No adequate explanation is given as to why some of this proposed evidence was not adduced at trial and the material essentially seeks to retry or reargue the appellant’s case at trial. The reports of Dr Wong and Dr Tomlinson refer to each other and to materials that were not adduced at trial, some of which are questionable, such as Nikita’s affirmation. Evidence of Ms Ekaterina Woodham-Mostovaya 46.In his affirmation in support of the application, the solicitor representing the appellant in the present application has stated that the appellant had raised a complaint about the interpretation by the court interpreter at trial at an early stage in the appeal process. The solicitor was told by a provider of transcription services in Hong Kong that there was nothing wrong with the overall accuracy of the translation[75]. Therefore, the issue of translation at trial was not pursued at the leave hearing before the Single Judge. However, after reading the Single Judge’s judgment refusing leave to appeal against conviction, the appellant pursued his previous complaint to the solicitor. As a result, the appellant instructed Ms Woodham-Mostovaya to verify the Russian-English interpretation at trial formally[76]. 47.In her affirmation, Ms Woodham-Mostovaya deposed that she has been on the list of Judiciary part-time interpreters in Hong Kong since 2005. She has attended criminal trials at all levels of courts in Hong Kong and acted as an interpreter in various capacities. She said that she had been retained as a court interpreter for criminal hearings in the Court of Appeal and, on other occasions, by appellants to assist in appeals where the accuracy of a transcript as being a true record had been questioned. Hong Kong courts had accepted her as an expert translator/interpreter of the Russian language[77]. 48.Ms Woodham-Mostovaya was provided with a copy of the transcript and the audio-recording of the appellant’s evidence at trial to check the accuracy of the translation by the court interpreter. She identified some 63 mistranslations[78] or non-translations present when the court interpreter translated the counsel’s questions in English to Russian for the appellant or translated the appellant’s answer from Russian to English[79]. In her opinion the questions and answers were generally competently translated but there were several errors. The appellant submitted that whilst some of these errors can be considered to be of a minor nature, others represented a serious divergence from what had actually been said between the court interpreter and the appellant[80]. Evidence of Nikita Stefanovich 49.In his affirmation in support of his first application to adduce fresh evidence, the solicitor representing the appellant stated that both the solicitor and counsel assigned to represent the appellant at trial had advised the appellant against calling Nikita at the appellant’s trial since Nikita had pleaded guilty to a similar offence and his evidence would not benefit the appellant[81]. 50.In his affirmation, Nikita had deposed that when he and the appellant were in Campo Grande and had collected the suitcase, the appellant started complaining about his health and said he was running out of some kind of medicine[82]. They had tried to find the medicine in Campo Grande but in vain[83]. After he and the appellant had collected their respective suitcases in Campo Grande and returned to São Paulo to await their onward flight from Brazil, he had reassured the appellant that everything was all right and that there was no need to worry to discourage the appellant from doing anything that would prejudice them getting back to Russia as soon as possible[84]. Nikita and the appellant continued looking for the medicines in São Paulo but encountered difficulties[85]. Nikita noticed the appellant had trouble making decisions, even in respect of the appellant’s own daily life[86]. Nikita claimed that he did not know the suitcase contained dangerous drug before and during the trip to Brazil[87]. Aries told him for the first time that his suitcase contained dangerous drugs while waiting in transit in Addis Ababa for his connecting flight to Hong Kong[88]. Finally, Nikita claimed that having spent three weeks in Brazil with the appellant, he could say that the appellant was very concerned about what was happening to them, and he was sure that the appellant (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[89]. 51.We should point out that Nikita’s account is significantly at variance with the appellant’s evidence that Nikita was the eyes and ears of the organisers. Nikita was in control of the trip: he provided funds to the appellant, kept a watchful eye on the appellant, and told the appellant not to worry when he realized they were not transporting growth hormones. The appellant found Nikita’s presence disturbing and did not trust him. Expert report of Dr Wong Yee Him 52.Dr Wong’s report dated 29 December 2021 (the 2021 report) is a revised version of his report dated 29 October 2018 (the 2018 report), which was ruled inadmissible at trial[90]. The report was said to have incorporated the entire content of the 2018 report with the inclusion of additional findings and opinions based on additional documents to those in the 2018 report. These additional documents included, amongst other things, a transcript of evidence of the appellant, DW3 and DW4 at trial, Dr Chan’s medical report and the transcript of his evidence at trial, product information on Phenotropil and the Discharge summary of the appellant issued by St Petersburg State Budget Healthcare Institution Psychoneurological Centre dated 17 June 2015, and a psychiatrist opinion signed by Dr Oleg Vasilyevich Ivanov and issued by St Petersburg State Budget Healthcare Institution Psychoneurological Centre No 2 dated 5 November 2016 and the expert report of Dr Tomlinson dated 7 November 2021. 53.Dr Wong maintained his psychiatric diagnosis of the appellant, as in the 2018 report, that the appellant suffered from MDD, a single episode, mild in the months preceding his arrival in Hong Kong in 2016[91]. He further said that MDD is a well-known mental illness, and the affected person suffers from a set of depressive features as listed out in the DSM-5 diagnostic criteria and functional impairment. The condition did not fall within the experience of the ordinary person[92], and it was not the same as the “depression” that ordinary people referred to colloquially[93]. 54.In the 2021 report, Dr Wong remarked that while it was difficult for him to comment with certainty on the appellant’s mental state at the time of the alleged offence, unlike in his 2018 report, the appellant’s ability to think effectively and to make prompt rational decisions might have been affected by the MDD features, particularly impaired concentration and fatigue[94]. 55.Dr Wong conceded that he did not have knowledge about Phenotropil’s antidepressant effects and had never prescribed the drug before he wrote the 2021 report. He further said that even after reading the expert report by Dr Tomlinson regarding Phenotropil, he could not comment on the effect of stopping the Phenotropil on the appellant’s mental state[95]. However, he was of the view that it might have an impact of worsening the appellant’s concentration and mental focus[96]. Expert report of Dr Brian Tomlinson 56.Dr Tomlinson is a professor in the Faculty of Medicine at Macau University of Science and Technology. He said he was a specialist in adult internal medicine, clinical pharmacology and clinical toxicology. In his report dated 7 November 2021, he set out information about Phenotropil, seemingly based on the product insert provided by the appellant’s mother[97]. He stated that on the limited information available to him, he would conclude that Phenotropil has some effect on the brain and may help improve memory, cognitive function and mood disorder, especially in someone with a defect in these functions. The drug was likely to affect mood disorders such as anxiety or depression. While there was no evidence from the available literature that stopping the medication would produce a harmful effect such as withdrawal or rebound phenomenon, any beneficial effect of the medication on a person’s cognitive function and mood was likely to wear off fairly quickly within a few days after stopping the medication, and the person would likely return to the psychological or psychiatric state they were in before treatment[98]. Dr Tomlinson further commented that the appellant’s not taking Phenotropil could result in a decline in his mental capacity and judgement and may have contributed to his making inappropriate decisions regarding his activities[99]. Letter of Mr Rinchen Rakshaev 57.Mr Rakshaev is the Deputy Consul General of the Russian Federation in Hong Kong. In his letter dated 21 December 2021, he stated that through the effort of the appellant’s parents, the appellant’s story had attracted widespread media coverage in Russia. He considered that such publicity could significantly contribute to the reduction of a number of people becoming involved in the drug trade. 58.Mr Rakshaev further stated that the Russian government had repeatedly received allegations by the appellant and his family against persons who may have enticed him into drug trafficking. However, the information regarding the possible involvement of those persons in illicit drug trafficking in Russia had not been objectively confirmed. Appeal against conviction Ground 1 59.Of the alleged translation errors at trial identified by Ms Woodham-Mostovaya, Mr McGowan argued that while other translation errors cumulatively could have given the impression to the jury that the appellant was unresponsive, inconsistent or evasive, resulting in the jury making an adverse finding against him, the following three mistranslated or non-translated answers of the appellant’s evidence were of fundamental importance and weight, rendering the trial unfair and the conviction unsafe and/or unsatisfactory:
60.Mr Lau, on behalf of the respondent, highlighted that Ms Woodham-Mostovaya, in her affirmation, said that “generally the questions and answers … were competently interpreted”[103]. He argued that most of the mistranslations and the non-translations identified were trivial in nature and of little, or no significance. 61.Of Errors 1 and 3, Mr Lau contended that the alleged differences in translation were immaterial in the overall context and circumstances of the case and could not have given rise to any misunderstanding of the appellant’s case that he did not know but only suspected the suitcase contained drugs. He also relied on the observations of the Court of Appeal in HKSAR v Yim Shek Wo[104], to submit that leave ought not to be given to the appellant to advance this ground because of a delay of almost three years in raising this new ground and that it was not reasonably arguable. 62.On this ground, it is alleged that the interpreter at trial failed to properly interpret certain questions and answers of the appellant’s evidence. The appellant seeks to adduce as fresh evidence the affirmation of Ms Woodham-Mostovaya, who has examined an audio-recording of the appellant’s evidence and has given some of the appellant’s answers a different English interpretation. Notwithstanding, that the questioned interpretations may be the subject of debate, the respondent did not object to Ms Woodham-Mostovaya’s affirmation being considered on a de bene esse basis. However, the respondent submitted that the affirmation should not be received as it would not afford any ground for allowing the appeal, as provided by s.83V(2) of the Criminal Procedure Ordinance. 63.We note at the outset that there was no apparent concern about the quality of the interpretation at the trial because no complaint was made at the time, and the matters now raised are a result of a thorough examination of the audio-recording of the appellant’s evidence to identify any possible difference in interpretation. Significantly, the appellant’s own interpreter confirmed that overall the questions and answers were competently interpreted, even though she identified the errors in question[105]. 64.Bearing in mind the length and detail of the appellant’s evidence, we are of the view that the court interpreter was, on the whole, accurate and thorough in her translations when compared to Ms Woodham-Mostovaya’s painstaking examination of the interpretation of the appellant’s evidence after the event. As we stated, interpretation during a trial is a spontaneous process which allows the interpreter minimal opportunity for reflection to interpret what is being said from one language to another. As a matter of practical common sense, perfection is an unattainable standard and a degree of leeway is allowed as a matter of necessity but not to the extent that would deprive the accused of a fair trial: HKSAR v Saeed Ur Rehman[106]. 65.Whether a mistranslation had led to any unfairness in a trial will necessarily depend on the nature and context of the mistranslation and its importance to the issues in the particular case: HKSAR v Chan Ka Chun[107]. In assessing a complaint about the quality of the interpretation at trial, an appellate court would have regard to the content and context of the questioned interpretations and the overall circumstances of the trial. The appellant must show that due to the questioned interpretation, there was a real risk he did not receive a fair trial: HKSAR v Gutierrez[108]. 66.The general complaint that the translation errors identified by Ms Woodham-Mostovaya could have given an adverse impression to the jury of the appellant’s answers is without substance. The main focus of Mr McGowan’s complaint on this ground concerns the translation of the appellant’s answers, which have been identified as Errors 1 and 3. Error 2 is of minor consequence and can be readily dismissed in light of the appellant’s complete answer and other questions and answers on this matter, including the appellant’s messages with Aries. By Error 1, it is complained that in response to the question of what he considered was in the suitcase, and the appellant said that he “supposed” there was something illegal in the suitcase, whereas it was translated that he “expected” there was something illegal in the suitcase. By Error 3, it is complained that in response to the question of why did he at the airport check in the suitcase which he thought might contain dangerous drugs, the appellant said, “I did not believe, I suppose there might be something illegal in there.”. In contrast, it was translated “I did not believe that the drugs were there. I expected them to be there.” 67.We should point out that these parts of the appellant’s answers need to be considered in the context of the complete answer given by the appellant as well as the overall context of the relevant evidence, particularly the appellant’s evidence as to what he believed was contained in the suitcase and what he consequently did because he was concerned about the suitcase’s contents. 68.We will address this issue by first providing an overview of the case against the appellant, including his account of his involvement in this offence and what he understood was taking place. We will then examine the relevant passages of the appellant’s testimony to put the two alleged errors in their proper context. 69.The appellant testified that he was to transport a quantity of growth hormones from Brazil to Russia, but arrangements were made to return to Russia via a transit flight from Hong Kong. However, once in Brazil his messages with Aries, the trip organiser, did not mention growth hormones[109]. He said he became concerned when he was given an empty suitcase, which was heavy. He considered that what was contained in the suitcase “clearly it could be something illegal”[110], which could have been “drugs or medicine or weapons”[111]. He did not trust Nikita, and he believed he was being watched. He claimed he did not ask Aries why there were no growth hormones because he was afraid[112]. He also claimed he visited the office of the Russian consulate in Brazil in an effort to alert the authorities of his concerns about the contents of the suitcase but he did not do so because of Nikita’s presence. 70.It was arranged for the appellant and Nikita to travel from Brazil to Hong Kong to deliver the suitcase each was given. The appellant left first, whilst Nikita was to go three days later. Throughout his journey, the appellant exchanged messages with Aries. The appellant was challenged that if he was so concerned about the suitcase’s contents, which may have been drugs, why did he not do something about it. He said that he could not buy a return ticket to Russia at the stopover in Addis Ababa because there was no WiFi[113]. On his arrival in Hong Kong, he immediately contacted Aries and kept informing him about the progress he was making in collecting the suitcase[114]. He was also messaging Nikita and told him how “cool” it was to travel business class[115]. The appellant messaged Aries, “I have not received the luggage yet. I have just left the plane.” Aries responded with the following voice message, “That is it. So, well, I wish you good luck in passing all the controls carrying the luggage. Eeh, eeh, if there are any issues, please write immediately. I will deal with them.” Aries also instructed the appellant to find a hotel in the district of Tsim Sha Tsui, mentioning several hotels to him[116]. When the appellant was asked why he did not discard the suitcase or contact the authorities at Hong Kong airport if he was concerned about its contents as he claimed, he said he was not acting logically at the time as he had not taken his medication[117]. 71.We turn now to consider the appellant’s evidence and to examine the two errors in question. 72.The appellant testified that when he was given the suitcase he opened it and found inside “a small packet with a padlock” and “a rolled blanket”. He said he was “very surprised”. He found nothing that looked like a growth hormone[118]. He said[119]:
73.The appellant said the suitcase seemed “heavy”[120] and he discussed his concerns with Nikita[121]:
74.The appellant was asked if he had reconsidered his position about the suitcase. He said[122]:
75.Immediately after this answer, prosecuting counsel questioned the appellant about his concern of the contents of the suitcase and this is where Error 1 allegedly occurred [123]:
76.Even accepting there was a mistranslation, the discrepancy of whether he “expected” or “supposed” there was something illegal in the suitcase is not a matter of material significance. It is apparent from this part of the appellant’s testimony and the evidence overall that he thought there was something illegal in the suitcase, so the discrepancy in this answer is not a material irregularity. Furthermore, the appellant in his answer stated that the suitcases’ contents “clearly” could be something illegal. At this stage of his evidence, he said that the contents of the suitcase could be drugs. He had testified that he was concerned about the suitcase, he wanted to discard the suitcase and return to Russia without it, and he was very afraid. 77.The appellant, in his evidence, explained how he was concerned about the suitcase and that he would get rid of it and board his flight without it as he was taking a separate flight from Nikita. He claimed that because of his passport they had to buy another air ticket for him which was a transit flight from Hong Kong to Russia.
78.The appellant explained that he did not notify the Brazilian authorities about the suitcase because he did not trust them. He also explained that he was planning to abandon the suitcase in Addis Ababa but he had no WiFi to arrange a flight back to Russia. He stated that he was concerned and worried about the suitcase and was very afraid because it could have contained “drugs or medicine or weapons.”
79.In cross-examination, the appellant was questioned about his concerns that he was smuggling something illegal, to which he agreed “maybe drugs, maybe weapons, maybe medication”. At one stage, he said he thought it might be drugs because drugs were one of the illegal things[127]:
80.The appellant was cross-examined as to why he did not abandon the suitcase if he was so concerned about it, given he accepted it could have contained dangerous drugs. It was in the following passage of the appellant’s evidence that Error 3 allegedly occurred:
81.We have set out in detail the relevant parts of the appellant’s evidence because they show that the defence case was that the appellant suspected he was transporting drugs and that he tried to contact authorities about his concern (at the Russian Consulate in São Paulo) and thought about buying a return ticket to Russia to leave the flight to Hong Kong (in transit at Addis Ababa). He thought about discarding the suitcase, but he realized he was being watched and had to check it in. 82.It was a central theme of the defence case that the appellant realized he was not transporting growth hormones but something illegal, which he said might be drugs. The appellant’s claimed attempts to dissociate himself from the suitcase were consistent with his defence that he was duped into transporting drugs but could not extricate himself from the arrangement to act as a courier. 83.With this background in mind and an overall appreciation of the case against the appellant and his defence, the alleged mistranslation in Error 3 was not material. The appellant was asked why he checked in the suitcase at São Paulo airport if he thought it might contain dangerous drugs. The court interpreter translated his answer that he “did not believe that the drugs were there” and he “expected them to be there”. It is alleged that the correct translation should be that he “did not believe” and “supposed there might be something illegal in there”. Importantly, the court interpreter translated his answer that he did not believe that drugs were there. Whether he “expected” or “supposed” that drugs were there is not a matter of significance in light of his testimony that the contents of the suitcase could have been drugs. Immediately after his answer to this question, it was put to the appellant that he was a knowing and willing party to trafficking in dangerous drugs all along, to which he said, “I absolutely disagree with this.” The jury would have had no doubt that that was the issue they had to consider given the defence case. 84.The appellant’s case was that he suspected that the suitcase might contain drugs or other illegal items. The appellant said on several occasions that the item in the suitcase “clearly could be something illegal”[129] and that it “could have been drugs”[130]. The appellant’s trial counsel did not re-examine him on the translated answer as it would appear that the overall effect of the appellant’s evidence was that he suspected that there might be something illegal, which might be drugs, hidden in the suitcase but he did not know that drugs were there. This was how the case was addressed by the parties and indeed by the judge in his summing-up to the jury[131]. The judge reminded the jury that mere suspicion was not enough on which to convict the appellant and that they had to be satisfied that he knew that there were drugs in the suitcase which he knowingly smuggled into Hong Kong [132]. 85.The complaint about the alleged mistranslations was raised by the appellant almost 3 years after his conviction and in our view is not reasonably arguable when the alleged mistranslations are considered in the context of the appellant’s evidence as a whole. 86.In our view, there was a strong case against the appellant. For a period of some two weeks, from 1 to 14 December 2016, he had possession and control of the suitcase containing the dangerous drugs. It was therefore not a situation where a person was taken by surprise of a matter and given short notice to do something about it. Notwithstanding that he claimed he was very concerned about the suitcase’s contents and tried to abandon it during this protracted period, he did not bring the matter to the attention of the authorities when he entered Hong Kong. 87.This ground of appeal fails. Ground 2 88.Mr McGowan argued that the appellant’s diagnosed medical condition was not just depression which ordinary people understand. It was “Major Depressive Disorder, albeit single episode, mild” for which the jury would require assistance. Therefore, as a matter of evidential principle, Dr Wong’s 2018 report was admissible because it went further than dealing with mere depression. Mr McGowan reiterated his argument at the leave hearing that the combined effect of MDD, the abnormalities arising from the appellant’s 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 appellant, and whether he was a knowing and willing participant since the events in Campo Grande. Mr McGowan submitted that the appellant was in a situation akin to the appellant in R v Huckerby[133], and the jury would equally have been assisted by Dr Wong’s and Dr Chan’s expert opinions, as relevant evidence of an affliction outside what is normally experienced by people. It was submitted that the appellant was not an ordinary person, but rather one about whom the jury could not draw on their everyday life experience. Accordingly, the judge should not have ruled Dr Wong’s 2018 report to be inadmissible. It is contended that the judge’s ruling rendered the conviction unsafe and unsatisfactory. 89.Mr Lau submitted that evidence from Dr Wong was simply irrelevant to the issues in the present case, as Dr Wong’s opinion did not suggest that the appellant was incapable of forming the requisite intention and knowledge to commit the present offence. The fact that the appellant demonstrated a clear capacity to exercise his own free will in maintaining his right of silence when interviewed by the authorities the day after the arrest, having already run out of Phenotropil for more than 2 weeks, further strengthened the judge’s conclusion that the appellant was nowhere near a person incapacitated in making his own decision owing to some psychiatric abnormality which may be outside the experience and knowledge of the jury. It was submitted that the judge rightly ruled that the evidence of Dr Wong was inadmissible. 90.Mr Lau submitted that the appellant’s application for leave to adduce Dr Wong’s 2021 report and Dr Tomlinson’s report as fresh evidence should be rejected because it would not have been admissible at the trial. Furthermore, there was no reasonable explanation from the appellant for his failure to ask Dr Wong to prepare a revised report after the judge had ruled his 2018 report inadmissible. 91.Mr Lau further argued that even if the two reports had been placed before the jury, they would not have been affected the verdict of the jury. 92.We agree with the respondent’s submissions regarding this ground of appeal. As already pointed out, Dr Wong’s opinion did not suggest that the appellant was incapable of forming the requisite intention and knowledge to commit the present offence. He qualified his opinion that it would be difficult for him to comment on the appellant’s mental state at the time of the offence. He said the appellant was likely to be only suffering from a mild form of MDD at the time and he expressed the view that while the appellant might be affected by poor concentration and fatigue, he “should still possess a sound mind and could make rational decisions.”[134] That was clearly evident from the appellant’s evidence in which he described in detail how he was concerned about being involved in something illegal and how he tried to extricate himself from continuing with the delivery of the suitcase. He displayed a complete command of his mental facilities and was fully aware of what was going on and the consequences of his actions. The issue for the jury was whether or not they believed him. 93.Dr Wong in his revised report essentially held the same opinion in his 2018 report and acknowledged it was difficult for him to comment with certainty on the appellant’s mental state at the time of offence. While he expressed the view that the appellant would have suffered from “poor concentration”, “impaired mental focus” and “fatigue” which might affect his ability to make “prompt” rational decisions, he nevertheless reconfirmed that he was of sound mind and could make rational decisions[135]. The appellant’s evidence was that he was plainly aware of his situation and concerned that he was involved in something illegal. 94.Dr Tomlinson provided an opinion about the pharmacological, physiological and psychological properties of Phenotropil but it was based on limited information and experience of this drug. His report did not seem to provide anything additional to what had been expressed by Dr Chan. He was of the opinion that the appellant “would revert back towards the psychological condition he was in prior to starting the medication” after stopping Phenotropil without identifying what that psychological condition would have been. He commented that it could result in a decline in his mental capacity and judgement but his opinion was limited because he was relatively unfamiliar with this drug. 95.Where the Court of Appeal considers it necessary or expedient in the interests of justice, it may take further or new evidence on appeal (s.83V(1)). The Court shall not receive fresh evidence if it is satisfied that it would not afford any ground of appeal, but otherwise shall receive it if:
The principal consideration as to whether to admit fresh evidence because it is necessary or expedient in the interests of justice means that if the Court has an overriding concern that a miscarriage of justice has taken place then the fresh evidence should be admitted. 96.In R v Chatto [136], the English Court of Appeal held that in deciding whether to receive fresh expert evidence under the equivalent of s.83V, save in exceptional circumstances, the Court will not permit an appellant to mount on appeal an expert case that was or could have been advanced at trial. 97.The report of Dr Tomlinson is essentially a repeat of the expert case mounted at trial through Dr Chan and does not further advance the appellant’s case. Dr Wong’s 2018 report was ruled inadmissible and the 2021 report basically represents a repeat of the expert case sought to be adduced at trial. No valid justification has been advanced by the appellant to admit the reports into evidence, and in our view, they do not provide any basis to doubt or overturn the appellant’s conviction. 98.We do not find this ground reasonably arguable and would not admit as fresh evidence Dr Wong’s 2021 report or Dr Tomlinson’s report. 99.This ground of appeal fails. Ground 3 100.It was 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 appellant was normal and had called no psychiatrist to give evidence on his behalf. It was submitted that such a suggestion was misleading and unfair in all the circumstances. 101.Mr Lau submitted that prosecuting counsel’s remark that the appellant “called no psychiatric evidence”[137] was no more than stating an obvious and indisputable fact which, in context, was only aimed to highlight to the jury that the suggestion that the appellant might have had a psychiatric problem only came from the evidence of the appellant’s mother, who was unable to describe with any certainty what the appellant's problem was. The comment was in no way unfair to the appellant, who made no complaint about it at the trial. Mr Lau contended that the ground is plainly unarguable. 102.We agree with Mr Lau’s submission on this ground and find no substance in this complaint. 103.This ground of appeal is devoid of merit. Ground 4 104.Mr McGowan repeated his argument made at the leave hearing that the prosecution attacked the appellant’s failure to act on his suspicions when he received the suitcase. He complains that the judge, in his summing-up, should not merely have reminded the jury of what Dr Chan had said but should also have related it to the appellant’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 appellant had not called any psychiatrist on his behalf. 105.Mr Lau submitted that the suggested further direction, which had not been requested by the appellant at trial, was unnecessary in the circumstances. As summarized by the judge in his summing-up, Dr Chan’s opinion was that the loss of “executive function” due to the medical condition meant that “you want to do something, but you cannot”. It could not be reasonably argued that the jury had failed to properly consider the appellant's evidence in light of Dr Chan’s opinion, given the detailed and accurate summary of Dr Chan’s evidence as provided by the judge. 106.We agree with the respondent’s submission. In our view, the suggested further direction was unnecessary when considering the judge’s comprehensive summary of Dr Chan’s evidence and his summing-up as a whole. The relevance of, and reliance on, Dr Chan’s evidence by the appellant was self-evident and did not require any further elaboration by the judge. We have already described Dr Chan’s evidence in detail and how the judge explained his evidence to the jury. 107.We find no merit in this ground of appeal. Ground 5 108.Mr McGowan submitted that Nikita’s proposed evidence, considered as a whole, raised at least a reasonable doubt as to whether the appellant had the requisite knowledge that he was carrying dangerous drugs in the suitcase. Nikita’s evidence supported the appellant’s testimony, and it would also help to fill the lacuna as to what medication the appellant took or failed to take and how that failure had affected his behaviour. Mr McGowan further submitted that Nikita’s observations of the appellant’s behaviour coincide with Dr Chan’s evidence about the effect of incorrect or unbalanced dosage of thyroxine, Dr Wong’s evidence about the appellant’s behaviour and ability to function, and Dr Tomlinson’s evidence about the consequence of a sudden cessation of Phenotropil. Relying on Huckerby, he argued that all the evidence sought to be admitted, which could have been called at trial, should be admitted in the overall interests of justice. 109.Mr Lau objected to the appellant’s application to adduce the set of materials as fresh evidence on appeal pursuant to s.83V. In respect of the affirmation of Nikita, he submitted that the account given by Nikita is not likely to be credible and does not tend to assist the appellant’s case. Further, the evidence of Nikita was available at the time of the trial, but the appellant’s legal team had made a tactical decision not to call Nikita as a defence witness. There is no reasonable explanation for the failure to adduce Nikita’s evidence at the trial, and the appellant should not be given ‘a second bite of the cherry’ on appeal. 110.Regarding Dr Wong’s 2021 report, Dr Tomlinson’s report and Ms Woodham-Mostovaya’s evidence, Mr Lau submitted that the grounds which draw support from this fresh evidence are themselves not reasonably arguable. The evidence should not be admitted as fresh evidence at the appeal. 111.As none of the grounds advanced by the appellant in his renewed application is reasonably arguable, Mr Lau contended that it should be dismissed. 112.We have already addressed the fresh evidence of Ms Woodham-Mostovaya, Dr Wong and Dr Tomlinson, which we refuse to receive. We also come to the same view with the affirmation of Nikita. His account of the events surrounding this offence lacks credibility. He pleaded guilty to the offence of trafficking in dangerous drugs, after he initially claimed he did not know there were dangerous drugs inside the suitcase. In the agreed summary of facts, he admitted and accepted that at all material times he knew that dangerous drugs were concealed inside his suitcase and that he had unlawfully trafficked in them[138]. His claim that it did not cross his mind that the contents of the suitcases might be drugs is also contradicted by the appellant, who stated that he had discussed his concerns about the contents with Nikita. Furthermore, the appellant stated that Nikita was the eyes and ears of the organisers - he was in control of the trip; he provided funds to the appellant; he kept a watchful eye on the appellant; and he assured the appellant that everything was okay when he queried whether there was something illegal in the suitcases. 113.In any event, Nikita’s evidence was available at the time of trial, but a tactical decision was made by the defence not to call him. No reasonable explanation has been provided for the failure to adduce Nikita’s evidence. 114.This ground of appeal is not sustainable. Ground 6 115.We do not consider there is merit in any of the above grounds of appeal, nor do we consider that they cumulatively would render the conviction unsafe or unsatisfactory. 116.This ground of appeal must also fail. Appeal against sentence Grounds 1 and 2 117.It was stressed by Mr McGowan that the controlled delivery in which the appellant participated had been successful, in the sense that an Indonesian woman had been arrested, even though she was subsequently discharged. He contended that a discount of at least 7.5% was justified for the controlled delivery operation alone because the appellant’s assistance in the operation went further than that of the appellant in HKSAR v Jardin Rodela Maningas[139], where the Court of Appeal gave the appellant a reduction of 18 months on her sentence of 20 years’ imprisonment, which was equivalent to a discount of 7.5%. 118.He further contended that as a matter of principle, the appellant, who had provided information leading to a further successful arrest of Nikita when Nikita arrived in Hong Kong two days later, deserved an additional discount on his sentence. A reduction of only 5 months for this factor, equivalent to 1.58% of the enhanced starting point, was manifestly inadequate. 119.Mr Lau accepted that the judge had given insufficient credit for the post-arrest assistance rendered by the appellant when he gave him a reduction of only 5 months on his sentence. 120.Of the controlled delivery, while Mr Lau accepted that the appellant’s participation was of some practical use to the authorities, a substantial discount was not warranted because of the limited and unfruitful nature of his assistance. It was suggested that the appellant should be given a discount of around 4.7%, equivalent to a discount of 38% when incorporating a one third discount for a timely guilty plea. 121.Of the discount attributable to the provision of information by the appellant regarding Nikita, Mr Lau accepted that it led to the arrest of Nikita and stopped a substantial amount of cocaine from reaching the streets of Hong Kong. Whilst the information was of practical use to the authorities, Mr Lau pointed out that the appellant was not required to give evidence for the prosecution against Nikita as he had pleaded guilty. He suggested that, in the circumstances, the appropriate discount for the appellant’s assistance regarding Nikita should be around 6.7%, equivalent to a discount of approximately 40% when incorporating a one third discount for a timely guilty plea. 122.Mr Lau suggested that the appellant should be afforded a total discount of around 11% after taking into account his participation in the controlled delivery and provision of information leading to the arrest of Nikita. Ground 3 123.This ground had not been argued at the leave hearing and is based on the letter from Mr Rakshaev, Deputy Consul General of the Russian Federation in Hong Kong, in which he asserted that through the efforts of the appellant’s parents, his case had received widespread media coverage in Russia and this may have led to a significant reduction of numbers involved in drug trafficking. Mr McGowan submitted that the publicity of the appellant’s involvement in the present case had acted as a warning and deterrent to others in Russia and was worth more than the “token” discount that is sometimes given to an accused for his or her participation in Father Wotherspoon’s anti-drug campaign. 124.In his letter, Mr Rakshaev stated, “the information regarding the possible involvement of those people into illicit drug trafficking in Russia has not been objectively confirmed”[140]. In other words, the information provided by the appellant concerning Aries and others could not be substantiated. Mr Lau argued that this information could not be verified as true or reliable and did not constitute “useful intelligence” which was of practical use to the authorities, according to HKSAR v Araque Escobar Brigida Maria[141]. Mr Lau further argued that Mr Rakshaev does not set out the extent of the reduction in drug trafficking, if any, or whether such a reduction was attributable to the publicity of the appellant’s case. Mr Lau argued that the contents of Mr Rakshaev’s letter provide no basis for affording the appellant any further sentence discount. Discussion 125.We consider that the only issue arising from the appellant’s sentence is the appropriate discount he should have been given for the assistance that he had rendered to the authorities. 126.The public acknowledgement by an accused of their involvement in the trafficking of drugs after they have been arrested or convicted and their participation in a campaign to increase community awareness of the dangers of this illicit trade is to be commended. However, the difficulty for a sentencing court is to assess the accused’s genuine participation in such a campaign and whether the campaign has been truly effective in combating the trafficking of drugs. It is said that the purpose of such a campaign is to alert people of the serious consequences of being involved in the trafficking of drugs, but this message is being disseminated on almost a daily basis through the media and community programs both locally and internationally. It is, therefore, difficult to treat an accused’s participation in such a campaign as a mitigating factor when passing a sentence since it only arises when the accused has been apprehended for their involvement in the trafficking of drugs, and it is not easy to properly assess their contribution to the campaign and the success of the campaign itself. The genuine participation in such a campaign is more or less cathartic for the accused and their family and friends who may become involved, and in this sense, it is an exercise of regret rather than remorse. 127.A different consideration understandably applies when an accused provides information or assistance to the authorities, as it is a recognised and tangible form of mitigation that warrants reflection in an accused’s sentence when it is shown to have been of practical use to the authorities. 128.Quite often, the only source of information about a committed or contemplated crime comes from other criminals, and it is in the public interest to encourage offenders to supply such information to the authorities and to give evidence against other offenders. As explained by Li CJ, with whom the other judges of the Court of Final Appeal agreed, in Z v HKSAR[142]:
129.Li CJ also provided the following guidance on how to assess the assistance provided:
130.Li CJ then went on to refer to the discounts approved by the Court of Appeal for certain categories of assistance rendered by an appellant:
131.It should be appreciated that the Court in HKSAR v Lo Sze Tung Stephanie[143] was not setting out sentencing guidelines for assistance to the authorities. It was explained in general terms that specific categories of assistance would usually fall within a range of percentage discounts between 33.3% to 40% and 40% to 50% (incorporating a one third discount for a timely guilty plea). It was not restricting a sentencing court from exercising its discretion when determining an appropriate discount for assistance to the authorities which may be more or less than the usual range of percentage discount depending upon the circumstances of the case. Therefore, the Court of Final Appeal in Z v HKSAR was careful when referring to percentage discounts for assistance to the authorities to describe them as the “usual” discount. 132.We would stress that care needs to be taken when considering an appropriate discount for assistance to the authorities other than slavishly applying the range of percentage discounts usually given for a particular category of assistance. There are many factors that need to be considered when a court exercises its sentencing discretion in respect of an offender on the ground of assistance to authorities. Hence, generalisations should not constrain or corrode the sentencing process. This was succinctly encapsulated by Gleeson CJ (as Gleeson NPJ then was) when discussing sentencing for assistance to authorities in R v Gallagher[144]:
133.To deliver individual justice, a court should exercise its sentencing discretion with the necessary degree of flexibility and sensitivity when addressing the circumstances of the offence and the offender. 134.As we have already noted, the starting point adopted by the judge was 24 years and 5 months’ imprisonment, which he enhanced by 2 years to 26 years and 5 months for the international element. We consider that the appellant’s assistance to the authorities deserved a substantial discount. He participated in a controlled delivery that led to the apprehension of the person instructed to meet the appellant. He provided details about Nikita that led to his arrest and conviction for smuggling a large quantity of drugs into Hong Kong. The latter assistance was particularly significant and useful, for which the appellant was entitled to a substantial percentage discount from his sentence. A reduction of 5 months was, with respect, seriously deficient. We would discount the appellant’s sentence for the overall assistance he rendered by 12% from the notional starting point of 26 years and 5 months to 23 years and 3 months’ imprisonment. Conclusion 135.For the foregoing reasons, we refused the appellant leave to appeal against conviction on his renewed and new grounds of appeal and dismissed his appeal. We allow the appellant’s appeal against sentence, set aside his original sentence and substitute it with a sentence of 23 years and 3 months’ imprisonment.
Mr Derek Lau, SADPP (Ag), of Department of Justice, for the respondent Mr James McGowan and Ms Cyndi T Y Ho, instructed by Krishnan & Tsang, assigned by the Director of Legal Aid, for the appellant [1] Macrae VP. [2] Counter 570, Appeal Bundle (AB), p 119. [3] Counter 596, AB, p 122. [4] Counter 591, AB, p 121. [5] Counter 562, AB, p 118. [6] Counters 815-820, AB, p 147. [7] Counter 1186, AB, p 186; and Counter 1211, AB, p 189. [8] Counter 1287, AB, p 197. [9] Counter 1307, AB, pp 199-200. [10] Counter 1313, AB, p 200; and Counter 1375, AB, p 208. [11] Counters 1317 and 1321, AB, p 201. [12] Counter 1389, AB, p 210. [13] Counters 701-706, AB, p 134. [14] Counter 904, AB, p 156. [15] Counter 1379, AB, p 209. [16] Counter 1405, AB, p 212. [17] Counter 1414, AB, p 214. [18] Counter 1391, AB, p 210. [19] AB, p 304C-J. [20] AB, p 365R. [21] AB, p 365S. [22] AB, p 366E-F. [23] AB, p 366F-G. [24] AB, pp 396-408. [25] AB, pp 418-440. [26] AB, p 418, at [1d]. [27] AB, p 422, at [13a]. [28] AB, p 429, at [45]. [29] AB, p 431, at [51f]. [30] AB, p 431, at [53]. [31] AB, p 432, at [56]. [32] AB, p 432, at [57]. [33] AB, p 432, at [58]. [34] AB, p 400I-K. [35] AB, p 406G-H. [36] AB, p 406N-P. [37] AB, p 407H. [38] AB, p 407F-G. [39] AB, p 415, from “omission of thyroxine during the trip … for sale”. [40] AB, pp 409-417. [41] AB, p 407M-P. [42] AB, p 407Q-S. [43] AB, pp 407S-U and 415. [44] AB, pp 254S-255D. [45] AB, pp 25M-26P and 266C-268D. [46] AB, p 269E-P. [47] AB, pp 273C-D and 309I-310M. [48] AB, pp 270Q-271G. [49] AB, p 272G. [50] AB, p 272J-M. [51] AB, p 277B-C. [52] AB, p 277F-G. [53] AB, p 263K-L. [54] AB, p 263G. [55] AB, p 264E-L. [56] AB, p 330C-D. [57] AB, p 330Q. [58] AB, p 265N-P. [59] AB, p 443D-E. [60] AB, p 443F-G. [61] AB, p 443J. [62] AB, p 443C-E. [63] AB, p 447Q-S. [64] AB, p 446E. [65] AB, p 446J. [66] AB, p 41J-O. [67] AB, p 42H-N. [68] AB, p 43L-R. [69] HKSAR v Nikita Stefanovich HCCC 33/2018. [70] AB, p 243D. [71] AB, p 243G. [72] AB, p 243H-I. [73] AB, p 243J. [74] 2nd Affirmation of Krishnan Sundaramoothy affirmed on 31 December 2021. [75] Ibid., at [9]. [76] Ibid., at [10]. [77] Affirmation of Ekaterina Woodham-Mostovaya, at [2]. [78] One or more errors in one conversation were counted as one error. [79] Affirmation of Ekaterina Woodham-Mostovaya, Exhibit EWM-2. [80] Affirmation of Ekaterina Woodham-Mostovaya, at [6]. [81] Affirmation of Krishnan Sundaramoothy affirmed on 29 July 2020, p 4, at [13]. See HKSAR v Stefanovich Nikita, unrep., CACC 159/2018, 30 August 2019; [2019] HKCA 348. [82] Affirmation of Nikita Stefanovich, at [30]. [83] Ibid., at [30]. [84] Ibid., at [45]. [85] Ibid., at [32]. [86] Ibid., at [33]. [87] Ibid., at [55]. [88] Ibid., at [69]. [89] Ibid., at [81]. [90] Expert report of Dr Wong Yee Him dated 29 December 2021, at [1]. [91] Ibid., at [51]. [92] Ibid., at [49.4]. [93] Ibid., at [51.4]. [94] Ibid., at [58]. [95] Ibid., at [53]. [96] Ibid., at [63]. [97] Dr Brian Tomlinson’s report, at [8]. [98] Ibid., at [16]. [99] Ibid., at [18]. [100] AB, p 273C. [101] AB, pp 284S-285A. [102] AB, p 325D-E. [103] Affirmation of Ekaterina Woodham-Mostovaya, at [6]. [104] HKSAR v Yim Shek Wo [2021] HKCA 965. [105] Affirmation of Ekaterina Woodham-Mostovaya dated 31 December 2021, at [6]. [106] HKSAR v Saeed Ur Rehman [2018] 4 HKLRD 135, at [41]-[42]. [107] HKSAR v Chan Ka Chun (2018) 21 HKCFAR 284, at [22]. [108] HKSAR v Gutierrez [2020] 2 HKLRD 720, at [37]-[38], [42] and [57]. [109] AB, pp 34A-G and 295F-296J. [110] AB, p 273C. [111] AB, pp 273D and 277U-278A. [112] AB, p 35R. [113] AB, p 310R. [114] AB, pp 311F-312G. [115] AB, p 306H-S. [116] AB, pp 37B-D and 313F-315G. [117] AB, pp 37G-J and 39A-C. [118] AB, p 268F-L. [119] AB, p 268M-N. [120] AB, p 269K. [121] AB, p 269M-P. [122] AB, p 272J-U. [123] AB, p 273A-G. [124] AB, p 274B-F. [125] AB, pp 274P-275S. [126] AB, pp 277N-278B. [127] AB, pp 324N-325Q. [128] AB, pp 309I-310U. [129] AB, p 273C-D. [130] AB, pp 277U-278A, 309K-M and 310A-B. [131] AB, pp 29M-O and 38Q-S. [132] AB, p 15M-P. [133] R v Huckerby [2004] EWCA Crim 3251. In this case the first defendant was the driver of a security van that had been robbed. It was alleged that he failed to activate the data track device inside the van or to raise the alarm and he was therefore an “inside man”. He was convicted of conspiracy to rob. On appeal, leave was sought to call fresh evidence that he had been previously involved in a robbery which traumatized him and psychiatric evidence supported his failure to raise the alarm. [134] AB, p 431, at [53]. [135] AB, p 432, at [58]. [136] R v Chatto [2012] EWCA Crim 190. [137] AB, p 352E-F. [138] HKSAR v Stefanovich Nikita, at [5]-[7]. [139] HKSAR v Jardin Rodela Maningas (Unrep., CACC 278/2011, 29 May 2012). [140] Letter of Rinchen Rakshaev dated 21 December 2021. [141] HKSAR v Araque Escobar Brigida Maria [2018] HKCA 658. [142] Z v HKSAR (2007) 10 HKCFAR 183. [143] HKSAR v Lo Sze Tung Stephanie [2019] 1 HKC 309. [144] R v Gallagher (1991) 23 NSWLR 220. |
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