HKSAR v. LE THANH TUNG

HCCC 254/2018

[2019] HKCFI 652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 254 OF 2018

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

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COURT:

On 13 August 2018, Le Thanh Tung (who I will refer to as the accused) appeared before a Magistrate in the Eastern Magistrate’s Court on a charge of trafficking in dangerous drugs. At that time he indicated a plea of guilty and was committed to this court for sentence.

The charge on which he was committed alleges that the accused on 13 December 2017 at the junction of Tung Chau Street and Kweilin Street in Sham Shui Po trafficked in 12.8 grammes of a crystalline solid containing 12.8 grammes of methamphetamine hydrochloride.

Methamphetamine hydrochloride is a dangerous drug under the Schedule to the Dangerous Drugs Ordinance, Cap 134. The accused also admitted a summary of facts before the magistrate. The essence of that summary is that at 4.38 AM on 13 December 2017 police officers patrolling the junction of Tung Chau Street and Kweilin Street noticed the accused. Their suspicions were aroused and they intercepted him. They requested that he produce some identification. He took out an immigration recognisance more commonly known as a Form 8 and showed it to one of the officers. The accused was then searched and in his right front pants pocket, a transparent resealable plastic bag containing 12.8 grammes of crystalline solid containing 12.8 grammes of methamphetamine hydrochloride was found. Also found on him was cash in the sum of just over $600 and a smart phone.

It is now agreed that the estimated street value of the dangerous drugs is about HK$5700.

By his plea of guilty before the magistrate, the accused has admitted the essential elements of the offence which includes that he was trafficking in the drug in question.

Background of the accused

The accused is the holder of an Immigration Department Recognisance. That reveals that he is aged 33 and was born in Haiphong in Vietnam. He says that he finished education up to Form 4 in Vietnam. He was unemployed at the time of his interception. He asserted to police that he was not a drug addict. The accused also asserted that he is married and lives in premises in Sham Shui Po.

Sentencing principles

For many years, the community of Hong Kong has taken a severe view of drug trafficking, particularly in relation to drugs such as methamphetamine hydrochloride. It is easy to see why. This drug has terrible consequences for the individual. It is savagely addictive. Ridding oneself of that addiction is, to say the very least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to this drug is fraught with instances of disappointment. However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs.

The view of the community is reflected in the maximum penalty provided by section 4 of the Dangerous Drugs Ordinance, Cap 134 is a fine of $5,000,000 and to imprisonment for life. Obviously, that penalty is appropriate for the worst kind of case. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug trafficking cases is to impose a deterrent sentence.

To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs including the drugs the subject of the charge in this case. The source of guidelines in relation to the trafficking of ice is to be found in HKSAR v Tam Yi Chun[2014] 3 HKLRD 691. The guideline suggested for the quantities involved in the present case is in relation to quantities of ice of between 10 grammes and 70 grammes is 7 to 11 years imprisonment.

On the evidence presently available to me, it is not plain what the accused was doing with the ice when he was intercepted. By his plea he accepts that he was trafficking but that, of itself, does not tell the court very much. I propose to proceed upon the basis that the accused was engaged in the activity of being a low-level courier.

In HKSAR v Kilima Abubakar Abbas [2018] HKCA 602, [2018] 5 HKLRD 88, § 46, 73, 144-146, the Court of Appeal recently observed that the sentencing guidelines for trafficking in dangerous drugs are guidelines designed for sentencing couriers and persons at about that level in the chain of distribution commonly associated with the trafficking in dangerous drugs. The effect of the tariffs stipulated in R v Lau Tak Ming [1990] 2 HKLR 370, which were in respect of heroin had been adopted in respect of cocaine and, with some variations, ice, was that the tariffs were set for person who was involved at the lowest level, namely as a courier or storekeeper. The Court of Appeal held that no regard was to be had to distinctions in the role of a courier or a storekeeper as a factor in mitigation reducing the tariff sentence. No one could doubt that the regime sentences in drug trafficking cases in Hong Kong is harsh. Our courts have chosen this path and this court is bound to follow it. I make these observations out of respect for the eloquent plea made by counsel for the accused which must be seen against the relatively minimal room to manoeuvre that a sentencing court has in cases such as the present one.

The accused is a Form 8 holder. That is a relevant factor in considering sentence. In HKSAR v Sandagdorj Altankhuyag & Anor [2014] 1 HKC 206, the Court of Appeal considered that there were circumstances in which a person in the position of the accused might face an aggravation of sentence by reason of this situation. In that case, the Court of Appeal was considering a Form 8 holder who had had together with another person set out on a spree of theft in a well-known entertainment area in Hong Kong. Macrae JA for the Court observed in relation to this person (who was the 2nd Appellant before the Court of Appeal):

[21] Where someone in the position of the 2nd Appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this City’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.

[22] We do not say that someone sharing the 2nd appellant’s status would aggravate his position in every case or in every crime. Obviously, there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant impact on Hong Kong’s reputation. However, in this case, not only did the 2nd appellant team up with a fellow countryman within hours of his arrival in Hong Kong when he must have known and been privy to the fact that the only purpose and intention of the 1st appellant in coming to Hong Kong was to commit theft but the target was to be a well-known and highly populated tourist destination. If the renown of Lan Kwai Fong had not reached the 1st appellant’s ears, it would certainly have been known to the 2nd appellant. In our view, this was a serious aggravating feature which we would add to those identified by the trial judge.

As was observed, not every crime would attract an element of aggravation. The key issue is the dividing line between those cases where conduct of the Form 8 holder might attract an enhancement of sentence by reason of that status and those that would not. I suspect that the fact that the offence is serious would not necessarily provide any assistance. For example, a wounding, even a serious one in domestic circumstances would not, in my judgment ordinarily attract the kind of aggravation of sentence under consideration in HKSAR v Sandagdorj Altankhuyag & Anor. However, wherever the dividing line might be drawn it is clear beyond argument that drug trafficking is one activity which would attract the kind of aggravation of sentence contemplated by the line of cases exemplified by HKSAR v Sandagdorj Altankhuyag & Anor. In my judgment, the commission of the offence of trafficking in dangerous drugs by a Form 8 torture claimant is a matter of significant aggravation.

While I perfectly appreciate that persons in the position of the accused do not have an easy existence in Hong Kong the line is manifestly crossed when they move into activities such as drug trafficking.

The quantity of ice, the subject of this charge, is not in the grand scheme of things all that great, the fact remains that trafficking in dangerous drugs and, particularly ice is a serious matter. Nevertheless, any enhancement must bear an element of proportionality to the quantity of drugs involved.

All things considered, it seems to me that the enhancement of the sentence on this account should be 3 months.

Starting Point

In view of the range of sentences before enhancement which is appropriate for trafficking in a quantity of drugs between 10 grammes and 70 grammes, I think that an appropriate starting point for a sentence which the accused might have received if he had been convicted after trial is 7 years and 1 month. To that the enhancement of 3 months arising from his status as a Form 8 holder must be added and means that the starting point is 7 years and 4 months.

Discount

The accused pleaded guilty before a magistrate which is the earliest practicable time to acknowledge his guilt and take responsibility for his conduct. Accordingly, the appropriate discount is one-third.

Resolution

Applying the relevant discount to the starting point of 7 years and 3 months results in a sentence of 4 years and 10 months.

Le Thanh Tung, please stand up. The sentence of this court is that you serve a term of imprisonment for 4 years and 10 months.