HKSAR v. Nguyen the Phuong

DCCC 115/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 115 OF 2012

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BETWEEN

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Reasons for Sentence

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Introduction

1.The defendant is convicted on his own plea of the charge of trafficking in a dangerous drug, namely 5.14 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

Facts

2.The facts admitted by the defendant are as follows:

(i) At about 9:35 pm on 18 November 2011, PC3993 intercepted the defendant outside Prime View Garden Tower 1, Tuen Mun, New Territories. Upon body search, a black plastic bag containing a transparent resealable plastic bag which contained 8 black plastic bags of a total of 112 plastic straw segments (the “112 plastic straw segments”) containing dangerous drugs were found inside the defendant’s front left jeans pocket. PC3993 arrested the defendant for possession of a dangerous drug. Under caution, the defendant claimed that the white powder was for self-consumption only.

(ii) At the time of arrest, the defendant was in possession of HK$2,184.3 cash and a mobile phone.

(iii) At a subsequent interview, the defendant claimed that he bought the heroin for self-consumption from an unknown male at Prime View Garden Tower 1 at around 8 pm on 18 November 2011 at HK$4,000, which was part of his salary payment he just got, and that the cash found in his possession was the balance of his salary payment.

(iv) It was subsequently found that the 112 plastic straw segments contained a total of 41.74 grammes of a mixture containing 5.14 grammes of heroin hydrochloride.

The defendant’s previous conviction record and antecedents

3.The defendant has 50 previous convictions resulted from 37 court appearances, out of which there are 2 convictions of trafficking in dangerous drugs sentenced in March 1994 and February 2009, and 7 convictions of possession of dangerous drugs. His last conviction is trafficking in dangerous drugs sentenced for 16 months’ imprisonment in February 2009. He was last discharged from prison on 30 November 2009.

4.The defendant is 40 years old. He was born in Vietnam. He has received education up to Secondary 4 level in Vietnam. Since 2010, he worked as a gardener earning a daily wage of HK$330. He claimed that he was a drug addict.

Mitigation

5.It was submitted in mitigation that the defendant was very remorseful. Mr Shin submitted that the appropriate starting point in this case should be 3½ years’ imprisonment.

Court’s enquiries

6.I asked Mr Chui the value of the dangerous drug in this case. Mr Chui advised that the street value of the drug in this case was HK$10,559. Mr Shin informed me that the defendant did not know the street value of the drug, but the defendant claimed to have bought the drug at $4,000.

7.In relation to the defendant’s means, Mr Shin advised me that the defendant’s income was unstable and what he could tell the court was just that the defendant earned a daily wage of $330 if he had work on a particular day.  

Sentencing authority

6. The sentencing tariff for trafficking in heroin hydrochloride has been laid down in R v Lau Tak Ming & Others [1990] 2 HKLR 370. The starting point for trafficking in up to 10 grammes of heroin hydrochloride is 2 to 5 years’ imprisonment.

Sentence

7. Had the defendant been sentenced on the basis that the entire 5.14 grammes of heroin hydrochloride were for the purpose of trafficking, the starting point would have been 3½ years’ imprisonment. In this connection, I do not take the defendant’s previous convictions as an aggravating factor as he has 2 previous convictions of trafficking in dangerous drugs only.

8.I accept, as it is not disputed by the prosecution, that some of the dangerous drug was for the defendant’s own consumption. I bear in mind that possession of dangerous drug itself carried a term of imprisonment and that there was the actual risk of dissemination disclosed by the facts of this case and admitted by Mr Shin on behalf of the defendant: HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v Minney [2011] 3 HKLRD 556. I reduce the starting point for this charge to 3 years’ imprisonment.

9.The defendant is entitled to 1/3 discount for his guilty plea. There being no other valid mitigating features justifying further reduction in sentence, the sentence in this case is therefore reduced to 2 years’ imprisonment.