HKSAR v. Lee Ernest and Another

CACC 1/2018

[2026] HKCA 978

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 1 OF 2018

(ON APPEAL FROM HCCC NO 305 OF 2016)

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J U D G M E N T

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1.The 1^st applicant (D1 at trial), the 2^nd applicant (D2 at trial), Leung Tsz Hang (D3 at trial) and Cheung Siu Fung (D4 at trial) were jointly indicted on a single count of trafficking in a dangerous drug, namely 1.87 kilogrammes of a crystalline solid containing 1.47 kilogrammes of methamphetamine hydrochloride (commonly known as Ice)[1].

2.On 12 December 2017, following a trial before Deputy Judge McMahon (the judge) and a jury, D1 and D2 were both convicted, while D3 and D4 were acquitted[2]. On 13 December 2017, D1 and D2 were each sentenced to 24 years’ imprisonment.

3.On 9 May and 9 December 2025, D1 and D2 applied for leave to appeal against their sentences respectively, which were more than seven years out of time. They both rely principally on the revised sentencing guidelines handed down by this Court in HKSAR v Huang Ruifang (No 3)[3] on 5 March 2025, after their sentences were passed.

4.In January 2018, D1 and D2 applied only for leave to appeal against conviction. On 21 June 2019, D2 filed a Form VII notice abandoning his conviction appeal, which was marked dismissed on 24 June 2019. On 17 June 2020, D1’s application for leave to appeal against conviction was refused by a Single Judge[4]. On 24 June 2020, D1 applied to renew that application, which was refused by this Court on 12 January 2022.[5]

5.Mr Prakash Daryanani, for the respondent, opposes the grant of an extension of time in both applications. He cites HKSAR v Lam Man Tak[6] to argue that D1 and D2 are not entitled to derive any benefit by way of a reduction in sentence under the revised sentencing guidelines, as they were sentenced before 18 September 2018 and are not, or are no longer, “in the system”, and that there are no exceptional circumstances for them to be treated “in the system” and eligible to appeal their sentences.

6.At the leave hearing, both D1 and D2 appeared in person, having had their applications for legal aid refused on 27 June 2025 and 16 March 2026 respectively.

The case at trial

7.The case at trial was that D1, D2 and the other defendants were each a party to a joint enterprise to export dangerous drugs from Hong Kong to Japan and had frequent communications with others by telephone calls and WhatsApp messages between 22 January and 3 February 2016.[7]

8.It was alleged that, on the morning of 3 February 2016, a team of Customs officers conducted a surveillance operation at the departure area of Hong Kong International Airport. At 7:45 am, they observed D2 pulling a silver‑coloured suitcase (the suitcase) and meeting D3. At 7:50 am, D1 appeared and joined both D2 and D3. D2 then passed the suitcase to D1 and the three of them proceeded to the airline’s self‑check‑in counter. D1 alone pulled the suitcase aside and, having briefly checked its contents, handed it back to D2 to look after. From time to time, D1 talked on his mobile telephone, and later hurried to the drop‑off area to meet D4, who arrived at 8:10 am. The two of them then joined D2 and D3, whereupon D2 passed the suitcase to D4. D4 carried the suitcase and queued at the check‑in counter, while D1, D2 and D3 remained in his vicinity. An air ticket had been booked by a person named “Lam Chun To” for D4 to depart from Hong Kong for Tokyo on the 9:55 am flight.[8] Eventually, at 8:20 am, the four of them were intercepted by different Customs officers.

9.It was not disputed that D1 acted together with D4 to have D4 export the suitcase from Hong Kong to Japan, and that they believed it contained contraband in the form of disassembled iPhones and parts.[9] The following matters were adduced as admitted facts:

(i)  The suitcase was found unlocked and contained five empty iPhone paper boxes with associated wrappings and, in a concealed compartment further inside, the quantity of Ice particularised in the count, with an estimated street value of HK$566,000.[10]

(ii)  When intercepted, D1 was in possession of the suitcase and had on his person HK$912 and a mobile telephone with a SIM card[11]; D2 had on his person a mobile telephone with a SIM card, HK$4,622 and one white envelope containing 46,000 Japanese yen (about HK$2,990) and HK$1,000.[12]

(iii)  The records of D1’s mobile telephone revealed his frequent communications with D4 by calls and WhatsApp messages between 22 January and 3 February 2016, and a contact number that was saved as “Ah Hau”.[13] D2’s mobile telephone showed a contact number saved as “Hau Chai”.[14]

(iv)  In a post-recorded statement, D1 said under caution that the suitcase belonged to “two guys” who had asked D4 to take it to Japan. He stated that he saw a few iPhone boxes with clothes underneath inside the suitcase and was told that beneath the clothes were packaged electronic components that could not be unwrapped. D1 said that, as D4 had “a lot of stuff”, he carried the suitcase and checked in for D4.[15]

10.The prosecution alleged that the suitcase was brought into the departure hall and possessed by one or more of the defendants for D4 for the purpose of being taken to Japan. To prove a plan or agreement among D1, D2 and D4, the prosecution relied on their telephone records, particularly the WhatsApp communications between D1 and D4 before and on the day of the offence, and surveillance evidence from the Customs officers.[16]

11.The main issue at trial was whether D1 and D2 knew that the suitcase contained dangerous drugs. Both D1 and D2 testified in their defence, each claiming to be an innocent dupe who had been tricked into playing a role in the planned export of drugs to Japan.[17]

12.To address the submissions of the applicants, it is necessary to set out the evidence given by D1, D2 and D4 at trial.

D1’s evidence

13.D1’s case was that he had no knowledge of the drugs concealed in the suitcase and maintained that he believed it contained only iPhones and related parts. He testified that he met a man called “Mr Lam” whom he regarded as a potential customer for his business. Mr Lam’s friend “Ah Hau” was looking for someone to take mobile telephone parts to Australia, which was later changed to Japan. To maintain his business relationship with Mr Lam, D1 agreed to cooperate with “Ah Hau” and arranged for D4 to deliver what he believed to be genuine mobile telephone parts.

14.As to his arrangements with D4, D1 testified that they communicated via WhatsApp and telephone calls. When D4 expressed concerns about passing through Customs, he told D4 that the items were parallel goods and relayed to D4 that information he had received from Mr Lam and “Ah Hau”. He said that “Ah Hau” sent his younger brother, “Lam Chun To”, to purchase a travel package for D4 at a travel agency, and that D1 also attended.[18] “Ah Hau” told him that his brother or cousin would meet D4 at the airport.

15.D1 further testified that, on 3 February 2016, D2 telephoned him, saying he was the younger brother of “Ah Hau”. D1 met D2 and D3 at the airport, who had with them the suitcase and an envelope. He said D2 handed him the flight tickets and documents and told him to use self check‑in, while D3 said the suitcase was unlocked. D1 claimed he opened the suitcase but did not examine the iPhone paper boxes, nor did he realise they were empty, because “Ah Hau” had told him not to touch the contents as they were for the customers.

16.In cross‑examination, D1 accepted that he had telephone calls with “Ah Hau”, D2 and others about the trip to Japan. He maintained that he intended to inspect the suitcase again with D4 after check-in, but was prevented from doing so by the intervention of the Customs officers.

D2’s evidence

17.D2’s case was that he did not know what was inside the suitcase or that it would be taken out of Hong Kong. He had never opened it. He testified that he was recruited by a person he met when having his mobile telephone repaired. The person known as “Hau Chai”, asked him to “work as a courier” to deliver the suitcase to someone at the airport for a payment of HK$120. On 3 February 2016, “Hau Chai” instructed him to collect the suitcase from D3 in Tsim Sha Tsui and take it by himself to the airport, where he later met D1, D3 and D4. He said that he initially handed the suitcase to D1 and was present when D1 and D4 tried to do self check‑in and later joined the queue at the check‑in counter.[19]

D4’s evidence

18.According to his post‑recorded statement and video‑recorded interview, and evidence at trial, D4 owned a restaurant and D1 supplied ingredients to him. He said under caution that D1 asked him to take the suitcase to Japan for a total reward of HK$20,000. He testified that D1 repeatedly urged him by telephone to reach the airport quickly in order to pass through Customs. On arrival, he saw D1, D2 and D3, and he was hurried along towards check-in. D4 maintained that he suspected the suitcase contained dangerous drugs and had repeatedly asked D1 about it, but D1 assured him it contained only disassembled electronic parts of mobile telephones. He said that he and D1 had agreed that they would check the suitcase, but he did not open it.[20]

The mitigation

19.On D1’s behalf, defence counsel submitted that he was the sole breadwinner of a family with children and had a clear record. Counsel argued that D1’s role was not that of a courier, but as a “go‑between” between the mastermind and D4, the ultimate courier[21]. He said that D1 only came to know the suitcase contained dangerous drugs when he inspected its contents between about 7:56 am and 8:15 am at the airport that morning, and decided to proceed within about 25 minutes before he was intercepted.[22]

20.On D2’s behalf, defence counsel submitted that he was 22 years of age at the time of sentencing, he was living with his parents and younger brother, and had a clear record. Counsel contended that D2’s role was limited to that of a local courier transporting the suitcase to the airport, and that he was not the person travelling abroad. He further contended that, although he had carried the suitcase to the airport, he was not part of the group who orchestrated the trip, nor was he involved in planning the trip or purchasing the flight tickets. [23]

21.While accepting that their sentences could be enhanced for the international element, both counsel urged the judge to limit any enhancement to less than two years, submitting that the attempt to export the drugs from Hong Kong was unsuccessful due to their interception by the Customs officers.

The sentence

22.When sentencing both applicants, the judge applied the previous sentencing guidelines in HKSAR v Tam Yi Chun[24], and adopted a starting point of 23 years’ imprisonment based on an arithmetic calculation for 1,400 grammes of Ice.

23.In terms of role and culpability, the judge found that D1 acted as a middleman and had put considerable effort into that role. He said:[25]

“The role of the 1^st defendant in this offence was to recruit the 4^th defendant, a person whom he had apparently had an ongoing business relationship with. The 1^st defendant then acted as a go-between providing information to the 4^th defendant which I am satisfied originated in large part, although not completely, from another shadowy figure, named Ah Hau. That person was in quite constant contact with the 1^st defendant and considerable contact with the 2^nd defendant as the flight departure date of 3 February approached. The 1^st defendant's role, therefore, was to be a middle man and he put considerable effort into that role and he will be sentenced on that basis.”

24.As for D2, the judge found that he was more than a courier and had a continuing role in ensuring that the drugs in the suitcase, and D4, left for Japan. He said:[26]

“The 2^nd defendant's role was simpler. It had been to bring the unlocked suitcase containing the drugs to the airport and to provide, I am satisfied, some assurance to the success of the operation by remaining at the airport up to the point of time when the 4^th defendant could be said to have embarked with the dangerous drugs. The 2^nd defendant was also in frequent contact with the person, Ah Hau, in the days leading up to 3 February.”

25.Notwithstanding the judge’s characterisation of D1’s and D2’s roles and culpability as being more than those of mere couriers, he did not enhance the starting point for this factor.

26.The judge treated the “intended” international element as an aggravating factor and enhanced the starting point by 1 year, taking into account the fact that the exportation of the drugs was prevented by the intervention of the Customs officers. Having found no meaningful mitigation to justify any discount in the sentence, he sentenced both D1 and D2 to 24 years’ imprisonment.

The grounds of appeal

27.Both applicants submit that they are entitled to a reduction in their sentences in accordance with the revised sentencing guidelines propounded by this Court in Huang Ruifang (No 3).

28.By his Form XI and affirmation filed on 9 May 2025, and his grounds of appeal filed on 11 September 2025, D1 advances two further complaints about his sentence. First, he alleges that the judge failed to fairly assess his agreement with D4 and erred in enhancing his sentence by one year for the international element. He contends that, on his and D4’s evidence in cross‑examination, it had been agreed that the suitcase would be checked again after completing the check‑in, and that they would have stopped the export of the drugs at that stage but for the Customs officers’ interception. Secondly, he seeks leniency in light of his family circumstances, in particular the ill health of his 80‑year‑old mother and his responsibility for the care of his three children.

29.In his Form XI and affirmation filed on 9 December 2025, and his subsequent letters filed on 22 December 2025 and 28 January 2026, D2 advances a further complaint about his sentence. He alleges that his sentence is disparate when compared with other cases involving similar or greater quantities of dangerous drugs, in which the offenders received lighter sentences.

Discussion

30.The impetus for the applicants’ leave applications to appeal against sentence out of time by over 7 years is the revised sentencing guidelines for large quantities of hard drugs (heroin, cocaine or Ice) as prescribed by the Court of Appeal in Huang Ruifang (No 3) on 5 March 2025.

31.I have considered these applications by first addressing the relevant legal principles in relation to an application for leave to appeal against sentence out of time; secondly examining the eligibility of the applicants to appeal their sentences on the basis of the revised sentencing guidelines; and thirdly assessing whether the applicants would derive any benefit from the revised sentencing guidelines.

(i)  An application for leave to appeal against sentence out of time

32.D1 and D2 were sentenced on 13 December 2017, before the cut-off date for the application of the revised guidelines, namely 18 September 2018. Whilst their conviction appeals were either dismissed or abandoned after this date, they did not seek to appeal against their sentences until they were significantly out of time. No explanation for the lengthy delay has been provided by them, other than the fact that there has been a change in the relevant sentencing regime, of which they now seek to take advantage.

33.A person convicted of an offence on indictment may appeal to the Court of Appeal against a sentence passed on him or her under section 83G of the Criminal Procedure Ordinance (Cap 221) (CPO). The convicted person must give notice of appeal or notice of application for leave to appeal in accordance with the rules and orders made under section 9 of the CPO. The rules governing criminal appeals are contained in the Criminal Appeal Rules (Cap 221A) (CAR). The application for leave to appeal is known as a Form XI notice (Rule 41 of the CAR). The notice must be filed with the court within 28 days of the date of conviction (Rule 35 of the CAR) or within 28 days of the date of sentence (Rule 36 of the CAR), as the case may be. The time limit is specified under section 83Q of the CPO, which also provides that the Court of Appeal may extend the time for giving notice, either before or after it expires.[27] The time limits under the appeal procedures are strictly applied, and there must be substantial grounds for failure to comply with them. The granting of an extension of time to override time limits that would normally apply in the appeal process was addressed by the Court of Final Appeal in HKSAR v Hung Chan Wa & Another[28]. The Court noted that the provisions that lay down time limits for appeals, also confer on the courts the discretion to extend time.[29]

“This arrangement is an important feature of any criminal justice system. It is in the interests of society for there to be finality in the criminal process. But the time limits for the purpose of achieving finality are not absolute. The courts have the discretion to relax the time limit where this is considered to be justified in the circumstances of an individual case.”

34.The Court went on to note that the courts’ discretion is not unfettered and that the burden is on the defendant to justify the exercise of that discretion in his or her favour.[30]

35.An application to extend time to file a notice of application for leave to appeal will be accompanied by an affirmation or affidavit explaining why it is out of time. In considering such an application, the court will have regard to the length of the delay, whether the applicant has a reasonable explanation for it, and whether sufficient grounds of appeal are shown, and may examine these grounds to ensure that, by refusing leave, it is not shutting out any substantial and plainly arguable ground of appeal.[31] However, there must be substantial grounds explaining the delay. The longer the delay, the more onerous the duty on the applicant to show cause why an extension should be granted.[32]

(ii)  An applicant’s eligibility to appeal sentence under the revised guidelines

36.The revised guidelines reduced the bands of sentences applicable to large quantities of hard drugs, and in appropriate circumstances, an applicant has been granted leave to appeal his or her sentence, even when out of time. This Court addressed the issue as to the eligibility of an applicant to benefit from the revised sentencing guidelines in Lam Man Tak. Macrae VP, giving the judgment of the Court, applied the principles in Seabrook v HKSAR[33], namely that the sentencing guidelines which reduce sentences would benefit those who were sentenced before the guidelines were laid down provided that: (i) the offences were committed at a time when the “state of affairs” on which the guidelines were based was in existence; (ii) the sentences were imposed at higher levels than those set by the guidelines; and (iii) the sentencing process was still extant. He explained that the sentencing process would not be extant, and the Court of Appeal would be functus officio, where the Court had heard and determined sentence, or where the defendant had abandoned his appeal against sentence, unless the Court was persuaded that the abandonment could be treated as a nullity. Where a defendant applied for leave to appeal against sentence out of time, the Court of Appeal was not functus officio, but retained a discretion, grounded on established principles, to entertain the appeal in certain circumstances.[34]

37.Macrae VP went on to explain that the “state of affairs” which led to the revised guidelines began on 18 September 2018 in HKSAR v Kilima Abubakar Abbas[35]. Therefore, defendants still “in the system” on or after the date for sentence of 18 September 2018 were in principle entitled to benefit from the revised guidelines, subject to their eligibility and other sentencing principles and any other relevant considerations which may apply. Otherwise, the previous guidelines will continue to apply to a defendant sentenced before 18 September 2018 and who was not or was no longer “in the system”. For defendants sentenced on or after 18 September 2018 who were not or were no longer “in the system”, the Court of Appeal would, in the ordinary course, only consider interfering with sentences if persuaded that it was justified, applying established principles on whether the Court would exercise its discretion to grant an application for leave to appeal out of time or treat an abandonment of an appeal as a nullity. If the appeal against sentence had already been heard and determined, the Court was functus officio and the only recourse was to petition the Chief Executive.[36] However, he emphasised that the Court of Appeal and sentencing courts always retained a discretion to deal with those rare cases which did not fit neatly within the parameters as set out. He added that once it was recognised that the critical date for sentence was 18 September 2018 for those still “in the system”, such cases would be very exceptional.[37]

38.D1 and D2 were sentenced on 13 December 2017, and therefore are not “in the system” and are not eligible to be granted leave to appeal against their sentences out of time by reference to the revised guidelines. In their respective circumstances, the critical date of 18 September 2018 does not assist them.

(iii)  Whether any benefit can be obtained under the revised sentencing guidelines

39.I will nevertheless examine whether there would be any difference between the sentences imposed on D1 and D2 under the previous guidelines and those which would be imposed under the revised guidelines.

The role and culpability

40.In HKSAR v Herry Jane Yusuph[38], the Court explained that the starting point is not to be determined on a purely mathematical basis. The sentencing process requires a step-by-step analysis, first by examining the role and culpability of each defendant and then by considering any aggravating and mitigating factors. In assessing role and culpability, it is relevant to consider whether the defendant was a local courier or an international courier bringing in or taking out dangerous drugs across the border.

41.In his sentencing remarks, the judge characterised D1’s role as that of “a middleman” and D2 as “more than a courier”. As alleged by the prosecution at trial, D1 was the “organiser and coordinator” of D2, D3 and D4, ensuring their timely arrival at the airport with the suitcase on the date of the offence. D1 had recruited D4, with whom he apparently had an ongoing business relationship. He then acted as an intermediary, passing information to D4 from “Ah Hau”, with whom he had frequent contact before and on 3 February 2016. He had arranged to meet D4 and Lam to purchase the flight tickets to Japan, and inspected the contents of the suitcase in the presence of D2 and D3 before handing it over to D4.[39]

42.If the role and culpability of each of D1 and D2 were to be reconsidered by the Court of Appeal, it would be on the basis that both were more than couriers, which would warrant further enhancement of the sentence. However, D1 had a more senior and extensive role than D2, given his preparatory work in recruiting D4 as the ultimate courier, his presence when the flight tickets was purchased and his frequent communications with D4 and “Ah Hau”, which could justify a greater enhancement than that for D2.

The international element

43.D1 complains that the aggravating factor of an international element was not made out in the present case. However, there was clearly an international element as he was convicted of being a party to a joint enterprise to export the drugs from Hong Kong to Japan. There was sufficient evidence contained in the facts and circumstances to show that he knew that the suitcase contained the drugs and that his involvement was to assist or facilitate the exportation of the drugs out of Hong Kong: HKSAR v Fong Yau Heung[40] and HKSAR v SK Wasim[41].

44.On an arithmetic calculation, the starting point for trafficking in 1,470 grammes of Ice under the previous guidelines is 23 years and 3 months’ imprisonment (the judge had adopted a slightly lower starting point of 23 years’ imprisonment). The same quantity under the revised guidelines is 19 years and 11 months’ imprisonment.

45.In the circumstances of the case, it is likely that an appellate court sentencing afresh would substantially enhance a starting point of nearly 20 years’ imprisonment by several years, even applying the totality principle, given the role played by D1 and D2 and the international element, namely that the drugs were earmarked for export to Japan.

46.Accordingly, it is likely that the difference between the former and the revised guidelines would not be significant enough to warrant an interference with the sentences in this case.[42] As observed by this Court in Lam Man Tak:

“30. …, 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[43]) nor do they ‘tinker’ with them (HKSAR v Sze Kwan Lung[44]), just because they might have passed different ones.”

Conclusion

47.D1 and D2 were sentenced outside the cut-off date of 18 September 2018 and were not “in the system” and therefore are not eligible to appeal their sentences. Accordingly, their applications for an extension of time and for leave to appeal against their sentences out of time are refused.

Mr Prakash Daryanani, SPP, of Department of Justice, for the respondent

The 1^st and 2^nd applicants appeared in person