HKSAR v. Nguyen Nam Doan

HCCC 198/2017

[2018] HKCFI 968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 198 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, Mr Nguyen Nam-doan, pleads guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of the offence are that the defendant, on 22 July 2016, outside Administrative Building 2, Container Terminal 4, Container Port Road South, Kwai Chung, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 53.75 kilogrammes of a mixture containing 42.40 kilogrammes of heroin hydrochloride.

Facts admitted

On 22 July 2016 at about 9.05 pm, the security personnel at Kwai Chung Container Terminal checked the contents of four boxes carried by the defendant, who was a Vietnamese seaman, and another male. The defendant claimed that the boxes contained sugar, but the security personnel felt suspicious and called the police. On 23 July 2016, with the assistance of a Vietnamese interpreter, the defendant said, under caution, that someone had asked him to deliver the four boxes from Vietnam to Hong Kong for a reward of VND 2 million.

In two video-recorded interviews subsequently conducted, the defendant repeated what he said under caution and further stated that the person gave him the four boxes and a Hong Kong mobile telephone SIM card, telling him that someone would contact him on arrival in Hong Kong. He put the boxes inside a storeroom on the ship, and no other crew members knew about it. Upon arrival in Hong Kong, he received a call asking him to bring the boxes to the gate of the terminal. Three of the four boxes were found to contain, respectively, 42, 56, and 56 bricks of a mixture of total weight of 53.75 kilogrammes containing 42.4 kilogrammes of heroin hydrochloride.

The street value of the dangerous drug is estimated to be about HK$42,785,000.

Criminal record

The defendant has a clear criminal record.

Mitigation

The defendant is a Vietnamese seaman, aged 42. He is married with two children aged 14 and 3 years. Counsel for the defendant makes a full and useful mitigation on behalf of the defendant. She tells the court that the defendant earned VND 13 million a month - which is about HK$4,000 dollars - as a seaman, and the income was very tight to support the family. When he was offered the reward of VND 2 million to do the job, he could not resist the temptation and foolishly agreed to do it. He is now very remorseful, thus pleading guilty.

The counsel for the defence says that the amount of dangerous drugs in the present case is in excess of the 1.5 kilogrammes of heroin hydrochloride, which, according to the sentencing guidelines of HKSAR v Abdallah [2009] 2 HKLRD 437 attracts a starting point of 30 years’ imprisonment. She also cites the cases of HKSAR v Chow Yau Ching [2014] 2 HKLRD 639, HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, and R v Ng Muk Kam CACC 685/1993, and asks the court to adopt a starting point of 30 years’ imprisonment with an enhancement of two years for the international element involved.

The counsel points out the defendant was not legally represented when he first appeared in the magistrates court and did not have the benefit of legal advice. He decided to plead guilty after he had carefully considered his case. The counsel asks the court to give the full one-third discount to the defendant for his plea of guilty, and failing that, to give him no less than 25 per cent discount.

Sentence

According to the case of Abdallah cited by the counsel for the defence, the starting point for trafficking in 15 kilogrammes of heroin hydrochloride is 30 years’ imprisonment and for a quantity over this amount, the starting point is at the discretion of the sentencing judge. In the case of Ng Muk Kam, also cited by the counsel for the defence, the defendant who trafficked in 306 kilogrammes of heroin hydrochloride had his sentence of life imprisonment reduced to 35 years’ imprisonment on appeal. Although this case did not set down sentencing guidelines for trafficking in large quantities of heroin hydrochloride, it serves as just a useful reference for the court in the present sentencing exercise.

On a careful study of the sentencing guidelines in Abdallah, it can be seen that when the quantity of narcotics of 600 grammes is doubled to become 1,200 grammes, the difference in starting point is 36 months. When the quantity of 1,200 grammes is increased by a little bit more than three times to 4,000 grammes, the difference in starting point is also 36 months’ imprisonment. And when 4,000 grammes is increased by slightly less than four times to 15,000 grammes, the difference in starting point is 48 months’ imprisonment. While the increase in starting point should be proportional to the increase in the quantity of the narcotics, it obviously should not be by geometric progression.

The amount of narcotics in the present case is slightly less than three times the amount of 15 kilogrammes, which, according to Abdallah, attracts a starting point of 30 years’ imprisonment. Although sentencing is not an exercise of strict mathematical calculation, in the interests of justice, the court should strive to achieve consistency in sentences passed on defendants of similar culpability.

The court accepts that the defendant, as pointed out by the counsel for the defence, was not the mastermind or the financier in the present criminal deed. Having considered the circumstances of the present case, and how the starting points progress with the increase in the amount of narcotics as deduced from the case of Abdallah and cases of similar nature, the court is of the view that a starting point of 32 years’ imprisonment is a proper one in the present case.

The defendant took the dangerous drug into Hong Kong from Vietnam. This is an aggravating factor which necessitates the starting point to be enhanced. According to the case of HKSAR v Yeung Lee Ming Simon, CACC 140/2016, the enhancement of a starting point for international element should not be more than 2 years’ imprisonment. The court, therefore, enhances the starting point of the present case to 34 years’ imprisonment.

The defendant committed the offence due to economic reasons and this cannot constitute a valid ground for mitigation. The only mitigation he has is his plea of guilty. He indicated his intention to plead guilty after the trial date had been fixed, but before the first case management hearing. The court, therefore, give him a discount of a little bit more than 26 per cent, and sentences him to 25 years’ imprisonment.

Court rises - 11.14 am

14 March 2018