HKSAR v. DRAGUNOV EVGENY

CACC 266/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 266 OF 2014

(ON APPEAL FROM HCCC NO 203 OF 2013)

________________________

________________________

J U D G M E N T

________________________

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

1.  The applicant seeks leave to appeal against his sentence of 17 years and 4 months’ imprisonment imposed on 11 July 2014, having pleaded guilty before Bokhary J (the “judge”) to a single count of trafficking in a dangerous drug, namely 2.16 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He had originally filed his Form XI Notice of Application for Leave to Appeal against sentence on 7 August 2014, contending simply that the sentence was “too long”.

2.  However, on 29 September 2014, the applicant filed a formal Form VII Notice of Abandonment of his appeal, and his appeal was accordingly dismissed the same day.  Almost two years later, on 12 September 2016, he filed an affirmation seeking to restore his appeal against sentence and to treat his earlier Notice of Abandonment as a nullity.  He filed two further affirmations for the same purpose on 3 and 28 February 2017 respectively.

The facts

3.  On 18 November 2012, the applicant arrived at the Hong Kong International Airport on a flight from Dubai.  He was selected for customs clearance, and a search of his suitcase revealed that there were a total of 6 plastic containers purporting to contain various bath products inside.  A narcotest procedure tested positive for cocaine on powder which had leaked from one of the containers.  The applicant was then arrested for trafficking in a dangerous drug.

4.  Upon further examination by a Government Forensic Scientist, the 6 containers were found to contain a total of 3.29 kilogrammes of a slurry containing 2.16 kilogrammes of cocaine.

5.  The estimated retail value of the seized drugs was about HK$3,855,880.

6.  The immigration records of the applicant showed that he had previously arrived at Hong Kong International Airport on 5 November 2012, and departed on 8 November 2012.  His next arrival was on the date of his arrest.

7.  By pleading guilty, the applicant admitted and accepted a statement in the Summary of Facts to the effect that he had been trafficking in the seized drugs.

Mitigation

8.  It was submitted by counsel on the applicant’s behalf that he and his family were from Russia, and that the applicant had worked at a factory before committing the offence.  It was said that he suffered from toxic gas poisoning and retrograde amnesia.  He had been approached by a woman in Russia called Anastasia, with whom he had initially come to Hong Kong; she later told him that he would be paid US$10,000 to bring drugs into Hong Kong.  The applicant was told the drugs were ‘soft drugs’ and he did not realise the serious consequences of committing the offence in question.  He was also said to be remorseful.  It was also contended that the applicant found it difficult to communicate with other people in prison.

Reasons for sentence

9.  In sentencing, the judge adopted a starting point of 24 years’ imprisonment, before enhancing it by 2 years for the international element involved in bringing what was a very significant quantity of dangerous drugs across the border into Hong Kong.  A full one-third discount was then accorded to the applicant by the judge for his early plea of guilty, resulting in an ultimate sentence of 17 years and 4 months’ imprisonment.

Grounds of appeal

10.  In seeking to revive his Form XI Notice, the applicant said in his affirmation of 12 September 2016 that his mother’s health condition was very serious and that his brother had passed away suddenly aged 42, leaving his mother at the age of 63 to support herself.  As a result, he sought to restore his appeal against sentence.

11.  In a letter filed on 7 December 2016, the applicant submitted that in 2013, he had provided to Customs officers details about the person who had arranged for him to bring drugs into Hong Kong, including a photograph of the person on his mobile telephone.  He also claimed that after he had been intercepted at the airport, his mobile telephone rang but he was unable to inform Customs officers of the situation because of the language barrier.  The applicant averred that he could have participated in a controlled delivery had there been a Russian interpreter available at the time; he also complained that Customs officers did not make a proper investigation of the information he had provided to them.  A number of appellate authorities were also relied upon in support of the contention that his sentence should be further discounted due to his genuine desire to assist the authorities, namely: HSKAR v Chan Oi Hing[1]; HKSAR v Gopal Muthusamy[2]; and HKSAR v Jardin Rodela Maningas[3].

12.  In subsequent affirmations filed on 3 and 28 February 2017, the applicant stated that when he was refused Legal Aid, he did not know that he could act in person, and was afraid to act without legal representation, after being told that the Court of Appeal could increase his sentence; however, he was now better prepared to represent himself in the appeal and sought to treat his Abandonment as a nullity.  He further averred that he thought he would be forced to hire a private lawyer after Legal Aid had been refused and that he had a language barrier in prison, such that he could not ask about the relevant procedures for appeal, nor could he read the documents.

13.  The applicant further attached a Non-Prejudicial Statement (“NPS”), taken on 11 March 2014 at Lai Chi Kok Reception Centre.  In the statement, he provided the telephone number, photograph and name of the person who he claimed had provided the drugs to him, as well as other information about his travel movements with this person in the 10 - 14 days before his arrest.  A telephone number, which he was to call upon his arrival in Hong Kong, was also provided.

14.  In a Notice of Motion filed on 26 April 2017, and its accompanying affirmation, the applicant submitted a copy of the NPS, as well as a letter from Father Patrick Colgan, stating that the applicant had posted warnings online about the dangers of bringing drugs into Hong Kong from Russia so as to deter others from following suit.

The respondent’s submissions

15.  In an affirmation filed on 5 May 2017 by Customs Inspector Lee Wing-cheung, who had taken the NPS from the applicant on 11 March 2014, and which we admitted in the interests of justice for the purpose of resolving this issue, it was explained that the information provided by the applicant had been followed up but did not lead to any tangible results.  Of the two mobile telephone numbers provided by the applicant, the registered name of one of them was found, but no one could be located at the address registered for the telephone number, and attempts to contact the registered person had all failed.  The other mobile telephone number was not in service and appeared to be a telephone number in Macau.  Finally, there was no immigration record of the person named by the applicant in Hong Kong at the relevant time, or in the records of the airline company concerned.

16.  In his written submissions, Mr Matthew Leung, SPP, submitted on behalf of the respondent that the applicant’s delay of some 2 years to treat his Abandonment as a nullity was both inordinate and inexcusable.  He argued that the Court should start from the common sense position that a person signing an important legal document, which effectively threw away his right of appeal, would be aware of what he was doing[4].  It was submitted that the applicant must have been aware of the nature and effect of signing the Notice of Abandonment: indeed, that much is clear from the content of his affirmation of 3 February 2017.  Mr Leung also relied upon the Director of Legal Aid’s decision to refuse the applicant Legal Aid, it being a merits-based decision, to submit that the applicant must have known upon such refusal that his intended appeal did not have any merit: again, the applicant acknowledged, in his 3 February 2017 affirmation, that he knew he had been refused Legal Aid before deciding to abandon his application for leave to appeal.

17.  Mr Leung further argued that the applicant’s claim that he did not know he could still appeal without a lawyer is contradicted by his affirmation of 3 February 2017, in which he stated that he was worried that if he appealed against his sentence, he was at risk of having his sentence increased.  Clearly, he must have appreciated that he could still act in person in the appeal.

18.  As to the applicant’s allegation that he could not read English, the respondent submitted that translation services were available to the applicant, if required.  As a result, the applicant had failed to show that his Abandonment was not the result of a deliberate and informed decision on his part.

19.  With regard to the applicant’s substantive appeal, Mr Leung submitted that the starting point of 24 years’ imprisonment adopted by the judge was correct on a strictly arithmetical application of the guidelines, while the enhancement of the starting point by 2 years’ imprisonment for the international element involved in importing over 2 kilogrammes of cocaine narcotic into Hong Kong was appropriate, and in accordance with authority.

20.  Mr Leung further noted that there was no reason why the applicant did not provide the NPS at the stage of mitigation, since it had already been made 4 months earlier.  As to the actual assistance provided, it was unlikely that a name and telephone number alone could be of any use[5].  Accordingly, no meaningful assistance leading to any tangible result had been provided to the authorities by the applicant.

21.  In response to the three authorities submitted by the applicant, Mr Leung pointed out that the defendants in those cases had in fact participated in controlled delivery operations, and the failure of such operations was not the fault of the defendants concerned.  This was different from the present case, where the information provided did not and could not give rise to any controlled delivery operation.

Consideration

22.  In our judgment, there is no basis on which we could hold that the applicant’s Abandonment of his appeal in September 2014 was not the result of a deliberate and informed decision, so as to suggest that his mind did not go with his act.  The length of time he took to treat his Abandonment as a nullity, coupled with what he has averred as to his state of mind at the time, suggest that he plainly knew what he was doing when he abandoned his appeal, Legal Aid having already been refused on the merits[6].  Further, it is simply not credible that the applicant would have believed that he could not represent himself after Legal Aid had been refused[7].

23.  Accordingly, we refuse the application to treat the Notice of Abandonment of 29 September 2014 as a nullity and so it follows that we have no jurisdiction to entertain the applicant’s application for leave to appeal.  In those circumstances, it is not usual for this Court to comment on the merits of an applicant’s proposed grounds of appeal.  However, as the applicant is unrepresented, and as his primary complaint is based on a claim that he provided, or sought to provide, assistance to the authorities, we have examined the merits of that claim.

24.  We should first say that on a purely arithmetical application of narcotic quantity to guideline, the starting point was correct; as was the enhancement for the international factor.

25.  We further note that counsel in the court below made no mention whatsoever during mitigation of any attempt by the applicant to volunteer or agree to participate in a controlled operation at the time of his arrest.  Yet his counsel must have known the significance of the point, given that he was the very same counsel who had successfully argued for a reduction of sentence in respect of the applicant’s cooperation in a failed delivery in the case of HKSAR v Jardin Rodela Maningas, heard more than two years earlier.

26.  Mr Leung has confirmed today that no such offer to participate in a controlled delivery was made according to the witness statements in respect of the applicant’s arrest on 18 November 2012.  In any event, no controlled delivery operation was undertaken, and the applicant’s subsequent NPS came to nothing.

27.  These circumstances provide no basis for granting the applicant any further discount of sentence beyond that already awarded to him for his plea of guilty.  Finally, in respect of the contents of the letter from Father Colgan, as this Court has previously said, this form of post-sentence conduct is a matter for the executive, not this Court, to determine whether such assistance as is disclosed should be rewarded in some way by the use of the executive’s power of clemency[8].

28.  The application to treat the Notice of Abandonment of the applicant’s appeal against sentence as a nullity is refused.

[1] (unrep.) CACC 239/2015, 28 September 2016.

[2] (unrep.) CACC 238/2010, 13 July 2011.

[3] (unrep.) CACC 278/2011, 29 May 2012.

[4] HKSAR v Matthews Rogers Raphael, (unrep., CACC 41/2016, 21 April 2017), at para 33; HKSAR v Borges Moraes Rosana (unrep., CACC 179/2014, 16 February 2017), at para 27.

[5] HKSAR v Kanfune Bashiri Rajabu (unrep., CACC 493/2012, 8 May 2013) at para 20.

[6] HKSAR v Borges Moraes Rosana (supra), at para 29.

[7] HKSAR v Mathews Rogers Raphael (supra), at para 34.

[8] HKSAR v Akinyi Grace Sylvia (unrep., CACC 324/2015, 5 May 2016), at para 39.