HKSAR v. Yau Kai Fung

CACC 208/2024

[2025] HKCA 862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 208 OF 2024

(ON APPEAL FROM HCCC NO 442 OF 2023)

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J U D G M E N T

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1.The appellant applies before me for bail pending the determination of his appeal, having already been granted leave to appeal against his sentence by Zervos JA on 14 July 2025, sitting as a Single Judge of the Court of Appeal. The respondent does not oppose the present application on the merits, given the granting of leave, but submits that it may not ultimately make any significant difference to the appellant’s sentence, considering his role and culpability. Much may depend on when the Court can hear the full appeal against sentence.

2.For present purpose, it is sufficient to note that the appellant pleaded guilty before Deputy Judge Eric Kwok SC (“the judge”) in the High Court to unlawfully trafficking in 112.66 grammes of ketamine and 1.95 grammes of cocaine (using their pure narcotic values). The judge adopted a ‘combined’ approach, using ketamine as the base drug and 7 years and 6 months’ imprisonment as an enhanced starting point in view of the presence of cocaine, noting that the initial starting point for the ketamine alone would have been 6 years and 9 months’ imprisonment. The judge further enhanced the starting point by 6 months to reflect the role of the appellant in selling those drugs inside a bar. After applying a one-third discount to the final starting point of 8 years’ imprisonment, the judge passed a sentence of 5 years and 4 months’ imprisonment.

3.I have noted that the starting point for the combination of the two drugs should have been 6 years and 11 months’ imprisonment if calculated under either the conversion test or the ratio test, as compared with 6 years and 9 months’ imprisonment under the absurdity test, using ketamine as the base dug, which was enhanced by 9 months to 7 years and 6 months’ imprisonment for the cocaine involved. It would then be necessary, in accordance with the second and third steps propounded in Herry Jane Yusuph[1], to consider the role and culpability of the appellant based on the evidence, and identify where in, or how much above (or below), the relevant guideline band the appellant should come, given the circumstances of the offence and his participation. The next step would be to consider the appropriate enhancement in light of any specific aggravating features in the present case; for example, trafficking in a cocktail of dangerous drugs, and his previous criminal record (although he has only one similar conviction for possession of a dangerous drug in 2018).

4.Accordingly, the ultimate question which the Court of Appeal will determine is whether the two enhancements taken together (9 months for the presence of cocaine and 6 months for his role and culpability), which represent 15 months above the initial starting point of 6 years and 9 months’ imprisonment, have led to an inflated starting point and a manifestly excessive sentence.

5.Having made my own enquiries of the Listing Office, I understand that the substantive appeal has not yet been fixed and it is unlikely to take place before the appellant’s earliest date of release, which is estimated to be 15 December 2025 (assuming a full one-third remission).

6.Having considered all the circumstances including the merits of the appeal, and given the risk that he will have served his entire sentence by the time Court hears his appeal, I am prepared to grant the appellant bail pending appeal on the following terms and conditions:

(i)  The appellant shall provide cash bail in the sum of $5,000.

(ii)  His elder sister, Madam Yau Chui Shan, who was affirmed before me in court and whom I have accepted for these purposes, shall act as his surety in the sum of $30,000 on her own recognizance.

(iii)  He shall surrender all of his travel documents, except his Identity Card, and not leave Hong Kong. Since I am told that the appellant has lost his travel documents, he must swear an affirmation to that effect before he is released.

(iv)  He shall reside at the address reported to both the Court and the respondent.

(v)  He shall not commit any further offence whilst on bail. I should stress that the courts will come down very hard on those who deliberately disobey or flout a court order of this nature.

7.The appellant and his elder sister have agreed to these conditions.

Mr Ivan Cheung ADPP, of the Department of Justice, for the Respondent

Mr Franco Kuan and Ms Manalie Chan (on a pro-bono basis), instructed by the Legal Aid Department, for the Appellant