HKSAR v. MICHALAKOPOULOS THEODOROS

CACC 30 /2021, [2024] HKCA 996

On Appeal From [2021] HKCFI 323

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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REASONS FOR JUDGMENT

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The Court:

1.  On 4 February 2021, following a trial in the High Court before Deputy Judge D Yau (as D Yau J then was)  (“the judge”)  and a jury, the appellant was convicted 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 on the same day to 25 years and 9 months’ imprisonment.

2.  It had been alleged that on 30 November 2018, at Hong Kong International Airport, the appellant unlawfully trafficked in 2,473 grammes of a solid containing 1,957 grammes of cocaine.

3.  The appellant applied by counsel for leave to appeal against his conviction and sentence and advanced six grounds of appeal against conviction.  On 22 July 2022, the Single Judge granted leave to the appellant to appeal against his conviction on Ground 3 only, which concerned the failure of the judge to give a lies direction.  He also granted leave to the appellant to appeal against sentence regarding the discount for his cooperation with the authorities, in particular in relation to his participation in a protracted controlled delivery operation[1].

4.  The appellant sought to renew his grounds of appeal against conviction by way of a notice of renewal filed on 7 October 2022. However, the renewal application on the grounds on which leave had earlier been refused was abandoned on 7 March 2023.

5.  At the hearing of the appeal, we dismissed the appellant’s appeal against conviction but allowed his appeal against sentence and duly ordered that the sentence be reduced from 25 years and 9 months’ imprisonment to 22 years’ imprisonment.  We indicated that we would give our reasons in due course.  This we now do.

The prosecution case

6.  The appellant, a Canadian citizen, departed from Montréal in Canada, travelled to São Paulo in Brazil and arrived in Hong Kong, via Dubai, on 30 November 2018.  He was found upon arrival to be carrying a backpack, a check-in suitcase and a handheld suitcase.  The dangerous drugs, which formed the subject matter of the indictment, were found hidden in false compartments inside the handheld suitcase.

7.  The appellant was arrested and cautioned by Customs officers.  In response, he asked, “What’s wrong? What happened?”[2]  During a preliminary interview, the appellant told Customs officers that he had been instructed to go to the Panorama Hotel to wait for someone to collect the suitcase, for which he would be given about US$2,000[3]. In a subsequent video-recorded interview[4], the appellant claimed that he had brought the suitcase to Hong Kong believing that it contained clothes.  He told Customs officers of an earlier similar trip he had made for one James Mathew, whom he understood to be a British lawyer, to Johannesburg in South Africa, where he had picked up another suitcase containing clothes and taken it back to Toronto in Canada.  However, nothing untoward had happened on that occasion[5]. He said that James Mathew had subsequently introduced him to one David Sandro, who sponsored this trip to take the handheld suitcase to Hong Kong[6]. He believed that David Sandro was a diplomat.  Since he had concerns about the suitcase, he made enquiries with a person by the name of Nick Memphis, whom he believed to be an agent of the Federal Bureau of Investigation (“FBI”)[7]. He said he was warned by Nick Memphis that David Sandro was a dangerous person[8], but James Mathew reassured him that the suitcase only contained clothes as gifts[9]. He checked the contents of the suitcase after he received it in São Paulo and saw that it contained clothes[10]. He was, therefore, convinced that he was carrying clothing and accordingly went ahead with the trip[11].

8.  The prosecution’s case was that the appellant knowingly imported dangerous drugs into Hong Kong.  The prosecution relied on the appellant’s dire financial state, amongst other circumstantial evidence, to prove knowledge.

The defence case

9.  The appellant told the court in evidence that he did not know there were dangerous drugs in the suitcase.  He said that he was a bus driver in Montréal and was currently going through divorce proceedings.  He denied being in financial need and said that he might have given some wrong answers in this regard during his video-recorded interview, since he was exhausted at that time.  He said he had always wanted to go to Hong Kong to see its double-decker buses and visit the Bruce Lee Museum.  He relied on certain messages and emails, which he said could show that he did not want to be involved in anything illegal.  He claimed that he did not have any suspicions about the trip and had checked the suitcase after it was given to him in São Paulo.  He only saw clothes and believed what James Mathew told him and that they were gifts for bank officials in Hong Kong[12].

The email and text messages

10.  In addressing the appeal against conviction and sentence, and to fully understand the background to the case, it is appropriate to examine in some detail the numerous email and text messages of the appellant with James Mathew, David Sandro and Nick Memphis, none of whom the appellant had met in person.  In addition to these messages, the appellant had spoken with some of the individuals concerned on the telephone[13].

11.  It is not easy to set out an accurate timeframe and sequence of the messages, because they do not appear to be complete or in chronological order.  Nevertheless, the first set of messages was between the appellant and Nick Memphis, whom the appellant believed to be an FBI agent. The appellant had first contacted him in February 2014, when he had been given his contact details by another person, who had been the victim of an African scam.  The appellant asked Nick Memphis if he could help him as well[14]. One of the curiosities of this case is that ‘Nick Memphis’ was also the name of a character who played an FBI agent in the 2007 Hollywood film “Shooter”, although this matter was not explored in evidence.  It would appear that the appellant was unaware of Nick Memphis’s fictional counterpart and, although it was put to him that this person was an invention, the appellant appears to have thought that he was a real person[15].

12.  In any event, this person told the appellant that he was an FBI agent working in Nigeria “to fight against internet frauds and arrest scammers.”  He produced a photograph of his FBI identification card, which was, in fact, a copy taken from the Hollywood film referred to[16]. The appellant told Nick Memphis that he had been scammed by people, with whom he did an import/export business in Montréal.  He had paid CAD$4,000 to someone in Nigeria for clothes, which he did not receive.  Nick Memphis asked for money to be paid to an account to do the necessary legal documentations to help him recover the scammed funds. 

13.  Another person who featured in the defence was James Mathew, who purported to be a lawyer in the United Kingdom.  There were numerous messages between the appellant and James Mathew dating back as far as December 2014.  It seems that James Mathew had informed the appellant that he had won a prize and was willing to represent him in claiming it.  He asked for money in advance, but it seems that the matter was placed in abeyance.  Time passed and in 2018, James Mathew made arrangements for the appellant to go to Johannesburg.  The appellant trusted James Mathew, and he expected to get his money during the trip, although that never happened.  From the text messages, it appears the prize the appellant had won was $25 million (it is not clear if this was US$ or CAD$), of which 15% was to go to a sponsor and the rest was to be shared between James Mathew and the appellant.  There were lengthy discussions about the payment for the air tickets and hotel accommodation. When he arrived in Johannesburg, the appellant was met by a person called Roland Hillary, who gave him some ladies’ clothing to take back to Montréal.  It then appears that something went wrong with the arrangements, and the appellant complained of too many problems and delays with James Mathew and his purported partner, Robert Chan, in the United States.  In evidence, the appellant said he was supposed to be paid CAD$1,000 but only received CAD$500 from Roland Hillary. He also said that the trip to Johannesburg had nothing to do with the trip to Hong Kong[17].

14.  On 15 August 2018, the appellant sent a message to James Mathew, expressing his disappointment about the Johannesburg trip and his reluctance to make a return trip[18]:

“… let’s put things in perspective, too many problems or delays with you or your partner Mr Chan, something is not right here, I lost my job because of the wrong trip to Johannesburg and I suffer, and you telling me that I must return in September, I don’t think so, the way you guys handle things I find that very hard to convince me return to Johannesburg in September, I need money now to take care of personal matters, before arresting me, apparently for fraud, you will regret that for not taking me seriously, I will not be available when you will need me, I need cash now.”

15.  On 16 August 2018, the appellant sent a further message to James Mathew, reiterating his disquiet over the Johannesburg trip and the fact that he had never received the funds he was supposed to be paid[19]:

“… I don’t like repeat, Mr Chan is your partner, but to me he is a liar and he screw me more then two times, one more then 300,000$ and I still fight this matter in court, since Christmas he will deposit money in my account but I never see that money, that’s why I do not respond to him, I manage my account not him, you and him have my account information to deposit money, everything else are stories, and I don’t like stories, if I don’t receive money on the next 24 hours, I will never go again to Johannesburg, and do not tell me that I don’t help.”

16.  James Mathew in turn purported to put the blame on Robert Chan for the apparent failure to secure the funds during the Johannesburg trip, which explanation the appellant seemed to accept. 

17.  Although James Mathew had discussions with the appellant about taking a second trip to Johannesburg in late October 2018, other arrangements were made for him to travel to Brazil and Hong Kong instead. James Mathew instructed the appellant to contact David Sandro, who would sponsor his trip.  The appellant responded that he hoped “nothing will go wrong this time and (we can)  get it done.”[20] He explained that he needed a visa for Brazil and later confirmed with James Mathew that he had received it[21].  He also confirmed with James Mathew that David Sandro was arranging his air ticket and hotel accommodation. 

18.  On 31 October 2018, the appellant emailed David Sandro, introducing himself and noting that he had been told by James Mathew to contact him since he was his sponsor[22]. On 1 November 2018, David Sandro replied[23]:

“Your message is well received and it is my pleasure to inform you that everything is being done to ensure that completion of this transaction smoothly and without much delay. As you may know, you are required to fly down to Sao Paulo for 4 days to receive the fund clearance material which you will bring with you to Hong Kong for the clearing and deposit of the funds into your bank account. You will spend 4 days in Sao Paulo and 3 days in Hong Kong. I will take charge of your flight tickets and hotel accommodation including all the expenses. Let me know the city you wish to fly from and also your available date. Let me know if you have any questions.” (Emphasis added)

19.  The appellant responded by confirming that he “well understood” his email and requested money for travel expenses; saying that he was available to do the trip after 17 November 2018.  David Sandro confirmed the appellant’s available dates and said that the appellant would be paid $500 in São Paulo and another $1,500 in Hong Kong and that flight tickets and hotel accommodation would be fully paid[24]. There was further discussion between them about visa requirements for Brazil.  In particular, the appellant asked David Sandro what he should say regarding the purpose of the trip, whether “Business or pleasure?” David Sandro replied that he should say, “you are going for pleasure (tourism)”[25]. The appellant requested that he travel first class, to which David Sandro responded: “I understand everything you have explained in your message but the problem is that I have spent a lot of money so far in this transaction and I cannot be able to afford a business class ticket.  Try and manage the current situation and once the transaction is cleared in Hong Kong, there will be enough cash for us to do whatever we want.”[26] The appellant had difficulty obtaining a visa for Brazil, and at one stage, David Sandro suggested that he travel to Laos and Japan, since he did not require a visa for those countries.  However, the visa subsequently came through and David Sandro informed the appellant that he would buy the flight tickets and book the hotel accommodation.  He told the appellant that he would receive spending cash in Hong Kong and São Paulo[27].  On 20 November 2018, David Sandro confirmed with the appellant that he would be leaving Montréal on 24 November 2018[28].  In further messages, he provided details of the flight tickets and the hotel accommodation in São Paulo and Hong Kong[29].  He also provided details to the appellant of a Western Union payment from “Adam Joe” sent from Hong Kong in the sum of CAD$586.50[30].

20.  On 20 November 2018, the appellant reported the progress of the arrangements for the trip to James Mathew and requested that he be told the truth about when he was to be paid[31]:

“I just received an email from Mr David Sandro, asking my phone number to contact me, which I email it to him, he also told me that I will flying Saturday the 24^th November, and he will send me my ticket within 48 hours, there is one thing bothering me, I will lose my job again because I can’t give them enough time to allow me leave, and I need to know from you truly when and how long after signing I will get money in my hands, everything will be alright this time or something will go wrong again? Please let me know the truth, otherwise I will not flying because I don’t want to suffer again, please the truth.”

21.  On 21 November 2018, James Mathew informed the appellant[32]:

“I want to assure/guarantee you that the payment will be released to you unfailingly this time around, with David Sandro who have been working day and night so that he will get back all his money spent once the payment is released to you. So once you get your tickets etc. just keep me update for best of advice for success OK. Go get the payment now and keep me update.”

22.  The appellant confirmed that he had received the flight tickets and that he would depart on 24 November 2018.  James Mathew responded by assuring the appellant that he would receive the payment this time[33]. On 23 November 2018, the appellant reiterated to James Mathew[34]:

“… Please when I ask you questions answer me and explain so I will know better me too, because of your partner Robert Chan I am in troubles here. Mr Sandro send me some money through Western Union, and I can’t pick up, because my credibility, 300,000$ your partner screwed me up, the trip to Johannesburg went down the drain and I risk my life, and I ask you how I will be paid or you forget me to travel this time, the clock is ticking, and we run out of time, I am sorry, I don’t threatening you, but I tell you the truth, that I don’t risk anything this time if I don’t get truly guaranteed answers.” (Emphasis added)

23.  On 23 November 2018, James Mathew responded in the following terms[35]:

“This is my honest/sincere answer to you. (1) You will get Paid at Hongkong this is simple Truth. (2)  The(y)  will pay you with cash, which you can open an account there and put all your money. Or the(y)  give a Confirm-able Draft in your favour, this is the honest truth I know, you can also ask the sponsor Sandro David about this. This one is not going to be like Johannesburg that went down the drain. I promise and guarantee you.” (Emphasis added)

24.  There were then a series of exchanges between the appellant and David Sandro on 23 and 24 November 2018 regarding the appellant’s concerns about the trip, as follows:

(i)    The appellant to David Sandro[36]:

“… nothing personal, don’t get me wrong, but it is my safety at risk? After signing the documents, how long I will get money? How much I will get, and which way? Honest truth please, if I feel threatened in any way, I will not make the trip, or I will turn around.” (Emphasis added)

(ii)     David Sandro to the appellant[37]:

“Your message is well received and I can clearly understand your concerns. Let me start by informing you that I am personally arranging this business and if you have any questions or issued to be addressed, you should talk with me only. Be well informed that this transaction is 100% risk free and you should just feel relaxed because there is nothing to worry about. I made all the arrangements perfectly and so it will be 100% success and we shall all make money. Everything we are doing here is legitimate and in accordance with international best practices and I have done everything to ensure that your trip will be smooth and comfortable. Two days after your arrival in Sao Paulo, my contact person will meet you in your hotel to hand the thing over to you, and also give you some cash. Then on your arrival in Hong Kong, you will a taxi from the airport to the hotel and when you arrived to the hotel and check-in, you should call me immediately and our contact person in Hong Kong will come over to your hotel and collect the thing from you. He will also give you $2,000 spending cash. The next day, he will clear the funds and then give you some more cash as you can carry with you back to Montréal and the rest will be wired transferred to your offshore bank account. We need to work together with one mind and not to argue with each other. I am in charge and I assure you with my life that there will be no failure. I have spend a lot of money so far for the success of this and so you should follow my instructions and that’s all. Within the next few days we will be smiling and our financial situations will change forever. After this you will send me an invitation letter to enable me move with my family to Canada. I am trying to arrange a taxi to pick you up from the airport in Sao Paulo. But you should at least carry $100 in case.” (Emphasis added)

(iii)  The appellant to David Sandro[38]:

“What thing he will hand me over in Sao Paulo your contact person. I need to know, that thing is it a package, and what it holds in it. I need to know.” (Emphasis added)

(iv)    David Sandro to the appellant[39]:

“He will give you a hand bag containing what will be used to clear the funds in Hong Kong. I thought all this things have already been discussed with you before. Why sudden reactions in this last-minute.” (Emphasis added)

(v)  The appellant to David Sandro[40]:

“… nothing have been discussed with me before and never be carie (sic)  any package while I travel, only signed, that something is a drugs or anything to jeopardise my safety or put me in jail? I will not carie (sic)  anything unknown to me.” (Emphasis added)

(vi)  The appellant to David Sandro[41]:

“… the other trip to Johannesburg fail, don’t ask me why I don’t know, no one tell me anything and I know nothing, since July that trip to Johannesburg, I lost my job, all bills added and the government seized my account, so I have no money, I struggled to eat, sleep, and even survive, I can’t pay me phone, and soon will be interrupted, I won’t be able to take it with me, so our commission will be unknown, there is more that I can’t add it in here, you understand there is no sudden last-minute reaction, I need to know every detail and guarantee my safety, in order to make this trip, or if I see anything illegal, to jeopardise my safety, thank you for your understanding. Remember, I have no money and no phone for the trip.” (Emphasis added)

(vii)   David Sandro to the appellant[42]:

“I was not part of whatever you did in Johannesburg and so it has nothing to do with me. Why did you not explain your negative feelings to me all this time we have been communication? You allowed me spend thousands of dollars on flight tickets and hotels and now you are sounding as if I am forcing you to do this business. I work with trust and confidence and so if you do not trust what I tell you, and do as I tell you, then there is no need for us to do business together. I can understand from your messages that you do not have confidence and trust and there is no need for me to move forward with you. I would not like a situation whereby you will get to Sao Paulo and will not do as I ask you to do. If you are not ready to follow my instructions, I suggest you forget about it. I can get someone from Toronto to work with. If you cannot trust me 100% and do as I say, then forget it. I am the one spending my money for this business and so you are not in any position to give me pre-conditions. I have given you the assurance that you will be safe and everything is secure and so I do not like arguments. They will just give you a bag and you just have to put your personal things inside the bag and fly with it to Hong Kong. The fabric of the bag contains what will be used in Hong Kong to clean the bills that’s all. It is not visible and it is not detectable. I have done this business with 4 different people in the past and it was all success.” (Emphasis added)

(viii)  The appellant to David Sandro[43]:

“… is not that I don’t trust you, is that I don’t like surprises, or have problems with the law, already happened to me to have problems because of other people, and I am in the situation that I am now, I don’t know you, as you don’t know me, yes we try to work together, you want me to lie to you and then change everything down the road?, Because of the infidelity on the past I have doubts, is not that I don’t trust people, and if there is nothing to illegal make my doubts disappear, and work with full confidence to solve this, is not normal for me to ask questions?, If you don’t trust me to answer my question, it’s up to you work with me or not. I explain you everything to see better my situation, and understand what happens to me, as you see I am not allowed to receive any kind of help, (money) and you have the proof, it’s like I am a criminal. Thank you for your understanding. Please let me know what to do.” (Emphasis added)

(ix)    David Sandro to the appellant[44]:

“I understand your situation very clearly and I want you to know that I am a reputable diplomat and will never involved in anything illegal. I have a huge financial company and will not do anything that will affect my businesses. I was consulted to finance this project and my commission and that is why I am involved. I did my investigations very well before getting involved and so that is why I am doing it. 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. I want you to be calm and trust me on this. I have all the connections all over the world and I am capable of solving any problem anywhere in world. If you have someone like me on your side, you should have nothing to worry about. I also have a lot of investments in Toronto. Do not worry I will meet you in Toronto by Christmas with my family and you will get to know me better. I am already a billionaire and no longer desperate for money, I do business most times just to assist people in financial needs. Like I said, just be calm and follow my instructions and you will not regret meeting me. When you get to your hotel in Sao Paulo, just feel free as a tourist and enjoy yourself. Within 2 days, my contact person will bring you the bag and then on your departure date, you should pick up a taxi from the hotel to the airport. Make sure your phone is fixed, because it is very important that I communicate with you regularly.” (Emphasis added)

25.  As a result of the exchanges with David Sandro, the appellant sent a message to James Mathew, on 24 November 2018, with the heading “What is this?”, saying[45]:

“… please allow me to ask what kind of monkey business is this? Mr David told me that he will work with someone else, because I ask and want to know what is in the package, I must carie (sic)  from Brazil to Hong Kong, is it something that will jeopardise my safety and put me in prison, or have problems with any authorities worldwide? I make the trip, but I will carie (sic)  nothing unknown to me, and don’t even get any money, what kind of sponsor is Mr David? Is he legitimate, reliable, trustworthy? I will let you know, if I am still alive, and ever come back to Montréal.”

26.  In response, James Mathew emailed the appellant that the package was a gift item for bank officials in Hong Kong[46].

27.  On 22 November 2018, the appellant messaged Nick Memphis that he would leave Montréal for work on 24 November 2018.  In response, Nick Memphis told him that he went to the bank with the United Nation representative on the amount to get “the Back-up permission letter”.  He said it cost $2,750, but as they were in it together, he would bear $1,000 and would only need $1,750 to complete it.  He assured the appellant that there were no more hidden fees or demands[47].

28.  On 23 and 24 November 2018, the appellant informed Nick Memphis that monies that he would receive from David Sandro could be paid directly to him.  The appellant asked Nick Memphis what he knew about David Sandro, and he replied that he was a fraudster posing as a diplomat.  He told the appellant not to have anything to do with him and that he may have his funds seized if the Nigerian government found out that he was dealing with David Sandro.

29.  The appellant proceeded to Montréal airport. However, there was a problem with his air ticket, which he accordingly brought to the attention of David Sandro and James Mathew. The appellant eventually arrived in São Paulo on 27 November 2018.  Once there, James Mathew emailed the appellant[48]:

“Thank God you arrived safely in Sao Paulo and have communicated with Sandro David. I want you to relax yourself and wait for instructions/directions from Sandro as he is very much ready to work with you for success sake. Keep me update as I will definitely talk to Sandro OK.”

The appellant responded[49]: 

“… for your information I do not envase (sic)  any problems. I just tell you things the way I see it, right now I wait at the lobby because the do my room, the person from Mr David to bring me the bag or the gifts and some money as Mr David told me, but I don’t see anyone and I must check out soon and leave for Hong Kong, a Mr David didn’t call me either, so what you expect me to do? Please don’t tell me that I envansing (sic)  problems, and we get the same results as of Johannesburg.”

30.  The appellant next communicated with James Mathew by email from Dubai airport on 30 November 2018, explaining that he was waiting for his flight to Hong Kong.  He also told him that he thought David Sandro was upset with him because he lost the telephone he had bought for the appellant in Brazil.  James Mathew emailed him that when he arrived at his hotel room in Hong Kong, he should email David Sandro, and “keep me update for best of advice”[50].

31.  After he was arrested in Hong Kong, the appellant had a series of email communications with David Sandro as part of the controlled delivery operation.  He actively sought to arrange David Sandro to have the contact person meet him at the hotel.  He stayed overnight in the hotel: however, no one contacted him[51].

32.  In order to put the significance of the email and text messages into context, it is necessary to understand the appellant’s defence advanced at trial.  He testified that he did not make the trip for money[52]. He said his original plan was not to go to Brazil but to Hong Kong and that was why he asked David Sandro about the purpose of the trip when it was diverted through Brazil.  He said he planned to go to Hong Kong to see its double-decker buses and visit the Bruce Lee Museum.  This was repeatedly stated by the appellant in his evidence, as reflected by the following extracts from his testimony:

“… it’s not for the money that I make the trip. The trip, it was for me to observe the double-deck buses at Hong Kong and to visit the Bruce Lee Museum, but at the same time, I carry the bandages, the luggage from Brazil. That was my purpose of the trip, not for the money.”[53]

“… the purpose of my trip to Hong Kong originally it was for me to observe the double-deck buses and to visit the Museum of Bruce Lee who was the idol of my youth. Now, Mr James Matthew proposed me to carry the suitcase from Brazil on the way here to Hong Kong and he clearly made me understood that the sponsor for this trip, it was Mr Sandro David. So and he will pay for the ticket and he will pay for the hotel, for that point, for everything that it’s in the trip, plus they want to give me -- they want to pay me US$2,000 and that it was for me. So what I thought it was okay for me because I don’t have the pay for the trip for my work or for anything else and this is -- it was okay. But they tricked me, as I found out, that by putting drugs into the case and carry it to Hong Kong, but that wasn’t -- I wasn’t aware of this. I was aware that I was carrying a suitcase with close, which was gifts for the personnel at the bank that’s all I knew.”[54]

“… It’s not my business what they’re doing. Only they request me to carry this suitcase … handcase from Brazil to Hong Kong on my way here. The trip, it wasn’t from them originally was from me, for my personal experience as a bus driver, and the reason that I decide to make this trip here to Hong Kong for the tourist industry that I work. I’m driving the original red -- red United Kingdom buses from 1950s, 1960s, and the reason the company now decides to replace those buses because they’re breaking down too often and they think they’re not secure for the people, for the customers. And this is why I decide for my personal experience and my knowledge to observe those new buses for me in Hong Kong, double deck buses, and get some knowledge of this for me to become a better driver. This is why I -- that was the purpose for me to make the trip in Hong Kong. So I did -- I just carry the suitcase for them, as they pay me the hotel, but I had no -- nothing for me, you know, to think of it, you know, oh, why they sell these clothes to these people, why they sell these gifts or -- it wasn’t in my concern. It wasn’t in my business.”[55]

33.  It is nevertheless clear from the email and text messages that the appellant was extremely gullible and naive in his dealings with James Matthew, David Sandro, Nick Memphis and others.  The messages were a major focus in the trial for both the prosecution and the defence.  The judge extensively canvassed the messages in addressing the respective cases of the parties.  The defence submitted that the appellant’s communications indicated that he did not believe he was transporting drugs and that he specifically emphasised that 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 appellant.  The issue for the jury, whatever the circumstances that led the appellant into the situation in which he was placed, was whether and when he ultimately realised he was transporting dangerous drugs into Hong Kong.  He gave oral evidence at trial and the jury had the benefit of assessing him as a witness in the context of all the other evidence presented to them.  They concluded that he knowingly brought drugs into Hong Kong.

The appeal against conviction

34.  Leave was granted, on the basis of an issue relating to the appellant’s financial difficulties and whether it was dealt with as a lie before the jury to prove the offence against him.  As a corollary to this ground was whether there was a lurking doubt as to the safety of the conviction.

35.  Mr Andrew Raffell, with him Ms Athena Cheung, representing the appellant at both the trial and the appeal, had agreed at trial that a full lies direction was not necessary in the circumstances of the present case.  However, he contended that in view of the fact that the prosecution had made use of mere inconsistencies about the appellant’s financial state, the judge should have given a more rigorous direction that mere inconsistencies did not amount to lies.  In any event, there was no objective or independent evidence to suggest that the appellant was in straightened financial circumstances.  The jury should, in the circumstances, have been warned that even if they found that the appellant had lied, that only went to the issue of his credibility and was not evidence of guilt[56]. 

36.  Mr Raffell further argued that the prosecution overplayed the issue of lies and relied on them as indicative of a motive to traffic in dangerous drugs.  It was submitted that each of the basic facts on which the prosecution relied as circumstantial evidence was capable of admitting of another inference advantageous to the appellant.  Therefore, even if the summing-up was unimpeachable, there was still a lurking doubt as to the appellant’s guilt when the case was looked at as a whole[57].

The respondent’s submission

37.  The respondent, represented by Ms Winnie Mok, submitted that there had never been any suggestion from the prosecution that the lies told by the appellant were probative of his guilt.  The central issue was the appellant’s knowledge of the drugs, in respect of which prosecuting counsel (not Ms Mok), pointed in her closing address to a number of matters in order to demonstrate why the appellant’s contention of lack of knowledge was not credible.  One such matter related to his financial state, on the basis that what he had said in his video-recorded interview was at variance with his testimony in court.  It was argued that there was no basis to justify a more rigorous direction on lies.

38.  Ms Mok submitted that the judge’s directions on the burden and standard of proof, on good character[58] and how the jury should acquit the appellant if his account of the events was true or might be true[59] could not be impugned.  There was no lurking, or substantial remaining, doubt in this case and the appeal against conviction should be dismissed.

Discussion on conviction

39.  As was identified by the Single Judge, the issue in this appeal was as follows[60]:

“18. The argument … 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. … 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.”

40.  The discrepancy between the appellant’s assertions in his video-recorded interview and his evidence in relation to his financial circumstances was drawn to the attention of the jury during prosecuting counsel’s closing address[61]:

“… Now, you will remember that in his record of interview he simply tells officers that he is a bus driver. When he gave evidence, he now tells us that he drives the bus but he has two different shifts, he drives for the kids and then he drives the normal bus, the tourist bus, he gets tips, he makes $48,000 per year and his salary varies, which is different from what he originally told the officers about his financial position. In fact, members of the jury, from the emails - and I urge you to look at the dates of the emails and what was said in the emails and the SMS messages … You would remember that in July he was told -- he told in the text -- in the email, ‘Oh,’ to James Mathew, ‘I’m homeless and I’m suffering’, but now he tells us that he wasn’t homeless, he was actually living with a friend. And you would remember that he also told us in the email that he was demanding ‘$5,000 in my account within 24 to 48 hours’. August, from an email that was sent by the defendant, he’s got nothing to eat. By November, when he takes part in the record of interview, he says, ‘I needed the money, so they told me that I get $2,000 for that and that’s why I decided to make the trip.’

So, members of the jury, make your own assessment as to what the defendant says.  Was he simply a man just trying to get the balance of what he was owed in the first trip or is it, as he had first told the officers, he is undergoing a divorce, he has expenses to pay for his daughter, he has no savings, he’s got credit card debts?  So from what he tells us, he is in desperate need of money.  …”

41.  The appellant was cross-examined as to why he had said in his video-recorded interview that he needed the money, yet he denied that he went on this trip for the $2,000 reward and sought to explain that he was exhausted when he gave this answer[62]. In relation to his email to James Mathew, in which he said he was homeless and was suffering[63], he stated that this was not relevant to this case.  He said that he was not allowed to stay in his home and everything was “held by the government”[64]. It was put to him that because he was in desperate need of money, he was willing to take the risk of knowingly bringing the suitcase, filled with dangerous drugs, into Hong Kong[65]. The appellant denied this to be the case and said that he was not in such desperate need of money.

42.  As the central issue in this case was the knowledge of the appellant, prosecuting counsel, in her closing speech, submitted to the jury that the appellant’s “denial(s)  of knowledge are lies”[66]. She went on to state why the prosecution contended that the appellant was lying (as to his lack of knowledge)  and drew the jury’s attention to nine matters:

(i)  It was unreasonable that David Sandro, who had claimed to the appellant that he was a billionaire, would entrust over HK$2.95 million worth of drugs to a bus driver from Montréal[67];

(ii)  David Sandro could easily have posted the clothes or asked his staff to take them without asking someone at random[68];

(iii)  The route taken by the appellant was long and indirect[69];

(iv)  The suitcase was unusually heavy[70];

(v)  There were two different versions given by the appellant in his video-recorded interview and in court concerning his financial circumstances[71];

(vi)  Nowhere in his video-recorded interview did he mention that the purpose of his trip was to observe double-decker buses and visit the Bruce Lee Museum in Hong Kong[72];

(vii)  The contents of the communications, by way of coded exchanges, were references to the drugs and their concealment[73];

(viii)  He had failed to mention the purpose of this trip to Nick Memphis and his own family[74] and had to ask in his email what to state as the purpose of his visit in his visa application to the Brazilian authorities[75];

(ix)  He did not turn back and walk away from the “transaction” when he clearly harboured doubts about the contents of the suitcase[76].

43.  Prosecuting counsel then submitted that all of these matters, when considered together, entitled the jury to draw the only reasonable inference that the appellant knew of the drugs in the suitcase[77]:

“The defendant’s story, the prosecution say, is not credible, unbelievable, but we, the prosecution, has proved its case, I submit to you, beyond a reasonable doubt and you can be sure that what the defendant had, which was the black handled suitcase, was not simply an ordinary suitcase with clothes in it, but he knew it was a suitcase with fabric which concealed the drugs, which were not visible and which he thought was not detectable.”

44.  It is clear from the above that what prosecuting counsel did in her closing address was to point to inconsistences, inherent improbabilities and the unreasonableness of the appellant’s evidence in court, so as to advance her position that the appellant was not a credible witness; and hence his claim that he had no knowledge about the dangerous drugs should not be believed.  His financial situation was only one of many inconsistencies, inherent improbabilities and unreasonable aspects of his account.

45.  In Yuen Kwai Choi v HKSAR[78], the Court of Final Appeal held that a lies direction serves to avoid any “impermissible process of reasoning” that a jury who finds an accused not telling the truth on one aspect of his case would go on to infer that he had lied because he was guilty of the charge before the court[79]. The Court continued:

“37. In the great majority of cases where the prosecution contend that an accused is telling lies in the witness box, a direction on lies is inappropriate. … In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient.” (Emphasis added)

46.  The respondent contended that this was such a case.  We agree.  It was made clear to the jury in unambiguous terms that the central issue was the knowledge of the appellant.  The judge, in giving directions on circumstantial evidence and inferences, told the jury that the prosecution relied on a number of facts, which if found proven, would allow them to draw the only reasonable inference against the appellant that he knew he was carrying dangerous drugs into Hong Kong.  He repeated and elaborated on a few of the above nine matters advanced by prosecuting counsel in her closing address. In relation to his financial circumstances, the judge said[80]:

“… According to the defendant’s VRI, he said he was in financial difficulty, going through a divorce which he had to contribute money, that he had no savings and credit card debts.

The prosecution, first of all, ask you to find as the judge of facts that what the defendant said in the VRI about in a bad financial situation is the truth. They ask you to make this finding first, this fact finding first. They ask you to find that the defendant was not telling the truth in the witness-box when he said he was not in desperate need of money at that time. So in the VRI the prosecution ask you to find that is the truth. Defendant in the witness-box, they want you to find that is not the truth. So that is the first thing you have to find. You will find.

And then the prosecution ask you to find that the defendant was in desperate need, that he was telling the truth in the VRI. … But the prosecution ask you to first make a finding find the defendant lied in court, find the defendant telling the truth in the VRI and find that he was in desperate need of money. That is the fact they say is proved…but it is up to you to find whether it is proved or not. If you find that the defendant is telling the truth or may be telling the truth in the witness-box and you find that no, he was in desperate need, then this fact is that he was not in desperate need. It is a finding up to you.” (Emphasis added)

47.  Putting this passage in context, the judge was directing the jury’s attention to various pieces of circumstantial evidence, which if found proven and considered together would entitle the jury to find that the appellant was not a credible witness and further to draw the only reasonable inference that the appellant knew of the presence of the drugs in his suitcase.  One such piece of evidence was the appellant’s financial state. Whilst it is true that there was no independent evidence to show the means of the appellant one way or the other, there were plainly two inconsistent versions given by the appellant.

48.  A jury is entitled to accept part of the evidence of a witness whilst rejecting another part.  In this regard, the judge gave the following direction at the commencement of his summing-up[81]:

“…In the case of each witness that you have heard giving evidence, that is, the witnesses for the prosecution and the defendant himself, consider whether he or she has told you the truth and whether he or she has been accurate in the account given. In the case of each witness, you may accept or reject all or part of what he or she told you. The fact that you disbelieve or do not accept a witness on one part of his evidence does not mean that you should reject or disbelieve the whole of his evidence.” (Emphasis added)

49.  Therefore, the judge’s direction, as set out in the above quoted remarks, was simply directing the jury as to the route of their reasoning concerning only one aspect, namely, the appellant’s financial state.  The jury were directed to make a finding on that first, and it was emphasised to them that they could only rely on the appellant’s financial circumstances as one of the pieces of circumstantial evidence to draw the inference of knowledge, provided they found that fact proved.

50.  In his concluding remarks, the judge reiterated that the only issue in the case was knowledge.  He went on to say[82]:

“If you find the defendant is telling the truth or may be telling the truth, then you must find him not guilty because you will not be able to be sure that he knew he was carrying some kind of drugs in the suitcase in Hong Kong. However, even if you are sure that he is not telling the truth, that he is lying about ‘I don’t know there were drugs inside’ or any other aspects of the case, …it still remains for the prosecution to prove to you so that you are sure that the defendant knew that there were some kind of drugs inside the suitcase when he brought it into Hong Kong. …” (Emphasis added)

51.  The jury could not have been in the slightest doubt that the appellant’s financial circumstances were only one aspect of the circumstantial evidence from which they might draw an irresistible inference against the appellant.  The basis of the appellant’s conviction did not turn on whether he lied in his evidence about his financial circumstances.  There was a whole body of other circumstantial evidence, which we will not repeat, but which was addressed in prosecuting counsel’s closing address and in the judge’s summing-up, which the jury could have taken into account in deciding whether the only reasonable inference to draw was the appellant’s knowledge of the presence of the drugs.

52.  As we have already noted, the Court of Final Appeal in Yuen Kwai Choi held, on the issue of whether a lies direction was required, that the central issue in the case was an important consideration.  In the present case, the central issue was the appellant’s knowledge.  The judge repeatedly told the jury that if they should find that the account put forward by the appellant that he had no knowledge of the drugs “is true or may be true”, he must be acquitted[83].  He stressed that if they were to reject the evidence of the appellant, they still had to be sure of his guilt[84].

53.  Any need for a more rigorous yet less than a full lies direction was not necessary in the circumstances of the present case. As was again held by the Court in Yuen Kwai Choi:

“36. … ‘where there is no need for such a direction (as in the normal case where there is a straight conflict of evidence), it will add complexity and do more harm than good.’

37.  In the great majority of cases where the prosecution contend that an accused is telling lies in the witness box, a direction on lies is inappropriate. …”

54.  Mr Raffell further argued that there is lurking doubt as to the correctness of the guilty verdict in this case.  In HKSAR v Ma Ka Kin[85], the Court held that:

“44. … The acceptance by an appellate court of a ‘lurking doubt’ as to the correctness of a verdict is necessarily a very rare occurrence indeed; for the simple reason that this Court does not readily substitute its view of the facts for those of a properly directed jury. On the very rare occasions that an appellate court has found a ‘lurking doubt’, there is usually something extraordinary about the facts or evidence in the case before it. …

…

47. … However we wish to make clear that the term ‘lurking doubt’ is not an alternative test, but rather an aspect of the statutory test of ‘unsafe and unsatisfactory’. …

48.  Appellate courts must approach the question of a ‘lurking doubt’ in a particular case with great caution.  As was held by this Court in Tang Wai-tong, the term means ‘not an insubstantial doubt but a substantial remaining doubt’ about the propriety of the conviction.  On the suitably rare occasion when this Court may invoke the notion of a ‘lurking doubt’, the Court must be left with a distinct feeling of unease as to the correctness of the conviction or find there is a real danger that an injustice may have been done.”

55.  In the present case, there were emails which contained messages that tended to show the appellant was in need of money and the suspicious circumstances of the case.  The relevant emails were summarised by the respondent and set out in the leave judgment as follows[86]:

“(1)  There were references to ‘fabric’ of the bag being ‘not visible and not detectable’, funds would be transferred to the appellant’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 appellant about these matters[87].

(2)  The [appellant] messaged James Mathew that he had lost his job, that ‘because I am homeless and suffer. This is why I accept this deal’[88].

(3)  The [appellant] stated in various other messages to James Mathew 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[89].

(4)  David Sandro messaged the [appellant] that he was a reputable diplomat who owned a huge financial company but hired the [appellant], 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 [appellant] ‘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’[90].

(6)  When the [appellant] applied for a visa, he asked James Mathew whether he should indicate his trip was for pleasure or business[91].

(7)  When the [appellant] was in Washington (in transit), he received a message from Nick Memphis, whom he believed to be a FBI agent, that David Sandro was an imposter, a fraudster impersonating a diplomat, a wanted person in Nigeria”[92].

56.  We do not find that there are any circumstances in this case leaving us with any lurking, or substantive remaining, doubt as to the correctness of the verdict.  The appeal against conviction is accordingly dismissed.

The appeal against sentence

57.  In passing sentence on the applicant, the judge applied the sentencing guidelines in respect of large quantities of cocaine narcotic as set out in R v Lau Tak Ming[93]; Attorney General v Pedro Nel Rojas[94]; HKSAR v Abdallah Anwar Abbas[95]. Since the quantity of cocaine narcotic was 1,957 grammes, he determined that the amount came within the band of 1,200 to 4,000 grammes of cocaine, with a corresponding starting point between 23 and 26 years’ imprisonment. 

58.  The judge arrived at the sentence of 25 years and 9 months’ imprisonment by an arithmetic application of the sentencing guidelines for the quantity of 1,957 grammes of cocaine, which corresponded to a starting point of 23 years and 9 months’ imprisonment, with a further enhancement of 2 years’ imprisonment for the international element involved in bringing dangerous drugs across the border into Hong Kong.

59.  It was emphasised in mitigation that the appellant had been described by a Customs officer in evidence as “extremely cooperative and helpful”[96] and that he had tried his best in the controlled operation despite his obvious discomfort and fear for his own personal safety, which he had made known to the officers[97].  It is submitted that defendants who make a genuine attempt to assist the authorities in a controlled delivery operation should be entitled to a discount of between 33.3% and 40% on a plea of guilty: HKSAR v Lo Sze Tung Stephanie[98]and HKSAR v Kilima Abubakar Abbas[99].  Mr Raffell argued that the judge erred in not giving any discount at all to the appellant for this factor.  The resultant sentence was thereby manifestly excessive.

The respondent’s submission

60.  Ms Mok agreed that the controlled delivery, although unsuccessful, warranted some discount.  However, she stressed that the 33.3% to 40% range suggested by the authorities applied to guilty pleas: since the appellant had been convicted after trial, any discount for this factor could only be up to 6.7%.  She further submitted that given the nature of his participation, the percentage should be at the low end of the range.

Discussion on sentence

61.  The appellant was 58 years of age at the time of the commission of the offence.  Although born in Greece, he had migrated to Canada in 1977.  He subsequently married and had two children but, in November 2018, was separated from his wife and children and going through the process of divorce proceedings.  He was at the time working as a tourist bus driver in Montréal.

62.  What has troubled us in this matter is not the appellant’s state of knowledge but the appellant’s underlying state of mind, although we are unable to say whether his present mental state has been caused or exacerbated by his current predicament.  During the hearing, we noted, for example, that he was emotional and confused and at pains to point out that he was under threat from outside forces.  He further complained that he was not receiving proper medical treatment in prison.  He said he had been transferred for a period to Siu Lam Psychiatric Reception Centre.

63.  When the appellant was interviewed under caution, he gave an account, which was essentially that he had made an earlier return trip in July 2018 from Toronto to Johannesburg, where he collected and then brought back to Canada a suitcase of ladies’ clothes for a reward of CAD$1,000.  The appellant did not think there was anything illegal about that particular expedition, although his messages reveal that he was at the same time expecting to receive the proceeds of a prize worth some CAD$300,000[100].  His present arrest took place when he was again asked to deliver some clothes to Hong Kong. 

64.  The journey to Hong Kong was arranged by David Sandro, although it had been introduced to the appellant by James Mathew at some stage after the earlier trip to Johannesburg. Neither had ever met the appellant.  This journey ultimately involved the appellant going from Montréal to São Paulo, where he collected a suitcase of clothing, then on to Hong Kong, where he was to deliver it, and thereafter to return back to Montréal; all for a reward of US$2,000.  As it happened, he spent an unexpected night in Washington DC in the United States en route to São Paulo because of an aircraft malfunction.  In his hotel in São Paulo, the appellant duly received from a Brazilian woman, claiming to be acting on the instructions of David Sandro, a handheld suitcase, seemingly full of ladies’ clothing.  From São Paulo, the appellant flew with the suitcase to Hong Kong, where in due course he was arrested.

65.  As one reads the record of interview, which lasted several hours, as well as the various messages recorded on his mobile telephone, about which he was questioned during the interview, it becomes clear that at some stage of the journey from Montréal to São Paulo, the appellant became concerned about what he was being instructed to do and began asking questions of David Sandro.  He was particularly worried that he was being asked to carry dangerous drugs.  However, he received assurances from David Sandro that there was nothing to worry about.  When, however, he persisted with his enquiries, it seems that David Sandro began to lose patience with the appellant, at which stage he hung up the telephone on him[101].  At that point, the appellant said he did not know what to do and felt he had reached the “point of no return”[102].

66.  Unhappy with the assurances he had been given, the appellant then made enquiries about David Sandro from Nick Memphis.  It seems from the series of emails with Nick Memphis that he was warned that David Sandro was “a bad person”[103], “a fraudster”[104] and “a dangerous guy”[105].  Consequently, he began to be concerned that his life might actually be “in danger”[106].

67.  As a result of these concerns and communications, and whilst in his hotel room in São Paulo, the appellant became wary of the whole purpose of the journey.  He also became suspicious about the weight of the suitcase, given that it was only supposed to contain ladies’ clothing[107]. He made enquiries about taking a flight back to Canada from Brazil, but realised he could not afford it[108]; he had no friends who could help him[109]; and he did not have a credit card that he could use to buy an air ticket[110]. He even considered leaving the suitcase behind but continuing with the journey[111]. He said in the course of interview, “I tried to… turn back but I can’t.  I have no money and there’s no trip for me to go back”[112]. 

68.  When questioned by Customs officers as to why he did not speak to a member of the airline or simply cancel the trip, the appellant responded[113]:

“Because like I, like I explained to you, okay, Nick told me that this is dangerous. This person is dangerous. But also, I had that… confirmation from James and from him as well, that it’s gonna be safe. So, as I told you again, I needed the money, sir. And this is why it makes me to decide to go ahead.”

69.  What is clear from these answers, which are supported by the text messages, is that there came a time during the journey from Montréal to São Paulo when it finally dawned on the applicant that he was doing something illegal and that it had something to do with dangerous drugs[114]. When he arrived in São Paulo, as a result of further enquiries and his increasing misgivings about the whole purpose of the expedition, he was faced with the dilemma of aborting the journey or continuing with it.  Unfortunately, he decided to continue.

70.  In these circumstances, duress did not arise. Indeed, it was never an issue at trial; nor was it raised at this appeal.  However, what is clear, from the appellant’s record of interview and the extensive email and text exchanges he had with various individuals, is that the appellant had been singled out and groomed for the earlier trip to Johannesburg before being prevailed upon to make a second journey to Brazil and Hong Kong.  At some stage, he came to realise what was going on but by then, through a combination of personal and financial circumstances, he felt unable to extricate himself from the situation in which he had become ensnared.  Accordingly, he made the unfortunate but deliberate choice to go ahead and traffic some 2 kilogrammes of cocaine into Hong Kong.

71.  As for his apparent concern for his own safety, it was not contested that during the record of interview, the appellant was reminded by a Customs officer, “…you also told me… consider your… personal safety during the controlled delivery operation, isn’t it”, to which the appellant answered “Yes”[115]. We shall return to the issue of the controlled delivery and its value in mitigation in due course.

72.  In HKSAR v Raman Kapusamy[116], the Court said this:

“72. Having said that, we do recognise that very occasionally there may be a defendant who, for one reason or another, perhaps because of physical or mental disability, infirmity or frailty, or because he has been genuinely scammed or tricked, becomes involved in a crime from which he then finds it difficult to extricate himself. Such a defendant comes to realise at some late stage what is required of him but nevertheless carries on with his part in the crime knowing what he is doing, however reluctantly, but in circumstances falling short of duress.

73. Judges will approach such cases, when they arise, with realism, fairness and common sense, in the knowledge that such claims are very easy to make after a defendant has been caught but less easy to substantiate. What we would expect, as a minimum, where such circumstances are advanced is an immediate full and frank explanation by the defendant to the relevant authority upon arrest as to how he came to be involved; and the existence of other evidence suggesting that the defendant became unwittingly ensnared and reluctantly involved in the commission of the offence, from which he found it difficult to extricate himself. Such claims will normally follow a plea of guilty. If such evidence is lacking, the defendant should be expected to give evidence and be cross-examined on his contention and the circumstances which caused him to commit the offence at a Newton hearing.

74.  Neither the applicant nor the respondent come anywhere near this rare category of circumstance. …”

73.  Although the Court made it clear that this “rare category of circumstance” would only arise “very occasionally” and, when it did, the courts should be cautious of being too accepting of such an explanation in mitigation, unless supported by contemporaneous evidence and, where necessary, testimony at a Newton hearing, the Court was in some ways remarkably prescient in its remarks: for the facts of the present case seem to exemplify the sort of circumstances the Court had in mind.  The only aspect missing, perhaps, is that the appellant did not plead guilty, the Court in Raman Kapusamy having suggested that this would normally be the context for advancing such mitigation.  However, we think there were more complex personal and mental issues and circumstances at play, which may have contributed to the course the appellant took at trial.

74.  The appellant was, at the time of the offence, in his late 50’s and going through divorce proceedings.  Living alone and experiencing obvious and acute financial difficulties, he had evidently become socially isolated and vulnerable, having to resort to social media websites as an outlet and means of communication.  He appears to have fallen victim to a criminal syndicate that identified and preyed on such vulnerable people in order to scam and groom them to transport dangerous drugs across the world.  It is not clear to us whether the earlier scam, in which the appellant was led to believe he would receive CAD$300,000 of a prize and the subsequent steps taken to claim the funds, were part of, or somehow connected with, the appellant’s later ensnarement into trafficking dangerous drugs.  If they were connected, then the whole grooming exercise of the appellant was far more elaborate and protracted, spanning as it did several years: if they were not, then the earlier scam nevertheless serves to demonstrate the appellant’s acute naivety and gullibility.

75.  The authorities uncovered a trail of emails and text messages, which revealed that the appellant was in early and frequent communication with both James Mathew and David Sandro, who arranged for the appellant to make the journey from Brazil to Hong Kong with a suitcase containing dangerous drugs.  The appellant, however, clearly became concerned that he had become involved in something far more serious.  Despite assurances to the contrary, there came a point in the journey when it dawned on him that he was involved in something illegal and that he was not merely picking up and transporting a suitcase of innocuous clothes, or collecting a prize.  The jury found that the appellant knew when he entered Hong Kong he was carrying some 2 kilogrammes of cocaine.  With his conviction based on this finding firmly in mind, but against the background we have traversed, we turn to consider what is a just and appropriate sentence for the appellant’s crime.

76.  As already noted, the amount of drugs involved fell within the band for very large quantities of narcotic with a starting point range of between 23 and 26 years’ imprisonment.  Following the guidance in HKSAR v Herry Jane Yusuph[117] and HKSAR v Lee Ming Ho[118], we assessed the appellant’s role and culpability together with the international nature of the offence as warranting a starting point of 23½ years’ imprisonment.  Our assessment took into account the extenuating circumstances of the appellant’s involvement in this offence, as anticipated and explained in Raman Kapusamy, how he had been inveigled into bringing the handheld suitcase to Hong Kong, and how he eventually realised that he was transporting dangerous drugs but was unable or unwilling to abort the trip and prevent their delivery.

77.  As for the complaint of the lack of credit in recognition of the appellant’s participation in the controlled delivery operation and his cooperation with the authorities, we note that the judge gave no consideration to this aspect of mitigation.  In HKSAR v Nkwo Nnaemeka Darlington[119], the Court held that it was neither possible nor desirable to fix a percentage discount or a range of percentage discounts for assisting authorities in a controlled delivery operation and the Court rejected laying down guidelines for such assistance.  The relevant sentencing factors necessarily depended on the unique circumstances of each case and included: (i)  the nature and effect of any voluntary participation; (ii)  the outcome of the assistance, namely whether it was successful in bringing to justice persons who would not otherwise have been brought to justice; (iii)  the degree or extent of assistance provided; and (iv)  the degree of risk to which the defendant had exposed himself or his family.  It was a matter within the discretion of judges how these, and other possible, factors will affect the discount to be accorded a defendant in a particular case.

78.  In the present case, the controlled delivery took place inside a room in the Panorama Hotel, Kowloon from around 8:30 pm on 30 November 2018 to 1:05 pm on 1 December 2018 (a period of more than 16 hours).  According to the evidence of the Customs officer in charge of the operation, the appellant had, as we have noted, indicated he was concerned about his personal safety but nevertheless continued to cooperate and participate in the operation.  During the operation, the appellant sent messages to David Sandro under the supervision of the Customs officers overseeing the operation.  It was acknowledged in evidence by Customs officer 1697 that the appellant had done “his best to try to persuade somebody to come to the hotel to receive the suitcase”[120]. Customs officers eventually terminated the operation because no one showed up to collect the suitcase[121].

79.  Although the operation was unsuccessful, the appellant nevertheless deserved a reduction to his sentence for the protracted assistance he had rendered to the authorities and the risk to his personal safety during the operation.  In addition, he also candidly disclosed the involvement of others by identifying their contact details and the communications he had had with them: see HKSAR v Sysoev Igorevich Iurii[122].  In the circumstances, we consider that the appellant should receive a reduction of 18 months from the notional starting point of 23½ years’ imprisonment, resulting in a final sentence of 22 years’ imprisonment.

80.  We wish to emphasise that we have taken a highly exceptional course in this case in respect of sentence, having studied and examined in detail the voluminous and various exchanges by text message and email between the appellant and those who were evidently in control of his movements and giving him instructions; and having drawn our conclusions as to the type of appellant with whom we are dealing.  It is necessarily the sort of exercise we would expect of any sentencing court whenever this sort of contention is put forward in mitigation, supported as it must be, as it was here, by cogent and contemporaneous evidence.

Conclusion

81.  It follows for the reasons we have given that we dismissed the appellant’s appeal against conviction, but allowed his appeal against sentence and ordered that the sentence be reduced from 25 years and 9 months’ imprisonment to 22 years’ imprisonment.