HKSAR v. Ho Kwok Kuen

CACC 242/2025 [2026] HKCA 1287

On appeal from [2021] HKCFI 758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 242 OF 2025

(ON APPEAL FROM HCCC NO 186 OF 2020)

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BETWEEN

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J U D G M E N T

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1.The applicant pleaded guilty in the magistrates’ court, on two separate occasions[1], to three charges of trafficking in a dangerous drug, namely, one count jointly with Mok Ngo Hin (Mok) involving 810 grammes of cocaine in HCCC 186/2020[2], and two counts against him individually[3] in HCCC 363/2019.

2.On 24 February 2021, the two cases were heard together before D’Almada Remedios J (the judge) for sentence. Having confirmed his pleas, the judge sentenced the applicant to 14 years and 2 months’ imprisonment in HCCC 186/2020 and 5 years and 10 months’ imprisonment in HCCC 363/2019. She ordered that two months of the sentence in HCCC 363/2019 be served consecutively to the sentence in HCCC 186/2020, resulting in a total term of 14 years and 4 months’ imprisonment.

3.On 7 July 2025, the applicant applied for leave to appeal against sentence out of time in respect of HCCC 186/2020 only. This application was out of time by nearly four and a half years. On 24 March 2026, he was granted legal aid, and Mr Franco Kuan was assigned to represent him.

4.By perfected grounds of appeal filed on 26 June 2026, Mr Kuan advanced a sole ground of appeal that the starting point adopted by the judge in HCCC 186/2020 was manifestly excessive in light of the revised sentencing guidelines laid down in HKSAR v Huang Ruifang (No 3)[4]. He submits that the applicant should be granted an extension of time for his application and be entitled to benefit from the revised guidelines. He argues that the lengthy delay was unavoidable and systemically driven and that the application was filed promptly once his legal rights were clarified, which he contends amounts to exceptional circumstances justifying the extension of time.

The Summary of Facts

5.In addressing this application, it is necessary to set out the admitted facts in respect of both cases.

HCCC 186/2020[5]

6.On 24 May 2018, Mok was intercepted by a Customs officer near Fanling MTR station. Mok was searched, and in a paper bag he was carrying, the officer found a transparent resealable plastic bag with 810 grammes of cocaine, valued at HK$1,083,915. Upon arrest and caution, he denied any knowledge of the drugs. He was subsequently charged with one count of trafficking in a dangerous drug in HCCC 385/2018, to which he pleaded guilty.[6]

7.Mok assisted the authorities by giving non-prejudicial statements implicating the applicant. He stated that the applicant had instructed him via WeChat to traffic in the drugs and provided the applicant’s mobile telephone number. He met the applicant at a bar in August 2017, and they had been communicating via WeChat for two months before 24 May 2018. At about 4 pm on that day, the applicant instructed him that he was to collect the drugs at 8 pm and that his mobile telephone number would be passed to an unknown person whom he should call after collection at about 8:30 pm. At about 9:30 pm, the applicant asked him about the progress, and he replied that he was still waiting for the other person’s reply. At about 10 pm, the applicant instructed him to go to Sau Kei Wan East Main Street to collect the drugs from a vehicle at about 10:45 pm and then return to Fanling, which he did. At about 11:30 pm, Mok arrived at Fanling by taxi with the drugs and was arrested at Fanling MTR station. He said it was the first time he had worked for the applicant and that he would receive HK$30,000 as a reward.

8.The mobile telephone number provided by Mok was subscribed in the applicant’s name. The WeChat records on Mok’s mobile telephone showed messages from the applicant on 24 May 2018 instructing him to collect the drugs. The applicant was later arrested and remained silent after being cautioned. At his plea, the applicant admitted trafficking in cocaine together with Mok.

HCCC 363/2019[7]

9.On 29 January 2019, the applicant was intercepted by the police outside a village house in Fanling, where they had laid an ambush. He was carrying a shoulder bag containing a plastic bag with 13.8 grammes of cocaine (Count 1). He also had in his possession a mobile telephone and HK$3,700 in cash. Upon arrest, he admitted under caution that the cocaine was for his own consumption. The police searched his home pursuant to a search warrant, and found, in a storeroom, a red plastic box containing over 80 plastic bags with 68.13 grammes of cocaine (Count 2) and two plastic bags of benzocaine and phenacetin powder. They also found drug paraphernalia, including 153 unused resealable transparent plastic bags, a silver spoon, two marker pens, a digital scale, a sealing machine, a refrigerator containing benzocaine powder, HK$31,000 in cash, and a key to the house. The street value of the cocaine in both counts was HK$149,197.

10.On 30 January 2019, the applicant was arrested and admitted possessing the cocaine seized from the house for his own consumption under caution. In subsequent video-recorded interviews, he admitted that all the dangerous drugs found on him and inside the house were cocaine. He said he used to be a cocaine addict and purchased the cocaine from a friend called “Fei Chai”. He also admitted renting and living in the house, and that the key found inside belonged to him. He refused to answer any questions concerning the packaging paraphernalia.

The applicant’s background and mitigation

11.At the time of sentencing, the applicant was 54 years old, educated to Form 3 level, and unemployed. Among his ten previous convictions, five were drug-related, including two for possession of dangerous drugs in 1994. On 29 December 2011, he was sentenced in the District Court to 3 years and 4 months’ imprisonment for two charges of trafficking in dangerous drugs and one charge of possession of equipment “fit and intended” for smoking, injecting or inhaling a dangerous drug.[8]

12.In mitigation, defence counsel submitted that, in HCCC 186/2020, the applicant was “just another courier within the same ranking as the others” and not in a more senior position than Mok. He was said to be “performing a conduit pipe function”. He was neither a decision maker nor a financier in the syndicate.[9] Counsel accepted that his previous similar convictions were an aggravating factor and sought leniency in light of his age and medical condition, noting that he had suffered from a stroke a year before sentencing and other chronic illnesses[10].

The sentence

13.In respect of HCCC 186/2020, the judge applied the previous sentencing guidelines[11] and adopted a starting point of 21 years’ imprisonment for trafficking in 810 grammes of cocaine, the same as for Mok. Referring to her sentencing remarks in Mok’s case, the judge noted that Mok had informed the authorities that the applicant, although not physically handling the drugs, had recruited him to traffic in them, instructed him where to collect them, and was to pay him HK$30,000. She found the applicant to be a “more senior player” in the trafficking chain, rather than a simple courier or lowest-level trafficker, and on that basis enhanced the starting point by 3 months to 21 years and 3 months’ imprisonment.[12] She did not further enhance the sentence for his prior trafficking convictions, as they dated back to 2011. Having considered that his medical conditions afforded no meaningful mitigation, she applied a one-third discount for his guilty plea and sentenced him to 14 years and 2 months’ imprisonment.

14.As for HCCC 363/2019, the judge apparently adopted a starting point of 8 years and 9 months’ imprisonment for a total of 81.93 grammes of cocaine involved in both counts, and reduced it by one-third to 5 years and 10 months’ imprisonment, on the basis that the applicant was a mere courier or storekeeper, without expressly characterising his role.

15.Applying the totality principle, she considered an overall starting point of 21 years and 6 months’ imprisonment under the previous guidelines to be appropriate, taking into account the total narcotic weight of 891.93 grammes of cocaine involved in both cases. After giving the applicant a one-third discount for his guilty pleas, she sentenced him to a total term of 14 years and 4 months’ imprisonment. She arrived at this result by ordering 2 months of the sentence in HCCC 363/2019 to run consecutively to that in HCCC 186/2020, with the remainder to be served concurrently.[13]

The ground of appeal

16.Mr Kuan submits that, under the revised guidelines, the appropriate starting point in HCCC 186/2020 would be 17 years and 3 months’ imprisonment, and that, by adopting the judge’s three-month enhancement for the applicant’s role and culpability, the notional starting point would be 17 years and 6 months’ imprisonment. With a one-third discount for the guilty plea, this would result in a sentence of 11 years and 8 months’ imprisonment, which is 2 years and 6 months lower than the original term of 14 years and 2 months’ imprisonment. He argues that this difference is significant enough to justify appellate interference.

Discussion

17.In HKSAR v Lam Man Tak[14], the Court of Appeal held that the “state of affairs” leading to the revision of the sentencing guidelines in Huang Ruifang (No 3) commenced on 18 September 2018, and that the date for their application was the date of sentence. As the applicant was sentenced on 24 February 2021, 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 was filed more than four years out of time, and the ordinary principles governing whether the Court should exercise its discretion to permit such an application will apply, including whether the refusal of leave would shut out any substantial and plainly arguable ground of appeal advanced out of time.[15]

18.If this Court were to allow the appeal, it would sentence the applicant afresh under the revised guidelines and established sentencing principles[16]. As is the practice, the Court would not be bound by the trial judge’s assessment of the facts or by her application of those principles.[17] Under the revised guidelines in Huang Ruifang (No 3), a quantity of cocaine between 500 and 1,500 grammes falls within a sentencing band of 16 to 20 years’ imprisonment. Accordingly, the 810 grammes of cocaine in HCCC 186/2020 corresponds to a term of 17 years and 3 months’ imprisonment.

19.As pointed out by Ms Jennifer Tsui, for the respondent, there are a number of aggravating features in the present case which would have justified a further enhancement of the sentence. These were either not taken into account, or not adequately reflected, in the sentence imposed by the judge. Ms Tsui submits that a higher enhancement of sentence was warranted to reflect the role and culpability of the applicant. She contends that he should be regarded as the manager and organiser of the trafficking operation, in that he recruited Mok as a courier, gave him specific instructions via WeChat on where and when to collect the drugs, insulated himself from physically handling them, and offered Mok a substantial reward of HK$30,000. She also submits that, although the applicant’s previous similar convictions date back to 2011, they demonstrate, in the circumstances of this case, a pattern of persistent reoffending.

20.Ms Tsui refers to section 83I(2) of the Criminal Procedure Ordinance (Cap 221), and submits that an appeal against one sentence passed in the same proceedings is to be treated as an appeal or application in respect of all. If the Court were to sentence the applicant afresh, it should undertake a global review of the overall sentences in both cases.

21.In this context, Ms Tsui takes issue with the judge’s application of the totality principle in adopting a global starting point based on the aggregate quantity of cocaine involved in two distinct criminal episodes, separated by some eight months. She submits that the cases involved different modi operandi: in HCCC 186/2020, the applicant acted as a remote manager directing a courier; whereas in HCCC 363/2019, he operated a drug packaging and distribution centre from his residence, equipped with drug paraphernalia and established after Mok’s arrest for the first offence. She argues that a consecutive term of only two months was manifestly inadequate to reflect the applicant’s persistent and distinct criminality in the two cases.

22.As noted in HKSAR v Lam Sze Wai[18], McWalters JA remarked that the quantum of consecutiveness will primarily depend upon the judge’s assessment of the offender’s culpability in the circumstances of the particular case before him or her. As the Court of Appeal held in HKSAR v Mohammed Tofael Ahmed[19], the ultimate question is whether the “overall sentence reflects the true overall culpability”.

23.The Court, however, does not prune or tinker with sentences on appeal.[20] As stated in HKSAR v Yusuf Lukman Adepoju[21], a difference of less than one year between the sentence under the previous and the 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.

24.Whilst the sentence in HCCC 363/2019 does not fall to be considered under the revised guidelines, there is an issue as to what the consecutive element should be for the sentence in HCCC 186/2020. Ms Tsui argues that it could be as high as 2 years and 6 months, which is a marked difference from the 2 months allowed by the judge. She emphasises that the offending in HCCC 363/2019 was separate and distinct from the offending in HCCC 186/2020, noting the difference in time and location of the offences, and in the nature and circumstances of the applicant’s role and culpability. She also adds that HCCC 363/2019 took place after HCCC 186/2020, when Mok had been arrested for having trafficked in the dangerous drugs by arrangement and on the instructions of the applicant. Accordingly, the consecutive element will have a bearing on whether the overall sentence will be significantly different to the applicant’s present sentence. Mr Kuan accepts that the consecutive element of 2 months was on the low side, but submits that it would not be substantially greater so as to have any significant effect on the reduction in sentence the applicant would receive under the revised guidelines.

25.The parties agree that, under the revised guidelines, an appropriate starting point in HCCC 186/2020 would be 17 years and 3 months’ imprisonment, which is significantly different from the starting point adopted under the previous guidelines of 21 years’ imprisonment. However, there is an issue between the parties as to the enhancement for the applicant’s role and culpability and for his previous criminal convictions for drug-related offences. The judge enhanced the sentence by 3 months for the applicant’s role and culpability and gave no enhancement for his previous convictions. There is a basis for debate as to the level of enhancement for these matters that could very well, together with the consecutive element of the sentence in HCCC 363/2019, have a significant bearing on the resultant sentence when addressing the sentence in HCCC 186/2020 under the revised guidelines.

26.I am persuaded that the ground of appeal is reasonably arguable. However, points have been raised by the respondent that would be plainly relevant when an appellate court sentences the applicant afresh under the revised guidelines.

Conclusion

27.For the foregoing reasons, I grant the applicant leave out of time to appeal his sentences. This will include a consideration of the consecutive element imposed by the judge in HCCC 363/2019, even though the sentence in that case does not come within the terms of the revised guidelines.

Ms Jennifer Tsui, SPP, of Department of Justice, for the respondent

Mr Franco Kuan and Mr Jason Leung, instructed by Keith Lam Lau & Chan Solicitors, assigned by the Director of Legal Aid, for the applicant