Case Document

100%Judiciary

CACC 181 /2021, [2026] HKCA 1099

On Appeal From [2021] HKCFI 2704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 181 OF 2021

(ON APPEAL FROM HCCC NO 339 OF 2020)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Yayu Masih	Applicant

________________________

Before:

Hon Macrae Acting CJHC in Court

Date of Hearing:	16 June 2026
Date of Judgment:	16 June 2026

________________________

J U D G M E N T

________________________

1.The applicant was convicted of a single count of trafficking in a dangerous drug, namely 1,480 grammes of a solid containing 914 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, following a trial in the High Court before Deputy Judge Bruce, SC (“the judge”) and a jury. On 2 August 2021, she was sentenced to 20 years and 3 months’ imprisonment. By a Form XI filed with the Court on 4 July 2025, she has sought leave to appeal against her sentence out of time.

Facts of the case

2.This case arose out of the delivery of a parcel to the Inbound Cargo Examination Building of Lok Ma Chau Control Point on 26 November 2019. That parcel was addressed to a recipient by the name of “Nur Janatin” with an address at 28A, 2/F, Kam Tin Shi Street, Kam Tin, New Territories. Upon examination by Customs officers, the parcel was found to contain 1,480 grammes of a solid containing 914 grammes of cocaine. On 27 November 2019, the attempted delivery of the parcel to the purported recipient’s address was unsuccessful.

3.On 28 November 2019, the applicant attended the Ever Gain Centre Branch of UPS in Sha Tin, produced an image of the identity document of Nur Janatin and thereby successfully collected the parcel with the dangerous drugs inside. Immediately thereafter, she was arrested by Customs officers.

4.Under caution, the applicant said she was collecting the parcel on behalf of Nur Janatin, who was her friend but was in hospital. She also said she had been instructed to give the parcel to her friend’s boyfriend. She denied knowing the content of the parcel or receiving any reward.

5.The applicant subsequently participated in a controlled delivery operation, which was eventually called off when nobody showed up at the address.

Sentencing

6.The applicant was 37 years of age at the time of sentencing. She was unemployed and a Form 8 recognizance holder. Her previous convictions included breach of condition of stay, for which she received a suspended sentence of 4 weeks’ imprisonment on 25 January 2011; and two charges of using a forged Hong Kong Identity Card and an immigration offence, for which she received a total concurrent sentence of 15 months’ imprisonment on 13 April 2018.

7.The judge referred to the former sentencing guidelines in HKSAR v Abdallah^{^[1]} and adopted a starting point of 21½ years’ imprisonment after trial. In respect of the applicant’s role as a courier, the judge reduced the starting point by one year to 20½ years’ imprisonment. He considered that there was no basis to enhance the sentence, but instead reduced it by 3 months for the applicant’s participation in the controlled delivery operation. In the result, he passed a sentence of 20 years and 3 months’ imprisonment.

Grounds of appeal

8.In her homemade submissions, the applicant has taken issue with her conviction, which is not the focus of the present application. In any event, it should be remembered that her application for leave to appeal against conviction was refused by the Single Judge following a hearing on 9 August 2022^{^[2]}. Her renewed application for leave to appeal against conviction was further dismissed by the Court as a result of her abandonment on 12 September 2023. The Court of Appeal is, therefore, functus officio in relation to her appeal against conviction and I am not able to revisit that matter.

9.As for her sentence, the applicant’s sole basis for appeal is that her sentence should be reduced in light of the revised sentencing guidelines in HKSAR v Huang Ruifang (No 3)^{^[3]}.

10.On 9 June 2026, the applicant filed a further letter with the Court in order to seek a further discount for her participation in Father Wotherspoon’s anti-drugs campaign on the Internet. Attached to that application is a letter written by Father Wotherspoon dated 26 April 2026, in which he states that he has made a video of the applicant’s story, which was uploaded on YouTube on the same day as part of his anti-drugs campaign. The applicant further allowed him to share her story at the Indonesian Consulate on 12 May 2026.

The respondent’s submission

11.Ms Cheuk, for the respondent, submits that, since the present application was lodged after the expiry of the prescribed period^{^[4]}, and no justification for the delay has been provided by the applicant, the sentencing process was no longer extant and the revised sentencing guidelines in Huang Ruifang (No 3) would not apply to her^{^[5]}. However, Ms Cheuk acknowledges that the Court should nevertheless look at the merits of the intended appeal so that it does not shut out a plainly arguable ground of appeal^{^[6]}. On the face of it, the revised guidelines could provide the applicant with a reasonably arguable ground of appeal.

12.It is recognised that the appropriate starting point under the revised sentencing guidelines would have been 17 years and 8 months’ imprisonment, if one accepts that the applicant was no more than a courier. Ms Cheuk submits, however, that there were a number of aggravating features, which would justify an enhancement of the starting point. Firstly, there was an international element to the offence, when the applicant facilitated the importation of a substantial quantity of cocaine into Hong Kong^{^[7]}, which would have necessitated an enhancement of something in the order of 21 months’ imprisonment^{^[8]}. Secondly, the applicant’s status as a Form 8 recognizance holder, despite the judge’s intention not to enhance the sentence for this factor, should properly have warranted an enhancement of about 18 months’ imprisonment^{^[9]}.

13.Ms Cheuk does not dispute the 3-month reduction given by the judge on the basis of the applicant’s participation in the failed controlled delivery operation^{^[10]}. However, she submits that any potential reduction in sentence occasioned by the revised guidelines in Huang Ruifang (No 3) would be offset by a greater level of enhancement, which was not, but should have been, applied by the judge. In the result, she invites the Court to dismiss the present application.

Discussion

14.In HKSAR v Lam Man Tak^{^[11]}, the Court of Appeal decided that the commencement date of the ‘state of affairs’ leading to the revision of the sentencing guidelines in Huang Ruifang (No 3) was 18 September 2018 and the date from which the revised sentencing guidelines should be applied was the date of sentence. The Court held that[12]:

“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) nor do they ‘tinker’ with them (HKSAR v Sze Kwan Lung), just because they might have passed different ones.

…

50. … 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. …

51. If a defendant or appellant is not, or is no longer, ‘in the system’, we must make clear that this Court will, in the ordinary course, only consider interfering with sentences passed on or after 18 September 2018, and only then if it is persuaded that intervention is justified …”

15.Since the applicant did not seek leave to appeal within time, she is currently not in the appeal system. The delay in lodging the present application is about 3 years and 10 months. It falls on the Court, therefore, to determine whether there exists good justification to exercise its discretion to reconsider her sentence and allow her to derive benefit from the revised sentencing guidelines.

16.Given the fact that there is nothing to take the applicant’s role beyond that of a courier, the revised sentencing guidelines for trafficking in cocaine in Huang Ruifang (No 3) suggest that for trafficking in 500 to 1,500 grammes of cocaine narcotic, the range of starting point should be between 16 and 20 years’ imprisonment. The appropriate starting point after trial, on a purely arithmetical basis, in respect of 914 grammes of cocaine could, therefore, have been about 17 years and 8 months’ imprisonment, assuming she were still within the appeal system.

17.Nevertheless, as pointed out by the respondent, there are a number of aggravating features which would have justified an enhancement of the sentence, yet these features were not taken into account, or not sufficiently taken into account, by the judge when sentencing the applicant. Since, if the Court of Appeal were to allow this appeal, it would have to sentence afresh in accordance with established sentencing principles, it is very likely that the Court would have to consider these matters when computing any new term of imprisonment.

18.In respect of international element, it was held in HKSAR v Raman Kapusamy[13] that:

“There can be no denying that the ‘international element’ is an aggravating factor in sentencing in dangerous drugs cases in other jurisdictions and has been part of the sentencing practice in this jurisdiction since before Abdallah was decided 15 years ago. However, as we were at pains to make clear in Lee Ming Ho, the international element is itself capable of taking a number of different forms and may not, therefore, lend itself to a standard or uniform enhancement. The most common example to come before the courts is the courier who, for a fee or reward, crosses the border with dangerous drugs secreted in or on their person or in their luggage. However, there is also the importer who engineers the arrival of an elaborate commercial cargo by land, sea or air deliberately disguised in or as some innocuous shipment. Then there is the recipient of a parcel, which has arrived at the Post Office or a parcel delivery company, and which the recipient knows is both from abroad and contains dangerous drugs. And there is the offender who orders a dangerous drug from abroad, perhaps online through the Internet. These are some of most common permutations of the cross-border trafficking of dangerous drugs encountered in this jurisdiction. But they are not exhaustive categories and even within them, there may be variations and different gradations of seriousness in assessing different roles and culpability.” (Emphasis supplied)

The italicised parts of this passage have specific relevance to this appeal.

19.In the present case, whilst it must have been obvious, and would have been readily apparent to the applicant, from the airway bill that the parcel was sent from overseas at the time she collected it at the Ever Gain Centre Branch of UPS, she was not the person who actually obtained the drugs in Kenya, nor did she bring them to Hong Kong. Nothing in what she said under caution admitted that she knew where the parcel originated from beforehand. On the other hand, there are obvious inferences to be drawn from the circumstances attending this collection. Such enhancement for this factor should be on the basis of what she did and knew at the time of collection.

20.As to the applicant’s Form 8 status, it was observed by the Court in HKSAR v Rivillas Marin Luis Fernando^{^[14]}, having referred to HKSAR v Shah Syed Arif^{^[15]}, that:

“…committing an offence of such gravity [i.e. trafficking in dangerous drugs] is a serious breach of the trust and privilege extended to those whose claims for asylum are being processed.”

The applicant’s Form 8 status was clearly an aggravating feature in her commission of this very serious offence against the people of Hong Kong who were giving her refuge, and any appellate Court will want to examine carefully why the judge did not enhance the sentence for this factor.

21.Indeed, there is a further aggravating feature, which is that the applicant committed the present offence shortly after her release from prison in respect of her last conviction, of which neither the judge nor the prosecution at trial seems to have been aware.

22.Without admitting any new evidence or deciding at this stage whether the applicant should be entitled to any discount for assistance in Father Wotherspoon’s campaign, I should sound a reminder of what was held by the Court in HKSAR v Herry Jane Yusuph^{^[16]}:

“Given the wide and absolute discretion afforded to sentencing judges on this matter, which can only attract a ‘token discount’ at most, we hope not to see this sort of ground of appeal being put before us again”.

This matter can be left to the Court of Appeal at the hearing of the appeal.

23.As I have said, in accordance with the revised sentencing guidelines, the starting point for the offence committed by the applicant as a courier could have been 17 years and 8 months’ imprisonment, which is 2 years and 10 months less than the judge’s reduced starting point of 20½ years’ imprisonment. Nevertheless, there are the enhancements of sentence for various aggravating features, which the Court of Appeal would be bound to consider. If, or when, they are added to an appropriate starting point under the revised guidelines, I consider it still reasonably arguable that the sentence could be less that the one she received, so as to warrant appellate review.

24.However, in view of the way the judge sentenced the applicant by arriving at his starting point without factoring into it these aggravating features, it may be that there will not be too much difference between the original sentence and one under the revised guidelines when these aggravating features are considered so as to warrant appellate interference. That will be a matter for the Court of Appeal in due course to consider, not for me upon a Single Judge application for leave.

25.Nevertheless, I shall grant the applicant leave to appeal against sentence out of time. The applicant’s application to adduce the letters relating to her assistance to Father Wotherspoon’s campaign as new evidence will be dealt with at the substantive appeal by the full Court of Appeal.

26.I shall also grant the applicant an appeal aid certificate so that she can be represented at her appeal.

(Andrew Macrae)
Acting Chief Judge
of the High Court

Ms Janice Cheuk SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person

[1] HKSAR v Abdallah [2009] 2 HKLRD 437.

[2] HKSAR v Yayu Masih (Unrep., CACC 181/2021, 9 August 2022).

[3] HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138.

[4] Section 83Q(2) of the Criminal Procedure Ordinance, Cap 221, provides that “…notice of appeal, or of application for leave to appeal, against the conviction, verdict or finding may be given within 28 days from the date on which sentence was passed.”

[5] Respondent’s submission, at [21].

[6] Respondent’s submission, at [23].

[7] Respondent’s submission, at [29].

[8] Respondent’s submission, at [36].

[9] Respondent’s submission, at [40].

[10] Respondent’s submission, at [43].

[11] HKSAR v Lam Man Tak [2026] 2 HKLRD 199.

[12] Ibid., at [30], [51]-[52].

[13] HKSAR v Raman Kapusamy [2024] 2 HKLRD 955, at [60].

[14] HKSAR v Rivillas Marin Luis Fernando (Unrep., CACC 102/2020, 26 November 2021), at [17].

[15] HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, at [32].

[16] HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, at [127].