HKSAR v. MICHALAKOPOULOS THEODOROS

CACC 30/2021

[2022] HKCA 1099

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 30 OF 2021

(ON APPEAL FROM HCCC NO 265 OF 2019)

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J U D G M E N T

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1.  On 4 February 2021, the applicant was convicted after trial before Deputy High Court Judge D Yau and a jury (by a majority verdict of 5 to 2)  of one 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 25 years and 9 months’ imprisonment.

2.  On 30 November 2018, the applicant arrived in Hong Kong on a flight from Sao Paulo, Brazil, via Dubai, having initially gone to Sao Paulo from Montréal, Canada, where he lived.  On his arrival in Hong Kong, he had in his possession a backpack, a check-in suitcase and a handheld suitcase.  Inside the handheld suitcase Customs officers found hidden in false compartments 2,473 grammes of a solid containing 1,957 grammes of cocaine. 

3.  The applicant was arrested and cautioned and in response he asked “What’s wrong? What happened?”[1] In a preliminary interview, the applicant claimed that he was to go to the Panorama Hotel and wait for someone to contact him, who would collect the suitcase and give him US$2,000.[2]  In a subsequent video recorded interview, the applicant claimed that he brought the suitcase to Hong Kong believing it contained clothes.  He explained that he been asked by David Sandro to make the trip and take the handheld suitcase to Hong Kong.  He had been introduced to David Sandro by James Matthew.  He had made a similar trip for James Mathew to Johannesburg, South Africa, where he picked up a suitcase containing clothing, which he brought back to Toronto with nothing untoward having taken place.  He had his concern about the suitcase and made enquiries with a person by the name of Nick Memphis, whom he believed to be an FBI agent.  He warned him that David Sandro was a dangerous person.  However, he was reassured by James Matthew that the suitcase only contained gifts of clothes.  When he was in Sao Paulo he checked inside the suitcase and only saw clothes.  Accordingly, he was convinced to go ahead with the trip.[3] 

4.  The prosecution case was that the applicant was in financial difficulties and relied on answers he had given in his video recorded interview and the contents of certain messages and emails between himself and the others,[4] which the prosecution also submitted showed that they were discussing by way of code that the trip concerned dealing with drugs.[5] 

5.  The applicant gave evidence in his defence.  He testified that he was exhausted when he was interviewed and may have given some wrong answers.  He was a bus driver in Montréal, and although he was in the middle of divorce proceedings he was not in financial need.  He intended after making the delivery of the suitcase to spend some time sightseeing in Hong Kong.  He was particularly interested in seeing the double decker buses and to visit Bruce Lee museum.  He relied on certain messages and emails to show that he was adamant he did not want to do anything illegal and it was apparent from his communications that there was no mention of drugs.  He said he got to know James Matthew online, whom he believed to be a lawyer in the United Kingdom. He claimed he never had any suspicion about the trip, although he checked the suitcase in Sao Paulo but only saw clothes.  He believed James Matthew that the contents in the suitcase were gifts for bank officials in Hong Kong.[6] 

6.  Upon his conviction by the majority verdict of the jury, the judge sentenced the applicant to 25 years and 9 months’ imprisonment.  He arrived at the sentence by an arithmetic application of the sentencing guidelines for the quantity of 1,957 grammes of cocaine which corresponded to 23 years and 9 months’ imprisonment and a further enhancement for the international element of 2 years’ imprisonment.  No allowance was made for his co-operation with the Customs officers for his participation in the controlled delivery.[7] He was described by the Customs officers as extremely cooperative and helpful throughout his dealings with them.[8] 

7.  The applicant filed home-made grounds of appeal against his conviction and sentence but the grounds against conviction were subsequently replaced by new grounds drafted by counsel for the applicant: Perfected Grounds of Appeal dated 16 November 2021 signed by Mr Andrew Raffell; and Further perfected Grounds of appeal dated 1 March 2022 signed by Mr Andrew Raffell and Ms Athena Cheung. 

8.  The grounds of appeal can be summarised as follows.  Ground 1: The judge erred in refusing to hold that there was no case to answer.  Ground 2: The jury verdict was perverse and against the weight of the evidence.  Ground 3: The judge with the agreement of prosecuting and defence counsel did not give a lies direction, but nonetheless mentioned lies in his direction and failed to adequately or properly explain to the jury that (i)  there was no objective evidence that the alleged lies were in fact lies; and (ii)  even if the jury were sure the alleged lies were lies that was not necessarily evidence of guilty knowledge; and further (iii)  there was no independent evidence that the applicant was desperate for money, which he denied, and in any event such a matter was not necessarily evidence of guilt.  Ground 4: the surprise response by the applicant when confronted by the Customs officer and his co-operation to participate in a controlled delivery were probative of innocence, in respect of which the judge failed to adequately direct the jury. Ground 5: in all circumstances of the case there is a lurking doubt as to the safety of the conviction.  Ground 6: the conviction in all the circumstances is unsafe.

Grounds 1 and 2: No case to answer

9.  In addressing these grounds, Mr Raffell’s submission is expressed in very broad and general terms, and unfortunately lacks specificity.  He reiterates the defence case at trial that the applicant was not knowingly involved in the smuggling of drugs into Hong Kong.  He submits that there was no evidence adduced by the prosecution which was of sufficient weight to support or justify a conviction.  He said there was “nothing in the prosecution case, either a diamond hard individual piece of evidence nor an accumulation of solid evidence which justified a case to answer or a conviction.”  He claims that this is a case where there is a substantial doubt about the safety of the conviction.

10.  He provides an overview as to the background of the applicant and the circumstances that led him to become involved in this offence.  The applicant is a Canadian citizen, with a clear record, who worked as a bus driver.  The applicant had gone through a divorce but there was nothing in his video recorded interview or oral testimony to indicate that he had any serious debts or money problems, as suggested by the prosecution as a reason for committing the offence.

11.  Mr Raffell referred to the large volume of communications between the applicant and other people who were behind the smuggling of the drugs, which he described as “fantasy, fluff, nonsense or simply made no sense.”  He points out that the only time dangerous drugs was mentioned in these communications was when the applicant made it very clear that he would have nothing to do with drugs.  It was the case that the drugs in question were very well hidden inside the suitcase which he was set up to carry.

12.  As pointed out by Ms Claudia Ng, for the respondent, in the text messages and emails between the applicant and James Matthew and David Sandro, the following exchanges took place:

(1)  There were references to “fabric” of the bag being “not visible and not detectable”, funds would be transferred to the applicant’s offshore bank account; that he had to fly to Sao Paulo to “see the fund clearance material” which he would bring to Hong Kong “for the clearing and deposit of the funds” with no following queries by the applicant about these matters.[9]

(2)  The applicant messaged James Matthew that he had lost his job, that “because I am homeless and suffer.  This is why I accept this deal.”[10]

(3)  The applicant stated in various other messages to James Matthew that he was in really bad financial situation; he had lost his job; had no food to eat; no money to pay his daughter’s hospital bills; and no money to pay for the bank wiring deposit.[11]  

(4)  David Sandro messaged the applicant that he was a reputable diplomat who owned a huge financial company but hired the applicant, someone whom he had not met in person, to pick up clothes in Sao Paulo and deliver them to Hong Kong.

(5)  David Sandro messaged the applicant “I assure you that your financial situation will change in few days.  As soon as you arrive Hong Kong, your life will change and money will no longer be your problem.  You will be able to pay all your debts in Canada and start a new life and good life.”; “everything is being done to ensure that completion of this transaction smoothly and without delay”; “within the next few days, we will all be smiling and our financial situations will change forever”; and “once the transaction is cleared in Hong Kong, there will be enough cash for us to do whatever we want.”[12] 

(6)  When the applicant applied for a visa, he asked James Matthew whether he should indicate his trip was for pleasure or business.[13]

(7)  When the applicant was in Washington (in transit), he received a message from Nick Memphsis, whom he believed to be a FBI agent, that David Sandro was an imposter, a fraudster impersonating a diplomat, a wanted person in Nigeria.[14]

13.  I note there were also messages from David Sandro in which he reassured the applicant that he was a wealthy businessman and that everything was legitimate and he would not do anything illegal.  In one message he told the applicant that when he was in Sao Paulo he should take the time and enjoy himself as a tourist.  However, all these communications were before the jury together with the submissions of the parties. 

14.  In light of the circumstances of the case, the question for the jury was whether the applicant knew he was bringing drugs into Hong Kong and depending on their assessment of the evidence there was a factual basis on which they could draw an adverse inference against him.  It cannot be said that the verdict was perverse and against the weight of the evidence. 

15.  I am not persuaded that the judge was in error in ruling there was a case to answer.  There was sufficient evidence to find a prima facie case against the applicant.  These grounds are not reasonably arguable. 

Ground 3: Failure to give a lies direction

16.  The lies in question concerned the applicant’s claim in his evidence that he was not in financial difficulties at the time of the offence.  It was argued by the prosecution that this was contrary to his statements in his video recorded interview and he was in “desperate need of money” because he was going through a divorce and he had expenses to pay for his daughter and credit card debts.  It was submitted to the jury by the prosecution that this was one of the principal facts from which they could draw the inference that the applicant knew there were drugs in the suitcase and was a willing participant in the importing of the drugs into Hong Kong.[15] 

17.  Mr Raffell submits that the prosecution relied heavily on the allegation of lies by the applicant about his financial circumstances to prove its case against the applicant, and although a full Lucas direction was not necessary (as agreed by the parties), a more vigorous and clearer direction was required from the judge to rule out the possibility of any improper use of the lies by the jury: Yuen Kwai Choi v HKSAR (2003)  6 HKCFAR 113.  By its submission, the prosecution also implicitly put in issue the applicant’s lifestyle as indicative of a motive to traffic in the drugs.  None of these matters were properly addressed by the judge’s directions to the jury.[16] 

18.  The argument before me is whether the basis of the applicant’s conviction primarily turned on whether he lied in his evidence that he was not in financial difficulties when he stated he was in his video recorded interview.  It is complained it was given a preponderance that was out of proportion to its relevance and significance, and may have improperly resulted in the applicant being primarily convicted on this point.  This matter was exacerbated by the failure of the judge to give particular guidance to the jury about this issue to ensure they did not consider it in an impermissible manner in arriving at their verdict. 

19.  Mr Raffell essentially argues that an exaggerated and inaccurate emphasis was placed on the applicant’s financial difficulties which resulted in the unfair conviction of the applicant for this offence.  He submits the conviction is unsafe.

20.  There is no doubt that the prosecution relied heavily on the fact that the applicant was “desperate for money” and that this was a primary fact that the jury could take into account to draw the inference that the applicant was guilty of trafficking in the drugs.  There are a combination of matters under this ground which I find reasonably arguable.

Ground 4: Failure to sum up on the applicant’s reaction

21.  It is complained that the judge should have directed the jury about the importance of the applicant’s initial reaction, in particular that the only interpretation open to them was that it amounted to a denial of knowledge and was reinforced by the applicant’s willingness to participate in the controlled delivery: HKSAR v Nguyen Anh Nga (2017)  20 HKCFAR 149.

22.  I do not find this ground reasonably arguable as the matters referred to were before the jury for them to consider as part of the applicant’s case.  The applicant’s reaction at the time he was confronted by Customs officers that drugs were present in the suitcase has to be allied with the applicant’s own concern about the suitcase, which prompted him to check inside the suitcase, and the enquiries he made of Nick Memphis about David Sandro.  The judge summed up on these matters and gave an appropriate set of directions in relation to circumstantial evidence and inferential reasoning as was necessary in the circumstances of the case.

Grounds 5 and 6: Lurking doubt as to the conviction

23.  It is rare to find a lurking doubt in a case that would make the court wonder whether an injustice had been done: R v Cooper [1969] 1 QB 267.  This is a subjective question where “lurking doubt” means not an insubstantial doubt but a substantial remaining doubt: R v Tang Wai Tong and Another [1979] HKLR 479. 

24.  Mr Raffell complains that there was no evidence adduced by the prosecution which was of sufficient weight to support or justify a conviction.  He argues that the evidence was more in the nature of innuendo and not of the type upon which a jury could properly infer that the applicant was knowingly trafficking in the drugs.  He basically relies on the emails and messages between the applicant and the others involved in transporting the suitcase from Sao Paulo to Hong Kong.  This material was the major focus at trial by both the prosecution and the defence.  The judge canvassed this material in addressing the respective cases of the parties.  The defence submitted that the applicant’s communications indicated that he did not believe he was transporting drugs and that he specifically mentioned he would not do so.  The prosecution on the other hand submitted that the communications were in code and concerned the transportation of drugs by the applicant.  This was clearly a matter before the jury for them to resolve. 

25.  I do not find this ground reasonably arguable in respect to the applicant’s communications.

Conclusion

26.  I am prepared to grant leave to the applicant to appeal against his conviction on the basis of the issue relating to the applicant’s financial difficulties and how it was dealt with as a lie before the jury as well as a reflection of his lifestyle to prove the offence against him.  As a corollary to this ground is the lurking doubt principle.  I am also prepared to grant leave to him to appeal against his sentence because his co-operation with the authorities had not taken into account when sentence was passed upon him.  This had not been raised by counsel on his behalf. 

27.  The applicant is reminded of his right to renew his application for leave to appeal his conviction to the Court of Appeal in respect of the grounds of appeal on which leave has been refused, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.