HKSAR v. Raja Rajeswary P Kagasfaron

CACC 196/2020 [2024] HKCA 595

On appeal from [2020] HKCFI 2981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 196 OF 2020

(ON APPEAL FROM HCCC NO 371 OF 2019)

_______________

_______________

________________

J U D G M E N T

________________

1.This is a most unusual case. The applicant was convicted after trial of trafficking in a dangerous drug and sought leave to appeal against conviction. On 2 December 2022, I granted her leave to appeal against conviction on some of the grounds she advanced that concerned the trial judge’s handling of the defence case[1]. It was alleged that the trial judge descended into the arena through her interventions, and unfairly summed up the defence case to the jury. However, on 11 October 2023, the applicant abandoned her appeal against conviction, and applied for leave to appeal against sentence out of time on 9 November 2023.

2.It is at this point that the case takes a bizarre twist.  The basis of her leave application to appeal against sentence is that she always intended to plead guilty to take advantage of the one third discount for a guilty plea, even though she maintains her innocence of the charge.  She claims she was talked into defending the charge by her lawyers because a defendant in similar circumstances had been acquitted of the same charge.  After she was granted leave to appeal against conviction, she tried to seek advice from her lawyers as to whether it was possible for her to plead guilty but was unable to contact them.  Eventually, she spoke to her lawyers, who told her that they would defend her case, but she informed them that she was going to cancel the appeal against conviction because she wanted to plead guilty.  She claimed she did not trust her lawyers anymore.  She now submits that she intended to plead guilty in the first place, even though she was deceived into thinking she was transporting diamonds, but she is unable to prove this was the case.  She acknowledges that smuggling diamonds was also a crime for which she was guilty.  She asks that her request be taken into account as she regrets her earlier decision and she knows that she will not receive a one third discount.

3.The applicant has done herself a disservice by abandoning her appeal against conviction, when she had reasonably arguable grounds that had been addressed in written submissions by the parties.  In these exceptional circumstances, I would suggest to the Director of Legal Aid to grant the applicant legal aid to obtain legal advice in respect of an application to treat the abandonment as a nullity: HKSAR v Chang Wai Hang Alab [2]. In light of the background of this case, if legal aid is granted I would also suggest that new legal representatives be assigned to the applicant.  I should add that in raising this matter, I am not expressing a view as to the merits of such an application.

4.I turn to address the leave application against sentence out of time.

The leave application against sentence out of time

5.On 7 July 2020, following a trial before Campbell-Moffat J (the judge) and a jury,                    the applicant was convicted of trafficking in a dangerous drug, namely 1,191 grammes of a crystalline solid containing 853 grammes of methamphetamine hydrochloride, commonly known as Ice. On 13 November 2020, the Judge sentenced the applicant to 21 years and 1 month’s imprisonment.

6.On 19 November 2020, the applicant applied for leave to appeal against her conviction only.  On 2 December 2022, the applicant was granted leave on some of the grounds of appeal advanced on her behalf.  However, after the parties filed and exchanged written submissions in respect of the appeal against conviction, the applicant abandoned her appeal by notice dated 11 October 2023, and her appeal against conviction was marked dismissed on the same day.

7.On 10 November 2023, the applicant applied for leave to appeal against her sentence out of time.

The brief facts

8.On 22 January 2019, the applicant, a Malaysian national, arrived in Hong Kong on a flight from Mumbai, India.  She was stopped at Customs clearance, and her bags were checked.  An X-ray examination of a black bag revealed that it contained three tin cans, labelled “Rice Flour”, which, on further examination, were found to contain the drugs in question. 

9.When the three tins were opened, revealing white crystal substances, the applicant was asked what they were.  She said, “I don’t know.”  She was arrested and cautioned and again asked what were the substances inside the cans.  She repeated, “I don’t know.”  She was then asked where she got the cans and she replied, “My brother gave me in Delhi and said it is a sweet.”

10.The next day, the applicant participated in a video recorded interview.  She said the three cans were given to her by a black man in Delhi.  He told her that the cans contained food, and she thought they were sweets.  It was during the interview when she was shown the three cans that she saw they were labelled “Rice Flour”.  She then said she did not know what was inside the cans.  She explained that she came to Hong Kong as a tourist.

11.The applicant testified at trial and explained that she got involved in this case because of her ex-boyfriend, Deepan.  She said that they were on good terms, even though they had broken up.  She would often speak to him.  On one of those occasions, she told him of her wish to travel overseas.  In a conversation on 5 December 2018, he asked her if she could carry diamonds abroad.  She would be rewarded with a sum of $5,000 for doing so.  She was surprised but agreed to go and arranged to take leave from her job.  Deepan was assisted by his girlfriend, Nanthini, and they arranged for the applicant to fly to Hong Kong via India.  From Mumbai, she was scheduled to fly to Ahmedabad but, having missed the flight, later proceeded to Delhi, where she received a bag from a black man.  In the bag were three sealed food cans containing the drugs.  She received instructions during the trip from Deepan, Nanthini and a person with a Hong Kong telephone number, whose contact name was Josh.  However, the applicant eventually realized the number belonged to a person named Max, whom Deepan and Nanthini regarded as the boss.  When the applicant ran out of cash in India, funds were transmitted to her from Hong Kong by Ms Lo Oi-man (PW6) via Western Union.  PW6 testified an African man named Max had asked her to transmit the funds.  She had met Max in a bar, and he had asked her to do an urgent matter for him.  In cross-examination, she agreed that Max had told her that he was engaged in trading in diamonds.

12.The applicant testified that she understood that the three cans contained diamonds and did not know there were dangerous drugs inside.  She did not mention her belief that the cans contained diamonds until giving evidence at trial.  To support her case, she produced a recorded telephone conversation she had with Deepan on 5 December 2018, in which he said the trip was to take diamonds to Hong Kong.[3]

The applicant’s sentence

13.The applicant maintained in her mitigation that she was deceived into believing that she was trafficking in diamonds.[4]

14.Defence counsel submitted that the applicant was a person of previous good character, and produced to the court mitigation letters from her siblings and a letter from Father John Wotherspoon, who attested to the applicant’s assistance in his campaign in Malaysia.[5]  He also submitted that the applicant had cooperated with the authorities and assisted them with their investigation of the case upon her arrest.[6]

15.Defence counsel urged the judge to adopt as lenient a sentence as possible and referred the judge to the relevant authorities, suggesting that the starting point according to the sentencing guidelines would be slightly above 21 years’ imprisonment and an arithmetical calculation of the enhancement of the international element would be 1 year and 8 months,[7] but it was a matter within the judge’s discretion.[8]

16.Applying the sentencing guidelines for Ice, the judge adopted a starting point of 21 years and 3 months’ imprisonment.[9]  She then enhanced the sentence by 1 year and 9 months for the international element.[10]  She reduced the notional starting point by 3 months for the applicant’s participation in Father Wotherspoon's drug campaign and 20 months for her assistance to the authorities.[11] This resulted in a total sentence of 21 years and 1 month’s imprisonment.

The leave applicant out of time

17.Father John Wotherspoon attended the hearing and submitted a letter on the applicant’s behalf, in which he referred to the assistance that she had rendered to the authorities, regarding a mastermind in the drug trade, named “Udo Maxwell”.  It appears this person has been arrested and detained by the authorities in Hong Kong.  The assistance the applicant gave to the authorities was limited and taken into account by the judge. Father Wotherspoon has provided additional information regarding “Udo Maxwell”, which has been passed on to the authorities.  However, it has no bearing in this application.

18.As I have already indicated, the explanation for the delay in this application is bizarre and provides no justification for an extension of time to apply for leave to appeal against sentence.  There is also no substantial and plainly arguable ground for appeal against sentence.  It cannot be said that the judge erred in the sentence she imposed on the applicant following her conviction after trial.

19.The applicant’s desire to now plead guilty, having been convicted after trial of the charge and in order to be resentenced more favourably, displays a serious misunderstanding of the legal processes.  I therefore refuse the applicant an extension of time to file a leave application out of time and refuse her leave to appeal against sentence.  However, as I have already indicated, I have suggested to the Director of Legal Aid to consider her case and provide legal assistance to her in respect of her abandonment of the appeal against conviction.

20.Finally, I remind the applicant of her right to renew her application for leave to appeal against sentence out of time to the Court of Appeal, but she is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application.

Mr Andrew Li, SPP, and Mr Jerome Ching, SPP, of Department of Justice, for the respondent

The applicant appeared in person

[1]  HKSAR v Raja Rajeswary P Kagasfaron, unrep., CACC 196/2020, 2 December 2022, per Zervos JA.

[2]  HKSAR v Chang Wai Hang Alab [2017] 1 HKLRD 163, at [31].

[3]  Appeal Bundle (AB), 344-358, Exhibit D2.

[4]  AB, A74Q-T.

[5]  AB, A73J-A74B.

[6]  AB, A74L-P.

[7]  Asnotedbydefence counselatAB,A75K,therangewas1to2years’ enhancementfor500to1,000 grammes of drugs.  853 grammes of drugs thus corresponded to an enhancement of one year and “8.472”months.

[8]  AB, A75A-A75M.

[9]  See HKSAR v Tam YiChun [2014] 3 HKLRD 691 (CA), [34]; HKSAR v Abdallah [2009] 2 HKLRD 437 (CA), [41]. 

[10]  AB, A71H-L.

[11]  AB, A71R-A72H.