HKSAR v. Cheung Cho Wah

CACC 166 /2025, [2026] HKCA 896

On Appeal From [2024] HKCFI 2799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 166 OF 2025

(ON APPEAL FROM HCCC NO 393 OF 2023)

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BETWEEN

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J U D G M E N T

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1.The applicant pleaded guilty to three charges: the 1^st charge of trafficking in a dangerous drug, namely 162.10 grammes of cocaine, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 on 24 August 2021; the 2^nd charge of manufacturing a dangerous drug, contrary to section 6(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134, between the period of 16 July and 24 August 2021; and the 3^rd charge of trafficking in a dangerous drug, namely 257.12 grammes of cocaine, on 24 August 2021. Having been committed to the High Court for sentence, he was in due course sentenced by Anna Lai J (“the judge”)  on 28 August 2024 to 13 years and 4 months’ imprisonment.

2.By his Form XI Notice of Application for leave to appeal against sentence (“Form XI”)  filed on 13 June 2025, the applicant now seeks leave to appeal against his sentence out of time, relying principally on the revised sentencing guidelines and a comparison with other cases said to concern the manufacturing of similar quantities of cocaine.

The facts of the case

3.On 24 August 2021, the applicant was found in possession of 162.10 grammes of cocaine in his trouser pockets, together with cash and mobile telephones.  He was then taken to a flat on the 21/F of a block in Emerald Bay Phase 1, Tuen Mun, New Territories, where a large quantity of chemicals, paraphernalia, and other materials associated with the manufacture of cocaine were found.

4.The seized items included 257.12 grammes of cocaine, cocaine residue on various implements and surfaces (including air-conditioning filters), sodium bicarbonate, and phenacetin.  The Government Chemist concluded that the materials were commonly associated with the process of making cocaine base from cocaine hydrochloride, and that the conversion process could have taken place on the premises.

5.In his cautioned interviews, the applicant admitted that he trafficked in dangerous drugs because he owed money, that he possessed the drugs found on him for sale, and that he had manufactured dangerous drugs at the flat in order to make money to repay his debts.  He further accepted that, between 16 July 2021 and 24 August 2021, he had manufactured cocaine at the flat and was in possession of the cocaine found both on him and in the flat for trafficking.

6.The total street value of the dangerous drugs seized was estimated to be HK$793,195.

Sentence

7.The judge adopted starting points of 11 years on Count 1, 20 years on Count 2, and 13 years on Count 3.

8.In mitigation, it had been submitted that: (i)  the applicant was 23 years of age at the time of arrest, with no criminal record; (ii)  he had entered early pleas of guilty; (iii)  he had lost the chance to pay his last respects to his mother as a result of his detention and was determined to turn his life around once released; (iv)  he deserved an opportunity to rehabilitate himself, hence the sentence for manufacturing drugs should be served concurrently with the two trafficking charges; and (v)  the commission of the offences arose because of his financial problems.

9.The judge held that the only real mitigation was the applicant’s early pleas of guilty, which entitled him to a full one-third discount[1]. Accordingly, the judge sentenced the applicant to a total of 13 years and 4 months’ imprisonment (7 years and 4 months’ imprisonment; 13 years and 4 months’ imprisonment; and 8 years and 8 months’ imprisonment respectively on the three counts).

Grounds of appeal

10.The applicant’s first ground of appeal is that the Court should apply the revised sentencing guidelines and reduce his sentence accordingly.  His second ground relies on cases said to involve similar quantities but lighter sentences.

The respondent’s submission

11.Mr Edward Lau, for the respondent, opposes the application, submitting that any reduction under the revised guidelines based on arithmetic alone would be marginal and would not justify appellate intervention.  Furthermore, the applicant’s sentence was neither wrong in principle nor manifestly excessive.  He submits that since there would only be a slight difference in the starting point for the overall quantity of dangerous drugs, the revised guidelines would not make any material difference to the sentence on a plea, especially in the context of an offence of manufacturing dangerous drugs: see HKSAR v Au Chun Wah[2].

Consideration

12.The applicant was sentenced on 28 August 2024, almost six years after 18 September 2018, so he falls on the right side of the cut-off date for any application of the revised guidelines in HKSAR v Huang Ruifang (No 3)[3]to his sentence, as has now been made clear in the Court’s most recent judgment in HKSAR v Lam Man Tak[4].  However, the applicant is well out of time.

13.In Lam Man Tak, the Court explained its approach to the application of the Huang Ruifang (No 3) guidelines to various cases:

“29. … Thus, sentencing in dangerous drugs cases is not a simple question of arithmetic.

30. Furthermore, the difference between a sentence under the revised guidelines in Huang Ruifang (No 3) and a sentence under the former guidelines in Abdallah would have to be significant, even making due allowance for the fact that there has been a change in the range of sentences applicable. It must be remembered that an appeal against sentence may be allowed by the Court where it is either wrong in principle or manifestly excessive, not where it is marginally excessive or simply on the high side. Moreover, appellate courts do not ‘prune’ sentences (R v Kan Chik Tung[5])  nor do they ‘tinker’ with them (HKSAR v Sze Kwan Lung[6]), just because they might have passed different ones.

…

47. … Bearing in mind the humanity of the law, as well as the important need for certainty and finality, we have concluded that appellants still ‘in the system’ on or after 18 September 2018, are in principle entitled to benefit from the revised guidelines in Huang Ruifang (No 3); subject to their eligibility and other sentencing principles, including those comprehensively laid down in Herry Jane Yusuph, as well as those governing appeals against sentence (as explained at [30] supra), and any other relevant considerations which may apply.

…

50.  … Thus, for anyone applying out of time to appeal against a sentence passed on or after 18 September 2018, ordinary principles will govern whether the Court will exercise its discretion to permit such an application, bearing in mind that such leave is an exceptional remedy.”

14.The applicant did not appeal his sentence until he was out of time.  No explanation has been given for the delay beyond the fact that there has been a change in the law, or sentencing regime, of which he now seeks to take advantage.  Despite the changes to the guidelines wrought by Huang Ruifang (No 3), the question remains whether the fact that there is a new sentencing regime provides the applicant with a reasonably arguable ground of appeal, thereby justifying the granting of leave to appeal out of time.  Any difference between a sentence under the former guidelines and the new guidelines would have to be significant.

15.The applicant has not shown any reasonably arguable basis for leave to appeal out of time.  On the respondent’s arithmetic in respect of Counts 1 and 3, the revised guidelines would make no difference to the starting point for Count 1, and only a marginal difference for Count 3[7]. If the drugs particularised in the two counts had been dealt as though they had been found together, when applying the new guidelines arithmetically, the sentence after his guilty pleas would be in the region of 9 years and 11 months’ imprisonment, which would be about 5 months less than the sentence imposed by the judge of 10 years and 4 months’ imprisonment[8]. In HKSAR v Au Chun Wah[9], a difference of just under 9 months’ imprisonment on a plea as a result of the revised guidelines was not considered significant enough to warrant appellate interference.

16.However, the sentence cannot be viewed on an arithmetic basis by simply comparing drug quantities alone.  The applicant was not a simple street-level offender.  He was both a trafficker and a manufacturer involved in a sustained manufacturing operation conducted over a period of more than a month from premises under his control, with significant chemicals and paraphernalia concerned.  It is significant that the filters of two air-conditioners in the premises contained cocaine residue suggesting the flat was not being used for domestic purposes but as a drug manufacturing laboratory.

17.In those circumstances, I am not persuaded that the overall sentence imposed was manifestly excessive.  Even under the revised sentencing guidelines in Huang Ruifang (No 3), bearing in mind that the principal offence was not one of trafficking but of manufacturing dangerous drugs, I do not consider that there is a reasonable argument that the sentence was manifestly excessive.  As the Court said in HKSAR v Cheng Chi Wai[10]:

“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.”

18.Had this been a case of trafficking alone, I cannot see any appellate court reducing the sentence by what would effectively be a matter of a few months.  Appellate courts do not tinker with sentences.  What must always be established is that the resulting sentence is either wrong in principle or manifestly excessive. But this was not a case of trafficking alone.

19.Nor do the case(s)  relied upon by the applicant assist him.  One of those cases referred to concerns the sentence passed in HKSAR v Yuen Wing Chung[11].  As such, it is a first-instance decision, which is not binding on an appellate court; in any event, such a sentencing comparison is not a proper basis for granting leave out of time where the sentence under appeal has not been shown to be wrong in principle and/or manifestly excessive.

20.For those reasons, the application for leave to appeal against sentence out of time is refused.  The applicant is advised that he has the right to renew his application for leave out of time before the Court of Appeal, but he is also warned that the Court has power to order the loss of any time spent in custody pending his appeal if it were to conclude that there was no justification for the renewal.

Mr Edward Lau SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person