HKSAR v. Dong Thi Lien

DCCC 1271/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1271 OF 2010

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of trafficking in 21.52 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1) and one charge of remaining in Hong Kong without authority having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Chapter 115.

2.In summary on the 19th August this year the police intercepted the defendant in Tai Kok Tsui.  When the police inquired of the defendant’s identity she admitted entering Hong Kong illegally from Vietnam.  Upon search the police found the cocaine in the defendant’s front right trouser pocket.  The defendant said the drugs were given to her by an unknown female.

3.In a subsequent interview the defendant admitted illegally entering Hong Kong via China in August 2009 and had since then lived on the street collecting carton boxes and scrap metal to support her living.  Earlier on the day of arrest an unknown female had offered her a job to collect the cocaine from another unknown female who would pass by in a car.  The defendant would then keep the cocaine until someone contacted her to retrieve the cocaine and reward the defendant.

4.In passing sentence I have carefully considered everything said on behalf of the defendant by Miss Ho, including that she has a young son in Vietnam, who is looked after by her elderly mother because her husband has suffered a stroke.  I take into account the defendant has a clear record.

Trafficking in cocaine

5.The courts have equated for sentencing purposes cocaine with heroin (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).  In R v LAU Tak-ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes is between 5 and 8 years imprisonment.

6.I am satisfied the proper starting point after trial for 21.52 grammes of cocaine is 5 years and 9 months imprisonment.  I have my reservations that the defendant was asked by a stranger to keep safe custody of over $20,000 worth of cocaine and therefore has not been frank with regard to her role.  I am satisfied however, whatever the role of the defendant, this makes no difference to sentence.  Giving the defendant full credit for her plea of guilty she is sentenced to 3 years and 10 months imprisonment on charge 1.

Illegally remaining in Hong Kong

7.In R v. SO Man-king [1989] 1 HKLR 142 the Court of Appeal held that allowing for a plea of guilty a sentence of 15 months imprisonment should be used as the basic guideline unless there are strong humanitarian considerations to depart there from.  Whilst I sympathise with the defendant as to her family circumstances, in particular with a young child, the defendant was nevertheless prepared to come to Hong Kong and stay for a year leaving her child behind.  I am satisfied there are no strong humanitarian grounds to reduce the sentence. The defendant is sentenced to 15 months imprisonment on charge 2.

8.Unlawfully remaining is separate and distinct from the trafficking charge.  Accordingly I order the sentences to be served consecutively     (see HKSAR v TONG Fuk-sing [1999] 3 HKLRD 710).  I am satisfied a total sentence of 5 years and 1 month imprisonment properly reflects the defendant’s criminal culpability on these two charges and gives the defendant a meaningful discount form the courts maximum sentencing jurisdiction of 7 years imprisonment.