HKSAR v. NGUYEN VAN THU

HCCC 451/2024

[2025] HKCFI 3426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 451 OF 2024

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant pleaded guilty to one count of ‘going equipped for stealing[1]’ and one count of ‘trafficking in a dangerous drug’[2] before Magistrate Ms. Minnie Wat, admitted to the summary of facts and was committed, on 30 December 2024, to the Court of First Instance for sentence. He confirmed his pleas and admissions before me and the convictions were duly recorded.

PARTICULARS OF THE CHARGES

COUNT 1: GOING EQUIPPED

2.  The defendant, on 30 August, 2023, outside Construction Site of The Hong Kong Girl Guides Association Headquarters, at the junction of Ferry Street and Jordan Road, Yau Ma Tei, Kowloon, not being at his place of abode, had with him an article for use in the course of or in connection with theft, namely, one multi-purpose knife.

COUNT 2: TRAFFICKING IN A DANGEROUS DRUG

3.  On the same day and at the same location as count 1, the defendant unlawfully trafficked in a dangerous drug, namely, 28.4 grammes of a crystalline solid containing 28.2 grammes of methamphetamine hydrochloride (commonly referred to as ‘Ice’).

FACTS

4.  At 5:10 a.m. on 30 August 2023, police patrolling in Yau Ma Tei observed the Defendant behaving suspiciously near the closed main gate at the charge location.  The officers exited their vehicle and intercepted the Defendant outside the site.

5.  The defendant was seen using a multi-purpose knife to sever a plastic zip tie that was tied up with a metal chain on the main gate, while holding a transparent plastic bag in his left hand.

6.  Upon enquiry, the defendant claimed he intended to cut off the zip tie to use to tie up something else.  The defendant was arrested and cautioned for the offence of “Possession of instrument fit for unlawful purpose”, and he repeated his claim.  (Count 1)

7.  The defendant was searched and a piece of tissue paper tied up with a rubber band was found in the transparent plastic bag that he was seen holding.  Inside the tissue paper was one transparent resealable plastic bag wrapped in two pieces of tinfoil papers, which contained the dangerous drugs in count 2.

8.  The defendant claimed under caution that he had picked up the packet from a nearby rubbish bin and that he did not know what it was.  Police officers inspected the said rubbish bin and nothing suspicious was found.

9.  The defendant had cash of HK$1,094 and two mobile phones with SIM cards on his person at the time of arrest.  

10.  In the subsequent video recorded interview, in the presence of a Vietnamese interpreter, the defendant claimed under caution that he earned about $20,000 a month at a bar and as a casual part-time worker.  He had a habit of taking ‘ice’ and heroin.  He would use tinfoil and plastic bottles to consume drugs.  He confirmed that the knife belonged to him and that he intended to use it to steal the zip tie to use to tie up his bicycle at home.

11.  The defendant repeated that he had picked up the packet of drugs from the rubbish bin when he walked past.  He thought it looked special and so he opened the wrappings to see what was inside.  He suspected it might be heroin and decided to take it home.

12.  The estimated street value of the seized drugs was about HK$13,036.

13.  By way of his admission to the Summary of Facts, the defendant had admitted and accepted that at the material time he had with him the knife to steal, and that he had unlawfully trafficked in the dangerous drugs that was in his possession.  

PREVIOUS CONVICTION

14.  The defendant has multiple convictions from 35 court appearances.  21 of them are dishonesty related offences.  9 are drug related.  The present trafficking in dangerous drugs conviction is his third, with the previous two being dated 8 November 2019, when he was sentenced to a total sentence of 42 months’ imprisonment in the District Court.

BACKGROUND AND MITIGATION

15.  The defendant is 57 and divorced.  He was born in Vietnam and completed Form Three there.  He came to Hong Kong alone at the age of 19.  Prior to his arrest, he was living with his girlfriend in a partitioned room in Jordan and worked part-time at a pub in Tsim Sha Tsui, earning approximately $20,000.

16.  The defendant has had a history of drug addiction for over 30 years.  Previously using heroin, he has used ‘ice’ daily since 2011.  He committed the present trafficking offence because he was unable to afford his drug addiction, and he helped delivering drugs according to instructions in return for supply of drugs for his own consumption.

17.  As for the going equipped charge, it is Ms.  Chan’s submission that the defendant really did intend to use the stolen zip tie to use on his bicycle.  

SENTENCING

TRAFFICKING IN A DANGEROUS DRUG

18.  The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is that of life imprisonment and a fine of $5 million.

19.  The sentencing approach and tariff bands as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Huang Ruifang [2025] HKCA 234 are applied as follows.  

Step 1: The applicable guideline tariff bands

20.  For the 28.2g of ‘ICE’, the applicable guideline tariff band is “7 to 11 years”.

Step 2: The defendant’s role and culpability

21.  The defendant’s role, as he had admitted to, was that of a courier.

Step 3: The relevant band within the guidelines

22.  Based on my finding of the defendant’s role and culpability as a courier, the corresponding notional starting point is 8 years 3 months.

Step 4: Aggravating factors

23.  This is the defendant’s third conviction for trafficking in dangerous drugs.  For the aggravating factor as a repeat offender, I will enhance the sentence by 9 months, taking the notional starting point to 9 years.

Step 5: Mitigating factors

24.  The only mitigating factor is the defendant’s timely guilty plea, for which he is given the usual one-third discount, leading to a sentence of 6 years after plea.  

GOING EQUIPPED FOR STEALING

25.  The maximum sentence on conviction upon indictment for this offence is imprisonment for 3 years.  

26.  First of all, I find that the defendant’s claim that he was using the multi-purpose knife to cut off the zip tie so that he can use it to tie up his bicycle does not make sense, because once cut, the zip tie would have lost its function as a zip tie and would become just a length of plastic strip with two ends, and it would not be useful at all for tying up anything.

27.  Be that as it may, the charge that the defendant has pleaded guilty to is against his act of having with him the knife for use in the course of, or in connection with any theft, and the defendant had admitted that it was for stealing the zip tie, therefore, he will be sentenced on this basis.  

28.  Bearing in mind this is the defendant’s 22^nd dishonesty related offence, I find that a term of imprisonment is proper.  I take a starting point of 3 months, which is discounted to 2 months’ imprisonment upon his guilty plea.  

TOTALITY

29.  Given the trivial nature of the going equipped charge when compared to the trafficking charge, I will order the sentences in both counts to be served wholly concurrently, resulting in the final sentence of 6 years’ imprisonment after plea for the two counts.