HKSAR v. Nguyen Anh Nga

HCCC 95/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 95 OF 2017

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

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COURT:

The defendant has this morning been convicted by the jury of the offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. The drugs involved were methamphetamine hydrochloride. The amount involved is 3.03 kilogrammes.

The circumstances that bring the matter before me today are usual. The offence was alleged to have occurred on the 6th day of September 2010. On that day, the defendant arrived in Hong Kong, at the customs hall of the Hong Kong International Airport. She was on a flight from Nairobi in Kenya and was to transit, in Hong Kong, to Phnom Penh in Cambodia.

For reasons that are not immediately apparent, her luggage was not automatically routed through to Cambodia. Therefore, after her arrival, she made contact with the relevant officers at the Hong Kong International Airport who were then responsible for the collection of her luggage and for it to be retagged to join her on the flight to Cambodia.

The evidence, as it transpires, was that by reason of this process, her luggage had to be then examined by Hong Kong Customs officers. It suffices to say that that examination revealed that the suitcase bearing the defendant’s name and relevant identity details insofar as the airline was concerned, was found to have concealed, in its base, the methamphetamine hydrochloride referred to in the charge.

The defendant was arrested immediately, notwithstanding that there was not then present a Vietnamese interpreter. It was not until later in the morning that a Vietnamese interpreter was available. Once the interpreter was available, the caution which had been administered earlier by the customs officer was read again to the defendant and the allegations that she had trafficked in this quantity of methamphetamine hydrochloride were put to her.

Her initial response was to the effect that whilst the suitcase with the label in her name was hers, the contents were not. Later that day, or indeed, earlier in the evening, she was again interviewed by question and answer. That question and answer process revealed, amongst other things, that she herself was a Vietnamese national and whilst able to read the Vietnamese language, she was unable to write it. It also revealed that she was then 51 years of age, having been born in November of 1958.

In the course of the following questions and answers, the defendant maintained that she had no knowledge of the existence of the dangerous drugs concealed in her suitcase. She told the officers that she had been asked by a South African man to take that suitcase to Cambodia and that once she had taken possession of the suitcase, she had put some of her clothes inside but observed that there were other clothing already there. In effect, she said, having put her clothes in the suitcase, she closed it and looked no further.

Subsequently in the interview, she told the officers that she had been asked by the South African man, whom she named, to take with her, in that suitcase, United States dollars from South Africa to Cambodia and that by reason of the fact that she had liver disease, she decided to do this because she would be paid $1,500. She went on to say that the person who had asked her to do this was her younger sister’s boyfriend whom she had known for only two months. She confirmed, in further questions and answers, that whilst she believed that she was carrying US dollars to take to Cambodia, she did not herself see any US dollars inside the suitcase which she had agreed to take.

The issue for the jury in this trial was whether, in the circumstances, they could be satisfied that the defendant knew that what she was taking in her suitcase through Hong Kong to Cambodia were dangerous drugs. The jury, by their verdict of five to two, have clearly accepted that this was in fact the case.

This is yet another case which has all the hallmarks of the defendant being engaged to act as a courier by others. She is now 58 years of age. She has been incarcerated in Hong Kong for some seven years. How that comes about is of some relevance in the sentencing process. This is the third time she has been convicted. This is the third time she has been tried. On two previous occasions, guilty verdicts have been overturned, the first by the Court of Appeal and the second by the Court of Final Appeal, based on errors made in the course of the summing-up by the trial judge. It comes now for me to consider what is, in the circumstances, the appropriate sentence to be imposed.

In September of 2010, the then prevailing guidelines for sentencing for trafficking in dangerous drugs, in particular for methamphetamine hydrochloride, were governed by the observations of the Court of Appeal in the Attorney General v Ching Kwok Hung [1991] 2 HKLR 125, to which should be added the observations of the Court of Appeal in The Queen v Lau Tak Ming [1990] 2 HKLR 370. Albeit that this case dealt with trafficking in heroin, there were observations as to the aggravating fact of an international component relevant to both the trafficking in heroin and the trafficking in ‘Ice’.

Since those cases were decided, the Court of Appeal has revisited the sentencing guidelines for very large quantities of drugs. This they did in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437. It suffices to say that given the date of that decision and the date of this offence, I do not consider it appropriate to apply those guidelines, albeit the sentiments expressed generally are sentiments which were previously expressed both in Lau Tak Ming and Ching Kwok Hung.

On the last occasion that this defendant was sentenced, the court, bearing in mind the then authorities and the circumstances of the defendant and the fact that the drugs had been brought into Hong Kong by her, took a global view of the sentence and imposed a sentence of 24 years’ imprisonment. It is urged upon me by Mr Wong, on her behalf, not to depart from that as a starting point and I can see merit in his submission. So I will start with that figure in mind.

Mr Wong however submits this. This is the third time that the defendant has been convicted. This is the third time that she will be sentenced. Since the year 2010, she has, in effect, been in limbo. It is said on her behalf that on the two occasions previously when her convictions were overturned by the Court of Appeal and the Court of Final Appeal, this was done not by reason of any misfeasance on the part of the defendant or those who represented her.

With that submission, I agree. It is apparent from the respective courts’ decisions that there were errors made by the trial judges which rendered each of those convictions unsafe and unsatisfactory. Mr Wong’s submission is therefore to this effect, that by no fault of her own, she has not known her fate for the past seven years or thereabouts. In effect, she has been in limbo in Hong Kong, away from her family and friends and in an environment culturally and socially different from her own.

There is some merit in that submission. Whilst it could be said that she had the option on three occasions now to well know her fate by electing to plead guilty, I do not consider that in any way diminishes the strength of the submission made by Mr Wong. His submission is in fact that, by way of an act of mercy, given all of the circumstances and the manner in which this matter has now come before the court and all of the background to this case, it would be appropriate to give her some further discount from the starting point of 24 years.

I am persuaded that that is an appropriate course. Mr Wong has made no submission as to the quantity or quantum of that discount. But to my mind, it should be meaningful rather than a token discount.

In the circumstances, given that this is the third trial, I am prepared to allow a further discount from the period of 24 years of 2 years, and therefore the sentence that I impose is one of 22 years’ imprisonment.