HKSAR v. Chan Yuk Wing

CACC 217/2024 [2025] HKCA 1021

On appeal from [2024] HKCFI 3162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 217 OF 2024

(ON APPEAL FROM HCCC NO 85 OF 2024)

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J U D G M E N T

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1.On 20 September 2024, the applicant appeared before Andrew Chan J (the judge) for sentence, having pleaded guilty to two counts of trafficking in dangerous drugs: namely 417 grammes of a liquid containing 16.3 grammes of cocaine (Count 1); and 19,856 grammes of a liquid containing 3,297.1 grammes of cocaine and 890 tablets containing 0.2 gramme of alprazolam (Count 2). The judge sentenced him to wholly concurrent terms of 17 years and 4 months’ imprisonment on both counts.

2.On 16 October 2024, the applicant applied for leave to appeal against his sentence.

3.In perfected grounds of appeal filed on 19 March 2025, Mr Trevor Beel, for the applicant, advanced a sole ground of appeal against sentence. It is complained that the judge erred in enhancing the starting point by 9 months’ imprisonment based on the applicant’s previous criminal record, which in all the circumstances, resulted in a sentence that was manifestly excessive and/or wrong in principle.

4.The facts agreed by the applicant and outlined to the judge were as follows.[1] On 15 November 2021, police officers had the applicant under surveillance, and observed him entering Storage Unit No. PC3003 (the storage unit) at Unit B, 3/F, Prince Industrial Building, 106 King Fuk Street, Wong Tai Sin, Kowloon (the warehouse).

5.On 17 November 2021, the applicant was intercepted as he was leaving the warehouse and carrying a red paper bag. Inside the bag, the police found a plastic bottle of liquid containing 16.3 grammes of cocaine (Exhibit P3) as particularised in Count 1; nine plastic bottles containing 8,690 alprazolam tablets (a listed Part I poison); a card key to the warehouse; and a padlock key to the storage unit. The applicant stated under caution that he purchased the Part I poison to resell for profit. The police escorted him to the storage unit and gained entry using the key in his possession pursuant to a search warrant. Inside the storage unit, they found 21 plastic bottles of liquid containing a total of 3,297.1 grammes of cocaine[2] and 890 alprazolam tablets[3], as particularised in Count 2, along with antibiotics and Part I poisons, including sildenafil and other tablets[4]. The police found HK$47,394 and RMB¥769 in cash on the applicant. He stated under caution that only the drugs and Part I poison in the storage unit belonged to him, while the “things” inside the two suitcases[5] belonged to his friend, who had asked him to store them temporarily.

6.In a video recorded interview, the applicant stated that his friend Sam Jai, who worked in the pharmaceutical industry, asked him to keep Exhibit P3 (the liquid cocaine) for two days, which Sam Jai claimed was “cough medicine” imported from mainland China. The “cough medicine” was delivered to him in two suitcases by a woman who was Sam Jai’s friend on 16 November 2021, and together they placed it into the storage unit. He then followed Sam Jai’s instructions to pour the liquid from one of the bottles in the suitcases (Exhibit P14) into another bottle (Exhibit P3) and deliver it the next day. He claimed he purchased the alprazolam from a pharmacy for his own use, as he consumed four tablets per day. He rented the storage unit for storing unused household items and kept the keys. He said the HK$47,394 in cash was from his part-time wages and profits from reselling the pills, and the RMB¥769 was for his use in mainland China.

7.The applicant had rented the storage unit since March 2019 for HK$809 per month, and his fingerprints were found on the door. In CCTV footage of the warehouse, he was seen placing two suitcases into the storage unit with an unknown woman on 16 November 2021, and returning alone on 17 November 2021, leaving with a red paper bag. While there was no estimated value for the cocaine, the liquid cocaine had an average purity of 16.42%.

8.At the time of sentencing, the applicant was 58 years of age and was educated up to Form 5 level. He was divorced, with a 26-year-old daughter who was living with his ex-wife. He had worked in the pharmaceutical industry as a salesperson before his arrest[6].

9.The applicant had six previous drug-related convictions from three court appearances, including two for trafficking in dangerous drugs, for which he was sentenced in the District Court to 18 months’ imprisonment in December 1995 and 8 months’ imprisonment in February 2017; one for possession of dangerous drugs in December 1995; one for unlawful sale of Part I poison in May 1995; and two for possession of Part I poison in February 2017.[7]

10.In mitigation, defence counsel accepted that the applicant was a repeat offender, but urged the judge not to enhance the sentence on account of his previous trafficking convictions, arguing that the first offence dated back to 1995 and the most recent offence in 2017 did not involve “hard drugs”.[8] Defence counsel submitted that the applicant cooperated with the police, committed the offences due to financial stress, acted as a courier or storekeeper, and no paraphernalia was found at the scene.

11.In sentencing the applicant, the judge regarded the two counts as “one continuous offence” due to the circumstances of his arrest and the seizure of the drugs. The judge adopted a notional starting point of 25 years and 3 months’ imprisonment for the 3.3 kilogrammes of cocaine involved in both counts, excluding the presence of Part I poisons, and enhanced it by 9 months to 26 years’ imprisonment for the applicant’s previous criminal record. Having considered his role as a courier and granted him a one-third discount for his guilty plea, the judge sentenced him to concurrent terms of 17 years and 4 months’ imprisonment on both counts.

12.The applicant has not raised a ground of appeal based on the revised sentencing guidelines in HKSAR v Huang Ruifang[9]. However, the respondent has properly conceded that, according to Huang Ruifang, the starting point for the total quantity of cocaine narcotic in Counts 1 and 2 would be around 22 years’ imprisonment.

13.The judge adopted the notional starting point of 25 years and 3 months’ imprisonment, based on the old sentencing guidelines[10] as suggested by defence counsel[11]. The total quantity of cocaine narcotic involved was 3,313.4 grammes, which fell within the band of 1,500 to 5,000 grammes, corresponding to a starting point of 20 to 24 years’ imprisonment, in accordance with the revised sentencing guidelines laid down in Huang Ruifang.

14.According to the revised sentencing guidelines, an appropriate starting point for the total quantity of cocaine narcotic would be 22 years’ imprisonment, on the basis that the applicant’s role was that of a courier.

15.As noted by the judge, the applicant had three criminal convictions involving eight offences. As already noted, two convictions related to trafficking in a dangerous drug: on 14 December 1995, he was sentenced to 18 months’ imprisonment; and on 20 February 2017, he was sentenced to 8 months’ imprisonment. It is arguable that the enhancement of 9 months for the applicant’s previous convictions for trafficking was on the high side but would not be less than 6 months. Based on a notional starting point of 22 years and 6 months’ imprisonment, a sentence of 15 years’ imprisonment would result after discounting the sentence by one third for his guilty plea. On the other hand, if the 9 months enhancement was maintained, the resultant sentence would be 15 years and 2 months’ imprisonment.

16.I should explain that the argument concerning the enhancement of 9 months for the applicant’s previous convictions for trafficking would need to be considered on appeal, because the other ground relating to the revised sentencing guidelines is likely to be granted, and the court will be obliged to sentence the applicant afresh. Accordingly, I grant the applicant leave to appeal against his sentence on the ground that he has advanced and on the new ground regarding the application of the revised sentencing guidelines.

Ms Chan Sze Yan, SPP, of Department of Justice, for the respondent

Mr Trevor Beel, instructed by Li & Partners, assigned by the Director of Legal Aid, for the applicant