COURT: The defendant, Tsui Sung-ling, faced one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. She pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Summary of Facts admitted by the defendant
This is a stop and search case. At the material time, police officers were conducting an anti-narcotics operations at Dundas Street when the defendant was seen acting suspiciously in the vicinity. She was stopped and upon search of the white tote bag carried by her, the police found a total of 129 transparent resealable bags containing cocaine and a total of 63 transparent resealable bags containing cocaine and ketamine.
The defendant was arrested and under caution the defendant admitted she was trafficking dangerous drugs for a monetary reward. $17,370 and a mobile phone were found on her as well. The quantity of dangerous drugs was later confirmed to be 102.4 grammes of a solid containing 71.92 grammes of cocaine and 38.5 grammes of a solid containing 30.7 grammes of ketamine.
The estimated street value of the dangerous drugs was $157,342.
The defendant attended a video-recorded interview and admitted that she was directed by someone called Dai Hung to deliver the cocaine and ketamine and she would be paid $5,000 upon successful delivery.
The Background and Mitigation
The defendant was born in 1983 and is now 38 years old. She is single and has a clear record. She was unemployed at the time of arrest. Between 2001 and 2010, she worked as a cashier in restaurants in Mong Kok. Between 2011 and 2015, she worked as a telephone operator. Between 2016 and 2019, the defendant conducted an online retail business.
Mr Oliver Davies, the defendant’s counsel, gave me more background about the defendant. The defendant resided with her father and stepmother prior to her arrest. Her mother died when the defendant was only two years old. Her father is a retired policeman and her stepmother, a housewife. Both have medical problems and the defendant is the sole breadwinner of the family. Due to the social events and COVID-19, her online business went down significantly and the defendant foolishly committed the present offence to earn quick money. The defendant is remorseful and is grateful that her parents did not forsake her but visit her regularly. The defendant also took up studies while in gaol to enrich herself. I was provided with various certificates as proof. The defendant also took part in voluntary work helping others.
The defendant, her father, her aunt, her boyfriend, and the defendant’s former employer all wrote to me basically asking for leniency on behalf of the defendant. I do not think there is any need to refer to the contents of these letters. In gist, the defendant was perceived to be a filial daughter and a good girl, particularly when her father suffered from depression and her stepmother from glaucoma and she used to accompany them for treatments. Everyone was shocked and pained to learn of her involvement in trafficking in dangerous drugs. The defendant herself expressed her deep regret and promised never to reoffend again.
Reverend Venus Poon of the Christian Prison Pastoral Association wrote to me saying that he was of the view that the defendant was an honest and sincere person who learned a hard lesson from her criminal act and that the defendant is ready to accept the consequences of her act. Reverend Poon asked for mercy on behalf of the defendant.
I also have a letter from Father John Wotherspoon. The defendant had taken part in Father Wotherspoon’s anti-drug campaign and had written a letter describing how she was recruited to deliver dangerous drugs to warn others not to make the same mistake. Her letter was posted on Father Wotherspoon’s websites. Father Wotherspoon asked for a reduction of 3 months’ sentence for the defendant’s assistance to his campaign.
Consideration for the Sentence
Trafficking in dangerous drugs is a serious offence. A person convicted of this offence on indictment is liable to a fine of $5 million and an imprisonment for life.
The defendant is convicted of trafficking two different kinds of dangerous drugs.
For the trafficking of more than one kind of drugs, there are two sentencing approach open to the sentencing judge, either an individual approach or a combined approach.
I will first look at the appropriate starting point of each drug before deciding which approach is better, bearing in mind no matter which approach is adopted, it is the overall sentence that is important.
The Starting Point for Cocaine
According the guidelines in the R v Lau Tak Ming, which is the applicable to the trafficking of cocaine, the amount of cocaine involved here is 71.92 grammes which falls into the band of 50 to 200 grammes of cocaine with a starting point after trial between 8 to 12 years’ imprisonment. The starting point would be 8 years and 7 months.
Starting Point for Ketamine
According to the guidelines set down in the case of Hii Siew Cheng, the total amount of ketamine here is 30.7 grammes which fits into the band of 10 to 50 grammes with a starting point between 4 to 6 years so the starting point will be 5 years.
The Approach to be Adopted
I am of the view that a combined approach using cocaine as the base is appropriate in this case. I am grateful to the defence counsel for preparing the three tests for my consideration, that is the absurdity test, conversion test, and ratio test.
Now, under the absurdity test, treating all the narcotics as cocaine, 102.62 grammes of cocaine would attract a sentence of 9 years and 4.8 months.
Under the conversion test, 30.7 grammes of ketamine roughly equals to 10 grammes of cocaine. So 80.92 grammes of cocaine would attract a sentence of 8 years and 10 months.
Under the ratio test, the sentence would be one of 8 years and 6 months.
So since just the amount of cocaine would already attract 8 years and 7 months, with the addition of ketamine, I am of the view that a starting point of 8 years and 10 months is more appropriate, otherwise the final sentence does not reflect the seriousness of having two different kinds of drugs involved.
Now, the defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. 8 years and 10 months equals to 106 months. With a one-third discount, the sentence would be 70.66 months. I am prepared to disregard the .66 and use the figure of 70 months. 70 months equal 5 years and 10 months.
The Participation in Father Wotherspoon’s Campaign
In the case of Abbas, the Court had already said that the reduction is not automatic. The Court can choose not to give any discount at all, but if given, it must be a token discount of no more than 3 months. I am prepared to give the defendant this additional 3 months’ discount.
On the information before me, the defendant studied hard while in prison and also participated in voluntary work helping others. I am prepared to give her one extra month to reflect this aspect. So from 5 years and 10 months, 4 months will be deducted.
So for the offence of trafficking in dangerous drugs, the defendant is sentenced to 5 years and 6 months’ imprisonment, 5½ years.