HKSAR v. Lai Wing Yin

CACC 243/2025 [2026] HKCA 1097

On appeal from [2022] HKCFI 1304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 243 OF 2025

(ON APPEAL FROM HCCC NO 194 OF 2021)

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J U D G M E N T

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1.This is an application for leave to appeal against sentence out of time, based solely on the revised sentencing guidelines laid down in HKSAR v Huang Ruifang (No 3)[1].

2.On 14 April 2022, the applicant was sentenced to 13 years and 10 months’ imprisonment by Barnes J (the judge), having confirmed his plea before a magistrate to a single charge of trafficking in a dangerous drug involving 685 grammes of methamphetamine hydrochloride (commonly known as Ice). 

3.On 7 July 2025, he applied for leave to appeal against sentence out of time, alleging that it was manifestly excessive and unfair, and seeking a reduction in light of the revised guidelines that had recently come to his attention.[2]  He appears in person, having had his legal aid application refused on 11 August 2025.  

4.Ms Irene Poon, for the respondent, opposes the application on the basis that the applicant has not provided any proper explanation for the lengthy delay or any justifiable ground of appeal.  She submits that, even if he were to be re-sentenced under the revised guidelines, any reduction in sentence would not be significant enough to warrant appellate interference.

5.The admitted facts were that, on 11 June 2020, police officers observed the applicant alight from a taxi and enter a building during an anti‑drug operation in Yau Ma Tei.  When intercepted, he tried to flee but was subdued.  A search of his person revealed a paper bag he was holding, containing transparent resealable plastic bags with the Ice narcotic as charged, valued at about HK$403,045, along with HK$3,415, RMB62 in cash and a mobile telephone.  In a video recorded interview, he stated that he was a night‑shift taxi driver who rented the taxi at the material time and had a habit of taking dangerous drugs.[3]

6.The applicant was 59 years old, single, and worked as a taxi driver.  He had 13 previous convictions, including five for trafficking and three for possession of dangerous drugs between 1990 and 2017, for which he received substantial terms of imprisonment.[4]  In mitigation, it was submitted that he had abused cocaine, heroin and Ice for ten years, and had agreed on this occasion to deliver the drugs for quick money without knowing the quantity.

7.Applying the previous guidelines[5], the judge adopted a starting point of 20 years and 3 months’ imprisonment for trafficking in 685 grammes of Ice, taking into account his role as a courier.  She enhanced it by 6 months, to 20 years and 9 months’ imprisonment, to reflect his previous similar convictions. After applying a one-third discount for his guilty plea, she sentenced him to 13 years and 10 months’ imprisonment.

Discussion

8.In HKSAR v Lam Man Tak[6], this Court held that the “state of affairs” leading to a revision of the sentencing guidelines in Huang Ruifang (No 3) commenced on 18 September 2018, and that the relevant date for their application was the date of sentence.  As the applicant was sentenced on 14 April 2022, he is to be regarded as still “in the system” and, in principle, entitled to the benefit of the revised guidelines.  However, his leave application is made some three years out of time, and the ordinary principles will govern whether the Court should exercise its discretion to permit such an application, including whether, by refusing leave, it would shut out any substantial and plainly arguable ground of appeal made out of time.[7]  

9.If the Court were to allow the appeal and sentence him afresh under the revised guidelines and applicable principles[8], the starting point for trafficking in 685 grammes of Ice narcotic[9], given his role as a courier, would be 18 years and 2 months’ imprisonment.  His previous drug convictions are an aggravating factor which would warrant an enhancement in the range of 6 to 12 months in the circumstances of the case.[10]  With a one‑third discount for his guilty plea, the resulting sentence would be a term of imprisonment in the range of 12 years and 5 months to 12 years and 9 months, which is at least one year lower than the original term of 13 years and 10 months’ imprisonment. 

10.The Court, nevertheless, does not prune or tinker with sentences.[11]  As stated in HKSAR v Yusuf Lukman Adepoju[12], a difference of less than one year between the sentence under the previous and revised guidelines will ordinarily not be regarded as significant enough to warrant appellate interference, whereas a difference of one year or more will generally be so regarded.  

11.In the present case, the difference of at least one year is significant enough to justify appellate interference.

Conclusion

12.For the foregoing reasons, leave is granted to the applicant to appeal his sentence.

Ms Irene Poon, SPP, of Department of Justice, for the respondent

The applicant appeared in person

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

[2] See affirmation dated 3 July 2025 and grounds of appeal filed on 3 October 2025 and 6 March 2026.

[3] Appeal Bundle (AB), 3-5.

[4] His other prior convictions comprised one offence of manslaughter in 1984, two theft offences and two gambling offences in 1990 and 1992: AB, 16-18.

[5] HKSAR v Tam Yi Chun [2014] 3 HKLRD 691; HKSAR v Abdallah [2009] 2 HKLRD 437 (namely, 20 to 23 years’ imprisonment for trafficking in between 600 and 1,200 grammes of Ice).

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

[7] Lam Man Tak, at [50].  See also HKSAR v Lee Ernest and Another, unrep., CACC 1/2018, 21 May 2026, at [32]-[35].

[8] HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

[9] Under Huang Ruifang (No 3), 685 grammes of Ice narcotic fall within the band of 600 to 1,500 grammes, which corresponds to a range of 18 to 20 years’ imprisonment.

[10] HKSAR v Lam San Yau [2026] 1 HKLRD 721.

[11] Lam Man Tak, at [30].

[12] HKSAR v Yusuf Lukman Adepoju, unrep., CACC 178/2025, 4 June 2026.