HKSAR v. TRAN DUC-MINH

HCCC 228/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 228 OF 2016

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

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COURT: Defendant, you have pleaded guilty to a charge of traffic in dangerous drugs contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. That plea was entered before the Eastern Magistracy on 6 May 2015, and you have been committed here to the Court of First Instance for sentence today.

You admitted that on 17 December 2015, on the Ground Floor at Tai Ha Street, Tsuen Wan, you unlawfully trafficked in 55.8 grammes of a mixture containing 42.5 grammes of heroin hydrochloride.

On that date and in the location as stated in the charge, you were intercepted by plainclothes police officers. As soon as the officers reveal their police identity, you turned around and tried to run away, but were subdued after a brief struggle. The drugs, as stated in the charge, were found in your right hand contained in two transparent plastic bags. At that time you were in possession of cash of HK$3,210 and two mobile phones.

In December 2015, the retail value of the heroin hydrochloride that was in your possession was estimated to be HK$41,459.

Defendant, you are Vietnamese, and entered Hong Kong illegally in about July 2015. About five days thereafter, on 20 July, you surrendered to the Immigration Department as a torture claimant. You were released on recognizance pending the determination of your claim. You therefore had the liberty to not be imprisoned and remained in Hong Kong. You have been receiving from the International Social Services food subsidies in the way of coupons for exchange at the supermarket to the value of $1,200 a month.

In mitigation, you have written me a letter in Vietnamese, which has been translated and interpreted to me today, stating the reasons why you committed this very grave and serious offence in Hong Kong.

Ms Cecilia Liang has also mitigated and expanded upon the contents of this letter. I am informed that you had borrowed money from loan sharks to the amount of $20,000 in Vietnam to run a business of selling electrical appliances. However, your business failed and as a result, you were unable to repay your loan, and the loan sharks caused you much trouble particularly by threatening your life. You were unable to seek help from the police, and therefore, you decided to escape to Hong Kong from Shenzhen. You then sought for your non-refoulement claim in Hong Kong.

You left behind in Vietnam your parents, to whom your two young children aged 5 and 3 are living with, and your ex-wife. Having arrived in Hong Kong, you knew no one, and had no friend or family here. However, you, by chance, bumped into a friend from your native place, and he introduced you to his friend, a Hong Konger. This Hong Konger showered you with complimentary food, clothes and entertainment. After some six months, he asked you to do him a favour, which was to deliver these drugs. As he had been so kind to you, you were unable to turn down his offer. You therefore committed this offence, and you now feel very remorseful. I am sure you are very grateful for this Hong Konger’s generosity to you.

You are fairly well educated, and you have completed Form 6 in Vietnam. You worked as an electrical technician after high school and began an electronics business.

You are 39 years of age. With your experience in life, I think you would understand that not much in life comes for free. This Hong Kong person was a complete stranger to you, yet he so generously supported you in the manner you say he did. Despite this, I have no doubt that you could have turned him down, knowing that this was a crime. However, you did not. Your ignorance of the law in Hong Kong is no mitigation. You may not have known it was so serious, but you certainly do know now that it is.

I accept you are a person of clear record, having never committed an offence in Vietnam, but your offence in Hong Kong is pending, which is that of illegal remaining in Hong Kong until your immigration claim is dispensed with.

Mr Bobby Cheung has submitted to me a case of HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014, where the Court of Appeal considered that the fact the defendant was a refugee or a torture claimant was an aggravating feature, entitling the judge to enhance the starting point of sentences. In that case, the Court of Appeal upheld the enhancement of sentence imposed by the district judge to a sentence of trafficking in dangerous drugs. The reasons being set out in paragraphs 19 to 27.

Ms Liang, your counsel, has asked this court to distinguish that case with the present. The principle distinguishing fact is the fact that you committed this offence in return for kindness by the Hong Kong person, and your background as to why you came to Hong Kong. These factors, in my view, do not distinguish this case from that case. The fact is that you are a torture claimant in Hong Kong, pending an immigration claim, committing a very serious offence of trafficking, less than a year after you had arrived in Hong Kong. In following the reasons set out in Norena, I consider this case to be an appropriate case for enhancement of the starting point.

The guideline case for sentence for trafficking in heroin is R v Lau Tak Ming. The category that you fall within is that of between 10 and 50 grammes, of which a sentence after trial would warrant a period of imprisonment between 5 to 8 years. You have been trafficking in the amount of 42.5 grammes of heroin, had you been convicted after trial, I would have taken a starting point of 7 years and 3 months’ imprisonment. I enhance that sentence by a further 3 months, and the sentencing point will therefore be 7 years and 6 months’ imprisonment. You have pleaded guilty, as a result of which, the usual one-third discount shall be applied, and you shall therefore be sentenced to 5 years’ imprisonment.