HKSAR v. Tang Chiu Sing, Kelvin

CACC 206/2023 [2026] HKCA 558

On appeal from [2023] HKCFI 3212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 206 OF 2023

(ON APPEAL FROM HCCC NO 177 OF 2021)

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BETWEEN

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J U D G M E N T

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1.The applicant, together with Kwan Sung Fai (Kwan)  and Wong Cho Hon (Wong), originally faced various drug-related and money laundering charges, both individually and jointly, at committal proceedings before a Magistrate.[1] Insofar as the applicant was concerned, he was charged with four counts: two counts of trafficking in a dangerous drug, namely 139.871 kilogrammes of a solid containing 129.431 kilogrammes of cocaine hydrochloride, jointly with Kwan and Wong (Count 1); and 235.282 kilogrammes of a solid containing 184.771 kilogrammes of cocaine hydrochloride and 24.100 grammes of a solid containing 21.500 grammes of cocaine, jointly with Kwan (Count 2); one count of manufacturing a dangerous drug, namely cocaine, jointly with Kwan (Count 3); and one count of dealing with property known or reasonably believed to represent the proceeds of an indictable offence, alleged against him individually (Count 4).  Kwan and Wong were each charged with a separate count of dealing with property known or reasonably believed to represent the proceeds of an indictable offence (Counts 5 and 6).

2.At committal proceedings, the applicant pleaded not guilty to all four counts, whilst Kwan indicated an intention to plead guilty to the drug manufacturing count (Count 3), but not guilty to the money laundering count (Count 5); and Wong likewise indicated an intention to plead guilty to the drug trafficking count (Count 1), but not guilty to the money laundering count (Count 6)[2].

3.The applicant, Kwan and Wong were committed to the High Court on a single indictment dated 6 September 2021, in which the applicant was individually charged with Counts 1 to 4, whilst Kwan and Wong were individually charged with Counts 5 and 6 respectively[3].

4.On 20 September 2021, Kwan and Wong were committed for sentence in respect of the drug trafficking and manufacturing counts (Counts 1 and 3)  in separate proceedings under HCCC 178/2021[4], in which the applicant was named as an unindicted co-offender on both counts.

5.At the commencement of the trial on 1 August 2023, following Wong’s further plea of guilty to the money laundering count (Count 6), the trial proceeded on a re-amended indictment dated 31 July 2023[5], in which the applicant was charged with the four counts individually (Kwan and Wong were named as unindicted co-offenders in the trafficking and manufacturing counts).

6.On 17 August 2023, following a trial before Toh J (the Judge)  and a jury, the applicant was convicted of Counts 1, 2 and 4, but acquitted of Count 3.  On 3 November 2023, he was sentenced together with Kwan and Wong to a total term of 38 years and 6 months’ imprisonment. 

7.On 16 November 2023, the applicant applied for leave to appeal against his convictions.

8.At the leave hearing on 10 October 2025, the parties presented their submissions in relation to the conviction appeal.  The hearing was adjourned to enable the applicant to file an application for leave to appeal against sentence out of time, in light of the revised guidelines in HKSAR v Huang Ruifang (No 3)[6].

9.On 13 October 2025, he filed an application for leave to appeal against sentence out of time, together with an affirmation in support.[7]

The prosecution case

10.Counts 1 and 2 alleged that, on the evening of 25 February 2019, police officers intercepted a light goods vehicle (LGV)[8] at the gate of Block K, La Regent Park, Kam Tsin South Road, Kwu Tung, Sheung Shui, New Territories (together, La Regent Park).  They found six bags containing 140 bricks of cocaine hydrochloride, as particularised in Count 1.  The applicant was observed standing next to the driver’s seat of the LGV, whilst Kwan and Wong were at the side door, appearing to unload the goods from the LGV.  The applicant, Wong and Kwan were arrested at the scene for trafficking in a dangerous drug.  DPC 7909 (PW1)  found on the applicant a key for the LGV, one mobile telephone, and HK$22,000 in cash.  PW1 also found in the applicant’s rucksack, which was inside the LGV, his identity document, 29 keys, and three mobile telephones.[9]

11.The applicant stated under caution, “It has nothing with me [sic] and the keys are not mine.”[10] 

12.At about midnight on 26 February 2019, police officers took the applicant to the 2^nd floor, Block M, La Regent Park (the premises)  and gained entry with two of the keys found in the rucksack.  A search of the premises uncovered nine large bags containing 210 bricks and five plastic bags of cocaine hydrochloride and cocaine, as particularised in Count 2.  It was admitted that Kwan was the tenant of the premises at the material time.  Kwan’s fingerprints and DNA, as well as the fingerprints of Lam Ka Shing, were found on various items inside the premises. 

13.The estimated street value of the cocaine was HK$948 per gramme in powder form and HK$1,129 per gramme in crack form.[11]  As submitted by the respondent, the total retail value of the seized cocaine was HK$297,883,878.00 in powder form and HK$354,758,331.50 in crack form[12]. 

14.The prosecution’s case was that, as the applicant was in possession of the LGV and the premises, he was in control of the drugs that were found and was in a joint enterprise with Kwan and Wong to traffic them.  It was alleged that his role was to drive the LGV, whilst Wong and Kwan moved the drug-laden bags, and Kwan provided the premises.[13]

15.Count 4 alleged that, between 1 February 2018 and 26 February 2019, the applicant dealt with HK$2,740,326.65 in the account held in his name at The Hongkong and Shanghai Banking Corporation Limited (the HSBC account).  During that period, there were 95 deposits totalling HK$2,740,326.65, of which 64 deposits totalling HK$2,126,800 were in cash.  There were also 225 withdrawals totalling over HK$1.5 million, of which 45 withdrawals totalling over HK$500,000 were in cash.[14] It was not disputed that the applicant was the sole signatory of the HSBC account.[15]  Records from the Inland Revenue Department revealed that his reported total income during the period consisted of rental income and a salary of HK$204,000 as director of Kai Fung Trading Development Limited (Kai Fung).[16] 

16.The prosecution’s case was that Kai Fung was used by the applicant as a vehicle through which proceeds from illegal activities were laundered, by means of large cash deposits and withdrawals through the HSBC account.  It was further alleged that any reasonable person in his position would have believed that such funds represented the proceeds of an indictable offence.[17]

The defence case

17.The applicant elected to give evidence but called no witnesses. His case in respect of Counts 1 and 2 was that he had been exploited and deceived by Wong, Wong’s boss, and possibly Kwan.  He denied any knowledge of the drugs found in the LGV and the premises, and denied that he had any intent to traffic them.[18]

18.In respect of Count 1, the applicant testified that he was only helping Wong drive the LGV to La Regent Park.  Wong had given him the key to the vehicle.  He described Wong as a family friend whom he had known since secondary school.  However, they were not close, and he came to know Kwan through Wong about a year before the offence.  On 25 February 2019, the applicant was told by Wong that he had been instructed by his boss to collect something from Kwan’s home in Kam Tin Village.  At Wong’s request, the applicant assisted Wong by driving the LGV, with Kwan joining them at the gate of La Regent Park.  After parking the LGV, the applicant offered to return the key to Wong and Kwan, but they both refused, claiming that they needed to move the bags.  He stated that, when he was apprehended, he told the police, “I was just helping a friend drive the vehicle. What’s the matter?”[19] 

19.In respect of Count 2, the applicant denied having been to the premises or owning the keys to the premises.[20]  He claimed (as part of his case for Count 3)  that the keys belonged to Wong, despite their being in his rucksack, and that the arresting officers had mixed up the keys found on him, Wong, and Kwan.[21]

20.In respect of Count 4, the applicant claimed that the funds were genuine proceeds from his property leasing business, which he operated through Kai Fung.[22] He testified that he was the sole director of Kai Fung from its incorporation on 16 June 2016 until it was struck off on 20 August 2021, with his ex-girlfriend assisting in handling the company accounts, tax records, and documents until their breakup a year after his arrest.[23]  Regarding his income in 2018, he earned a monthly profit of about HK$150,000 from his business, and an additional HK$20,000 to HK$30,000 per month by driving friends on shopping trips.[24]  He explained that it was his usual practice to withdraw large sums of cash from the account held in the name of Kai Fung at the Bank of Communications (the Kai Fung account), transferring some of the funds to the HSBC account, keeping some at home, and using some for shopping and credit card payments.[25]  In support of his case, the defence adduced a set of exhibits including leases[26], stamp certificates[27], bank statements for the Kai Fung account[28], and company documents.

The conviction appeal

21.Mr Marco Li, for the applicant, advances the following four grounds of appeal against conviction:

Ground 1:  The conduct of the trial solicitor’s clerk, Mr Matthew Tsang (Mr Tsang)  of Messrs B Manek & Co constituted flagrant incompetence, and resulted in the applicant not receiving a fair trial in respect of Counts 1 and 2.

Ground 2:  The Judge failed to deal with the evidence exhibited in the Defence bundle adequately, which concerned the core issues of the defence, thereby rendering the assessment of evidence by the jury unbalanced in respect of Count 4.

Ground 3:  The Judge erred in directing the jury to consider cash withdrawals pattern of Kai Fung account, in particular, the amount of two withdrawals on 11 December 2017 (which fell outside the offence period from 1 February 2018 to 26 February 2019), thereby inviting the jury to speculate on the banking habits relating to the Kai Fung account, which was completely irrelevant to Count 4, that was concerned with the HSBC account only.

Ground 4:  In all the circumstances, the conviction of the applicant of Counts 1, 2 and 4 was unsafe and unsatisfactory.

Ground 1: Allegations of flagrant incompetence of trial solicitor’s clerk

22.At trial, the applicant was represented by counsel, Mr Francis Cheng and Mr Kenny Lau Hon Wang, with Mr Tsang as part of his legal team. 

23.The applicant submitted an affirmation stating that he had discussed his case with Mr Tsang and had given instructions in preparation for trial during Mr Tsang’s multiple visits while he was in custody, both when Mr Tsang visited him alone and when he attended with counsel.  He stated that during visits on 29 September 2020, and around May or August 2021, when Mr Tsang was alone, he asked him about calling Wong or Kwan as defence witnesses.  Mr Tsang advised against it, saying that it would not assist his case or would be of no use to call them, without giving any explanation.  After the committal proceedings on 30 August 2021, when Wong and Kwan indicated their intention to plead guilty to Counts 1 and 3, the applicant raised the issue again with Mr Tsang on 15 or 27 October 2021, but Mr Tsang maintained his position. The applicant alleged that Mr Tsang had neither relayed his enquiry to trial counsel nor approached Wong or Kwan to ascertain their willingness to assist his defence.  He also alleged that there was no written record of any approach, and Mr Tsang’s attendance notes were undated, illegible and made no reference to these discussions.[29]

24.It is submitted that, as a result of Mr Tsang’s conduct, the applicant did not receive any proper legal advice from trial counsel on calling Wong or Kwan as witnesses before confirming his instructions that no witnesses would be called in respect of the trafficking counts[30]. It is argued that Mr Tsang’s conduct fell short of professional standards and deprived him of a fair trial on Counts 1 and 2.

25.Ms Claudia Ko, for the respondent, submits that the allegations are unverified assertions by the applicant, and that no one from the legal team at trial was invited to respond to them.  First, there were numerous conferences or occasions for the applicant to raise with defence counsel and the instructing solicitor his purported instruction to call Kwan and Wong as defence witnesses.  At the case management hearing on 19 July 2022, when all the defendants were present and legally represented, Kwan and Wong did not want their alleged involvement in the drug charges raised, as it was prejudicial to the other charges they faced.  They eventually pleaded guilty, and the applicant confirmed that he would call no defence witnesses apart from himself. Secondly, there is no evidence that Kwan and Wong had been asked or had agreed to testify on the applicant’s behalf.  Thirdly, it appears that the applicant had expected that Kwan and Wong would testify to the effect that there was no joint enterprise by them to traffic the drugs in Counts 1 and 2, because the applicant was an innocent agent who merely drove the LGV and possessed the keys to it.

26.It is highly significant that both Kwan and Wong pleaded guilty to the drug trafficking and manufacturing counts in which the applicant was named as an unindicted co-offender.  Consequently, Kwan and Wong, in admitting their guilt to these offences, were also admitting that the applicant was involved with them in committing these offences.  The drug trafficking and manufacturing counts that the applicant faced alleged that he committed these offences variously together with Kwan and Wong.  In these circumstances, the viability of Kwan and Wong giving evidence for the applicant was implausible.

27.I agree with the respondent’s submissions.  There was ample opportunity for the applicant to raise with his counsel the possibility of Kwan or Wong being called as witnesses, but according to applicant, he only raised it with Mr Tsang.  If it was such an important matter to the applicant, it is inconceivable that he would not have raised it with his counsel, particularly given that he signed a written instruction not to call any defence witnesses to testify.[31] 

28.In advancing this ground, no communications have been made with the applicant’s legal representatives at trial concerning this matter.  As this Court stated in HKSAR v Apelete (No 1)[32], in putting forward a ground of appeal alleging flagrant incompetence on the part of legal representatives at trial, it is not acceptable for someone aggrieved by his conviction to simply make bare assertions.  It requires that such a ground be “properly arguable”, requiring a “palpably sound basis” for any such allegation.  As directed by this Court, it also requires that appellate counsel putting forward such a ground has a duty to satisfy himself or herself that the ground is properly arguable.  It is required that appellate counsel look for independent and objective evidence to support the complaint and, unless exceptionally there are good and compelling reasons not to do so, make full and proper enquiries of previous legal representatives at trial in relation to the complaint before articulating it as a ground of appeal.  Even though the complaint under this ground is alleged against the law clerk and not counsel, the nature and circumstances of the matter would have warranted enquiries being made with the rest of the legal team that represented the applicant, but none were made.

29.I do not find any substance to this ground of appeal.

Ground 2: Failure to adequately address defence evidence

30.Mr Li argues that the Judge’s summing-up was unfair and unbalanced, as she summarised only three of the twenty-two leases produced by the applicant and did not properly address the stamp certificates, bank transactions, and corresponding leases[33] relied on by the defence to rebut the prosecution’s allegation that all the leases were “sham leases in order to help launder the money”[34].

31.In her summing-up, the Judge provided a detailed overview of the applicant’s evidence, including his background, his sources of income in 2018, and Kai Fung’s business operations.[35]

32.As for the leases, the Judge identified the issues arising from those specifically challenged by the prosecution and directed the jury to consider the applicant’s explanations where appropriate, in particular that:

“Now, he was then taken through all the leases that were exhibited in the defence bundle and Mr Cheng properly pointed out that in the tenancy agreement at page 41, that the lease from Hoi Luen Trading Development renting to Kai Fung started on 1 June 2016 for $40,000 monthly, and that Kai Fung was only incorporated on 16 June 2016, so why did the lease run from 1 June, when Kai Fung had not been incorporated? And his answer was that ‘Sometimes oral agreement first and then we enter lease agreement so we just make a provisional agreement.’ And you will remember that Mr Delaney had also gone through this point with the defendant in his cross-examination, that why would he subject Kai Fung to this lease of $40,000 per month for a period of five years, when Kai Fung had still not started earning anything? And that Mr Delaney says that this is a sham, that it does not make business sense for somebody to agree to rent at $40,000 a month without any income yet coming into the company. Well, members of the jury, it is a matter for you.

The other matter I would like to point out to you is that at page 79, D25, that is a lease that is in relation to Lot 420, DD89. The term of the lease is for three years, Kai Fung renting to Ocean First, and the term was $5,000 per year. Now, the defendant was asked why was this, because he was not making any profit from this, because in D24, that is page 73 to 74, Kai Fung had rented the place from a Mr Liu for a yearly rent of $5,000 and here he was, renting the same place out at the same rent for $5,000. And the defendant said because he wanted to know the Ocean Logistics boss and he could see that Ocean Logistics may not need to use the land or may use it, and so he did not increase the rent. So, basically, what the defendant was saying was that he did this because he wanted to get to know the Ocean Logistics boss.”[36]

…

“And, now, he was then asked about page 47 in the defence bundle, D20. Now, this was a lease which was a plot of land which was rented by a Mr Liu Yu-hin from Kai Fung, and he was asked about why party A, which was Kai Fung Trading, was named as manager of the property, and he said it was normal because he had rented that land and it did not belong to him. So he was asked how does Kai Fung then have the authority to rent this property to Liu Yu-hin, and he said Kai Fung rented from the landlord and maybe the landlord authorised the company to deal with land and have to look at the contract to see if can re-lease, whether the Kai Fung could re-rent that property. He did not seek legal advice as to whether he could have authority to re-rent or re-lease the place. And it was put to him, suggested to him, that these leases are sham leases in order to help him launder the money.

Now, he was cross-examined extensively by Mr Delaney about these leases and I do not think I need to go through every question that had been asked of him. It has not been very long ago that this cross-examination was done. Now, he was asked by Mr Delaney if Kai Fung had a chequebook for its account with Bank of Communications and he said yes. So Mr Delaney said, ‘Well, then, that means you don’t need to line up for cash,’ and he said, ‘No, but I usually prefer to withdraw cash, he said. And he could not name an accounting firm that did the accounts for Kai Fung. He said because it was all handled by his girlfriend. And he denied that all these leases that he had referred to were sham leases in order to help launder the money.’

And he was asked about why Liu Sai-hung kept appearing as a witness in some of the leases and he said, ‘Well, because Liu Sai-hung is a village chief of Sheung Shui Wai and is now vice-chair of the rural committee, and so therefore he is used as a witness for these leases.’ He was asked whether Liu Sai-hung can come to court to verify whether these leases are genuine and he said he did ask him to come but he was unwilling to. And then -- so it is -- members of the jury, this is really parts of some of the evidence which I thought I could remind you about.

He was also asked by Mr Delaney if the company, Kai Fung, paid company tax. He said in 2017/2018, for that year, a tax return was filed, but he could not remember if Kai Fung paid any company tax. And he could not remember if he paid tax as a sole director of Kai Fung because it was, he said, too long ago.”[37]

33.As pointed out by Ms Ko, the Judge also referred to the applicant’s evidence concerning rental payments received from a particular tenant, which corresponded with the information shown on one of the leases and the bank statements adduced by the defence[38]:

“And so he was also asked about some of the rents not appearing in the Kai Fung bank statement in the Bank of Communications, and he said that, for example, the rent paid by 金星越 in page 139, that was paid by cash from this company and he would then sign on a piece of paper as a receipt for that amount. …”[39]

34.Ms Ko submits that the jury had been adequately and fairly reminded of the key issues to be taken into account, as well as the supporting evidence necessary to determine whether the purported business of Kai Fung was genuine, as alleged by the applicant.

35.As is apparent from the extracts of the Judge’s summing-up, she fairly and properly addressed the issue of the leases in presenting the defence case.  She gave a detailed summary of the applicant’s evidence and throughout her summing-up placed proper emphasis on the defence case. 

36.There is no merit in this ground of appeal.

Ground 3: Error in directing jury to consider the cash withdrawal pattern

37.Mr Li contends that the Judge wrongly directed the jury to consider two cash withdrawals from the Kai Fung account on 11 December 2017, which occurred prior to the offence period, and that she failed to provide sufficient guidance on how they should assess this cash withdrawal pattern in relation to the applicant’s credibility or the veracity of the Kai Fung account. 

38.The impugned direction reads:[40]

“… where Mr Cheng and Mr Delaney had referred you to, on 11 December, a withdrawal of $518,000, and on the same date $210,000, and he was asked why and he said he put some in his house and used some for shopping and to settle credit card payment, and he says he usually would withdraw the cash from the company account and put some at home and some into his personal account.

Now, that is a sum of over $700,000 of cash, and in this day and age, in the 20th century, would we be doing such large withdrawals of cash rather than using the cheque or the services of the bank to transfer money to another account in another bank?  Would that be much safer?  That is something that I think is also for your consideration.  Did it make sense, as the defendant said, that he would normally withdrawal such large amounts, and you will remember, he said he had no ATM card for Bank of Communication, so he had to line up in order to get the cash.  So, well, that is a matter for you, members of the jury, using your common sense and experience as men and women of this world, as to the habits of banking.”

39.The Judge properly explained to the jury the issues at trial for Count 4, namely, whether the applicant had reasonable grounds to believe that the funds in question were proceeds of an indictable offence[41], and provided them with a written handout outlining the series of questions to be considered in relation to money laundering[42], in accordance with the specimen directions[43].  She also gave a good character direction in respect of the applicant’s clear record[44], and emphasised to the jury that any view she expressed concerning the facts, or any emphasis she placed on a particular aspect of the evidence, should be disregarded if they did not agree with it, as they were the sole judges of the facts.[45]

40.Regarding the cash withdrawals, the Judge duly summarised the prosecution’s case[46] and repeatedly reminded the jury to consider the defence case, highlighting the applicant’s account that it was his practice to withdraw large sums of cash from the Kai Fung account and deposit them into the HSBC account[47].  As pointed out by Ms Ko, the impugned direction referred to the bank statement of the Kai Fung account[48], which was adduced by the defence.  In those circumstances, it was fair for the Judge to make such a reference.

41.This ground of appeal fails.

Conclusion

42.For the foregoing reasons, I do not find any of the substantive grounds of appeal to have merit, and consequently, there is no merit in the fourth ground of appeal, which is no more than a general complaint.  Accordingly, the applicant is refused leave to appeal against his conviction.

The sentence appeal out of time

43.As already noted, since the applicant’s sentencing for these offences, there has been a revision of the guidelines for sentencing for trafficking in large quantities of cocaine.  The applicant has filed an application for leave to appeal against his sentence out of time in light of the revised guidelines.

44.At the time of sentencing, the applicant was 47 years old, educated up to Form three level, and had a clear record.  Prior to his arrest, he had worked as a business driver and in the leasing business, and provided financial support to his parents. 

45.As for Counts 1 and 2, the Judge noted that the total narcotic weight of cocaine involved was 335.702 kilogrammes[49]. This was not the correct total quantity; it should have been 314.2235 kilogrammes.[50]  She considered life imprisonment to be inappropriate in the circumstances[51] and adopted a global starting point of 35 years’ imprisonment for both counts.  Taking into account that the drugs were found on the same occasion and that the applicant had keys to the premises (although he had been acquitted of the manufacturing count), the Judge considered that his role was more than that of a courier.  Referring to the guideline band in HKSAR v Abdallah[52] (namely, 23 to 26 years’ imprisonment for trafficking in between 1,200 and 4,000 grammes of cocaine), she found there was no mitigating factor in the applicant’s favour and sentenced him to 23 years’ imprisonment on each of Counts 1 and 2[53].  The incorrect guideline band corresponding to the quantity of cocaine involved was applied.  The correct band should have been “over 15,000 grammes: at the sentencer’s discretion”.[54]  She then ordered 12 years of the sentence on Count 2 to run consecutively to that on Count 1, arriving at a total sentence of 35 years’ imprisonment. 

46.As for Count 4, the Judge sentenced the applicant to 3 years and 6 months’ imprisonment, having regard to the amount and period involved, the absence of evidence of any predicate offence or of any link showing that the funds were the proceeds of drug trafficking under Counts 1 and 2, and the fact that the scheme was not sophisticated. Applying the totality principle, she regarded Count 4 as a completely separate offence from the drug trafficking offences in Counts 1 and 2, and made the sentence on Count 4 wholly consecutive to the total sentence on Counts 1 and 2, resulting in an overall term of 38 years and 6 months’ imprisonment.[55]

47.Mr Li advances a single ground of appeal against sentence out of time, namely that the applicant’s sentence is manifestly excessive in light of the revised sentencing guidelines laid down in Huang Ruifang (No 3), which he submits require a substantial reduction in the starting point.[56]  He argues that Huang Ruifang (No 3) extended the guideline for judicial discretion from beyond 15,000 grammes to beyond 30,000 grammes[57], while acknowledging the “practical and realistic ceiling of 35 years’ imprisonment” as established in HKSAR v Sum Ka Wa [58], and the legislative maximum of life imprisonment for cases of truly exceptional gravity.

48.The applicant was sentenced on 3 November 2023 and applied for leave to appeal against his sentence on 13 October 2025, which was out of time by around two years.  As stated by the Court in HKSAR v Lam Man Tak[59], applicants or appellants who were sentenced on or after 18 September 2018 and are still in the appeal system should generally be eligible to benefit from the revised sentencing guidelines in Huang Ruifang (No 3), subject to the relevant provisions and sentencing principles.

49.As submitted by Ms Ko, the Judge erred in calculating the total quantity of cocaine narcotic involved and in applying the wrong guideline band in Abdallah.  She argues that the sentence of 35 years’ imprisonment for the drug trafficking counts in total falls within the acceptable range, and that the overall sentence of 38 years and 6 months’ imprisonment is neither wrong in principle nor manifestly excessive in light of the circumstances of the case and the revised sentencing guidelines. 

50.Given the exceptionally large quantities of cocaine involved, Ms Ko submits that this constitutes the “sheer enormity of the quantity of dangerous drugs” contemplated in Sum Ka Wa, which justifies the imposition of a sentence at the prevailing sentencing limit of 35 years’ imprisonment.  She argues that there is no real “change” in the understanding of the law pertaining to the applicant’s sentence, in that he is subject to the same guideline band of over 30 years’ imprisonment, whether under Abdallah or Huang Ruifang (No 3), which falls within the sentencing judge’s discretion for the quantity of drugs he trafficked.  She further submits that it is justifiable for the Judge to make the sentence for the money laundering count wholly consecutive to the two drug trafficking counts, in accordance with the totality principle.

51.The Judge adopted a starting point of 35 years’ imprisonment in relation to the total quantity of cocaine of about 314 kilogrammes.  This was an exceedingly large quantity of a dangerous drug and there have been other cases involving similar quantities in which slightly different starting points have been adopted.  The Judge also categorised the applicant as being more than a courier because he had keys to the premises.  However, the applicant had been acquitted of the manufacturing count.  Mr Li takes issue with the Judge’s categorisation of the applicant, submitting that he was no more than a courier or storekeeper.  The unusual feature in this case is the applicant’s conviction for money laundering, involving about HK$2.7 million in the period from 1 February 2018 to 26 February 2019. The prosecution did not identify the predicate offence from which the funds originated, although it is arguable that the irresistible inference was that the funds were the proceeds of drug trafficking.  Consequently, the money laundering count was treated as separate and distinct from the drug trafficking counts, and a wholly consecutive sentence was imposed on the applicant in respect of the money laundering count.  There is an issue as to the propriety of the consecutive element if the funds are treated as the proceeds of drug trafficking, but at the same time this reflects on the applicant’s role and culpability in respect of the drug trafficking counts.  However, the prosecution did not identify the source of the funds, only that they were the proceeds of an indictable offence.  As is apparent, this argument is a two-edged sword.  Treating the funds as drug trafficking proceeds can undermine the justification for a wholly separate, consecutive sentence, but at the same time it can strengthen the case that the applicant’s role in the drug trafficking was more serious than a mere courier or storekeeper.

Conclusion

52.The foregoing matters, together with the length of the sentence, provide a legitimate basis for review of the applicant’s sentence.  I grant the applicant leave to appeal against sentence.

The result of the applications

53.It follows from what I have said that the applicant’s application for leave to appeal against conviction is refused and his application for leave to appeal against sentence is granted.

54.The applicant is reminded of his right to renew his application for leave to the Court of Appeal against conviction, but he is also informed of the consequences of doing so, which may include a direction for the loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.  There is the further factor that one of the grounds of appeal against conviction concerns allegations of flagrant incompetence on the part of one of his legal representatives, which is an additional consideration supporting the imposition of a loss of time order.

Ms Claudia Ko, SPP, of Department of Justice, for the respondent

Mr Marco Li and Ms Rachel Ronald, instructed by Tonys Lawyers, for the applicant