HKSAR v. NGUYEN Trong Thigh and Another

HCCC 92 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINSTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

CASE NO. 92 OF 1998

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REASONS FOR SENTENCE

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1. The 2 Defendants pleaded guilty to and were convicted of 2 offences of trafficking in dangerous drugs. The drugs in question were herbal cannabis. The quantity of cannabis in Charge 1 was some 9.6 kilograms while the quantity of cannabis in Charge 2 was about 51 kilograms.

2. The "Summary of Facts" admitted by both Defendants disclose the following. A police officer posed as a drug purchaser. He was introduced to and met D1 in October, 1997. The undercover officer discussed purchasing cannabis from D1 and an agreement was reached for buying 10 kilograms of herbal cannabis from D1 at $110,000. D1 told the officer to expedite the transaction as he needed the money to engage a lawyer for his wife.

3. Eventually, it was arranged between the officer and D1 that the deal would be carried out on 1 November, 1997. At about 12:30 p.m. on that day, D1 telephoned the officer and told him to go to a restaurant at Ferry Point, Jordon. The officer went there at about 3:00 p.m. and saw D1 together with D2 and a Vietnamese female. After some discussions, D1 and D2 left the restaurant leaving the officer with the female. At about 3:30 p.m., other police officers arrived and pretended to be the undercover officer's partners. On learning that the money was with the officers, the female went to make a phone call. Shortly later, D1 and D2 returned to the restaurant. There were then discussions between the undercover officer and D1 as to arranging transportation. The undercover officer then informed another officer to drive a vehicle to Man Wai Street. D1 spoke to D2 in Vietnamese and D2 then left the restaurant. He was seen by the police to come out from Man Fai Building at 3:50 p.m. carrying a sports bag. D2 joined D1 and a police officer who was in the restaurant earlier. When they arrived at the vehicle already driven there by the police, D2 put the sports bag in the boot of the vehicle. The officer opened the bag and found inside the drugs related to Charge 1. D1, D2 and the female were then arrested.

4. The police then found a set of keys on D2 which fitted the locks of the premises referred to in Charge 2. They entered and found the drugs related to Charge 2 in 4 carton boxes. Under caution, D2 admitted that he had taken the drugs contained in the sports bag from the premises. An electronic scale and 16 re-sealable plastic bags were also found inside the premises.

5. The sentencing guideline for trafficking in cannabis resin was set out in A-G v. Chan Chi Man [1987] HKLR 221. The guideline sentence for a quantity of cannabis of over 9 kilograms is imprisonment of 4 years upwards. The Court of Appeal observed in the same judgment that the courts may take into account the less damaging effect of herbal cannabis and adjust the sentence accordingly. Mr. Kwok submitted that the appropriate starting point for Charge 1 is 4 years' imprisonment and that for Charge 2 is 6 years. He referred to a number of cases on sentencing of offences of trafficking in cannabis.

6. In R. v. Tuen Shui Ming, A.R. No. 12 of 1994 (reported as [1995] 2 HKCLR 129), the Defendants were sentenced after plea to 2 years' imprisonment for trafficking in about 51 kilograms of cannabis resin containing 1,174 grammes of tetrahydrocannabinol. On review by the Court of Appeal, the sentence was increased to 4 years' imprisonment. Mr. Kwok drew my attention to the fact that the resin in that case contained particularly low narcotic contents, that is, 2.29%, compared to the 15% concentration referred to in Chan Chi Man.

7. In R. v. Chan Shu Tong, C.A. No. 119 of 1996, the Defendant was sentenced after plea to 18 years' imprisonment for trafficking in some 790 kilograms of herbal cannabis. The case of So Chin Chiu [1994] 1 HKCLR 106 was referred to in Chan Shu Tong. The Defendant's sentence (after plea) in So Chin Chiu was increased by the Court of Appeal on review to 6 years' imprisonment (adopting a starting point of 8 years). The quantity of drugs in So Chin Chiu was about 93 kilograms of herbal cannabis. In R. v. Nguyen Manh Hung C.A. No. 314 of 1992, the Defendant was sentenced to 5 years' imprisonment (adopting a starting point of 9 years) after pleading guilty to trafficking in about 40 kilograms of herbal cannabis. On appeal, the Court of Appeal refused to interfere with that sentence. Mr. Kwok submitted that merely because the Court of Appeal refused to interfere with the sentence does not mean that it was a correct sentence. He submitted that the sentence in Nguyen Manh Hung was excessive.

8. It seems to me that from the cases very helpfully referred to by Mr. Kwok, there is a range within which a proper starting point can be adopted by the Court in imposing sentences for trafficking in over 9 kilograms of cannabis. The proper starting point would depend on the circumstances of each case. I therefore accept Mr. Kwok's submissions that it would be wrong to take sentences in previous cases or guideline decisions and then to apply a mathematical formula for the amount in this case: see also p. 3 of the transcript in Chan Shu Tong. Having considered the circumstances of this case, I consider that the proper starting point for Charge 1 should be 4 years' imprisonment while that for Charge 2 should be 6-1/2 years' imprisonment.

9. There is, however, the complication that although the 2 Defendants were convicted of 2 offences of trafficking in herbal cannabis, it is apparent that the drugs in the 2 offences came from the same lot of drugs possessed by the Defendants on that day. For this reason, it is clearly wrong to impose consecutive sentences for the 2 offences. The sentences would have to be appropriately adjusted in order to reflect the totality of criminality which usually is the total amount of drugs involved in the 2 offences. There are at least 2 ways in which that can be achieved. One way is to retain the original starting point for each offence and order part of the sentence in one offence to run concurrently with that in the other offence(s). The other way is to adjust the starting point of one of the offences to reflect the overall criminality and to order the sentence(s) of the other offence(s) to run concurrently with the first sentence. Relying on R. v. Yan Kin Yi, C.A. No. 203 of 1996, Mr. Kwok submitted that the first course is not the proper course to adopt. Taking into account this complication, Mr. Kwok submitted that I should adopt a 6-1/2-year starting point for Charge 2 and one of 4 years (concurrent) for Charge 1 (to reflect the overall criminality). He seems to regard the latter course to be the correct one.

10. I rather regard it a matter of discretion as to which course ought to be adopted in a particular case. If the respective quantities of drugs involved in the different offences are almost the same (for example, 2 offences involving quantities of 100 grammes each), to artificially inflate the sentence of one offence would be difficult to justify as a matter of logic. In such cases, it would generally be more appropriate to impose the appropriate individual sentence and order part of each to run concurrently so as to achieve the proper overall sentence. On the other hand, if the respective quantities of drugs are vastly different so that one of them can be regarded as the main lot of drugs (for example, quantities of 180 grammes and 20 grammes respectively), it may be appropriate to slightly inflate the sentence relating to the main lot and order the sentence relating to the remaining drugs to run concurrently.

11. Turning to the present case, the overall quantity of herbal cannabis was about 60.6 kilograms. I consider that the proper starting point for such quantity should be 7 years' imprisonment. I stated earlier that the proper starting point for Charge 1 should be 4 years' imprisonment and that for Charge 2 should be 6-1/2 years. However, in order to reflect the overall criminality in this case, I consider that the sentence for Charge 2 should be adjusted to 7 years' imprisonment but the sentence for Charge 1 should run concurrently with that for Charge 2. Having determined the proper starting points, I now turn to the various mitigating factors advanced by the Defence.

12. Mr. Kwok asked me to give each Defendant a one-third discount for their plea of guilty which was entered at the earliest opportunity. I fully agree with Mr. Kwok's submissions on this point taking into account that the pleas were first entered in the magistrates' court. The sentence for Charge 1 is therefore reduced to 2 years 8 months and that for Charge 2 is reduced to 4 years 8 months on this ground.

13. Mr. Kwok submitted that the personal background of D1 warrants a further reduction in his sentence. D1 is 37 years old. He was born in Vietnam and came to Hong Kong in 1981. He is married to a Vietnamese lady and has no children. Although he has 20 previous convictions, none of them were drug-related. I note that most of the convictions were thefts and those since May, 1993 were trivial offences like gambling or unlawfully possessing dutiable goods. Mr. Kwok asked for leniency on the ground that D1 was under financial stress at the time. He drew my attention to the 1st paragraph of the "Summary of Facts" where D1 told the undercover officer that he needed money to engage a lawyer for his wife. Mr. Kwok said that this was confirmed by D1's wife having been tried in the District Court for a criminal offence at the end of which she was found not guilty. I do not regard this to be a mitigating factor at all. Save in most exceptional cases, I do not think that Courts should be seen to condone people for undertaking criminal enterprises of any kind because they were under financial stress. I do not consider this to be an exceptional case. However, I consider that it would be appropriate to give D1 a small reduction in sentence by reason of his record. For this reason, I will further reduce his imprisonment for 1 month.

14. As regards D2, Mr. Kwok did not ask for further reduction in sentence on the ground of D2's background. I consider that he is entirely correct in not doing so. D2 is 24 years old. He was born in Vietnam and came to Hong Kong in 1988 and is still single. He has 5 previous convictions 4 of which were drug-related. In fact, 2 of these were convictions for trafficking in drugs.

15. There is a reference in the "Summary of Facts" to the police performing an undercover operation on drug trafficking activities and D1 was introduced to the undercover officer as a result. Despite this, Mr. Kwok did not advance any mitigation on the ground that this was an entrapment case. Mr. Kwok explained that he did not do so because the drugs to be sold to the undercover officer were only 10 kilograms but the total quantity possessed by the Defendants was about 60 kilograms. There is therefore a lack in the causal link between the police undercover operation and the Defendant's drug trafficking activities. I find that he is correct in not advancing this ground.

16. To conclude, D1 is sentenced to 2 years 7 months' imprisonment for Charge 1 and 4 years 7 months' imprisonment for Charge 2. D2 is sentenced to 2 years 8 months' imprisonment for Charge 1 and 4 years 8 months' imprisonment for Charge 2. The sentences for Charges 1 and 2 are to run concurrently with each other.