HKSAR v. POON CHAK YUEN

HCCC 59/2025

[2025] HKCFI 3549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 59 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 counts of trafficking[1] in dangerous drugs and 1 count of manufacturing[2] a dangerous drug (counts 1, 2 and 3) and was committed to the Court of First Instance for sentence. He confirmed his pleas and admission to the Summary of Facts before me and the convictions were duly recorded.

PARTICULARS

COUNT 1

2.  The defendant, on 29^th November, 2022, on 4^th floor, Cheong Wang Mansion, Nos. 539-541 Castle Peak Road, Kwai Chung, Kwai Hing, New Territories (“Cheong Wang Mansion”), unlawfully trafficked in a dangerous drug, namely 71.3 grammes of a solid containing 63.8 grammes of cocaine.

COUNT 2

3.  The defendant, on 29^th November, 2022, at sub-divided Flat C, Room A (“Room A”) of Cheong Wang Mansion, unlawfully trafficked in a dangerous drug, namely 419.87 grammes of a solid containing 345.97 grammes of cocaine.

COUNT 3

4.  The defendant, between 10^th and 29^th November, 2022, both dates inclusive, at Room A, unlawfully manufactured a dangerous drug, namely cocaine.

FACTS

5.  At approximately 8:02 pm on 29 November 2022, plainclothes police officers on anti-narcotics operation at the 4^th floor staircase of Cheong Wang Mansion intercepted the defendant at the 4^th floor corridor.

6.  A plastic bag with 4 other plastic bags with the drugs particularized in count 1 was found inside the sling bag that the defendant was carrying, together with HK$360 cash, a bunch of 4 keys, and a mobile phone with 2 SIM cards.

7.  The defendant was arrested for the drugs, and claimed under caution that he was delivering the drugs to others.

8.  The defendant was then escorted to Sub-divided Flat C and police officers used the keys found on the defendant to open its door and entered in execution of the relevant search warrant.

9.  The following items were found inside:

On the bed

(1) 1 plastic bag containing 298 grammes of a solid containing 242 grammes of cocaine;

(2) 1 metallic container containing 107 grammes of a solid containing 92.7 grammes of cocaine;

(3) 1 plastic bag containing 7.65 grammes of a solid containing 5.95 grammes of cocaine;

(4) 1 plastic bag containing 6.23 grammes of a solid containing 4.84 grammes of cocaine;

(5) 1 scale containing traces of a solid containing cocaine;

(6) 1 metallic bowl and 1 scale containing traces of a solid containing cocaine;

(7) 1 pair of scissors containing traces of a solid containing cocaine hydrochloride;

(8) 1 cutter containing traces of a solid containing cocaine;

(9) 1 white paper bag containing 1 brown paper box, 9 bunches of plastic bags & 1 receipt;

(10) 1 bunch of plastic bags;

(11) 1 tenancy agreement showing that the defendant was the tenant of Sub-divided Flat C for the period between 10 November 2022 and 9 November 2024 for a monthly rental of HK$4,700;

(12) 1 electric dryer;

(13) 1 sealer; and

(14) 1 pen.

In the sink

(15) 1 glass container and 1 metallic sieve containing a total of 0.99 gramme of a solid containing 0.48 gramme of cocaine;

(16) 1 pair of metallic chopsticks and 1 metallic spoon containing a total of 0.09 grammes of a solid containing cocaine;

(17) 1 metallic cooking utensil containing 1.6 grammes of a solid containing traces of cocaine;

(18) 1 electric cooker containing 0.02 grammes of a solid containing phenacetin, which is a listed Part I poison;

(19) 1 plastic bag containing 276 grammes of a solid containing phenacetin, which is a listed Part I poison;

(20) 2 bottles of soda powder;

(21) 1 bottle of pigment in red colour; and

(22) 1 metallic tray containing 0.02 gramme of a solid containing cocaine hydrochloride.

Air-conditioner

(23) 1 air-conditioner filter containing traces of a solid containing cocaine.

10.  The total quantity of cocaine found in Sub-divided Flat C is the subject matter of count 2.

11.  The defendant was arrested for the offence of manufacturing dangerous drugs.  He claimed under caution that the drugs in the flat were given to him by someone, and he was to deliver the drugs to other after ‘cooking’ them.  He received $1,000 every day for his effort.

12.  A forensic scientist inspected Sub-divided Flat C and examined the items referred to above in the laboratory and found that, when considered together, the chemicals and paraphernalia inside the Flat were items commonly associated with the process of manufacturing of cocaine base from cocaine hydrochloride.

13.  In his subsequent video recorded interviews, the defendant claimed that he had borrowed $5,000 from a person known as “Pang Bai”.  When the defendant was unable to repay him, Pang Bai ask if he was willing to settle his debt by handling drugs.  The defendant agreed since he was unemployed and had no money to repay him.  

14.  Pang Bai told him to find a place to store and manufacture drugs and the defendant rented the Sub-divided Flat C for that specific purpose.  The lease started on 10th November 2022.  The defendant was the only person in charge of the keys to the flat.  

15.  Pang Bai arranged cocaine in block form to be passed to the defendant, and the defendant would ‘cook’ and pack the required quantity of cocaine at the flat as instructed by Pang Bai, and deliver them to others.

16.  The defendant explained that Pang Bai had taught him via Telegram to crush the block form cocaine into small pieces, add water and soda power, and then heat the mixture on the electric cooker.  He would then put the ‘cooked’ cocaine into plastic bags, usually with 12g or 24g of mixture per bag, and seal the bags with the sealer.

17.  He would wait for instructions from Pang Bai, usually by way of a phone call without caller ID, for him to deliver the bagged cocaine to a driver, who would then deliver the drugs to the customers.  The driver would pick up the drugs near Cheong Wang Mansion at 8pm and 11pm in two batches.  

18.  The defendant claimed to have collected cocaine blocks from Pang Bai for 3 times after he started renting Flat C.  The first pick-up was at a park near Cheong Wan Mansion.  For the second and third time, he met up with a driver near Cheong Wan Mansion and received the cocaine block placed inside a recycle bag.

19.  A block of cocaine would usually be used up after 4 to 5 orders.  About 250g of cocaine would be ‘cooked’ and packed in each order.  

20.  The daily payment of $1,000 was deposited into the defendant’s bank account about every 10 days.

21.  On the day of his arrest, he had gone to Kwai Chung to buy 1,000 plastic bags for packing the cocaine and was going back to Flat C when the police intercepted him.  He confirmed that the cocaine found in the sling bag that he was carrying were deliveries for others, as instructed by Pang Bai.  

22.  The cash on him was part of the salary he had received from the trafficking, and he would use the mobile phone found on him to communicate with Pang Bai and the driver when collecting or delivering drugs.  

23.  The cocaine found on the bed were ‘cooked’ and packed by him and for delivery to others.  The other items were paraphernalia he had used for cooking or packing cocaine in the flat.  They were either provided by Pang Bai, or bought by himself.  The air-conditioner in the flat was kept on.  

24.  The defendant was a drug user himself, and would smoke less than 1g of cocaine per week.  

25.  As at November 2022, the estimated street value of all the cocaine seized in this case was HK$409646 (in powder form) or $21,529 (in crack form).

PREVIOUS CONVICTION

26.  The defendant is of previously clear record.

BACKGROUND AND MITIGATION

27.  The defendant was born in Shenzhen in October 1996 and is 28.  He came to Hong Kong 3 years later and received education here up to Form 3 level.  He then completed a catering course and had worked as an assistant chef.  He also worked as a salesperson, and his last job was as a construction site worker earning about $23,000 per month in 2022.  He contributed about half of his income to the family when he was in employment.  He was living with his parents and elder sister before his arrest.  

28.  The defendant claimed to have committed the offences due to financial difficulties, when he was not able to find work in 2022 as a result of the pandemic and the economic downturn.  Meanwhile, his mother suffered from poor health and had also lost her job as a waitress.  His elder sister’s income as a clerk alone was just not enough to support the whole family, since his father is a retiree.

29.  As a result, the defendant took out loans from various financial institutions.  He also borrowed $5,000 from the Pang Bai mentioned in the facts above, who turned out to be a loan shark.  The defendant had repaid $10,000 just to cover interest payments.  Pang Bai started to harass the defendant by sending threatening messages and knocking on his door. The defendant had reported the matter to the police but the harassing went on.

30.  When the defendant made clear that he was unable to repay his debt, Pang Bai suggested to the defendant that he could work for him to make some quick money. Out of desperation, the defendant agreed, without realising the extremely serious legal consequences.  

31.  The defendant understands that financial difficulty is not a mitigating factor.  He has since reflected and gained insights during his remand.  He plans to further his studies and take vocational courses to prepare for re-joining society.  He hopes to be able to take care of his parents upon his release.  The defendant’s family is unwavering in their support, and the defendant is determined to turn a new leaf.

32.  The defendant’s father wrote and tells the court how the defendant has always been interested in cooking and had been working in the kitchen since he left school.  At the time of the pandemic, to hide the fact that he was made redundant, the defendant went and borrowed money.  He remembers the loan sharks harassing them, and the family had used up their savings to help the defendant repay part of his debt.  The defendant did not want to cause them any more trouble, leading him to make the wrong decision of committing the offences.  Mr. Poon speaks about the defendant being a filial son, how he is deeply remorseful, and how he wants to be home to look after himself and his ailing wife.  Mr. Poon believes his son will make amends and seeks leniency for him.

33.  The defendant’s mother blames herself for what the defendant is going through now.  The family has been a heavy burden on him, and with her worsening health condition requiring her to be frequently in and out of hospital, the defendant made the wrong decision to borrow money and then when he could not repay the loan sharks, the even more wrong decision of committing the offences.  Mrs. Poon seeks leniency so that the defendant can return home to look after his aging parents.

34.  The defendant’s elder sister tells the court how an honest and simple person her brother has always been, how the pandemic had a huge impact on his and their lives.  The defendant had written many letters to her while in remand, telling her his biggest regret is to have let the family down.  As far as she is concerned, her brother had committed the offences because of the pressure from his debts which heavily clouded his judgment.  

35.  Ms. Poon is now the sole breadwinner of the family given the age and health condition of her parents.  Nevertheless, they all believe in the defendant’s rehabilitation.  She will try her best to help the defendant find a steady job upon release, and to be grounded and not make any more mistakes in future.

SENTENCING

36.  The maximum sentence on conviction upon indictment for trafficking in or manufacturing of dangerous drugs is that of life imprisonment and a fine of $5 million.

37.  Although the drugs in counts 1 and 2 were found at two locations, which led to two separate charges, it is obvious that the defendant’s possession of the drugs were directly connected, and as such the defendant will be sentenced on the combined quantity[3].

38.  In relation to the trafficking in dangerous drugs offences, the sentencing approach and tariff bands as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Huang Ruifang [2025] HKCA 234 are applied as follows.

COUNT 1 AND 2: TRAFFICKING IN 409.77G OF COCAINE

Step 1:

39.  The applicable guideline tariff band is “12 to 16 years”.

Step 2: The defendant’s role and culpability

40.  The defendant faces a separate count of manufacturing dangerous drugs for his drug manufacturing activities in Room A, as such, I will adopt an arithmetical approach for the trafficking offences so as to avoid double punishment.  His overall culpability will be considered under the heading of totality for the 3 counts.

Step 3: The relevant band within the guidelines

41.  For 409.77g of cocaine, the arithmetical application of the guideline tariff would lead to a starting point of 14 years 10 months’ imprisonment.

Step 4: aggravating factor

42.  There are no aggravating factors.

Step 5: Mitigating factors

43.  As the defendant has correctly recognized, the fact that he committed the offences because of his financial difficulties is not regarded as a mitigating factor in offences as serious as the present ones.  The only mitigating factor is the defendant’s timely guilty pleas.

Step 6: totality on the trafficking counts

44.  Taking a step back, I find the sentences fair, just and balanced.  

45.  The defendant’s sentence for the combined quantity of cocaine in counts 1 and 2 is, therefore, 9 years 10 months’ imprisonment after plea.

46.  To achieve this combined sentence, I will sentence the defendant on counts 1 and 2 to 5 years 6 months and 9 years 3 months’ imprisonment after plea, respectively.  7 months of the sentence in count 1 is to be served consecutively, the balance concurrently to the sentence in count 2, resulting in the sentence of 9 years 10 months’ imprisonment after plea.

COUNT 3: MANUFACTURING DANGEROUS DRUGS

47.  In the case of HKSAR v Sum Ka Wa [2024] HKCA 760, the Court of Appeal made the following general observations about sentencing in cases where large manufacturing and trafficking operations were inextricably linked.

48.  First, an overall perspective is vitally important to avoid distorted and extremely long sentences.  

49.  Secondly, manufacturing is to be regarded even more seriously than the offence of trafficking, because “the amount of drugs found in the premises where manufacturing is taking place will invariably be a small part, perhaps only a fraction, of the drugs actually manufactured and the capacity of the operation.”

50.  The third observation is that, the court must always apply common sense and have an overall appreciation of the criminality involved, so as to arrive at the proper sentence when there are parallel trafficking in dangerous drugs charges being laid against a defendant.

51.  Having made the observations,  the Court went on to find that given the scale and continuing nature of the manufacturing, the significant role of the appellant, the vast quantities of dangerous drugs produced[4] and the enormous profits that would have been generated in their case, they would have assessed the starting point for the manufacturing charge at 36 years’ imprisonment.

52.  In cases where the manufacturing can be regarded as a smaller operation, the following two paragraphs in the judgment of Yeung VP in HKSAR v Cheng Chi Wai (鄭志偉) [2021] HKCA 181, CACC 50/2019 are relevant:

“33. Should there be information which shows that the drug-manufacturing act is a one-off rather than a continuous act, a starting point slightly higher than the sentence for ‘trafficking’ in the same quantity of ‘drugs’ may be considered appropriate. However, this Court agrees with the approach adopted in Wong Chun Ping and reiterates that the starting point for ‘drug-manufacturing’ offences should not be less than 10 years’ imprisonment unless the act of drug-manufacturing was just nominal, for instance, only a one-off mixing and diluting of a small quantity of drugs without involving any sophisticated paraphernalia or a large amount of chemicals as raw materials.

34. If the drug-manufacturing act is a continuous act spanning a period of time, and the drug-manufacturing workshop is of considerable scale and productivity involving a large amount of chemicals used for drug-manufacturing as well as a not insignificant quantity of high-standard drug-manufacturing paraphernalia, the appropriate sentence should not be lower than 20 years’ imprisonment even if the quantity of drugs seized on the spot was not substantial.”

53.  In the present case, the defendant rented the premises, with the lease running for 2 years at a monthly rental of HK$4,700.  He was the only one with keys to the flat.  

54.  The defendant did all the ‘cooking’ and packaging of the cocaine, and delivered the finished product to a courier for subsequent distribution.  He received a daily $1,000 ‘salary’, which was deposited into his account about every 10 days.

55.  The defendant confessed to have had collected the cocaine block raw material from Pang Bai for at least 3 times since he rented the flat, which started on 10 November, being just 19 days before his arrest.  

56.  On the day of his arrest, the defendant had just bought another 1,000 plastic bags for packing more drugs when he returned to the flat and was intercepted.

57.  The only reasonable inference must be that, but for the police’s intervention, the defendant would have carried on with the manufacturing, at a similar rate and with him playing a similar role.

58.  According to the defendant’s own calculation, one block of cocaine would yield around 4 to 5 orders at 250g of cocaine per order, making the total of 1 to 1.25kg of end product per block.  3 blocks would have generated 3 to 3.75kg.  An arithmetical application of the guideline sentence would lead to a sentence of 21 years 9 months to 22 years 7 months’ imprisonment.  This, of course, is for trafficking and not manufacturing this quantity of drugs.  

59.  I find that the manufacturing can be regarded as a small to medium sized operation, in which the defendant had played a significant role.  

60.  Taking into consideration all the circumstances, including the fact that the defendant had at least manufactured 3 to 3.75kg of cocaine in the past in this ongoing operation, and that the sentence for manufacturing the same quantity of drugs must inevitably be higher than simply trafficking in it, I find that a proper starting point for the manufacturing charge is that of 22 years’ imprisonment.

OVERALL TOTALITY

61.  Given that I have already given consideration to the quantity of cocaine in counts 1 and 2 when arriving at the starting point for the manufacturing charge, and I find that the sentence in count 3 alone should be sufficient to embrace the overall criminality of the defendant’s conduct, I will order the sentences in all 3 counts to be served wholly concurrently.

62.  In relation to the defendant’s personal circumstances that might have, to a certain extent, led to his commission of the offences, I will also point out that it is well settled law that “…no special consideration will be accorded to the young, the aged, the ill or disadvantaged or the financially impoverished who are recruited to become drug couriers.[5]” This approach is, obviously, also applicable where the defendant’s culpability is far higher than that of a courier.  As such, there is to be no reduction in his sentence on this basis.  

FINAL SENTENCES

63.  The defendant is, therefore, sentenced to 14 years 8 months’ imprisonment for the 3 counts after granting him the usual one-third discount for his guilty pleas.