HKSAR v. HOANG GIA HUAN

HCCC 389/2017

[2018] HKCFI 2211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 389 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant is convicted after trial of one count of trafficking in 130.28 grammes of a crystalline solid, containing 123.67 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. The facts, which is accepted by the jury, is that the defendant was found in a wooden hut sitting behind a table, on which the ‘Ice’, in 38 packets, a quantity of empty resealable plastic bags and an electronic scale were found. (The defendant was the only person inside the hut at the time and he had HK$19,100 in cash on him.)

The defendant is now aged 36. He came from Vietnam where his parents and his two children are living. Based on his evidence given at the trial, he had already divorced. He said he has AIDS and tuberculosis. According to him, his tuberculosis had been cured, or at least under control, and is no longer infectious.

He has criminal records of possession of offensive weapon, unlawful remaining, burglary and common assault. For the purpose of sentence, I am not going to attach much weight to his previous records which are not similar to trafficking, save and except that the defendant cannot claim that he is a person of unblemished character. The defendant has come to Hong Kong twice. He was a non‑refoulement claimant at the time of the present offence and his torture claim, I am told, is still being processed.

Based on the tariff laid down in HKSAR v Tam Yi Chun (No2) [2014] 3 HKLRD 691, trafficking in 70 to 300 grammes of the narcotic carries a sentence of between 11 to 15 years. According to HKSAR v Burnales [2000] 4 HKC 636, and HKSAR v Leung Kwai Ping (No2) [2003] 2 HKC 575, consistency in sentencing is an important sentencing policy, and that is why sentencing of trafficking is primarily dictated by the quantity of the narcotic concerned. In the present case, I do not see any reason to deviate from the above sentencing policy. (In view of the quantity of the narcotic in question, which is 123.67 grammes of ‘Ice’, I adopt 11 years and 11 months as the starting point of the sentence.)

I take into account that the defendant was, at the time, a non-refoulement claimant staying in Hong Kong on the strength of a Form 8. It is well-established that the fact that an accused was a non-refoulement claimant at the time of the offence is an aggravating factor. See HKSAR v Shah Syed Arif [2016] 4 HKLRD 664. I note also that in a recent decision of the Court of Appeal HKSAR v Ali Saif CACC 309/2017, Macrae VP elaborated that:

“when Shah Syed Arif was decided, the court was of the view that it was neither prudent nor possible to issue guidelines in respect of enhancements of sentence in respect of Form 8 recognisance holders for trafficking in dangerous drugs cases, considering that the enhancement of sentence was best left to the discretion of sentencing judges. However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in a case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognisance holders whose non-refoulement applications may take several years to deal with must be firmly discouraged from becoming involved in serious crimes whilst their applications are being processed.”

I am alive that the judgment of HKSAR v Ali Saif was handed down on 14 June 2018 which was after the commission of the present offence on 7 December 2016. However, the sentencing principles elaborated by Macrae VP are, in my humble view, just as pertinent to the present case. A meaningful enhancement should be taken. This is not to say that I treat Ali Saif as if it is laying down any binding guidelines for enhancement. As Macrae VP emphasises, it is a matter best left to the discretion of the sentencing judge.

As regard the extent of enhancement for the aggravating factor under consideration, I note that in Shah Syed Arif, the trafficking offence concerns 55.88 grammes of cocaine narcotic valued at just over $145,000, and the starting point taken before any enhancement was 8 years 2 months. In the present case, the dangerous drug is 123.67 grammes of ‘Ice’ which was worth $43,514. Although the value of the ‘Ice’ in the present case was lower than that of the cocaine in Shah Syed Arif, the present case is a more serious offence in terms of the type of the dangerous drug concerned and its quantity, and this is reflected in the higher starting point based on the applicable tariff. In Shah Syed Arif, the Court of Appeal considered an enhancement of 1 year for this factor appropriate. In the present case, having looked at the matter in the round, I am satisfied that a meaningful and proper enhancement is one of 12 months, and I add that on top of the starting point to reflect this aggravating factor.

Mr Leung frankly submits that there is not much he can put forward for mitigation and he just asks for leniency. I believe that Mr Leung has said all he can say on behalf of the defendant in mitigation. However, I can see no valid grounds reducing the sentence. As far as the defendant’s medical conditions are concerned, I have not observed anything during the trial showing that he was unwell. The defendant’s tuberculosis was treated or has been treated whilst he was in the custody of the Correctional Services pending trial. I trust that the CSD will continue to provide adequate medical service to the defendant.

Having taken an overview of all the circumstances, the defendant is sentenced to 12 years and 11 months’ imprisonment.