THE QUEEN v. NGUYEN MANH-HUNG

IN THE COURT OF APPEAL

1992, No. 314
(Criminal)

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JUDGMENT  OF  THE  COURT

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Macdougall, J.A.

1. The applicant, who is 34 years of age and a Vietnamese citizen, pleaded guilty before his Honour Judge Evans sitting as a deputy judge of the High Court to trafficking in a dangerous drug namely 40,318.7 grammes of herbal cannabis. He was sentenced to 5 years’ imprisonment and now applies for leave to appeal against that sentence.

2. The agreed facts of the case were that on 3 March this year a party of Customs Officers carried out a routine search on board a motor vessel that had sailed into Hong Kong earlier that day with a crew of 25 Vietnamese. They discovered 8 bags of cannabis concealed inside an empty bilge tank in the Engine Room. Enquiries were made of the crew concerning the drugs but none admitted to ownership of them. Later on 5 March the applicant admitted under caution that the drugs were his and that he had loaded them onto the vessel. He asserted that he had unsuccessfully tried to dispose of them at another port and did not realise that the vessel was coming to Hong Kong.

3. In mitigation counsel for the applicant, told the deputy judge that the applicant had been lent money by a friend in North Vietnam to buy cannabis and take it to South Vietnam where it could be sold at a profit. Unexpectedly, however, the vessel was diverted to Hong Kong. The applicant had no intention of selling the drugs in Hong Kong but planned to unload them when the vessel returned to South Vietnam where there was a market for them and where he had contacts.

4. In sentencing the applicant the deputy judge took into account of fact that he had pleaded guilty at the committal proceedings. Moreover, he accepted that it had never been the applicant’s intention to dispose of the drugs in Hong Kong. In applying the guidelines laid down in Attorney General v. Chan Chi-man [1987] HKLR 221 the deputy judge observed that they referred only to amounts up to 9000 grammes of cannabis resin and acknowledged that above that amount the severity of sentence would not progress arithmetically with the quantity of the drugs seized. He expressed the opinion that a sentence of at least of 9 years’ imprisonment would be appropriate where an offender is convicted of trafficking in 40 kilogrammes of herbal cannabis in Hong Kong. However, since the applicant had confessed his guilt to the Customs Officers, had pleaded guilty at the first opportunity, had not intended to dispose of the cannabis in Hong Kong and, bearing in mind the fact that herbal cannabis is less potent and therefore less deleterious to human health than cannabis resin, he imposed a lesser sentence of 5 years’ imprisonment.

5. In this court the applicant has asked for a reduction of sentence on account of his family circumstances, namely, that his parents are old and ill, that his wife is out of work and needs to look after his parents and that he has a newly born son and another son aged only 3 years. He also relies upon the other matters which were advanced to the deputy judge. While we cannot but help feel sympathy for those who were not involved in the commission of this offence but are adversely affected by the applicant’s wrong doing, we do not think that this is a factor that operates in mitigation of sentence. We are unable to say the sentence was manifestly excessive or wrong in principle. The application is therefore refused.