HKSAR v. NGUYEN THI TUYET

HCCC 184/2019

[2019] HKCFI 3010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 184 OF 2019

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

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COURT:

Ms Nguyen, you pleaded guilty to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 on 3 June 2019 before the Eastern Magistrates’ Court and you were committed to the High Court for sentence. You confirmed that plea on the last occasion and that matter was put to you today and you pleaded guilty. The offence of trafficking was in respect of 15.69 grammes of methamphetamine hydrochloride, or ‘Ice’ as it is commonly called, along with 0.51 grammes of cocaine and 1.39 grammes of heroin.

You have agreed the Summary of Facts which founds the basis of your plea and that is that on 2 August 2018, you were stopped in Tung Chau Street, Sham Shui Po. A search of your handbag revealed 61 transparent plastic bags containing the ‘Ice’, a plastic bag containing the cocaine and 14 plastic bags containing the heroin.

The estimated value of the drugs that was found upon you was HK$11,421.

Whilst you remained silent on arrest and caution as is your right, under interview you denied the manner of your arrest. You fabricated quite a complex story in order to implicate both the police and others. You said the plastic bags containing the drugs did not belong to you and they were not found in your handbag. You made up a story about the police entering your makeshift home under a bridge (where you certainly did not live), which you said you shared with others, and that someone else (whom you named) had owned up to the possession of the drugs. By your plea before the magistracy and now, you now accept that you were trafficking in dangerous drugs and that you had been lying to the police in interview. You have given no explanation for that today.

I take into account all that has been said on your behalf by Ms Ma. You are now divorced and without a partner although you have previously been married and thereafter you have lived with a Hong Kong citizen who has now emigrated and taken your son with him. You are 50 years of age and an educated woman, having commenced your first year of university reading chemistry. Ms Ma tells me that you could not afford to continue.

You came to Hong Kong as one of what the media has referred to as the “boat people”. You were interned for a short time, and then you were provided with accommodation within a camp for refugees. At that time you were living with a Vietnamese gentleman and you gave birth to your daughter. He left you when he emigrated to the UK. Ms Ma tells me this is when the offending commenced because you wanted to have a flexible income as you wanted to look after your daughter.

This is not to your credit. There was a welfare system of support for you at that time especially as a refugee with a young child, and yet you decided to commit a series of crimes and you continued to do so over a significant number of years. And you received short periods of imprisonment at a time when your daughter was very young.

Your criminal record in fact goes back to 1993 and stretches up to 2014. There is a gap and Ms Ma tells me that you only commenced using dangerous drugs yourself in recent years when your business in Vietnam went bust and you had incurred significant debts. That accounts, as Ms Ma tells me, for the gap in offending. But I am not told how you managed to pay $2 million dollars’ worth of debts from 2014 whilst I am told by 2019 and this offending, there was just 30,000 outstanding. What, Ms Nguyen, is the court to make of that?

In any event, the matters on your record are dissimilar to those you face today and whilst they evidence a total disregard for our system of law, as they are not related matters, I will not take them into consideration.

The trafficking of ‘Ice’ falls to be considered under the guideline case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and for between 10 and 70 grammes of ‘Ice’, the starting point is 7 to 11 years. For 15.69 grammes, therefore the starting point after trial would be 7 years and 4 months.

Trafficking in cocaine and heroin both fall to be considered under the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370. Trafficking in up to 10 grammes of either substance, the sentencing range after trial would be 2 to 5 years. 0.51 grammes of cocaine would therefore attract a sentence of 2 years after trial as a starting point. 1.39 grammes of heroin would also receive a sentence of 2 years after trial as a starting point. That sentence would have remained the same if I had added together the cocaine and the heroin under Lau Tak Ming. It would have together attracted a sentence of 2 years.

Ms Ma has pointed out to me in her written submissions that if the court added the heroin and cocaine to the ‘Ice’, it finds a total of 17.59 grammes, and if treated as if it was all ‘Ice’, then the starting point for sentence would have just been 7 years and 6 months. Whereas if I added the sentence of 2 years after combining both the heroin and the cocaine to the one for ‘Ice’, it would have made a total of 9 years and 4 months.

I have considered all of the alternative methods of calculating the correct sentence where there has been a cocktail of drugs recovered and consider, in the circumstances of this case, that the simple approach outlined above, given that the heroin and cocaine were in small amounts when compared to the ‘Ice’, is the appropriate one to take and I am going to adopt a starting point of 7 years and 6 months, which is lenient.

You are of course entitled to a one-third discount for your plea at the earliest opportunity and therefore the sentence which I pass upon you today is one of 5 years’ imprisonment.