HKSAR v. VU NHAN KHIEN

HCCC 45/2025

[2025] HKCFI 2921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 45 OF 2025

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REASONS FOR SENTENCE

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INTRODUCTION

1.  The Defendant pleads guilty to one count of “Attempting to traffic in a dangerous drug”, contrary to section 4(l)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and section 159G of the Crimes Ordinance, Cap. 200.

2.  The particulars of the charge avers that the Defendant on the 15th day of June, 2023, on the Ground Floor, Nos. 976-978 Canton Road, Mongkok, Kowloon, in Hong Kong, attempted to unlawfully traffic in a dangerous drug, namely 2,982 grammes of a solid containing 2,575 grammes of ketamine.

FACTS

3.  In summary, on 14 June 2023, a FedEx parcel originated from London to Hong Kong was selected for customs clearance.  The parcel, declared as containing a memory foam pillow, was discovered to have concealed 2,575 grammes of ketamine, with a street value of about HK$1,657,992.

4.  A controlled delivery operation was set up on 15 June 2023.  An undercover officer posed as a courier and delivered the parcel to the intended recipient at Room B, 3/F, No. 978 Canton Road, Hong Kong.

5.  The Defendant turned up at the Ground Floor of the building.  He showed an air waybill image on his phone, used his Form 8 Recognizance as his identification document and signed on the acknowledgement of receipt for the parcel.  Customs officers immediately revealed their identities to the Defendant.  The Defendant pushed the Customs officer and attempted to flee but was quickly subdued.  

PERSONAL BACKGROUND AND MITIGATIONS

6.  The Defendant is 33 years old.  At the time of offence, he was 31 years old.  The Defendant was born in Vietnam and is married.  His wife is aged 31.  They have 4 daughters, now aged 11, 8, 4, and 2 years old.  He was educated to Secondary level and did not pursue any higher education.  Ms. Cherry Hui, counsel for the Defendant, told me that before the Defendant came to Hong Kong, he worked as a casual worker with metal tools and hardware.  He earned at about 7-8 million Vietnamese Dong (about HK$2,000) per month.  

7.  The Defendant's wife arrived in Hong Kong in about early 2019.  She was a garment worker when she was in Vietnam.  After arriving in Hong Kong, she gave birth to the two youngest daughters in 2021 and 2023.

8.  At the time of the offence, the 2 youngest daughters were living in Hong Kong with the Defendant and his wife.  However, the eldest daughters were living with the Defendant’s parent.  Both of them were looked after by the Defendant’s mother in Vietnam.  The Defendant’s father is aged 70 and the mother is aged 60.  His parents are both retired.

9.  At the material time, the Defendant, along with his wife and youngest daughters relied on a financial assistance of HK$10,800 per month from the Hong Kong Island Social Services Foundation.  

10.  In March 2019, the Defendant came to Hong Kong for the first time.  A removal order was issued on 16 April 2019 and he was sent back to Vietnam on around 24 July 2019.

11.  In August 2019, the Defendant came to Hong Kong again.  Later he was charged for “Unlawful remaining in Hong Kong” and was sentenced to 15 months’ imprisonment.  He was discharged on 6 August 2020.

12.  In September 2019, the Defendant applied for a Non-refoulement Claim.  However, his application was refused.  He has applied for a judicial review in August 2020 pending the result.

13.  For the present offence, the Defendant explained that he was asked by his friend who asked him to collect a parcel for HK$2,000.  His friend gave him a mobile phone which was to be used to collect the parcel.  He acted foolishly and made a poor decision because he needed money for his family’s living expenditure especially his youngest daughter who was just born about 2 weeks previously.  The Defendant said that this was the first time he had committed such a serious offence.  He has never committed any drug trafficking offence before.

14.  The Defendant has only one criminal conviction record in Hong Kong.  The previous conviction is not related to trafficking.  The Defendant confirms that he is not a drug addict.  The Defendant stated that after he was arrested, his wife needed to take care of both of his daughters by herself alone.  His wife is not in good health and she cannot take care of the children by herself.  All his children are at a young age.  Because of his offence, he knows that he made a wrong decision and is very remorseful about the situation involving his wife’s health condition and the inability to take care of the children.  He is asking for a lenient sentence so that he can go back to Vietnam and take care of his children.

15.  The Defendant is very deeply remorseful and asks the court to give him a chance.  The Defendant has submitted a mitigation letter.  In his letter, the Defendant has stated that he regrets what he has done.  He is now very remorseful and asks the court to give him a chance.

16.  Ms. Hui stressed that the Defendant is prepared to plead guilty to the offence at the earliest stage.  He is remorseful and his timely plea of guilt should be reflected with a one-third discount in sentencing.  Based on the Defendant’s plea, the Defendant asks for a lenient sentence to be imposed on the present charge.

SENTENCING CONSIDERATIONS

17.  In sentencing the Defendant, I have carefully considered the facts, the background and mitigations put forward and the relevant sentencing guidelines and authorities.

18.  “Drug-trafficking” is one of the most serious offences in Hong Kong.  The maximum sentence is life imprisonment and a fine of HK$5,000,000.  People who commit this offence is expected to be severely dealt with by the court and is going to face a very long term of imprisonment.

19.  In HKSAR v Herry Jane Yusuph[2021] 1 HKLRD 290, the Court of Appeal has laid down a six-step approach in sentencing drug-trafficking offence.  The 6-step approach may be summarized as follows:

Step1 - Identifying the relevant guideline band;

Step 2 - assessing the role and culpability of the defendant;

Step 3 - identifying the starting point;

Step 4 - any aggravating factors;

Step 5 - any mitigating factors; and

Step 6 - fixing an overall sentence that is fair, just and balanced.

20.  In Step 1, according to the guidelines laid down in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, trafficking in over 1 kilogramme of ketamine, the starting point would be 14 years upwards and in HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal had further supplemented Hii Siew Chengto the extent that for trafficking in 2 kilogrammes and 3 kilogrammes of ketamine, the starting points should be no less than imprisonment for 18 and 20 years respectively.  

21.  The present case involves 2,575 grammes of ketamine.  Ms. Hui submits that mathematically speaking, the appropriate starting point should be 19 years 1.8 months (229.80 months).

22.  As to the Defendant's role and culpability in Step 2, Ms. Hui submits that, based on the evidence, the Defendant was not the mastermind of the operation.  Even though the Defendant had a key to the delivery address, the Defendant was only a courier told to collect the parcel.  The Defendant should be sentenced on the basis he is a simple courier.  

23.  The Defence acknowledges in mitigation that there are two aggravating factors in this case, namely, the international element and the element of being a Form 8 Recognizance holder.

INTERNATIONAL ELEMENT

24.  According to the case of HKSAR v Chan Ka Yiu CACC 147/2016,the Court of Appeal had stated that for trafficking in 2,000 grammes, the starting point should be no less than 18 years and that the enhancement for international element for drugs between 1,000 to 3,000 grammes should be between 1 to 2 years.

25.  In HKSAR v Lee Ming Ho [2024] 1 HKLDR 1186, [2024] HKCA 150,the Court of Appeal held that the presence of an international element in the trafficking is now a matter that goes to the role and culpability of the offender when identifying the starting point rather than being viewed as a separate and additional aggravating feature.

26.  Based on the presence of international element in this case, I consider that an enhancement of 15-18 months is warranted.  However, because of the already lengthy imprisonment that the Defendant is facing and also the presence of another aggravating factor, namely, his status as a Form 8 Recognizance holder, I would only increase the starting point by about 12 months to 20 years and 1 month in Step 3.

FORM 8 RECOGNIZANCE HOLDER

27.  As for Step 4, Ms. Hui also agrees that at the material time, the Defendant’s immigration status as a Form 8 recognizance holder is an aggravating factor in a drug trafficking case according to the Court of Appeal’s decision in HKSAR v Ali Saif  [2018] 6 HKC 19.

28.  Ms. Hui refers me to HKSAR v Singh Gursevak[2019] HKCA 179,a robbery case,in whichthe Court of Appeal confirmed the enhancement of 2 years imposed by the sentencing judge on account of the appellant’s status as a Form 8 holder.

29.  As held by the Court of Appeal in Singh Gursevak, the amount of enhancement would reflect the seriousness of the offence and the severity of its adverse impact on Hong Kong, the enhancement was to have a deterrent effect.  Totality must be borne in mind and the sentence must be just and balanced.  But it might still have to be a severe one.  (HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242)

30.  Drug-trafficking is of course a very serious offence and the impact on the community is considerable and indisputable.  However, because of the totality of the sentence, I consider an enhancement of 14 months is appropriate already and that brings the starting point up to 255 months or 21 years 3 months.

31.  As for Step 5, there is no other exceptional mitigation other than the timely plea by the Defendant.  The Court would never accept any economic reason for committing crimes and the Court of Appeal had said that in serious offences such as the present, family circumstances virtually play no part in mitigation.  After reducing the sentence by one-third, the final sentence is 14 years and 2 months of imprisonment.

32.  Step 6 is to ask the court to review the final sentence to make sure that it is just and balanced in all the circumstances.  The final sentence of 14 years and 2 months is of course harsh to the Defendant but in light of the seriousness of the offence and the aggravating factors, the sentence I imposed is only just and balanced to the offence as well as to the Defendant.

ORDER

33.  Defendant is sentence to 14 years and 2 months of imprisonment.