HKSAR v. Tsang Wai-sheung, Bonnie

HCCC 189 of 2019

[2020] HKCFI 448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 189 OF 2018

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Reasons for Sentence

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Charges

1.The defendant Tsang Wai-sheung, Bonnie was charged with the followings:

(a) Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134; and

(b) Attempting to traffic in a dangerous drug, contrary to section 4(1)(a)(and (3) of Cap. 134 and section 159G of the Crimes Ordinance, Cap 200.

She pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Summary of Facts

2.On 3 May 2018 at around 8:45 pm, police officers spotted a private vehicle bearing registration mark PJ 2278 parked at the middle lane of Ta Chuen Ping Street, Kwai Chung near the junction with Shek Kin Street. CHU Ka-ming (“CHU”) was in the driver’s seat and the Defendant was at the front passenger seat at the material time.  

3.At around 8:55 pm, CHU opened the car door and alighted with a red paper box in his hand. Police officers immediately approached to intercept them.

4.CHU immediately threw the red paper box on to the ground and ran towards Shek Kin Street. The said red paper box was seized and 2 plastic bags containing a total of 47.9 grammes of a solid containing 45.1 grammes of cocaine was found from therein.

5.Police officers gave chase to CHU and subdued, arrested and cautioned him.

6.The Defendant was also intercepted as she was leaving the car when CHU fled. As the Defendant kept her right hand in the right front pocket of her cardigan, police officers searched the said pocket and seized 2 plastic bags containing a total of 15.99 grammes of a solid containing N‑isopropylbenzylamine, which is not a controlled substance under the Dangerous Drugs Ordinance.

7.The Defendant was arrested and cautioned, under which she confessed she was in need of money and therefore assisted someone to deliver the drugs with “Big Chu” for HKD1,000 together; that it was her first time and asked for a chance.

8.A search of the car was conducted. A black plastic bag containing 4 plastic bags containing a total of 95.8 grammes of a solid containing 89.5 grammes of cocaine was seized from the storage box.

9.The Defendant was then further arrested and cautioned.  Under immediate caution, the Defendant confessed that the drugs were to be delivered to someone.

10.At the time of arrest, the Defendant was in possession of 1 mobile phone, 1 iPod and cash of HKD51.20.

11.In subsequent cautioned VRI, the Defendant admitted, inter alia, the following:

(a) She knew the two packets in her pocket was “ice” and the substance in the black bag was cocaine;

(b) “Big Chu” was the person who was arrested together with her;

(c) She met a man with CHU, who offered them quick money by helping him to bring dangerous drugs to other and they agreed;

(d) She met up with CHU and CHU received a black bag from a man. CHU put the black bag in the storage box.

(e) She took two packets from the black bag and placed it in her cardigan pocket;

(f) CHU took two packets from the black bag when they arrived at Ta Chuen Ping Street and placed them in the red paper box

(g) CHU was then arrested by the police;

(h) She was going to receive $1,000 as reward for the delivery of the drugs; and

(i) She worked as a babysitter at $4,800 per 20 day-salary.

12.The total quantity of narcotics was 143.7 grammes of a solid containing 134.6 grammes of cocaine with an estimated street value of HKD183,218.

13.The Defendant admitted and accepted that at the material times she trafficked in the cocaine together with CHU.

14.The Defendant admitted and accepted that at the material times she trafficked in the substance in her pocket, believing it to be methamphetamine, and in doing so she attempted to traffic in methamphetamine.

Background and mitigation

15.According to the antecedent statement, the defendant is 43 years of age. She is married. She lived with her husband and their three children (aged 24, 21 and 18 respectively) in Tuen Mun. She studied up to Form 5 level and worked as a school bus babysitter with a monthly salary of 4,800.

16.The defendant is not a person with a clear record. Among her previous convictions, the following are drug-related: she has 3 convictions for possession of dangerous drug, one for possession of equipment fit for consumption of dangerous drug, and one for trafficking in a dangerous drug.

17.Health-wise, the defendant had been diagnosed with a brain benign tumour for about 10 years and she had to attend follow-up consultation every three months. On top of that the defendant also suffered from asthma for many years and attend follow-ups every 6 months.

18.The defendant has been abusing Ice for about 20 years.

19.Mr Terry Kan, counsel for the defendant submitted that the defendant’s youngest son was born a deaf-mute and needs to attend a special school. The defendant’s younger daughter quitted school to take care of her brother. The defendant’s mother also offers to help take care of the defendant’s son after the defendant’s arrest.

20.The defendant, her husband, her younger daughter and her younger sister all wrote to me. Her younger daughter was writing on behalf of the older daughter as well. I don’t think it is necessary to repeat what they had written, suffice it to say that they all related to me the difficulties faced by the family since the defendant’s incarceration and their disappointment in the defendant committing the present offences again. Nevertheless, they believed the defendant would change and asked for leniency. From the letters, in particular the one from the defendant, the defendant was stabbed in March 2018 and suffered from this attack both physically and mentally. She was diagnosed to suffer from post-traumatic stress disorder by a psychiatrist after various consultations from July 2018 to August 2019. The defendant expressed her deep remorse for having committed the present offences again and asked for a last chance to be able to take up her responsibility as a wife, mother and daughter.

21.Mr Kan frankly admitted the main mitigating factor is the defendant’s plea of guilty. The defendant’s medical condition does not amount to a mitigating factor for any further reduction of the sentence to be imposed.

22.As for the appropriate sentence, Mr Kan submitted that a combined approach is more appropriate in this case. He has very helpfully set out what the sentence would be on the assumption that the substance in the second count was in fact Ice and not “fake” Ice by adopting the three different tests: Absurdity, Conversion and Ratio Test and doing a cross-check. Upon Mr Kan’s very helpful calculation provided for my reference, a global starting point of 10 ½ years was suggested. Giving the defendant a one-third discount for her early plea, the defendant should be sentenced to 7 years’ imprisonment, Mr Kan’s submitted.

Sentence

23.Trafficking dangerous drug is a serious offence. A person convicted of this offence on Indictment is liable to be sentenced for life and to a fine of $5M.

24.The defendant was convicted of actual trafficking in Count 1 and Attempted to Traffic in Count 2. Count 1 involved 143.7 grammes of a solid containing 134.6 grammes of cocaine. Count 2 involved 15.99 grammes of a solid containing N-isopropyIbenzylamine, which was not a controlled substance, but which the defendant believed was Ice.

25.I will first look at the appropriate starting point for cocaine and Ice.

Cocaine

26.The quantity of Cocaine involved is 134.6 grammes, which falls into the category of 50-200 grammes, with a starting point of 8-12 years: see Pedro Nel Rojas, adopting the guidelines in Lau Tak Ming. A starting point of 10 years would be appropriate.

Ice

27.The defendant believed the substance involved in Count 2 was Ice. Had the substance been Ice, the quantity of 15.99 grammes would fall into the 10-70 grammes category, with a starting point of 7-11 years: see HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 is applicable. I am of the view that a starting point of 7 years and 4 months would be appropriate.

28.Of course I need to make a downward adjustment to take into account the fact that in fact the substance was not a dangerous drug and the defendant’s act of trafficking did not bring any harm, though the defendant guilty mind was the same for this attempt had the substance turned out to be Ice: see HKSAR v Li Oi Yee [2012] 1 HKLRD 276.

29.Having considered the circumstances of this case, I agree with Mr Kan that a combined approach would have been fairer to the defendant. For the purpose of assessing the appropriate starting point, I will treat the “fake ice” as ice.

30.Although Ice is the more potent drug, the quantity of cocaine was much larger so I will use cocaine as the base.

31.The total quantity of dangerous drugs amount to 150.59 grammes (134.60 + 15.99)

32.Assuming all 150.59 grammes are cocaine, 150.59 falls under the 50-200 gramme category with a starting point between 8-12 years. The starting point would be 10 years and 8 months. (I will add here that Mr Kan suggested the figure of around 10 years and 6 months).

33.Using the conversion test, as 70 grammes of ice would attract 11 years, while 162.5 grammes of cocaine would also attract 11 years, 1 gramme of ice = 2.3 grammes of cocaine. 15.99 grammes of ice = 36.78 grammes of cocaine. Adding the actual cocaine involved (134.60) to the converted cocaine (36.78), the total of cocaine would be 171.38, attracting a starting point of 11 years 3 months. (Here, I agree with the calculation of Mr Kan).

34.Adopting the ratio test, the total narcotics is 150.59 grammes, the Ice is around 10.6% and cocaine 89.4%.

Dangerous Drug	Sentence (assuming all 150.59 g of single drug	Ratio	Sentence
Ice	12 years 5 months (149 m)	0.106	15.8 months
cocaine	10 years 8 months (128 m)	0.894	114.4 months
			130.2 months (10 yrs 10 m)

35.Again, my calculation differs slightly from Mr Kan’s as I adopt a slightly higher starting point for the narcotics if all are cocaine.

36.Cross-checking the results of the three methods (10 years 8 months; 11 years 3 months; 10 years 10 months), and bearing in mind two drugs are involved and that the defendant was acting in concert with another person, I am of the view that a global pre-reduction sentence of 11 years is appropriate if the substance in count 2 is really Ice.

37.Since I am using the cocaine as a base and am of the view that a starting point of 10 years is appropriate for trafficking 134.60 grammes of cocaine, to arrive at 11 years, one-year enhancement would be appropriate to take into account 15.99 grammes of real Ice. However, since indicated earlier, a downward adjustment has to be made to take into account that the substance was not really Ice. After considering Li Oi-yee, I agree with Mr Kan that a 50% discount is appropriate. The starting point is therefore 10 years and 6 months.

38.The defendant pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount. There are no other grounds to further reduce the sentence. With the discount the sentence is one of 7 years.

Actual sentence

Count 1 – 7 years

Count 2 – 7 years

Both sentences to run concurrently, making a total of 7 years’ imprisonment