HKSAR v. VU THANH TRUNG JOHN

HCCC 227/2023

[2024] HKCFI 149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 227 OF 2023

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant pleaded guilty to one count of trafficking in dangerous drugs in the Eastern Magistrates’ Court on 7 August 2023, and was committed to this court for sentence. He confirms his plea and his agreement to the Summary of Facts before me today.

The incident which gave rise to the charge took place on 8 January 2021.

Facts

This was a run-of-the-mill type of ‘stop-and-search’ case.

At about 1804 hours, on 8 January 2021, the defendant was seen walking along Hing Wah Street. He entered a telephone booth and after a while, he left at fast pace. The defendant was emotional when being intercepted. He attempted to leave, but was soon subdued by police officers.

He was intercepted and searched by the police, and nine plastic bags were found in the waistband of the defendant’s trousers: (1)  six plastic bags containing a total of 16 grammes of a solid containing 13.7 of ketamine; and (2)  three plastic bags containing a total of 5.98 grammes of a solid containing 5 of ketamine.

Upon a thorough body search in the Cheung Sha Wan Police Station, 14 plastic bags were found in the defendant’s right trousers leg, namely: (1)  one plastic bag containing 13.6 grammes of a crystalline solid containing 13.2 grammes of methamphetamine hydrochloride (‘Ice’); (2)  13 plastic bags containing 21.6 grammes of a crystalline solid containing 20.9 grammes of ‘Ice’.

As regards the charge, its subject matter is a total amount of dangerous drugs seized from the defendant, ie, 21.98 grammes of a solid containing 18.7 grammes of ketamine and 35.2 grammes of a crystalline solid containing 34.1 grammes of ‘Ice’.

The defendant was also in possession of a mobile phone and cash of HK$25.20 and Renminbi 20 yuan.

Later in his video-recorded interview, the defendant, under cation, admitted all the seized drugs were found on him, but said he had nothing to say.

In January 2021, the total estimated street value of the drugs was about HK$33,484.

The defendant now admits that he was knowingly in possession of all the dangerous drugs seized for the purpose of unlawful trafficking.

The Defendant’s Background and Mitigation

The defendant was born in Hong Kong and is 23 years old. He was 20 at the time of the offence. He received education up to Form 3. At the time of his arrest, he was working as a delivery man. He is now single and was living with his mother and younger brother prior to his arrest.

The defendant has four previous criminal records: two of them are drug related, including one count of possession of dangerous drugs, for which he was sentenced to 14 days in 2018, and one count of trafficking in dangerous drugs, for which he was sentenced to a training centre in 2018. He was last discharged from Sha Tsui Correctional Institution on 12 December 2019.

Sentencing Principle and Tariff

Trafficking in a dangerous drug is a very serious offence. In sentencing, I shall follow the six-step approach enunciated by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

The defence and the prosecution have helpfully calculated the respective arithmetical starting points of the charge for my reference using the ‘absurdity test’, ‘conversion test’, and ‘ratio test’ as explained in HKSAR v Chan Yuk Leong CACC 318/2013 (unreported, 8 April 2014).

This charge concerns 18.7 grammes of ketamine and 34.1 grammes of ‘Ice’.

Ketamine

The sentencing guidelines for trafficking in ketamine are found in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

According to the sentencing guidelines, for the quantity of 18.7 grammes of ketamine, the defendant is in the band of 10 to 50 grammes, where the guidelines’ starting point for traffickers after trial, subject to any enhancement, is 4 to 6 years’ imprisonment.

‘Ice’

Based on the sentencing guidelines provided in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 for ‘Ice’, for the quantity of 34.1 grammes, the defendant is in the band of 10 to 70 grammes, where the starting point for traffickers after trial, subject to any enhancement, is 7 to 11 years’ imprisonment.

In the present case, the defendant’s role appears to be no more than a mere courier or a storekeeper.

Overall Starting Point

In determining the proper overall starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs. There are three means of cross-checking the appropriateness of the overall starting point in cases involving trafficking in different types of dangerous drugs. See HKSAR v Yip Wai Yin [2004] 3 HKC 367, Chan Yuk Leong and HKSAR v Islam Majharul [2020] 3 HKLRD 146.

I set out the different starting points in a table form, which both counsel have accepted as correctly calculated.

To achieve a reasonable and realistic sentence, I adopted the combined approach and checked whether the starting point to be adopted is fair and appropriate by cross-checking it against the absurdity test, the conversion test, and the ratio test as stated in the above table.

In the course of the exercise, I note that ‘Ice’ was the more potent drug in terms of harm, and also was of a higher quantity. I will use ‘Ice’ as the base drug to calculate the starting point.

Using ‘Ice’ as the base drug, the starting point for 34.1 grammes of ‘Ice’ is 8 years 7 months’ imprisonment, I now have to decide what upward adjustment I should make for the remaining 18.7 grammes of ketamine narcotic. Having applied the three tests, looking at the matter in the round, I consider the notional starting point of 8 years and 10 months would be appropriate in the present case.

I also have regard to two possible aggravating features, ie, two different types of drugs were involved and he is able to cater to a wider market, and secondly, the effect on users of combination of dangerous drugs. The possible combined use of ‘Ice’ and ketamine could pose greater harm to the abuser than either taken alone. See Chan Yuk Leong at paragraphs 23 to 25.

I remind myself that in determining an enhancement to a sentence due to any aggravating factor, I should ensure the original starting point should be proportionate to the actual sentence, the degree of enhancement should be in reasonable proportion to the basic sentence and the total ultimate sentence should not be excessive.

I will add 3 months for this aggravating factor, which makes a total of 9 years and 1 month.

The defendant has a previous offence of trafficking in dangerous drugs and reoffended 13 months after his release from the training centre in December 2019.

However, in light of the personal circumstances of the defendant, and what is submitted by Ms Tsang, I would not treat his previous convictions as an aggravating factor requiring a sentence containing an additional element of deterrence.

Then, I am required to have regard to all mitigating factors. I have been told about the defendant’s background, and what he has said in his letter as to the reason why he committed the present offence. He said he made a big mistake and suffered a serious consequence. He said he met some bad friends and started drug trafficking. However, as the Court of Appeal made clear in Herry Jane Yusuph, in cases of this nature, personal circumstances will count for little unless they are exceptional. Ms Tsang rightly accepted there is none in this case.

The Issue of Self-consumption

In mitigation, Ms Emma Tsang for the defendant submits that the defendant intended to consume about 6 grammes of ketamine in a resealable transparent bag marked ‘B3’ in a photo album.

In raising the issue of self-consumption, I asked Ms Tsang if she would be providing the court with credible and reliable information or evidence in support of her submission. She informed me that she had discussed the matter with the defendant and had clear instructions that the defendant would not give evidence or call evidence on the issue.

In such circumstances, Ms Tsang made the following submissions in support of the self-consumption claim:

(1)  the defendant was a drug user, but he was not a drug addict. She says that the urine specimen collected from the defendant when he was admitted into Pik Uk Correctional Institute on 9 January 2021, a day after he was arrested, was tested positive of cocaine, but he was not tested specifically for ketamine.

(2)  drugs were wrapped in transparent resealable bags of different sizes and weights. The defendant said he intended to take 6 grammes of ketamine out of the largest resealable bag for his own use. 6 grammes of ketamine would be around $4,038. The defendant claimed that he earned about $14,000 to $15,000 per month prior to his arrest. Therefore, he would be able to support this spending.

(3)  he was intercepted on the street where the drugs were discovered on him.

(4)  the defendant had two previous drug-related convictions in 2018, possession of dangerous drugs and trafficking in dangerous drugs. I am informed by Ms Tsang that, concerning the possession charge, the drug involved was also cocaine.

(5)  the defendant said very little on his arrest.

The Guiding Principles on Self-consumption

The guiding principle for a sentencing court when addressing the issue of self-consumption are set out in the Court of Appeal decision of HKSAR v Wong Suet Hau and Anor [2002] 1 HKLRD 69 at paragraph 34.

The Court of Appeal in HKSAR v Tsoi Man Chun CACC 414/2015 (27 March 2017, unreported), had analysed and discussed the following guiding principles on self-consumption in Wong Suet Hau at paragraphs 34 and 54:

(a)  An offender is only entitled to a discount for self-consumption if the judge finds that “all or a significant proportion” of the drugs were to be consumed by him. If he does not surmount this hurdle, then he is not entitled to any discount. As to what is a significant proportion, it was said in Wong Suet Hau to be of such a proportion that it may well make a difference to sentence.

(b)  In determining whether a self-consumption claim is true, the normal rules for determining the factual basis for sentence apply.

(c)  Where it is accepted by the judge that a significant proportion of the drugs were for the defendant’s own consumption, then it will fall on the court to assess the amount of discount that it should award the defendant from the adopted starting point. It is unnecessary for the sentencing judge to specify the relative amounts or proportion except in the broadest of terms.

(d)  The credibility of the claim must be on a proper factual and evidential basis. See also HKSAR v Choi Chun Wo [2018] 5 HKLRD 717 at paragraph 37.

As to how a sentencing court should resolve a claim of self-consumption, it was set out in Tsoi Man Chun at paragraphs 58 to 59.

It is also stated in HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 at paragraph 54, the critical issue arising from the Court of Appeal’s decision on self-consumption is the need for the claim of self-consumption to be proven to the sentencing court’s satisfaction:

“There is a real danger of abuse in this avenue of mitigation, hence a sentencing court must have a proper factual and evidential basis in accepting the contention that “a significant proportion” of the drugs were for the defendant’s own consumption. Mere assertions by counsel from the bar table, unless agreed or not in dispute or contention, will generally not suffice...It is therefore important for a defendant in making a claim for self-consumption to put before the court credible and reliable information and material in an acceptable form...”

Whilst I am prepared to accept that the defendant had used cocaine, there is no evidence, nor any credible or reliable information or material, that substantiated 6 grammes of the ketamine were for his own consumption. I am not prepared to accept that a significant proportion of the drugs was for that purpose. From all the facts and circumstances, the way the drugs were wrapped and packaged, ie, nine plastic bags of different weights and different sizes put in the waistband of the defendant’s trousers, the remaining 14 plastic bags of different sizes hidden in the defendant’s right trousers leg, and they were being carried in a public place, and he was apprehended in a public street. Further, the defendant admitted in mitigation letter that he met some bad friends and started drug trafficking. No evidence was adduced to substantiate his claim of self-consumption. I am satisfied that the defendant was transporting the drugs in question in order to deliver them to someone.

I have made known my preliminary views to the defence. Ms Tsang confirmed that the defendant would not be giving evidence in the witness box to support the defendant’s claim for self-consumption.

I am therefore not satisfied that a significant proportion of ketamine was intended to be or would be consumed by the defendant. I will not grant any discount to the sentence for self-consumption.

Notwithstanding this finding, I have also taken into account that even possession of dangerous drugs for self-consumption itself carries a term of imprisonment with possible enhancement for the latest risk, that the drugs will be distributed to others. My assessment is that the latent risk, for whatever quantity of drug the defendant had intended to reserve for self-consumption was very high.

As such, the only real mitigating factor in this case is his plea of guilty at the earliest opportunity. Having reduced by one-third for the defendant’s guilty plea, his sentence would be 72 months (after rounding it down), ie, 6 years’ imprisonment.

The final step is to stand back and look at the overall sentence in order to ensure it is a fair, just and balanced sentence in all the circumstances of the offence and the offender. I am of the view that the ultimate sentence of 6 years’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.

The final sentence I would impose on the defendant is one of 6 years’ imprisonment.