HKSAR v. REZNIKOVA ANASTASIIA

CACC 132/2020

[2021] HKCA 846

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 132 OF 2020

(ON APPEAL FROM HCCC NO 51 OF 2016)

_______________

_______________

________________

J U D G M E N T

________________

1.  On 7 February 2017, the applicant was convicted on her own plea before Campbell-Moffat J (the judge) of a single count of trafficking in a dangerous drug, namely 9,811 grammes of a powder containing 7,543 grammes of cocaine, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.[1]

2.  On 8 June 2017, following the presentation of mitigation on behalf of the applicant, the judge sentenced her to 16 years and 9 months’ imprisonment.

3.  On 21 August 2020, the applicant filed a notice of application for leave to appeal against her sentence, which was 3 years out of time.  Having had legal aid refused, the applicant appears in person at the hearing of this application.[2]

The facts

4.  According to the facts agreed and admitted by the applicant, she and Anna Likhacheva (D2) travelled to Hong Kong from Peru, via Ethiopia and Thailand.  On their arrival in Hong Kong on 23 September 2015, they were detained for customs inspection.

5.  The applicant’s suitcase was searched by Customs officers who found inside, 2 coffee packets, 2 food packets and 3 pieces of bedding.  The white powder from one of the food packets was tested and proved positive for cocaine.  A total of 10 packets, consisting of a total of 9,811 grammes of a powder containing 7,543 grammes of cocaine, were recovered from her suitcase.  At the time, the estimated value of the cocaine seized from the applicant was HK$10,360,416.

6.  The applicant was then arrested and cautioned.  Other than confirming that the suitcase was hers, the applicant remained silent.  However, on further enquiry, the applicant said that she did not know what was the substance inside her suitcase, although she thought it was illegal because a person called Felix would pay her US$5,000 to deliver it.  She said she was to contact Felix via Facebook when she reached Hong Kong and he would send someone to her hotel.

7.  Subsequently, the applicant agreed to take part in a controlled delivery.  From her Facebook account, she retrieved the phone number of Felix, whom she called.  She told him that she did not have enough money to pay for the hotel, and arrangements were made for money to be given to her.  At the hotel, a Hong Kong man aged 57 turned up and gave her a sum of US$5,000 but he made no attempt to take possession of the seized drugs.  He was intercepted by Customs officers but no charge was later laid against him.

8.  In a video recorded interview, the applicant stated that she met a man called Felix while in Thailand who asked her to go to Peru and then take something to Hong Kong.  She invited D2 to go along with her. She was given the various packs containing cocaine in Peru.  She promised D2 to share the US$5,000 reward from Felix when they arrived in Hong Kong. She had booked a flight to St. Petersburg and planned to leave Hong Kong by 26 September 2015.  She denied knowing that the packs contained a dangerous drug.

9.  In pleading guilty to the offence, the applicant accepted that she was trafficking in a dangerous drug, namely the cocaine seized from her baggage.

10.  As for D2, she also pleaded guilty to the count she faced in respect of the total of 6 packets, consisting of 5,923 grammes of a powder containing 4,623 grammes of cocaine, recovered from her case.  She was sentenced to 15 years and 6 months’ imprisonment.

The applicant’s mitigation

11.  At the time of the offence, the applicant, a Russian national, was 34 years old[3] and had no previous criminal record in Hong Kong.[4]  She was living in St. Petersburg, where she worked as a manager in an entertainment club, earning the equivalent of about HK$30,000 a month.[5]  She had been suffering from an eye degenerative disease since her early twenties.  It was submitted that she would lose her eye-sight completely within one to two years.[6]

12.  It was noted that the applicant was fully co-operative with the Customs officers at the time of her arrest and took part in a controlled delivery.  It was explained that she did what she could to facilitate the controlled delivery and it was not her fault that there was insufficient evidence to charge the man arrested during the controlled delivery.[7]  The judge was urged to give a discount between 5% to 7½%[8] for her participation in the controlled delivery in addition to the one third discount for her guilty plea.[9]

13.  It was further submitted that the applicant had participated in Father John Wotherspoon’s anti-drug campaign.  She and her brother in Russia had provided Father Wotherspoon with information about Felix.[10]  A letter from Father Wotherspoon dated 24 April 2017 was submitted to the judge, in which he said that the applicant had been supportive of his anti-drug campaign.  He also noted that he had posted on his European website material from the applicant and D2 in which they explained they had been recruited by Felix in Thailand and provided photographs of him.[11] The judge was urged to give further credit for her assistance in the campaign.[12]

The reasons for sentence

14.  Having reviewed the mitigation advanced on behalf of the applicant, the judge accepted the applicant’s assertion that she was likely to lose her sight within the next two years.[13]

15.  Applying the sentencing guideline for trafficking in cocaine in HKSAR v Abdallah Anwar Abbas,[14] the judge adopted an initial starting point of 27 years and 3 months’ imprisonment for the 7,543 grammes of cocaine narcotic.  The judge then enhanced the initial starting point by 2 years for international element to 29 years and 3 months’ imprisonment.

16.  Owing to the applicant’s ill-health and possible loss of sight, the judge reduced the initial starting point by 2 years to 27 years and 3 months’ imprisonment.  A further 3 months’ reduction was given in recognition of the applicant’s effort in identifying and publicizing Felix and stopping others from offending for this type of crime.  She said:

“There are a number of matters in mitigation for which I am prepared to give you a discount. It is now a question of in what order they are done. I am prepared to reduce that starting point by 2 years because of your ill health and possible loss of sight which will then make 27 years and 3 months. I am prepared to reduce that by 3 months for the considerable efforts you have made in recent months to identify and publicise Felix and to stop others from offending. That makes 27 years.”[15]

17.  The judge went on to address the applicant’s plea of guilty and the assistance she had rendered to the authorities as follows:

“I have considered the nature and effect of your voluntary participation in that controlled delivery, the outcome of that assistance, the degree and extent of that assistance and the degree of risk to you and your family. I have not been provided with all of the facts surrounding the delivery but I am prepared to give you some credit for volunteering to do so and for the fact that another member of the syndicate was arrested. He was clearly involved. The prosecution did not suggest otherwise. But I am told that he was not proceeded with because his arrest had been premature.

Although I also bear in mind that you chose to plead not guilty until very late in the day, despite having taken part in that controlled delivery, in so doing, you took up, Ms Reznikova, limited judicial resources when you knew full well that you were guilty and had been caught red-handed. Whoever suggested to you that you should do so did not serve you well.

With the discount I am able to give you which includes a full one-third and a further discount for the assistance you gave, you will go to prison for 16 years and 9 months.”[16]

18.  Although not entitled to a full one third discount, the judge nevertheless gave her that discount as well as a further discount for her assistance in taking part in the controlled delivery which led to the arrest of a person.  The final sentence imposed by the judge was 16 years and 9 months’ imprisonment.

The applicant’s submission

19.  In letters filed by the applicant on 21 August and 29 December 2020, she stated that she provided assistance by supplying the name and nationality of the person who had got her involved in the present case.  She complained that the Hong Kong authorities did not take the information seriously.  She said she also provided the information to Father Wotherspoon, who over a period of 2 years verified the information and sought the assistance of law enforcement agencies in other countries.  It was for this reason that she was late in applying for leave to appeal against her sentence. She said she had fulfilled the terms of her co-operation with the Hong Kong authorities in good faith and had supplied true and genuine information.  She requested that her sentence be further reduced.

20.  In support of her application, the applicant applies by way of a notice of motion dated 15 January 2021 for leave to adduce a letter from Father Wotherspoon dated 12 December 2020 as fresh evidence on appeal pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221.

21.  Father Wotherspoon listed posts he compiled and put on one of his anti-drug websites based on information from the applicant.[17]  He referred to communications between himself and a Mexican woman called Chioma,[18] who was planning to marry Felix and had come across his post that he was a drug lord in Thailand. She initially questioned Father Wotherspoon about correctness of his post but after a series of communications she accepted what he had said about Felix and provided further information to him.  Father Wotherspoon stated that he supplied this additional information to the relevant authorities in Thailand. 

The respondent’s submission

22.  Ms Lisa Go, for the respondent,  submitted that the applicant was effectively more than 3 years late in filing the notice of application for leave to appeal.  Yet, the applicant failed to explain in detail why there was such a delay except that it involved verification of the information from different countries.  She argued that the applicant failed to provide reasonable justification for the delay and no extension of time should be granted to her to file the notice of application for leave to appeal.

23.  Ms Go further submitted that the information provided by the applicant was very limited.  The applicant’s participation in Father Wotherspoon’s campaign and her assistance to the authorities generally had already been considered by the judge when sentencing the applicant and the sentence the judge imposed was in any event overly generous. 

24.  The respondent submitted there was no merit in the applicant’s complaint about her sentence and accordingly her application for leave to appeal against sentence out of time should be refused.

Discussion

25.  The following is the calculation of how the judge arrived at the final sentence from the notional starting point:

	Years	Months
Initial starting point	29	3
Discounts
- Ill-health and possible loss of sight	2
- Identifying and publicizing Felix as well as stopping others		3
- Plea of guilty (one third of the notional starting point of 27 years)	9
- Assistance to the authorities (controlled delivery)	1	3
Final sentence:	16	9

26.  The judge did not spell out the discount she attributed for the applicant’s participation in the controlled delivery. Working backwards from the final sentence and making allowances for the discounts given, it seems the discount for assistance to the authorities was 1 year and 3 months.  This represented a percentage discount of 38% (incorporating the one third discount) on a notional starting point of 27 years.  The total discount the applicant received on the initial starting point of 29 years and 3 months was 43% (incorporating the one third discount). It would seem that the judge rather generously gave the applicant the full one third discount for her guilty plea, which was entered very late on 7 February 2017 and only after that D2 had provided a non-prejudicial statement to the authorities, and a further discount for her medical condition, which is normally considered not to be a meaningful mitigating factor for such a serious crime.

27.  In order to ensure that I am not shutting out a substantial and plainly arguable ground of appeal, I have considered the information submitted in support of this application.  My overall assessment of the information supplied in the letter from Father Wotherspoon filed on 20 December 2020, is that it would appear that most of this information had been previously considered by the judge when she determined the sentence she imposed on the applicant.  The information basically concerns the identification of the person known as Felix and his activities in recruiting drug couriers.  This information had been elicited from the applicant at the time of her arrest when she was interviewed by Customs officers, who also extracted contact details and a profile photo of him from the applicant’s mobile phone.

28.  Customs Inspector Tsang Yan Chuen has submitted a statement dated 25 May 2021 in relation to this application, addressing the information and material from the applicant that Father Wotherspoon stated he supplied to the authorities.  Having set out a very full background to the case, he noted that the applicant’s mobile phone was inspected by Customs officers, who extracted details of a conversation the applicant had with Felix about her taking a gift from Peru and handing it over to someone in Hong Kong.  There was also a profile picture of this person stored on the applicant’s mobile phone.  He further noted that the applicant did not provide a non-prejudicial statement to Customs officers.  This is to be contrasted with D2, who did provide such a statement to the authorities.  Instead, in September 2017, the Customs and Excise Department received information from Father Wotherspoon through the Security Bureau, in which he identified two suspected drug traffickers operating in Thailand, one of whom was Felix.  It was said that the information in respect of Felix came from the applicant and D2, which included details of his name, travel document particulars and a profile picture of him.

29.  Inspector Tsang noted that enquiries revealed that there were no records of Felix having entered Hong Kong.  He stated that on 11 October 2017 the intelligence information was shared with the Drug Enforcement Administration of the United States Department of Justice, as well as with the relevant authorities in Thailand.  He explained that after numerous communications, no more information had been provided by the overseas authorities in respect of the intelligence submitted.  It was considered that in these circumstances the information supplied through Father Wotherspoon in 2017 had not been of any further practical use.

30.  The nature of the information and its practical value had been examined by a Superintendent of the Customs and Excise Department, who verified the statement of Inspector Tsang.

31.  The information attributable to the applicant disclosed the identity of the person who recruited her to become a drug courier and the extent of his drug trafficking activities in smuggling drugs from South America to Southeast Asia.  Further information about the person known as Felix has come from Father Wotherspoon and other sources.  As I have already pointed out the judge in sentencing the applicant very generously gave her total discounts of 43% (incorporating the one third discount for the applicant’s guilty plea) to the initial starting point of 29 years and 3 months’ imprisonment.  The judge took into account the applicant’s co-operation with the authorities including her participation in a controlled delivery, which was unsuccessful.  The information given to the authorities also included the passport particulars of Felix as well as his Facebook account and other contact details. 

32.  At the hearing of this application, the applicant explained that she felt the information that she had provided had not been taken seriously by the relevant authorities.  She noted that Felix was still using the Facebook account for his nefarious activities, which she had disclosed to the authorities a long time ago.  It would appear that overseas authorities, for whatever reason, have not been able to take any further action against this person.  The applicant accepts that she had been sentenced generously by the judge but asks rhetorically how it is that Felix is able to continue to operate in recruiting vulnerable women to act as drug couriers. There is merit in her complaint.  I realise the authorities in Hong Kong are limited in what they can do but further action is clearly required.  This case highlights the fact that far more needs to be done to tackle the international nature of the insidious crime of drug trafficking. 

33.  I note that if there is a change of circumstance and the information that the applicant has provided proves to be of further practical use, then it is available to her to apply to the executive for a further reduction.

34.  In light of the foregoing, I am not persuaded that the applicant has a reasonably arguable ground of appeal against her sentence.  I also find the delay in filing this application not to be justifiable in the circumstances.  I therefore refuse the applicant leave to appeal against her sentence out of time.

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