HKSAR v. PON CHAO KANG, JASON

HCCC 111/2022
[2023] HKCFI 3284
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 111 OF 2022
________________________
HKSAR
v
Pon Chao-kang, Jason
________________________
Before:
Hon Barnes J
Date:
29 November 2023 at 9.49 am
Present:
Miss Lee Pui-kei Paggie, SPP of the Department of Justice, for HKSAR
Mr Maurice Peter Tracy, instructed by Mike So, Joseph Lau & Co, for the accused
Offence:
Trafficking in a dangerous drug (販運危險藥物)
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant, Pon Chao-kang Jason, pleaded guilty to one count of trafficking in a dangerous drug before the magistrate, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Chapter 134. He was then committed to the Court of First Instance of the High Court for sentence.
Summary of Facts
The defendant was intercepted by the police on 13 March 2021 when he left a workshop situated on the 2
nd
floor of an industrial building in Hung Hom. Upon search, two plastic bags containing a total of 55.3 grammes of a solid containing 47.5 grammes of ketamine was found in the defendant’s shorts’ pocket.
Upon arrest and caution, the defendant said he was told the two packets to other on the instruction of someone called Keith, and the defendant mentioned nine boxes of ketamine belonging to Keith inside the room. The defendant also disclosed that Keith had given him the passcode to enter the premises.
Upon search of the premises, police found seven plastic boxes containing a total of 17,556 grammes of a solid containing 14,832 grammes of ketamine, together with two empty boxes containing a small amount of ketamine. Packing equipment including a sealing machine, electronic scale, and a large amount of resealable plastic bags were also found inside the premises.
The defendant attended a video-recorded interview under caution, and he disclosed that he was asked to traffic dangerous drugs by Keith that same morning and went to the premises to pick up the two plastic packets of ketamine for trafficking. Keith promised to pay him $500 for each packet he trafficked. He gave some particulars about Keith. He admitted having trafficked dangerous drugs for Keith three to four times before. He did not know who put the drug and the packing equipment inside the premises.
The market value of the total amount of ketamine seized was HK$9,950,649.31.
Background and Mitigation
According to the antecedent statement, the defendant was born in 1981 and he is now 42 to 43 years of age. He has a clear record. He studied up to Secondary 3 level and has worked as a motor vehicle technician, earning $29,000 per month. The defendant claimed not to be a drug addict and he suffers from asthma. The defendant is married. Before his arrest, he lived with his parents, his wife, and his daughter.
Defence counsel, Mr Tracy in mitigation submitted the date of the defendant’s birth in the Chinese statement that is 7 March 1981 was incorrect. It is not 7 March, it should be 17 March 1981, and Mr Tracy pointed out that the monthly salary as a motor vehicle technician was $20,000, not $29,000. And finally, the health condition of the defendant was not just that he suffers from asthma, but he had a heart problem and a stent had been inserted.
Mr Tracy also provided some more information on the background of the defendant. The defendant was married but he is separated from his wife in or around December 2021, that is legal separation since he had been in custody since March 2021. Prior to his arrest, he resided with his wife, his daughter now aged 4, and his parents in premises owned by his mother. The defendant obtained qualification as a motor vehicle mechanic and had been working as such for around 20 years, except when he owned and ran two car-dealing companies which are now closed down or sold.
He was employed by Manz Autocar Pro Shop Limited at the time of the offence and he committed the offence to make quick money to meet family expenses. Mr Tracy submitted the defendant was remorseful. He also put emphasis on the fact that the defendant had a clear record, that he performed community services while he was still studying in his secondary school and he had received awards of merits in the past.
The defendant himself, his parents, his wife, his former employer that is Manz Autocar, there is a pastor and a prison chaplain who had met him in Lai Chi Kok, had all written to this Court asking for leniency. In gist, the defendant was described as a decent person, a filial son and a caring husband and father. He committed the present offence under the influence of undesirable friends. He had shown deep remorse and was willing to reform.
He suffered from a heart attack while in custody and his condition is being monitored after a stent was inserted. His parents are aged and suffer from usual ailments troubling older people.
Mr Tracy referred me to various cases in which the defendant was sentenced for the trafficking of large quantities of ketamine, for example
Hii Siew Cheng
,
Sin Chung Kin
,
Chow Yau Ching
,
Leung Wai Man
,
Wong Ka Chun
, and
Ho Pak Hong
and the six-step approach for cases involving trafficking in a dangerous drug stated in the case of
Herry Jane Yusuph
. In a nutshell, Mr Tracy suggested a notional after trial starting point of 21 years.
As for the defendant’s assistance to the authorities, it is now confirmed that the defendant has given four NPS, non-prejudicial statements, which led to the arrest of a person surnamed “Mok”, the defendant’s controller in the trafficking. Mok is now facing a charge of conspiracy to traffic in dangerous drugs. The information provided by the defendant was said to be of practical use. Mr Tracy asked this Court to give the defendant a total discount of 40 per cent that is inclusive of his guilty plea.
My Consideration for Sentence
Trafficking in a dangerous drug is a serious offence. A person convicted of this offence upon indictment is liable to be imprisoned for life and a fine of $5 million. In the case of
Secretary for Justice v Hii Siew Cheng
, the Court of Appeal set down guidelines for the trafficking of ketamine. Trafficking over 1 kilogramme of ketamine, the starting point is upwards from 14 years. So the ketamine involved in this case is almost 15 times more than 1 kilogramme.
I bore in mind that the trafficking of 3 kilogrammes of ketamine would attract the starting point of 20 years, as in the case of
Sin Chung Kin
. And also that an arithmetic progression for trafficking in much higher quantities should be avoided, and that is the case of
Lee Tak Kwan
.
And the following starting points were considered appropriate by the Court of Appeal: the first one is 27 years for the trafficking of 167.3 kilogrammes of ketamine as a storekeeper, and that is the case of
Leung Wai Man
; 21 years for the trafficking of 42.69 kilogrammes of ketamine, one of two counts, that is the case of
Yeung Kwok Ming
; 25 years for the trafficking of 122.36 kilogrammes of ketamine, and paid to watch over the dangerous drugs inside the flat, that is the case of
Cheung Yuk Keung
; 19 years and 9 months for the trafficking of 2.89 kilogrammes of ketamine, that is the case of
Chow Yau Ching
; 24 years for the trafficking of 8.33 kilogrammes of ketamine by a 16-year-old and the drugs were found inside the rucksack and travel bag carried by him, and home search yielded reusable bag containing electronic scale, resealable bag and two plastic spoons and defendant said that he helped others for a reward of $500 and the two did not belong to him, so that was the case of
Wong Ka Chun
; 22 years for cross-border trafficking of 39.73 kilogrammes of ketamine, the case of
Wong Kam Chuen
; 21 years for the trafficking of 21.31 kilogrammes of ketamine, the case
So Wing On
; and lastly 20 years and 6 months for trafficking 4 kilogrammes of ketamine in the case of
HKSAR v Y
.
So I will now consider the appropriate sentence by applying the six-step approach in
Herry Jane Yusuph
. So for the trafficking of over 14 kilogrammes of ketamine, the sentence will be from 14 years upwards because it is over 1 kilogramme, that is the case of
Hii Siew Cheng
. Two, it is common ground that the defendant acted as a courier. Three, given the circumstances of the offence and having considered the authorities cited, I am of the view that a starting point of 21 years is appropriate.
Four, there are no aggravating factors to enhance this notional starting point. Five, apart from his early plea, I take into account the defendant’s previous positive good character in that he had performed community service. I also bear in mind that the defendant had given assistance to the authorities which are of practical use and the person now is being charged with an offence of conspiracy to traffic in dangerous drugs. I am of the view that a total discount of 40 per cent is appropriate.
So with the 40, 4-0 per cent discount, the sentence will be 12 years and 7 months. But I am prepared, however, to give the defendant the 1 extra month discount to bring the sentence to 12 years and 6 months.
The Last Step
Six, stepping back to look at the final sentence, that is 12 years and 6 months with no aggravating factors and some mitigating factors, I am of the view that the sentence is appropriate for the criminality concerned.
So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 12 years and 6 months’ imprisonment.