HKSAR v. Yau Kai Fung

CACC 208/2024 [2026] HKCA 885

On appeal from [2024] HKCFI 3190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 208 OF 2024

(ON APPEAL FROM HCCC NO 442 OF 2023)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.On 26 September 2024, following his plea of guilty to a single count of trafficking in dangerous drugs, namely 130.44 grammes of a solid containing 112.66 grammes of ketamine and 6.57 grammes of a solid containing 1.95 grammes of cocaine[1], the appellant was sentenced by Deputy High Court Judge Eric Kwok, SC, (the judge)  to 5 years and 4 months’ imprisonment.

2.On 14 July 2025, the appellant was granted leave to appeal his sentence by the Single Judge[2].  Mr Franco Kuan, with Ms Manalie Chan, for the appellant, took issue with the starting point and the approach adopted by the judge.  He advanced three grounds of appeal.  He contended that the initial starting point of 7 years and 6 months for the combination of ketamine and cocaine was manifestly excessive, according to the combined approach and tests in HKSAR v Chan Yuk Leong[3]relied on by both the prosecution and the defence[4] (Ground 1); the judge wrongly took into account “selling the material drugs in bars” as a factor in enhancing the starting point when that was not what the appellant admitted under caution (Ground 2); and the overall starting point of 8 years’ imprisonment was wrong in principle and/or manifestly excessive (Ground 3).  Ground 2 was abandoned at the hearing of the appeal.

3.At the leave hearing, the Single Judge observed that the 9-month enhancement, which resulted in an enhanced starting point of 7 years and 6 months’ imprisonment, was arguably excessive, although the 6-month enhancement, which was to reflect the appellant’s role as a direct trafficker, might be considered insufficient.  The Single Judge also suggested that, in light of the reformulated sentencing approach in HKSAR v Herry Jane Yusuph[5], it would be appropriate in the appeal to examine the utility of the three check tests, referred to in Chan Yuk Leong, in order to decide whether the extent of upward adjustment to the overall starting point for trafficking in more than one kind of dangerous drug was excessive.

4.At the conclusion of the hearing, we allowed the appeal and reduced the notional starting point from 8 years’ imprisonment to 7 years and 4 months’ imprisonment.  After applying the one third discount for the guilty plea, the final sentence was reduced from 5 years and 4 months’ imprisonment to 4 years and 10 months’ imprisonment.  We indicated that we would hand down our reasons in due course, which we now do.

The summary of facts

5.The facts outlined to the judge and admitted on behalf of the appellant were as follows.[6] On 22 May 2022, a team of police officers conducted an anti-narcotics operation at Room 2113, 21/F, Yuet Wah House, Tin Yuet Estate, Tin Shui Wai, New Territories (the flat), during which the appellant opened the door of the flat to receive a delivery of meal boxes.  As the police approached the flat, the appellant attempted to close the gate but was subdued inside the flat when the officers gained entry. 

6.Upon searching the flat, the police found, inside a tote bag placed in a drawer under the bed in the appellant’s bedroom, a plastic bag containing 26 resealable plastic bags containing a total of 112.66 grammes of ketamine, and a resealable plastic bag containing 1.95 grammes of cocaine, as particularised in the count, and other items including two resealable plastic bags containing 16 empty resealable plastic bags, and a digital scale with a battery.  On a computer desk, the police also found HK$390 in cash; two keys for the door and the gate of the flat; and a mobile telephone with a SIM card.  The appellant was arrested and stated under caution that he sold illicit drugs to make a living. 

7.The street value of the ketamine was estimated at HK$61,829, while that of the cocaine was HK$5,966 in powder form or HK$8,843 in crack form.

8.In a subsequent cautioned video recorded interview, the appellant stated that he knew the drugs seized by the police were ketamine and crack cocaine.  He said he had collected a tote bag from his friend about three weeks earlier, which contained the drugs, the plastic bags and the digital scale.  He planned to pay his friend HK$20,000 to HK$30,000 for the items and earn money by selling the drugs in bars with the help of his friend, but was unable to pay his friend or start selling the drugs because his friend had previously been arrested[7].

The sentence

9.At the time of sentencing, the appellant was 29 years of age, unemployed, and resided with his father[8].  He had three previous convictions, including one for possession of a dangerous drug in November 2018, for which he was ordered to attend a Drug Addiction Treatment Centre[9]. 

10.Defence counsel submitted to the court the calculation results under the absurdity test, the conversion test and the ratio test.  The result under the ratio test yielded a starting point of 6 years and 9 months’ imprisonment, which was the lowest of the three results.  She therefore invited the judge to adopt 6 years and 9 months’ imprisonment as the starting point and to reduce it by one-third for the appellant’s guilty plea, resulting in 4 years and 6 months’ imprisonment.

11.Applying the combined approach, the judge used 112.66 grammes of ketamine as the base drug with a starting point of 6 years and 9 months’ imprisonment, which he enhanced by 9 months for the 1.95 grammes of cocaine, arriving at a notional starting point of 7 years and 6 months’ imprisonment.  The judge considered that the appellant’s role was “not just a courier, which is at the lowest end of culpability.”[10] Referring to the appellant’s admission under caution that he would sell the drugs in bars, the judge considered that he was also a seller of the drugs, for which he enhanced the notional starting point by 6 months to 8 years’ imprisonment.[11]  After giving the appellant a full one third discount for his guilty plea, the judge sentenced him to 5 years and 4 months’ imprisonment.

The grounds of appeal

The appellant’s submissions

12.Mr Kuan submitted that, whilst the three “check tests” in Chan Yuk Leong aim to cross check whether the total sentence (as opposed to the notional sentence before consideration of other factors)  is appropriate[12], Herry Jane Yusuph has laid down a structured, principled and step-by-step approach to sentencing, from setting an arithmetical starting point, through consideration of the role and culpability as well as aggravating and mitigating factors, to determining an overall sentence[13].  Thus viewed, he submitted that, if the three check tests produce a notional starting point which has yet to go through the remaining steps in Herry Jane Yusuph, there is a potential risk of double counting[14].

13.Mr Kuan submitted that, as compared with the absurdity test and the conversion test, the ratio test, which takes into account both the potency and weight of the dangerous drugs, is the most straightforward and fairest test for identifying the relevant guideline band for a cocktail or combination of drugs[15]. He further submitted that, insofar as the quantities of ketamine and cocaine in question are concerned, the notional sentence after trial under the ratio test, according to his calculation, would be 6 years and 11 months’ imprisonment[16].

14.Accepting that the enhancement of the sentence by 6 months to reflect the appellant’s role as a direct trafficker was appropriate for the purpose of Step 2[17], Mr Kuan submitted that, after identifying the relevant guideline band within which the appellant fell, it would bring his sentence up to 7 years and 5 months’ imprisonment.  For the purpose of Step 4, he submitted that, although trafficking in two types of dangerous drugs is an aggravating factor, since only a small quantity of cocaine was involved, no further upward adjustment should be made.  Turning to Step 5, he submitted that the only valid mitigation was the appellant’s timely plea, which would afford him a one third discount, bringing the sentence down to 4 years and 11 months’ imprisonment.  Viewed in light of Step 6, Mr Kuan submitted that the sentence of 4 years and 11 months’ imprisonment was fair, just and balanced[18].

15.Based on the foregoing process, Mr Kuan submitted that the appeal should be allowed, and the sentence reduced from 5 years and 4 months’ imprisonment to 4 years and 11 months’ imprisonment.

The respondent’s submissions

16.Mr Ivan Cheung, for the respondent, argued that, as a matter of principle, where two or more types of drugs are involved, a basic starting point produced under the individual and combined approaches would not take into account the aggravation of multiple drugs as a separate factor[19].  He submitted that the approach under Herry Jane Yusuph remains workable in situations involving multiple drugs, provided that Steps 1, 2 and 3 are understood in a practical sense to encompass the whole process by which the sentencing court determines the applicable tariff figure for an individual drug, or the applicable overall guideline figure for a cocktail or combination of drugs, which would then be subject to further consideration under Steps 4, 5 and 6[20].

17.Mr Cheung submitted that the final starting point of 8 years’ imprisonment (and the ultimate sentence)  was not manifestly excessive.  He invited the Court to uphold it on the following bases:[21]

(a)  If the individual approach is applied, the applicable tariff figure for 112.66 grammes of ketamine is 6.75 years’ imprisonment, and that for 1.95 grammes of cocaine is 2.59 years’ imprisonment[22], the aggregate of the two figures being 9.34 years’ imprisonment, which is 1.34 years above 8 years.

(b)  If the conversion test is applied, the result is 6.8 years’ imprisonment (if equating cocaine with ketamine)  or 6.9 years’ imprisonment (if equating ketamine with cocaine).  The difference of some 13 or 14 months (as compared to 8 years’ imprisonment)  is well justified by the dual aggravating factors of the appellant’s role and the presence of more than one type of drug.

(c)  Putting aside the 6-month enhancement for the role of the appellant, which Mr Cheung submitted could not be impugned and could have been even higher[23], the starting point of 7.5 years’ imprisonment could not be criticised if it is regarded as reflecting the appropriate quantum for the quantities of the two types of drugs, along with the presence of those two types of drugs as a separate aggravating factor.

18.Mr Cheung submitted that the absurdity test had no utility or practical value, as it is rarely used unless a very large quantity of highly potent drugs is involved, and he accepted that the ratio test has its own attraction, given it is a simple mathematical calculation that is relatively fairer to the accused.[24]

Discussion

19.The issue raised in the appellant’s challenge to his sentence is whether the resultant sentence is within the appropriate range for the offence committed.  What was primarily at issue was the approach taken by the judge in sentencing the appellant for trafficking in two types of dangerous drugs.  The bulk of the drugs was ketamine, packed in twenty-six bags, together with a small quantity of cocaine, packed in one bag. In the appellant’s residence, there was drug paraphernalia for the packaging of dangerous drugs.

20.We note that, in terms of the individual quantity of the dangerous drugs concerned, the applicable guideline band for 1.95 grammes of cocaine (up to 10 grammes: 2 years to 5 years’ imprisonment)  under the old guidelines in R v Lau Tak Ming[25] and HKSAR v Abdallah Anwar Abbas[26]is the same as that under the revised sentencing guidelines in HKSAR v Huang Ruifang (No 3)[27]; and that for 112.66 grammes of ketamine (50 grammes to 300 grammes: 6 years to 9 years’ imprisonment)  the applicable guideline band is that under the current guidelines in Secretary for Justice v Hii Siew Cheng[28].

21.The quantity of dangerous drugs was an important consideration, as were the number and type of drugs.  In the present case, there were two types of dangerous drugs.  The judge was correct in adopting the combined approach in the circumstances of this case.  In most cases, the combined approach is the fairest method in sentencing an offender for trafficking in multiple types of dangerous drugs.

22.The judge adopted a starting point of 6 years and 9 months’ imprisonment for the quantity of ketamine, which he enhanced by 9 months for the quantity of cocaine, arriving at 7 years and 6 months’ imprisonment.

23.Mr Kuan argued that the starting point for the combination of the two drugs should have been 6 years and 11 months’ imprisonment based on the three “check tests” in Chan Yuk Leong (“absurdity test”: 9 years and 9 months’ imprisonment for cocaine and 6 years and 10 months’ imprisonment for ketamine; “conversion test”: 6 years and 11 months’ imprisonment; “ratio test”: 6 years and 11 months’ imprisonment).  He submitted that the starting point of 7 years and 6 months’ imprisonment adopted by the judge was 7 months too high.  However, another important consideration when sentencing for drug trafficking is the role and culpability of the offender.  The judge found that the appellant was a direct trafficker who sold drugs in public places.  He considered that an enhancement of 6 months was warranted for the appellant’s role and culpability.  Mr Kuan argued that whilst the appellant admitted that he intended to sell the drugs in bars, the judge failed to give weight to his statement that he was unable to do so because his friend had previously been arrested. 

24.Mr Kuan submitted that the starting point for the combination of the two drugs would be 6 years and 11 months’ imprisonment if calculated by reference to either the conversion test or the ratio test, as compared with the 6 years and 9 months’ imprisonment adopted by the judge, who used ketamine as the base drug and applied an enhancement of 9 months for the cocaine, resulting in a notional starting point of 7 years and 6 months’ imprisonment.  It would then be necessary, in accordance with Steps 2 and 3 in Herry Jane Yusuph, to consider the role and culpability of the appellant based on the evidence, and to identify where in, or how much above (or below), the relevant guideline band the appellant should fall, given the circumstances of the offence and his participation.  The next step would be to consider the appropriate enhancement in light of any specific aggravating features in the present case; for example, trafficking in a cocktail of dangerous drugs, and the appellant’s previous criminal record (although he had only one similar conviction for possession of a dangerous drug in 2018).  However, it should be noted that the judge gave a further enhancement of 6 months for the appellant’s role and culpability.

25.The question was whether the two enhancements taken together (9 months for the presence of cocaine and 6 months for the appellant’s role and culpability), which represent 15 months above the initial starting point of 6 years and 9 months’ imprisonment, led to an inflated starting point and a manifestly excessive sentence.

26.This case also raises for consideration the utility of the three “check tests” and the approach a sentencing court should take when sentencing an offender for trafficking in two or more dangerous drugs.  It had been established that a sentencing court may adopt either an individual approach or a combined approach in sentencing for trafficking in a cocktail or combination of drugs: HKSAR v Cheung Wai Man[29]. The individual approach adds up sentences for each drug type, which will often lead to an excessive overall sentence.  The combined approach sets a starting point based on the most serious drug, and then adjusts it to reflect the total quantity of the other drug or drugs. 

27.It is appropriate to repeat the observations of this Court in HKSAR v Islam SM Majharul[30]concerning the combined approach, as it is the method most commonly used when sentencing for trafficking offences involving multiple drugs:

“24. The combined approach involves the calculation of the applicable sentence for the more or most serious drug (in terms of potency), and then adjusting the sentence upwards to take into account significant quantities of other (less serious)  drugs. In carrying out this task, the sentencing court should take a common sense approach in determining which drug is to be the base drug in order to calculate the starting point.[31] There may be cases where the more or most serious drug is of such a small quantity that it would be unrealistic to use it as the base drug. As stated, it will be a matter of common sense.

25.  There may also be cases where the sentencing court can combine the quantities of the two different drugs and calculate the starting point according to the sentencing guidelines of the base drug with appropriate adjustment. However, this will usually occur when the respective sentencing guidelines of the drugs involved are very similar, such as the guidelines for heroin/cocaine and Ice. …”

28.Both the individual and combined approaches normally require adjustment in order to arrive at a sentence that is just and appropriate.  To assist in this regard, the Court of Appeal (Yuen and Lunn JJA)  in Chan Yuk Leong set out three tests to cross check the sentence: the “absurdity test”; the “conversion test”; and the “ratio test”.  It was intended that these tests be used to assess whether the extent of upward adjustment to the overall starting point for trafficking in more than one kind of dangerous drug was excessive. The calculation of these tests can be complicated and has had a tendency to displace, rather than merely support, the determination of a starting point by the individual or combined approaches.

29.It is important to have both certainty and consistency in the determination of just and appropriate sentences, and to make the process straightforward and uncomplicated.

The three “check tests” in the modern sentencing framework

30.In Chan Yuk Leong, the three “check tests” for trafficking in a cocktail or combination of drugs were described by the Court as “only methods whereby the court cross checks whether the total sentence is appropriate”, and not as primary mechanisms for fixing the notional sentence after trial.  They were properly applied in that limited way in Islam SM Majharul, where all three were used as benchmarks when adjusting from a base drug starting point, rather than as the source of that starting point.

31.Since Herry Jane Yusuph, sentencing has proceeded under a six-step structure anchored in guideline bands for each dangerous drug.  In brief, the sentencing court should: (i)  identify the relevant guideline band by reference to the type and quantity of drug (Step 1); (ii)  assess the defendant’s role and overall culpability based on the evidence before the court (Step 2); (iii)  identify where in that guideline band, or exceptionally outside it, the defendant should properly fall (Step 3); (iv)  identify and reflect any aggravating factors that justify an upward adjustment from that provisional position (Step 4); (v)  identify and assess any mitigating factors – including, but not limited to, plea and genuine assistance – that justify a downward adjustment from the notional sentence after trial (Step 5); and (vi)  finally, stand back and review the overall sentence to ensure that, applying the totality principle in the manner explained in HKSAR v Lee Ming Ho[32], the court guards against an overall sentence that, through the aggregation of counts or aggravating factors, is inflated or out of proportion to the defendant’s criminality (Step 6).

32.As explained in Lee Ming Ho, Step 6 falls under the heading of “Totality” and is “specifically directed at the danger of arriving at an inflated starting point by means of multiple counts or multiple aggravating factors”.  It also requires the judge to “stand back and look at the overall sentence passed in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender”.[33] 

33.The Court in Lee Ming Ho made clear that Herry Jane Yusuph was “not advocating some form of unprincipled, final reduction whenever a sentencing judge feels the sentence might be an overbearing or crushing one”, but was “warning of the danger of adding up the sentences for multiple counts or multiple aggravating factors leading to an inflated overall starting point out of proportion to the defendant’s criminality”.  Many sentences “may be considered overbearing or crushing for certain defendants, but that is not a reason to reduce a sentence otherwise dictated by the sentencing guidelines.”[34] Properly understood, Step 6 thus operates, within the totality principle, as a safeguard against an “oppressive and overloaded sentence” that may arise from the aggregation of counts or aggravating factors, rather than as a general discretion to reduce sentences which are severe but nonetheless consonant with the applicable guidelines.[35]

34.For heroin and cocaine, and for methamphetamine hydrochloride (commonly referred to as “Ice”), the guideline bands have been revised in the new sentencing guidelines laid down in Huang Ruifang (No 3).  As the Court explained in that case, these revisions require the earlier guideline decisions for very large quantities in Lau Tak Ming and HKSAR v Tam Yi Chun[36], and the approach in Abdallah, give way to the new framework, subject to the general constraint that, save in the most exceptional case, sentences should not normally exceed 35 years’ imprisonment (HKSAR v Sum Ka Wa[37]).

The absurdity and conversion tests

35.In this modern sentencing context, the three “check tests” call for reconsideration.  In this discussion, the term “sentence” sometimes refers specifically to the starting point considered under each such test. 

36.The absurdity test estimates whether the proposed global sentence for a cocktail or combination of drugs is plainly out of line with the sentence that would be imposed for a single drug.  In practical terms, the test operates by treating the entire quantity of drugs as if it consisted entirely of the most serious drug involved, and then comparing that figure with the sum of the individual sentences.[38]  This test provides a calculation indicating the upper limit of the sentence.

37.The conversion test requires the sentencing court to select a “base drug”, convert the quantities of the other drugs into its equivalent, by reference to relative seriousness, and then adopt a sentence as if dealing solely with that base drug.  In practical terms, this involves detailed calculations by comparing the tariffs applicable for different drugs to establish a conversion rate, so that a single tariff for one drug is to be applied to the entire quantity of the drugs.[39] The appropriate sentence for a given quantity of one drug is first correlated with the equivalent quantity of the base drug by interpolating it within the relevant guideline band.  That converted quantity is then added to the actual quantity of the base drug; and the combined total is assessed against the guideline for the base drug.  In essence, the court compares the guideline starting points for the different drugs to determine a “conversion rate”, and then applies the guideline of the base drug to the entire quantity of drugs in question.  This approach is computationally complex, and outcomes may vary depending on the choice of base drug and the conversion rate used.  

38.In light of the revised sentencing guidelines in Huang Ruifang (No 3), which prescribe distinct bands for heroin and cocaine as well as Ice, this conversion methodology effectively requires the court to convert the different drugs into the guideline for one selected base drug and to sentence the total quantity solely by reference to that base drug guideline.  In other words, the individual guidelines for the other drugs are used only to generate an equivalent quantity of the base drug, so that the final sentence is determined entirely by the base drug guideline.  Using a single, composite scale in a framework intended to keep the guidelines distinct for each drug type means that the drug specific bands and starting points are not apparent in the final figure.  This may give rise to a risk of inconsistency and undue complication.

The ratio test

39.By contrast, the ratio test is more readily aligned with the present framework than the conversion test.  It operates by calculating the sentence that would be imposed for the whole quantity as if it consisted entirely of each individual drug in turn (using the relevant guideline bands), and then weighting these sentences according to each drug’s proportion of the total weight.[40]  In practical terms, the court first identifies, for each drug, the starting point that would apply if the entire quantity were sentenced under that drug’s guidelines.  It then determines the weight ratio for each drug (the weight of that drug divided by the total weight of all drugs)  and multiplies each starting point by the corresponding ratio.  This produces a composite sentence calculated as a straightforward weighted average of the starting points, according to their respective weight ratios.

40.Under Herry Jane Yusuph, at Steps 1 to 3 of the structured approach, the court must identify the applicable guideline bands, assess the offender’s role and culpability, and fix a notional sentence after trial.  In cases involving a cocktail or combination of drugs, this exercise necessarily requires translating more than one band into a single notional starting point.  The primary task of fixing that notional sentence remains a matter of principled evaluative judgment, informed by the guideline authorities.  Each drug is first matched to its own guideline band, using the revised guidelines in Huang Ruifang (No 3) for heroin and cocaine as well as Ice, and the bands in Hii Siew Cheng for ketamine and ecstasy (where appropriate, which remain to be reviewed in respect of large quantities).  The sentencing court then assesses, in composite terms, the overall seriousness of the offending, considering both the potency and the quantity of each drug, and the relative contribution of hard and soft drugs.  It then identifies a single notional sentence after trial that falls within a range consistent with the engaged bands.

41.Within that structure, the ratio test is appropriately deployed in a secondary role as a cross check.  When properly applied, it uses, rather than displaces, the drug specific guideline structure. It is less complex and elaborate than the conversion test, and more precise and structured than the absurdity test.  It may assist the court in testing the provisional notional sentence for internal coherence and consistency with the underlying guideline bands.  However, it should not be treated as a substitute for the guideline-based evaluative exercise required at Steps 1 to 3.

42.The ratio test nevertheless has limitations and must remain only a cross check.  Applied mechanically, it may yield comparatively severe results, for example, where a very small quantity of a hard drug is mixed with larger quantities of softer drugs, or where a low-level courier is involved on a single occasion with a substantial cocktail or combination of drugs.  In light of the structured approach set out in Herry Jane Yusuph and the revised sentencing guidelines in Huang Ruifang (No 3), the absurdity and conversion tests no longer serve any useful or principled purpose as cross checks; the ratio test, while conceptually straightforward and consistent with the differentiated guidelines for hard and soft drugs, is to be used only in that secondary role.

The present sentence

43.We would apply the combined approach, as the judge did, using 112.66 grammes of ketamine as the base drug and adopting a starting point of 6 years and 9 months’ imprisonment[41]. 

44.The quantity of cocaine is relatively small, namely 1.95 grammes.  It falls within the first band under the sentencing guidelines for trafficking in heroin or cocaine, namely up to 10 grammes, which carries a sentencing range of 2 to 5 years’ imprisonment.  This band is structured both to provide a deterrent effect through the applicable range of imprisonment and to confer on the sentencing court a discretion, where appropriate, to adopt a starting point below 2 years’ imprisonment in cases involving very small quantities of the drug.  In such circumstances, a sentencing court should undertake an evaluative assessment in determining an appropriate starting point, rather than simply engage in a purely mathematical exercise that treats 2 years as the baseline for sentencing.[42]  The circumstances in which such an offence of trafficking in very small quantities of the drug is committed will be of particular relevance in determining an appropriate starting point.  For example, it is not uncommon for a street-level seller to be found in possession of only a small number of packets at any one time, and these circumstances will be an important consideration when fixing the starting point.  In HKSAR v Mok Cho Tik[43], Stock JA (as Stock NPJ then was)  explained that the sentencing guideline for possession of a dangerous drug was not an inflexible tariff and did not preclude the imposition of lesser terms for very small quantities where the circumstances so warrant.

45.In our view, having regard to the quantity of cocaine involved in the circumstances of the present case, an appropriate starting point is 18 months’ imprisonment.[44]

46.We would enhance the base starting point of 6 years and 9 months’ imprisonment by 6 months to reflect the cocaine and by a further 4 months to reflect the appellant’s role and culpability, and, applying the totality principle, we would reduce the total enhancements from 10 months to 7 months, resulting in a notional starting point of 7 years and 4 months’ imprisonment.

47.The ratio test, used as a cross check, yields a figure of about 6 years and 10 months’ imprisonment[45], therefore, the notional starting point of 7 years and 4 months’ imprisonment is appropriate, as the ratio test does not take into account the appellant’s role and culpability or the aggravating factor of the involvement of multiple drugs.  After a one third reduction for the appellant’s guilty plea, the resulting sentence is 4 years and 10 months’ imprisonment.

Conclusion

48.It followed from what we have said that we allowed the appellant’s appeal against sentence, set aside the sentence of 5 years and 4 months’ imprisonment, and substituted in its place a sentence of 4 years and 10 months’ imprisonment.

Mr Ivan Cheung, ADPP, of Department of Justice, for the respondent

Mr Franco Kuan , instructed by the Director of Legal Aid, and Ms Manalie Chan, instructed by the Director of Legal Aid, on pro bono basis, for the appellant