HKSAR v. STEFANOVICH NIKITA

CACC 159/2018

[2019] HKCA 348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 159 OF 2018

(ON APPEAL FROM HCCC NO 33 OF 2018)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  On 16 May 2018, the applicant was sentenced to 17 years and 6 months’ imprisonment by D’Almada Remedios J following his plea of guilty to one count of trafficking in a dangerous drug, namely 2.43 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He now seeks leave to appeal in person against his sentence.

The admitted facts

2.  The facts giving rise to the offence to which the applicant agreed when he pleaded guilty were as follows.[1]

3.  On 16 December 2016, the applicant, a Russian national, collected his suitcase on arrival at Hong Kong International Airport from Sao Paulo, Brazil, via Addis Ababa, Ethiopia, and passed through the “Nothing to Declare” channel where he was intercepted by Customs officers for inspection.  The officers found 3.05 kilogrammes of a solid containing 2.43 kilogrammes of cocaine concealed in a false compartment in the suitcase which was unlocked by the applicant using two keys he took out from his waist bag.

4.  The estimated value of the cocaine seized was $3,114,050. 

5.  The applicant was arrested and cautioned, and in response he said that he came to Hong Kong for travelling, after which he was planning to go to Moscow.  He said that he did not give his suitcase to anyone and denied knowing what “the stuff” was inside his suitcase.  As a result, no controlled delivery was conducted.

6.  In a subsequent video recorded interview with the assistance of a Russian interpreter, apart from stating that he had no knowledge of the drugs inside his suitcase, he refused to answer most of the questions put to him.

7.  When he pleaded guilty to the offence, the applicant admitted and accepted that at all material times he knew that dangerous drugs were concealed inside his suitcase and that he was unlawfully trafficking in them.

The mitigation and sentence

8.  At the time of sentence, it was said that the applicant was 30 years of age.  He was single and prior to the offence he lived with his mother in St Petersburg.  His girlfriend was pregnant and he intended to marry her soon.  It was said that he attained college level education and worked as a chef with a monthly income of about RUB$30,000 (approximately the equivalent of $4,200 Hong Kong currency).  It was claimed by the applicant that he was not a drug abuser.[2]

9.  The applicant was represented by counsel when he was sentenced and it was submitted on his behalf that in the autumn of 2016, he was unemployed and a chance meeting with an old female friend brought him into contact with a person known only as “Ariy”, who offered him the opportunity to make money in Brazil.  As a result, the applicant left St Petersburg, where he was living, and went to Brazil.  After sometime there, he was given a bag and directions to take it to Hong Kong.  The bag was placed in a concealed compartment of the suitcase he took with him.[3]

10.  It was submitted that the applicant was initially told that he would be smuggling anabolic steroids, but he knew by the time he arrived at Addis Ababa that he was carrying dangerous drugs.  He was to receive a reward of US$1,000 once the drugs were delivered.  It was also submitted that he did not know the nature or the quantity of the drugs involved.  However, it was acknowledged that this was not being advanced as mitigation and that the only real mitigation was the applicant’s timely guilty plea.[4]

11.  It was acknowledged on the applicant’s behalf that the sentence was subject to enhancement for the aggravating factor of the international element.  It was also mentioned that the applicant had provided some information to Customs officers by giving a copy of the passport of the person known as “Ariy”, who controlled the operation of the trafficking of the drugs.  It was noted that “Ariy” was from Belarus and that the family of the applicant had sent a copy of his passport to him which he in turn passed on to the authorities.  It was understood that the authorities would refer the matter to the Russian authorities for inquiries.  It was further noted that the applicant was willing to further assist the authorities in whatever way he could.  At that stage, nothing further was said or done about the purported assistance the applicant had rendered to the authorities.[5]

12.  In accordance with the sentencing guidelines, the judge adopted a starting point of 24 years and 3 months’ imprisonment, which she enhanced by 2 years for the international element.  After reducing the sentence by one third for the applicant’s plea of guilty, the resultant sentence was 17 years and 6 months’ imprisonment.[6]

The procedural history

13.  In a notice dated 11 June 2018, the applicant applied for leave to appeal against sentence and legal aid to mount the appeal.  However, legal aid was refused on 3 August 2018, and again on 29 January 2019.

14.  The applicant’s original ground of appeal was that he provided information to Customs officers before sentence which the judge did not take into account when she sentenced him.  He also stated that after sentence he was still cooperating with the Customs officers.

15.  By letter dated 27 November 2018, which was received by this Court on 4 December 2018, the applicant attached Amended Grounds of Appeal and an application for “Appeal Aid”, both also dated 27 November 2018.

16.  By the amended grounds, the applicant maintained his original ground of appeal, which is Ground 1.  He included three additional ground, Ground 2, which complains that it is irrational and unlawful to apply the sentencing tariff for trafficking of heroin on a gramme to gramme basis to trafficking in cocaine;  Ground 3, which complains that the enhancement to a sentence for the “international element” for cross-border trafficking of cocaine is irrational and unlawful; and Ground 4, which complains that the effective abrogation of meaningful mitigation based upon the personal circumstances of an offender for drug trafficking is unlawful, being arbitrary in comparison to other serious offences and in violation of Article 28 of the Basic Law (BL28).  The three additional grounds (Grounds 2, 3 and 4) are identical to the grounds (Grounds 2, 3 and 4) that were raised and addressed in HKSAR v Zaripov Eduard.[7]  The Court in that case rejected the arguments advanced under those grounds.

17.  By letter dated 23 December 2018, the applicant submitted certain documents to be admitted into evidence pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221.  The documents consist of a copy of a letter from Father John Wotherspoon dated 15 December 2018, together with two attachments.

18.  By various letters dated 25 January 2019, received by the Court on 8 February 2019, the applicant submitted a Notice of Motion to tender evidence, and certain documents for filing, which included an amendment to the Amended Grounds of Appeal dated 27 November 2018, by adding to Ground 1 the applicant’s participation in Father John Wotherspoon’s campaign, and materials generally relating to mental disorders in relation to substance abuse and the effects of cocaine. 

19.  Subsequent to the hearing of the application, the applicant submitted a letter dated 23 March 2019, which was received by the Court on 28 March 2019, stating that the passport particulars he had provided to the Customs officers related to a person in Belarus, not Russia, where the authorities had directed their inquiries.  However, it is noted that this was mentioned at the time of sentencing and it would appear from the letter of Father Wotherspoon, that the person the applicant identified was active in Russia.  In any event, it is a matter that can be passed on to the authorities, if any clarification is required. 

The applicant’s submissions

20.  At the outset of the hearing, we granted leave to the applicant to amend his grounds of appeal and to file his various submissions.  We also indicated that we would examine the fresh evidence de bene esse (that is, on a provisional basis).

21.  In Ground 1, the applicant complains that he has provided assistance to the authorities, for which he had not received any reduction to his sentence by the judge.  He also raises under this ground that he has participated in Father Wotherspoon’s anti-drug campaign and is deserving of an appropriate reduction to his sentence for having done so.

22.  In Ground 2, the applicant argues that taking into account the difference of the harm caused by consumption of heroin and cocaine the tariff sentence of the two kinds of drug should not be the same. He invites the Court to depart from previous determinations in A-G v Pedro Nel Rojas[8] and A-G v Leung Pang Chiu.[9]  He also seeks to adduce an extract of a copy of the expert report by Dr Lau Fei Lung (which appears to be a report that Dr Lau submitted in a murder case in respect of an issue of diminished responsibility) concerning the effects of cocaine consumption and other materials relating to substance abuse.

23.  In Ground 3, he submits that the enhancement for the international element involving cross-border trafficking in cocaine was irrational and contrary to sentencing policy.  He argues that all cocaine trafficked in Hong Kong has its origin overseas and this would be known by local suppliers.  He contends that every party involved locally in the supply of cocaine would know that the cocaine with which they were dealing originated from overseas and should be just as culpable as a foreign courier.  He contends that to enhance the sentence for foreign couriers crossing the border into Hong Kong was therefore contrary to the principle of treating equally culpable offenders in the same way.  He also contends that it is irrational to enhance the sentences of foreign couriers because it would be more effective to deter local suppliers, who are limited in numbers, whereas foreign couriers are vast in numbers.

24.  In Ground 4, he submits that it is arbitrary and therefore unlawful to preclude personal circumstances from being treated as meaningful mitigation in cases of drug trafficking.  He argues that the effective abrogation of meaningful mitigation based on personal circumstances of the offender is unlawful, being arbitrary in comparison with other serious offences and therefore a violation of BL28. 

The respondent’s submissions

25.  On behalf of the respondent, Ms Joey Lin, submits that in relation to Ground 1, no further discount should be given to the applicant for the limited and unfruitful assistance that he has provided thus far. 

26.  She confirms that the applicant had provided two non-prejudicial statements dated 23 – 24 May 2018 and 15 August 2018, respectively.  However, this was after he was sentenced on 16 May 2018. The applicant alleged that a person named “Ariy” texted him that he was to meet a black man named Ifedioramma Nathaniel Uchenna (nickname “Impota”) after arriving Hong Kong, and that he provided a photocopy of Ariy’s passport, his email address and telephone number to Customs officers.  She explained that the information had been passed on to the Russian authorities but no reply had yet been received.  The applicant was unable to show the text message from “Ariy” on his iPad.  She also explained that the officers took a statement from “Impota” who was detained in Castle Peak Bay Immigration Centre, but he denied knowing anything about the case. 

27.  Ms Lin submits that the evidence against “Ariy” and “Impota” was based only on the bare assertions of the applicant. As there was insufficient evidence to conduct further investigation, the information provided could not be viewed as being “of practical value to the law enforcement” and, therefore, it is submitted that no further reduction of sentence should be offered to the applicant.

28.  Ms Lin further submits that the letter from Father Wotherspoon and its attachments, including the screen captures of a “Facebook account” and a letter purportedly written by the applicant, show that the information provided to Father Wotherspoon, that is, the name of person who recruited the applicant, was provided to the Customs officers, which is the subject of inquiry.  It was submitted that the judge was fully aware that the applicant had provided information about the person known as “Ariy” to the authorities and she took the view that if the information proved to be of value it could be raised before the Court of Appeal.  However, there had been no positive reply from the foreign authorities.  She submits that the judge had the discretion to consider that no further discount should be given to the applicant.

29.  In respect of Grounds 2 and 3, Ms Lin relies on a line of authority, including A-G v Pedro Nel Rojas, A-G v Leung Pang Chiu and HKSAR v Abdallah,[10]to submit that the judge had correctly enhanced the applicant’s sentence for the international element.  She submits that the international element was an aggravating feature to be considered and applied in addition to the tariff sentence, and that there was a distinction between persons who bring drugs into the jurisdiction and persons who trade drugs in the jurisdiction.  She further submits that the enhancement of sentence for the international element did not seek to distinguish offenders of a joint enterprise by different sentences and that the enhancement is an aggravating factor in addition to the tariff sentence.  She notes that the starting point imposed by the judge was in accordance with the tariff sentence which is applicable to a courier and that the enhancement of the sentence for the international element was consistent with authority and principle.

30.  In respect of Ground 4, Ms Lin argues that the judge was addressed about the personal circumstances of the applicant but there was nothing in them that would warrant any reduction to his sentence. 

Discussion

As to Ground 1

31.  In respect of Ground 1, the applicant argues that he has assisted the authorities by providing information about two persons as well as participating in Father Wotherspoon’s anti-drug campaign.  Neither of these matters were properly raised with the judge at the time of sentencing.

32.  The information the applicant has provided to the authorities about the two persons is limited to particulars as to their identity and his assertion that they were involved in the trafficking of the drugs for which he has been convicted.  One of the persons is in custody in Hong Kong and has denied any involvement in the case.  It is submitted by the respondent that on the information provided by the applicant the matter can go no further.  The other person is overseas and inquiries have been initiated to verify the information that he has provided.

33.  The applicant rightly points out that the respondent’s position is not that the applicant’s information is of no practical value in respect of the overseas person, but rather that it is not yet known whether or not a fruitful outcome will be achieved by the information provided.  Of course, this will depend on whether the information can be substantiated and is of practical value to the authorities.

34.  The other matter concerning the applicant’s participation in Father Wotherspoon’s anti-drug campaign is to some extent dependent upon the outcome of the inquiries that are currently being undertaken in relation to the information provided about the person overseas.  In his letter to the Court, Father Wotherspoon confirms that the applicant has participated in his anti-drug campaign and has provided information about a person who is heavily involved in the drug trade.  Attached to Father Wotherspoon’s letter are images of a person who is claimed to be the overseas person that the applicant has identified.  Obviously, this needs to be verified.  The authorities will need to check whether the images are authentic and relate to the person in question, and whether they relate to a person who is commonly known to be involved in criminal activities and of whom images are readily accessible. 

35.  It is on this basis that we are of the view that this is a matter that can be pursued by the applicant with the executive after reasonable inquiries have been made with an appropriate assessment by the authorities of the information provided.

As to Ground 2

36.  In respect of Ground 2, the applicant argues that the application of the heroin guidelines in Lau Tak Ming[11] to cocaine on a gramme for gramme basis, by virtue of the decision in Pedro Nel Rojas, is irrational and unlawful.  He accepts that the long established sentencing guidelines should not likely be set aside and accordingly this ground can only properly be substantiated by tendering expert evidence on the subject.  As was done in the case of Zaripov Eduard, the applicant seeks to show that the two drugs should not be equated with each other.

37.  The evidence which the applicant seeks to adduce by way of Notice of Motion in relation to this ground was also sought to be adduced in Zaripov Eduard.  The Court in that case refused to admit the evidence as it was not capable of affecting the outcome of the appeal.[12]  We likewise have come to the same view, having viewed the evidence on a de bene esse basis. 

38.  In rejecting this ground in Zaripov Eduard, Macrae VP, giving the judgment of the Court, explained that:

“Whatever differences there may be as to the nature, toxicity and chemical composition of the two drugs, the experience of the courts of Hong Kong is that cocaine is a highly addictive dangerous drug that is just as pernicious as heroine in its effects on the individual, his friends, colleagues and family and on society in general.”

He added:

“The prevalence and permeation throughout the community is good reason in itself are not relaxing the current guidelines for trafficking in cocaine, and for having a strong deterrent component in sentencing. There can be no doubt as to the level of danger and harm which cocaine poses to the individual and the community by its abuse.”[13]

39.  It is noted by the applicant that this ground is identical to Ground 2 in Zaripov Eduard, in which the respondent made references to various materials under the sentencing regime for drug trafficking in the United Kingdom.  The applicant argues that such materials are not apposite because the sentencing regime for drug trafficking in the United Kingdom follows a different approach to the one in Hong Kong, and this was acknowledged in Kilima Abubakar Abbas.[14]  Whilst it has been said by this Court that certain aspects of the sentencing approach in drug trafficking cases taken in the United Kingdom were not applicable in Hong Kong because we have taken a different approach, this is not to be taken as a blanket rejection of other sentencing principles, which in appropriate circumstances may provide useful guidance in this jurisdiction.  In any event, this argument has been rejected in Zaripov Eduard, and rightly so in our view.[15]

40.  This ground of appeal fails.

As to Ground 3

41.  In respect of Ground 3, the applicant contends that the enhancement for “international element” involved in cross-border trafficking is irrational and contrary to the general policy of the law.  This ground was also rejected in Zaripov Eduard.[16]

42.  In rejecting the argument that the enhancement was contrary to general policy, Macrae VP in Zaripov Eduard pointed out that it runs counter to the long held practice of sentencing in this jurisdiction as recently reaffirmed by this Court in Kilima Abubakar Abbas,[17] where it was said that Hong Kong has developed its own sentencing practice to reflect the prevalence and manifestation of the particular offence with which it has to deal, bearing in mind the attitudes to this offence not only of our own society, but also of our neighbours in this part of the world.[18] He went on to stress that bringing drugs into Hong Kong justified a particular deterrent element where international drug smuggling is concerned:

“42. Moreover, the argument that someone with no connection with Hong Kong who, pursuant to an international conspiracy, ingests and carries cocaine across the world to Hong Kong for reward knowing full well the effects of the dissemination of those drugs on the streets of this city, should be treated the same as the person who carries drugs from one part of Hong Kong to another, is not a realistic comparison. Both forms of trafficking demand deterrence but, as Mr Cheung points out, the very fact that the only way this particular drug can be in Hong Kong is by someone bringing it in across the border justifies a particular deterrent element where international drug smuggling is concerned.”

43.  It is an established sentencing principle that the offence of drug trafficking is aggravated when a person brings drugs into Hong Kong.

44.  The issue that the guidelines in respect of sentencing of drug couriers for trafficking in heroin and cocaine were arbitrary and therefore unlawful had been rejected by this Court in HKSAR v Godson Ugochukwu Okoro.[19]

45.  There is no substance in this ground of appeal.

As to Ground 4

46.  In respect of Ground 4, the applicant submits that it was arbitrary and, therefore, unlawful to preclude personal circumstances from being treated as meaningful mitigation in cases of drug trafficking.  He submits that as it was arbitrary, in the sense that it was “capricious or unreasoned or without reasonable cause”, it is in violation of BL28. The Court in Zaripov Eduard also rejected this ground, relying on Godson Ugochukwu Okoro.[20]

47.  Briefly stated, in Godson Ugochukwu Okoro, it was noted that BL28 expressly provides a constitutional guarantee against arbitrary “imprisonment”, and that “imprisonment” covers incarceration pursuant to a sentence lawfully imposed by a court after criminal conviction.[21]  The test of arbitrariness is whether the legal provision under challenge could be said to be “capricious, unreasoned or without reasonable cause.”  In other words, if it was made without reference to an adequate determining principle or without following proper procedures, and if the laws imposed sentences of imprisonment that were manifestly disproportionate.[22]

48.  The applicant notes the comments of this Court in Godson Ugochukwu Okoro, in which it was said:

“94. The suggestion that the sentencing guidelines are fixed and compulsory is not correct. A sentencing court can depart from the sentencing guidelines when the circumstances warrant it. As one would expect, this can only be done when, as a matter of sentencing policy or principle, it is appropriate to do so. This Court has explained that the sentencing guidelines are not a “straitjacket” and can be departed from when there is “a good reason” for doing so. A sentencing court will, applying the sentencing guidelines, determine an appropriate starting point, taking into account the facts and circumstances of the case, subject to increase for any aggravating factors or reduction for any mitigating factors.”

49.  He goes on to argue that these comments are inconsistent with the views expressed in other cases where the personal circumstances of a drug trafficker would usually not provide meaningful mitigation warranting a reduction in sentence.[23] We disagree.  The comments in Godson Ugochukwu Okoro were addressing the issue as to whether the sentencing guidelines could be departed from in appropriate circumstances.  As explained, such departure can take place if there is a good reason for doing so.

50.  The applicant notes that it is stated in the passage of Godson Ugochukwu Okoro that a sentencing court determines an appropriate starting point, “subject to increase for any aggravating factors or a reduction of any mitigating factors.”  The applicant argues that “a clear record, medical conditions, family circumstances, etc.” are “appropriate” mitigating factors which can justify a sentencing reduction.

51.  The Court was not saying, as suggested by the applicant, that every piece of mitigation as advanced by an applicant warrants some form of reduction to his sentence.  This submission is fundamentally misconceived.  It was stated at outset of the passage in Godson Ugochukwu Okoro that a sentencing court can depart from the sentencing guidelines when “the circumstances warrant it” and further emphasised that “this can only be done when, as a matter of sentencing policy or principle, it is appropriate to do so.”

52.  It is not correct to say that the personal circumstances of a person convicted for drug trafficking are completely ignored by a sentencing court.  It will obviously depend on the nature of the personal circumstance and its relevance and significance, if any, to the sentence to be imposed.

53.  The applicant also seeks to contrast his argument to the one advanced in Godson Ugochukwu Okoro by contending that “the sentencing court ought, in principle, to be able to grant an incremental reduction – even if only a relatively small one – for the kind of personal circumstances which are, in principle, available as mitigation for every other offence short of murder.”  It is on this basis that he submits that the failure by a sentencing court to take into account the personal circumstances of an offender in drug trafficking is “capricious, unreasoned or without reasonable cause.”

54.  We point out that as far back as in Lau Tak Ming it was stated that:

“It must be borne in mind that these are offences of the upmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight.”[24]

55.  This sentencing principle has been carried forward and reaffirmed by successive divisions of this Court.[25] 

56.  Accordingly, the applicant’s submission fails to show that this sentencing principle is “capricious or unreasoned or without reasonable cause.”

57.  It is also generally complained that the applicant’s personal circumstances were not properly taken into account and treated as meaningful mitigation.  It is contended that the applicant did not convey, adequately or at all, his personal circumstances to the court because they would not be taken into consideration.  That was not the case.

58.  At the sentencing hearing, an antecedent statement dated 29 January 2018 was submitted to the judge.  It was stated that the applicant was born in St Petersburg and was 30 years of age.  At the time of his arrest, he was single and lived with his mother in St Petersburg. He claimed that his girlfriend was pregnant and he intended to get married to her soon.  He also claimed that he worked as a chef with a monthly income of about RUB$30,000 per month, the equivalent of about HK$4,200.  It was noted that he attained college level education.  He further claimed that he was not a drug abuser. 

59.  Counsel representing the applicant further submitted in mitigation that in the autumn of 2016, the applicant was unemployed and that he got involved in the offence because he was put into contact with the person who arranged for him to travel to Brazil and take a bag from there to Hong Kong.

60.  When the applicant was asked at the hearing of this application what were his personal circumstances that were not submitted to or taken into account by the judge, he mentioned that he was unemployed at the time; that his bride-to-be was pregnant; and that his father had recently passed away and he had to take care of his mother.  It was primarily the latter matter that was not put to the judge, although he confirmed that he had an older brother and younger sister, who could also take care of his mother.

61.  As was the case in Zaripov Eduard, it seems to us that the argument is not engaged because there is nothing in the personal circumstances or mitigation advanced by the applicant, which could realistically affect the sentence for this offence.

62.  This ground of appeal fails.

Conclusion

63.  It follows from the reasons that we have given that the leave application is refused and the appeal is dismissed.