HKSAR v. Nguyen Thi-bien

HCCC 279/2018

[2019] HKCFI 452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 279 OF 2018

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

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COURT:

On 3 September 2018, Nguyen Thi-bien appeared before a magistrate in Eastern Magistrates’ court. There she pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance.

Nguyen Thi-bien (who I will refer to as the accused) also admitted the Summary of Facts. She was committed by the magistrate to this court. Her antecedents were read and her prior conviction admitted.

The facts reveal that just after 2.30 am on 24 January 2018, two police officers were patrolling along Nam Cheong Street in Sham Shui Po. Their attention was drawn to the accused who appeared to be holding a white object in her right hand. When one of the officers tried to approach the accused, she attempted to cross the street. The officer’s suspicions were further aroused and in particular she suspected that the accused might be in possession of a dangerous drug. Accordingly, the officer intercepted the accused.

During the course of the initial investigation, the accused tried to hide her right hand behind her back. The officers therefore examined the hand of the accused and the white object which had initially been seen by that officer fell onto the ground. That object was picked up and it was found to be a piece of tissue paper wrapping two transparent resealable bags containing a total of 28.24 grammes of a crystalline solid containing 27.4 grammes of methamphetamine hydrochloride. The accused explained to the officers that the drug was “pork” which she referred to as a kind of drug. She was arrested and cautioned by one of the officers and in answer to the charge in caution said “Ah Sir, I was just helping to deliver the pork”. At the time of her arrest, the accused at $759 in her possession together with a mobile phone.

Later, the accused submitted to a video-recorded interview. She told police that she was a housewife with no income and was dependent on her husband. She told police that she had been living in Hong Kong for 17 years. She also told police that a person by the name of “Ah Dee” instructed her to deliver the bag of drugs to others. She told the police this “Ah Dee” would call her whenever there was a job. She said that about 11.00 pm on 23 January 2018, he had instructed someone to give her the white object which was seen in her possession. That was given to her at the staircase of one of the buildings located in Nam Cheong Street. She was asked to bring it to another unknown man on the street downstairs. She only knew that the white object contained “pork” which is a colloquial term for ‘Ice’. She had the habit of smoking ‘Ice’ herself.

It is an agreed fact that the street value of the drugs seized from the accused is $15,758.

In the particular circumstances of the arrest taken together with her admissions in the video-recorded interview, the inference is that the accused was a fairly low-level courier. That is consistent with the submissions made by Ms Barbara Wong, Barrister-at-Law. I consider this to be the only reasonable inference from the facts which have been proved.

The accused is a Vietnamese-born female aged 44. She was born in Vietnam. She had some secondary education in Vietnam and said to the police that she was presently a housewife. It is to be recorded she told them that she had been in Hong Kong for 17 years. She came to Hong Kong after she married a man from Hong Kong. I am told and I accept that after coming to Hong Kong that marriage failed and she was divorced in 2004. However in due course she met and ultimately married a construction worker and that marriage has been a successful one. Her husband, who is a 58-year-old construction worker and she has a son aged 10, now 11. The accused has a history of drug offences between September 2015 and September 2016. The offences were committed over a finite and discreet period of time and referring to the drug offences appear to have been of a fairly minor nature judging by the sentences impose for those offences.

While the accused has been previously involved with drugs as a user, hard economic circumstances forced her to work for a person she knows as “Ah Dee”. He employs her as a courier from time to time and her reward for that effort is $500. I am informed by Ms Wong that this is precisely what she was doing at the time of her arrest. Her need for money for family expenses and medical bills appears to be the driving force which led her to this kind of conduct. It is a sad fact of life in Hong Kong and many other places in the world that drug traffickers employ and exploit the economically vulnerable. It is clear that this has happened in this case.

I have had read to me a heartfelt letter from her husband. He is deeply concerned about her circumstances. Further I am told and I accept that her father has suffered a stroke in Vietnam but the fact of the incarceration of the accused has been concealed from him.

The community of Hong Kong, has for many, many years taken a severe view of drug trafficking, particularly in relation to ‘Ice’. The sentences typically imposed by the courts of Hong Kong reflect this severe view. This particular drug has terrible consequences for the individual including rapid and deep addiction. Ridding oneself of that addiction is, to say the very least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment. However, there are also serious community consequences. One of those consequences involves the deployment of medical and health facilities to help people who have become addicted to these drugs. Further, the conduct of persons affected by ‘Ice’ both in private and perhaps more pertinently in public can be quite dangerous. The view of the community and the courts as to the trafficking of ‘Ice’ is reflected in the nature and the levels of sentences traditionally imposed for drug trafficking. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs including the drugs the subject of the charge in this case. In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guideline suggested for quantities involved in the present case is in relation to quantities of ‘Ice’ falls within the range of 10 grammes to 70 grammes and typically receives a sentence between 7 years and 11 years’ imprisonment.

In HKSAR v Kilima Abubakar Abbas [2018] HKCA 602, [2018] 5 HKLRD 88, § 46, 73, 144-146, the Court of Appeal recently observed that the sentencing guidelines for trafficking in dangerous drugs are guidelines designed for sentencing of couriers and persons at about that level in the chain of distribution commonly associated with trafficking of dangerous drugs. The effect of the tariffs stipulated in R v Lau Tak Ming [1990] 2 HKLR 370, which were in respect of heroin have been adopted in respect of cocaine and with some variations, ‘Ice’ and that the tariffs were set for person who was involved in the lowest level, namely as a courier or storekeeper. The Court of Appeal held that no regard was to be had to distinctions in the role of courier or storekeeper as a fact that in mitigation reducing the tariff sentence. A courier whose commission of the offence involved factors of aggravation was exposed to the risk that the sentence might for that reason be enhanced. In short, for a person in the possession of the accused who was pretty close to the lowest of the low in the distribution chain of dangerous drugs is to be sentenced in accordance with the guidelines to which reference has already been made. No one could doubt that the regime of sentences in drug trafficking cases in Hong Kong is harsh. Our courts have chosen this path and this court is bound to follow it. I make these observations out of respect for the eloquent plea made by counsel for the accused which must be seen against the relatively minimal room to manoeuvre that a sentencing court has in cases such as the present one.

In the circumstances, given the degree of participation and the quantity of drugs involved, a range of between 7 and 11 years would indicate a starting point of 8 years. For what it is worth, that starting point is, to some degree, below the mathematical application of the guidelines for the quantity of narcotic involved. The accused pleaded guilty at the earliest possible moment and for that is entitled to a discount from the starting point. That discount must be one-third. On that basis, a sentence of 5 years and 4 months is called for.

Nguyen Thi-bien, please stand up. Doing the best I can to combine justice with mercy, the sentence of this court is that you be imprisoned for 5 years and 4 months. That is the order of the court.