HKSAR v. Tsui Lok Hin

CACC 194 /2019, [2026] HKCA 1406

On Appeal From [2019] HKCFI 1695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 194 OF 2019

(ON APPEAL FROM HCCC NO 305 OF 2018)

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BETWEEN

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.Following a trial before Campbell-Moffat J (“the judge”) and a jury in the High Court, the appellant was convicted of two counts of trafficking in a dangerous drug, namely 1,034 grammes of a solid containing 757 grammes of cocaine (Count 1) and 35 grammes of a solid containing 27.10 grammes of cocaine (Count 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 14 June 2019, he was sentenced to 20 years and 6 months’ imprisonment on Count 1 and 6 years and 3 months’ imprisonment on Count 2, the two sentences being ordered to run concurrently with each other, making 20 years and 6 months’ imprisonment in all. With leave granted by the Single Judge[1] on 14 July 2026, he appeals against his sentence only.

Facts

2.It was not disputed at trial that, between 15 and 29 January 2018, the appellant and three other men (Lau, Leung and Chan) were under the surveillance of Customs officers at Mont Vert, 9 Fung Yuen Road, Tai Po, New Territories (“the Estate”).  In particular[2]:

(i)  On 15 January 2018, at 10:30 am, the appellant came down from Tower 6 of the Estate (“Tower 6”) with Leung and approached a young male outside the club of the Estate.  Later, the young male left the scene holding an object while the appellant and Leung returned to Tower 6.

(ii)  On 22 January 2018, at 4:50 pm, the appellant left the Estate with a recyclable bag, together with Leung who was carrying a backpack.  At 4:55 pm, they entered Tower 3 of the Estate (“Tower 3”).  At 8:20 pm, the appellant, who was carrying a backpack and holding a recyclable bag, went from Tower 3 to Tower 6 with Leung and Chan.

(iii)  On 24 January 2018, at 6:05 pm, the appellant left Tower 6 and met up with Lau before proceeding to Tower 3 together.  At 7:20 pm, Lau, who was holding a black recyclable bag, left Tower 3 together with the appellant, Leung and Chan.  Leung left the Estate by taxi, while the appellant, Lau and Chan returned to Tower 6.

(iv)  On 29 January 2018, at 6:30 pm, Lau waited outside Tower 6 and passed a piece of white object into a taxi that approached him.  Lau then went into Tower 6.  At 7:15 pm, Lau and the appellant left Tower 6 and hailed a taxi at Fung Yuen Road.

3.On 30 January 2018, at 11:15 pm, a black plastic bag was discovered near a rubbish bin at the passageway on the ground floor outside Tower 5 of the Estate.  The black plastic bag was found to contain two further plastic bags respectively containing 21 and 22 plastic bags of dangerous drugs, which formed the subject matter of Count 1[3].

4.On the same day, at 11:45 pm, the appellant entered a lift on 11/F of Tower 6.  He was later arrested and cautioned by a Customs officer at the ground floor after exiting the lift[4]. The appellant was escorted to Flat B on 11/F of Tower 6, to which he had a key for the entrance[5]. Three utility bills in his name were found in the living room[6]. 

5.In the early hours of 31 January 2018, the subject matter of Count 2 and one batch of cooking utensils were found in the kitchen of Flat B.  Under caution, the appellant admitted that the cooking utensils belonged to him and were used for manufacturing dangerous drugs[7]. He also admitted that Leung and Lau dispatched dangerous drugs for him[8]. At 5:30 am, the appellant was taken to Customs offices[9], where a video recorded interview was conducted with him[10].

6.The average retail value of the dangerous drugs in question was HK$1,056 per gramme[11].

7.In light of the jury’s verdict[12], it was accepted that the appellant was knowingly trafficking in all the dangerous drugs particularised in both counts between 30 and 31 January 2018.

Sentencing

8.At the time of sentence, the appellant was 20 years of age and of previous good character.  The judge noted that he was unemployed at the time of the offences.

9.With regard to the previous sentencing guidelines in HKSAR v Abdallah[13], which apply to cocaine and provide that for trafficking in between 600 and 1,200 grammes of narcotic the starting point should be 20 to 23 years’ imprisonment, the judge adopted 20 years and 6 months’ imprisonment as the base starting point in respect of 757 grammes of narcotic in Count 1[14]. In accordance with the sentencing guidelines in HKSAR v Lau Tak Ming & Anor^[15], which provide that for trafficking in between 10 and 50 grammes of narcotic the starting point should be 5 to 8 years’ imprisonment, the judge adopted 6 years and 3 months’ imprisonment as the starting point for 27.10 grammes of narcotic on Count 2[16].

10.The judge recognised the increased role of the appellant but nevertheless decided not to enhance the sentence[17].  She considered that it was one operation and one parcel of dangerous drugs and ordered concurrent sentences for the two counts, resulting in a total sentence of 20 years and 6 months’ imprisonment[18].

Grounds of appeal

11.Mr Chan, for the appellant, has put forward two grounds of appeal.  Leave to appeal out of time having been granted, Ground 2 (which avers that the Court should exercise its discretion to permit the appellant to appeal out of time) has been overtaken by events.

12.By Ground 1, it is argued that the appellant is entitled to derive benefit from the revised guidelines in HKSAR v Huang Ruifang (No 3)[19] and receive a reduced sentence.  Mr Chan submits that the revised guidelines should apply to the very large quantity of cocaine in Count 1 only, and on an arithmetical calculation, lead to a reduced starting point under Huang Ruifang (No 3) of 17 years’ imprisonment.  He invites the Court to honour the judge’s approach by not adding the smaller quantity of cocaine in Count 2 to Count 1 for the purpose of re-sentencing the appellant, and ordering the sentence on Count 2 to run wholly concurrently with the sentence on Count 1.  He submits that, absent any factor which would warrant an enhancement in sentence, the appropriate final sentence should be 17 years’ imprisonment.

The respondent’s submissions

13.Mr Wong, on behalf of the respondent, submits that the quantities of the cocaine in the two counts should have been added together for the purpose of arriving at an overall sentence. 

14.Whilst accepting, under the revised guidelines, that the starting point for 784.10 grammes of cocaine narcotic should be 17 years and 2 months’ imprisonment on a purely arithmetical basis, Mr Wong emphasises that the appellant admitted possession of the cooking utensils found in the kitchen for manufacturing dangerous drugs and that the end product would be distributed by other accomplices on the appellant’s behalf.  He contends that the appellant played a more significant role in the trafficking hierarchy, which would warrant the adoption of a higher starting point.

Discussion

15.An extension of time and leave to appeal having been granted by the Single Judge, the appellant is now reintroduced into the appeal system.  Since he was sentenced after 18 September 2018, he is in principle entitled to benefit from the revised sentencing guidelines in Huang Ruifang (No 3), in accordance with this Court’s decision in HKSAR v Lam Man Tak[20]. However, it must be remembered that it is not only the revised guidelines in Huang Ruifang (No 3) which apply to appellants in his position.  The guidelines have also been preceded and accompanied by a fundamental shift in approach to sentencing in drug trafficking cases in this jurisdiction following the decision of this Court in HKSAR v Herry Jane Yusuph[21], which was handed down on 26 November 2020.  The mistake that a number of would-be appellants (and those advising them) are making is to assume that they are simply entitled to the benefit of the revised guidelines in Huang Ruifang (No 3) by a purely arithmetic comparison with the former guidelines in Abdallah, without realising that the Court now adopts a very different approach to sentence, one which focuses primarily on the appellant’s role and culpability in the offence rather than simple arithmetic.  The previous method of sentencing by merely working out where in the guidelines the quantity of narcotic fell arithmetically, on the assumption that the accused was a courier, has given way to the more nuanced six-step approach in Herry Jane Yusuph and the greater use of sentencing discretion by judges. 

16.Moreover, when an appellate court is persuaded that the revised guidelines apply, an appellant will be sentenced as the Court thinks appropriate in accordance with the modern approach to sentencing in such cases, which approach has been developed over the past 5 or 6 years since Herry Jane Yusuph.  In HKSAR v Yusuf Lukman Adepoju[22], this Court reiterated[23]:

“As is well established, this Court, in allowing an appeal against sentence, is required to sentence the appellant afresh. In so doing, the Court is not bound by the trial judge’s view or interpretation of the facts, or by his or her understanding or application of the relevant sentencing principles.”

17.In HKSAR v Sum Ka Wa[24], also decided since the appellant’s sentence, the Court of Appeal made it clear that where an indictment alleges two counts of trafficking which arise out of the same criminal transaction, they should be treated together for sentencing purposes. We agree with the respondent that, when sentencing the appellant afresh in this case, we should add the quantities of the two counts together to arrive at a global starting point.

18.In terms of pure narcotic content, the total quantity in question is 784.10 grammes of cocaine, which would in purely arithmetical terms call for a starting point of about 17 years and 2 months’ imprisonment under the revised Huang Ruifang (No 3) guidelines. Although the appellant was not charged with manufacturing any of the dangerous drugs in question, we cannot sensibly disregard his admission that he was in possession of the cooking utensils found in the kitchen for manufacturing part, if not all, of the dangerous drugs throughout the charged period from 30 to 31 January 2018.  Nor can we ignore his obvious connection with premises which were a centre for the manufacturing, packaging and distribution of cocaine; premises for which he had the keys and three utility bills.  We note that the cooking utensils included two sets of electronic scales (Exhibits P21a and P21b), gloves (Exhibit P17), and a pot (Exhibit P8), on which the appellant’s fingerprint was found and which contained two bowls and a spoon[25].

19.The evidence clearly established that several people were involved in this enterprise and that the appellant played an important part in what was obviously an organized and syndicated operation.  Looking at the appellant’s significant role and overall culpability in such an operation, we consider that an enhanced starting point of 19 years’ imprisonment is appropriate.  There is no other basis to enhance or mitigate the sentence.

20.Accordingly, we allow the appellant’s appeal against sentence, set aside the sentence of 20 years and 6 months’ imprisonment on Count 1, and substitute in its place a sentence of 19 years’ imprisonment. The sentence on Count 2 of 6 years and 3 months’ imprisonment will remain unaltered and both sentences will run concurrently with each other, making a total sentence of 19 years’ imprisonment.

Mr Derek Wong SADPP (Ag), of the Department of Justice, for the Respondent

Mr Kay KW Chan, instructed by Vitus Lawyers, assigned by the Director of Legal Aid, for the Appellant

[1]  Macrae VP.

[2]  Admitted Fact, at [1]: Appeal Bundle (“AB”), pp 10-11.

[3]  Admitted Fact, at [2]: AB, p 11.

[4]  Admitted Fact, at [2]: AB, p 11.

[5]  Admitted Fact, at [3]: AB, p 11.

[6]  Admitted Fact, at [6]: AB, p 12.

[7]  AB, p 67 (internal page 38 of the post-recorded statement).

[8]  AB, p 67 (internal pages 39 and 40 of the post-recorded statement).

[9]  Admitted Fact, at [8]: AB, p 12.

[10]  In the video recorded interview, the appellant denied manufacturing (answer 56), or cooking (answers 129 and 160), dangerous drugs in Flat B.  He also refused to disclose the role(s) played by the other three men in the related activities (answer 165).

[11]  Admitted Fact, at [12]: AB, p 13.

[12]  Namely a majority guilty verdict of 5:2 in relation to Count 1, and a unanimous guilty verdict in relation to Count 2.

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

[14]  AB, p 113O-Q.

[15]  R v Lau Tak Ming & Anor [1990] 2 HKLR 370.

[16]  AB, pp 113T-114B.

[17]  AB, p 116M-N.

[18]  AB, p 114A-B.

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

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

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

[22]  HKSAR v Yusuf Lukman Adepoju (Unrep., CACC 178/2025, 4 June 2026).

[23]  Ibid., at [9].

[24]  HKSAR v Sum Ka Wa [2024] 4 HKLRD 777.

[25]  AB, p 39K-M; Admitted Facts at [10]: AB, p 12; List of Exhibits: AB, pp 121-123.