HKSAR v. HUYNH DAI VINH

DCCC 108/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 108 OF 2013

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. However, your plea was equivocal in that you said that half of the quantity of the drugs was for your own self‑consumption.

2.  A Newton Hearing was therefore conducted to determine how much, if any, of the drugs were for your own personal self-consumption.  At the conclusion of the hearing, I accepted that 0.14 grammes were not for sale, however, the remainder of 4.50 grammes of purity of Ice was for sale.  The reasons are fully set out in my reasons for verdict delivered just now.

3.  You are aged 46 and are Vietnamese, divorcee.  You came to Hong Kong in 1979.  You have seven previous convictions of which one is related to drugs which is possession of dangerous drugs in 2009 to which you were sentenced to 6 months’ imprisonment.

4.  Your counsel, Mr Thomas Iu, has mitigated fully and thoroughly on your behalf.  He has urged me to take as low a starting point as I can.  He urges me to bear in mind that you are an addict and that you wanted to sell some of it.  As can be seen in my reasons for verdict, I could not be sure that you were a drug-dependant or addict, although as it came out in the trial, that you had a conviction for possession of dangerous drugs in 2009. 

5.  The fact is that at the Newton Hearing, it transpired that you were saying approximately 1 gramme was for your own consumption.  When plea was taken from you, you were saying half of the total amount, which is about 2.30 grammes was for your own consumption.  I however am sentencing you on the amount I found that you had trafficked in and that is 4.50 grammes of Ice.

6.  Tariffs and guidelines for trafficking Ice are well set out.  For that amount of drugs I would have taken a starting point of 54 months’ imprisonment had I convicted you after trial.  If you are entitled to the usual one-third discount, that would be reduced to 36 months’ imprisonment.  However, as a Newton Hearing was conducted and I rejected your evidence, the usual discount of one-third does not apply and that is clearly laid down and referred to in Archbold 2013 at paragraph 5-11.  In the circumstances, defendant, instead of giving you the one-third discount I give you a one-quarter discount and that would mean that the sentence would be 41 months’ imprisonment making a total sentence of 3 years and 5 months imprisonment to which you are so sentenced.