HKSAR v. Fung Wing Lam, Correnr

CACC 136/2023, [2026] HKCA 893

On Appeal From [2023] HKCFI 1909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 136 OF 2023

(ON APPEAL FROM HCCC NO 223 OF 2022)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.The applicant was charged with conspiracy to traffic in dangerous drugs, namely heroin hydrochloride and ketamine, between a date unknown in July 2020 and 30 September 2020, contrary to sections 4(1)(a), (3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200. On 19 December 2022, she pleaded guilty to the charge before a magistrate, as a result of which she was duly committed to the High Court for sentence. Having confirmed her plea on 29 June 2023, she was sentenced by D’Almada Remedios J (“the judge”) to 18 years and 6 months’ imprisonment.

2.By a Form XI Notice filed on 21 July 2023, the applicant applied for leave to appeal against sentence. However, having been refused legal aid on 30 August 2023, she signed and filed a Form VII Notice on 14 September 2023 abandoning her appeal, which was accordingly deemed dismissed by the Court by virtue of Rule 39 of the Criminal Procedure Rules, Cap 221A on the following day.

Grounds to reinstate the abandoned and dismissed appeal

3.By an affidavit filed on 27 June 2025, the applicant has sought to reinstate her abandoned sentencing appeal for the following reasons:

“…I was unable to think clearly because of the deteriorating health condition of my father after he suffered from a stroke. I also learned that my father had begun to lose his cognitive and had progressively failed to remember events and people. Consequently, my mother was extremely helpless at that time. The bonds in my family were shattered. I was unable to resolve the numerous, enormous problems and challenges for them as I had been imprisoned. I, as a result, was extremely stressed psychologically and emotionally, and was consistently in a state of despondency. Furthermore, I simultaneously learned that the Legal Aid Department had rejected my application for provision of legal representation to me. Facing all the above situations at that time, I became so muddle-headed that I lost my bearings. But 2 years has passed since the sentence, my mind has become stabilized, and having had discussions with my family, I wish to appeal again.”

4.The applicant went on to contend that, since revised sentencing guidelines under HKSAR v Huang Ruifang (No 3)[1] came into being on 5 March 2025, she should be entitled to derive a benefit from any reduction in the guidelines in respect of her offence. At the hearing of her application, the applicant produced a further written submission elaborating on the point by reference to certain authorities.

Facts accepted by the applicant

5.When confirming her plea of guilty to the charge before the judge, the applicant accepted an 8-page Perfected Amended Summary of Facts, which formed the basis of her sentence.

6.On 28 September 2020, a shipment containing 28 boxes of purported durian goods from Malaysia arrived in Hong Kong. The consignee was a person named Lee Kin at an address in Tai Wai, New Territories. Having been delivered to the address in Tai Wai in the early afternoon of 29 September 2020, the 28 boxes were re-delivered that evening by a GoGo van driver to Park Fook Industrial Building, Nos 615-617 Tai Nan West Street, Cheung Sha Wan, Kowloon (“the building”), which had been the subject of an anti-narcotics operation by Customs officers. From perusing the CCTV footage of the Building, the applicant, who was observed attending Flat A on the 4/F between 16 and 19 September 2020 on various occasions, was seen again on 29 September 2020 at the loading area on the ground floor of the building, where she unloaded the 28 boxes with the assistance of a person known as Male A and took them to Room A35 of Flat A. She was subsequently seen entering and leaving Room A35 on various occasions between 29 and 30 September 2020, sometimes together with another male person (known as either Male B, Male C or Male D).  Upon leaving Room A35 on 30 September 2020 at 4:55 pm, she was intercepted by Customs officers in the corridor outside.

7.With a key found on the applicant, Customs officers gained access to Room A35. A search of the premises uncovered, amongst other items[2], 16 transparent resealable plastic bags in which there were 64.40 grammes of a mixture containing 54.60 grammes of heroin hydrochloride[3]; 20 white foam boxes containing trays of durian pulp[4], inside the emptied seeds of which were found a total of 2,421 packets containing 10,075.10 grammes of a mixture containing a total of 8,449.90 grammes of heroin hydrochloride; and three plastic bags containing a total of 1.89 grammes of a solid containing 1.54 grammes of ketamine[5].

8.In a subsequent cautioned video recorded interview, the applicant admitted, inter alia, that:

(a)  She had agreed to work (for the second time) for a person called Michael, also known as Gor Gor, for a few months, initially for HK$2,000-HK$3,000, but on this occasion for HK$30,000. Her job was mainly to remove all the dangerous drugs from the 28 boxes including the durian seeds;

(b)  She was responsible for paying the monthly rent of HK$4,200 in respect of Room A35. She had been given the only key to the premises by someone known as “Milk Boy”;

(c)  On 30 September 2020, Male D had come to Room A35 on two occasions and removed a total of 700 grammes of heroin hydrochloride[6] (based on the admitted purity of 81.76%, the narcotic content was agreed at 572.32 grammes[7]); and

(d)  On 29 September 2020, Male C had come to Room A35 and taken 8 foam boxes from her on the instructions of Michael, leaving, therefore, only 20 boxes at the time of her arrest.

9.The dangerous drugs in the transparent resealable plastic bags and trays of durian pulp found inside Room A35, as well as those which had been earlier removed from Room A35 by Male D, amounted to 9,076.82 grammes of heroin hydrochloride (54.60 + 8449.90 + 572.32 grammes), with a retail value of HK$15,219,389.5[8]; and 1.54 grammes of ketamine, with a retail value of HK$927.99[9].

Sentencing

10.The applicant was 22 years of age at the time of her sentence and hitherto had a clear record.

11.Adopting a combined approach to sentencing, the judge notionally converted the 1.54 grammes of ketamine into 1 gramme of heroin hydrochloride, thus making an overall total of 9,077.82 grammes of heroin hydrochloride narcotic. Applying the former sentencing guidelines for trafficking in heroin, as established in HKSAR v Abdallah[10], she arrived at a starting point of 27 years and 9 months’ imprisonment.

12.The judge did not enhance the applicant’s sentence on the basis of any international element, stating there was no evidence that she knew the drugs were imported from abroad[11]. The judge considered that the applicant was “really a front-line worker” who was assisting in the drug activities only[12]. Whilst noting that she trafficked in two types of dangerous drugs[13], the judge did not treat it as a factor to enhance her sentence.

13.In the result, the judge gave the applicant a one-third discount for her timely plea and passed a sentence of 18 years and 6 months’ imprisonment.

The respondent’s submissions

14.Mr Ma, for the respondent, submitted that the applicant had failed to meet the requisite test in order to warrant her abandonment being nullified. Accordingly, the Court was functus officio and had no jurisdiction to re-open her case. He argued that even if the applicant were allowed to restore her appeal, the sentence she received could not be said to be manifestly excessive or wrong in principle, given the aggravating features present.

Consideration

15.The applicant sought to explain before us that her Notice of abandonment was filed at a time when she was in a state of mental turmoil and distress because of a series of unfortunate personal events concerning her parents at the time. We have been informed that her father has since passed away. Whilst asserting that her abandonment was not the result of an informed decision on her part, she also accepted that she abandoned her appeal after legal aid had been refused on the merits.

16.In HKSAR v Chang Wai Hang Alab[14], this Court held:

“Whether the abandonment may be treated as a nullity concerns the applicant’s understanding of the effect or consequences of the document he is signing or, perhaps, misapprehending the effect at law of an appeal were he to persist. An appellant who, properly informed, knows what the document is that he is signing and the effect of it and, with that knowledge, deliberately signs the Notice of Abandonment of Appeal, may not satisfy the court that his act of abandonment is a nullity.”

17.Accordingly, the relevant question for us to ask is: did the applicant understand the consequences of her actions when she signed Form VII? That form is in Chinese, which is her language. The Notes to the Form VII Notice expressly state that:

“1. Please note rule 39 of the Criminal Appeal Rules (Cap. 221 sub. leg. A).

2. Under that rule 39, on receipt by the Registrar of your notice of abandonment, your appeal is deemed to have been dismissed. The Court of Appeal has no inherent jurisdiction to permit your appeal to be reopened unless—

(a) your abandonment of the appeal is treated as a nullity; or

(b) there is a reference to the Court of Appeal by the Chief Executive under section 83P of the Criminal Procedure Ordinance (Cap. 221).

3. Only in exceptional circumstances, where the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, will the Court treat the abandonment as a nullity.”

18.There is nothing to undermine the applicant’s knowledge of the consequences of abandoning her appeal as detailed in the above Notes. In our view, her present explanation, even if accepted, would at most show that her decision to abandon her appeal was partially prompted by the circumstances she was facing at the time; even so, there is nothing to suggest that she lacked the ability to make an informed decision. She abandoned her appeal about two weeks after learning of the Director of Legal Aid’s view as to the merits of her appeal.

19.The applicant also accepts that one of her grounds of appeal is the existence of the revised sentencing guidelines in respect of heroin, as set out by the Court in Huang Ruifang (No 3). As a matter of history, the applicant did not seek to reinstate her abandoned appeal for 21 months after abandonment until 27 June 2025. It seems to us that the present application springs from a desire to benefit from the revised sentencing guidelines once she became aware of a change in the law, rather than from an uninformed decision to abandon her appeal in the first place.

20.Accordingly, we refuse the applicant’s application to nullify the abandonment of her appeal. However, it will be of assistance to the applicant, who was not represented before us, if we indicate that we were also of the view that there was no merit in her appeal in any event.

21.It should be remembered that the applicant was charged with conspiracy to traffic in dangerous drugs, for which no quantities of either heroin or ketamine were particularised in a charge spanning a period from an unknown date in July 2020 to 30 September 2020. The extent of the conspiracy, the number of conspirators and the quantities of dangerous drugs being trafficked pursuant to the conspiracy needed to be assessed in the light of the facts admitted, so as to properly gauge the applicant’s role and culpability in the offence.

22.Although 10,075.10 grammes of a mixture containing 8,504.50 grammes of heroin hydrochloride was physically seized from Room A35, the applicant also admitted during her interview that Male D had taken away a further 700 grammes of dangerous drugs on 30 September 2020, which, applying the same percentage purity to this quantity as the drugs seized inside Room A35, amounted to 572.32 grammes of heroin hydrochloride; thus making a total of 9,076.82 grammes of heroin narcotic, worth more than HK$15,200,00.

23.However, that was not the full extent of the trafficking undertaken during the course of this conspiracy period. The applicant admitted that this was the second time she had worked for Michael, she having been involved in receiving and dealing with a previous consignment of dangerous drugs. Furthermore, it was accepted that, on 29 September 2020, Male C had also removed a further 8 boxes on the instructions of Michael, who had called the applicant to tell her to release the boxes to him. It would be fanciful to assume other than that these 8 boxes also contained dangerous drugs, and it is significant that it was to the applicant that Michael gave his purported instruction.

24.It is, therefore, unrealistic to believe that the extent of the dangerous drugs being trafficked during the course of this conspiracy period was limited to 9,076.82 grammes of heroin hydrochloride and 1.54 grammes of ketamine narcotic. This was clearly a conspiracy involving a number of people who had dealt with at least one other consignment of dangerous drugs and doubtless would have continued, given the period of the tenancy for two years from 15 June 2020 to 14 June 2022, but for the intervention of Customs officers. Therefore, it was artificial simply to apply the guidelines arithmetically to only the quantities of dangerous drugs seized in the premises and those taken away by Male D, whilst ignoring the consignment collected by Male C, and disregarding the earlier incidence of trafficking in the context of a 3-month conspiracy period.

25.In terms of role and culpability, clearly the applicant was no mere store-keeper. Nor, with respect, does the judge’s description of the applicant as “really a front-line worker” do full justice to (i) her supervisory role in the conspiracy, whether or not on behalf of herself or someone called Michael; (ii) her handling and processing role in extracting the dangerous drugs, weighing them, packaging them and then distributing them among the conspirators; and (iii) her obviously trusted position and responsibility that was further manifested by her possession of the only key to Room 35A and her payment of the monthly rent for the premises.

26.Moreover, the applicant’s telephone records and the photographs, which she stored in her two telephones, are indicative of far greater involvement by the applicant in the trafficking conspiracy than a mere storekeeper or front-line worker.

27.Finally, there is the factor that the applicant pleaded guilty to trafficking in two different types of dangerous drugs. Although the ketamine quantity was small, it is a fact that the applicant was involved in a conspiracy that catered for trafficking in different types of dangerous drugs.

28.For these reasons, even if a Court had been persuaded that the applicant’s abandonment of her appeal should be treated as a nullity, the Court would have to resentence afresh and we cannot see that the result would be materially different from the sentence she received, even under the revised guidelines which should also be read in the context of the approach set out in HKSAR v Herry Jane Yusuph[15] concerning role and culpability. In those circumstances, such an application to nullify her abandonment would ultimately be an exercise in futility.

29.Accordingly, we refuse the application to treat the applicant’s abandonment of her appeal against sentence as a nullity and to reinstate her appeal, which has already been dismissed.

Mr Michael Ma SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person