HKSAR v. Tsui Kwan Yin

CACC 203 /2025

[2026] HKCA 1530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 203 OF 2025

(ON APPEAL FROM HCCC NO 300 OF 2016)

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BETWEEN

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J U D G M E N T

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1.After the trial date had been fixed, the applicant (D2 at trial) pleaded guilty on 3 November 2017 to a joint charge with D1 of trafficking in a dangerous drug, namely 3.02 kilogrammes of a crystalline solid containing 2.95 kilogrammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134[1]. On 6 November 2017, Deputy Judge Stuart-Moore (“the judge”) sentenced him to 16 years and 8 months’ imprisonment.

2.By a Form XI Notice filed on 23 June 2025, the applicant now seeks leave to appeal against sentence out of time.  The respondent opposes the application.  

The Summary of Facts[2]

3.On 21 January 2016, at about 7:30 pm, during an anti-narcotics operation at Hong Kong International Airport, Customs officers observed D1 behaving suspiciously near the private car passenger drop-off area opposite Gate 1 on Level 7 of Terminal 1.  D1 entered the Departure Hall, walked to Area F, then took the escalator to Level 5 and went to a convenience store in the Arrival Hall, where he spoke into his mobile telephone.  At about 7:40 pm, the applicant approached D1 outside the store, and D1 handed over a black travel bag.  After they had walked a few paces together, Customs officers intercepted them both. 

4.The bag was found to contain two biscuit boxes holding six packets of a white crystalline substance, later confirmed to be the subject matter of Count 2.  When asked about the contents, the applicant said that he had no idea what they were, but added that they were ginseng.  The applicant was later arrested and cautioned for contravention of the Dangerous Drugs Ordinance.

5.The retail value of the drugs at the time was estimated to be about HK$927,140. 

6.By admitting the Summary of Facts, the applicant accepted that, when he took delivery of the black travel bag from D1, he knew that it contained “Ice”. 

Reasons for sentence[3]

7.The applicant (aged 22) and D1 (aged 25) were sentenced together[4]. The judge applied the prevailing guidelines in HKSAR v Tam Yi Chun[5] and HKSAR v Abdallah[6], under which “Ice” was treated in the same way as heroin and cocaine in respect of quantities above 600 grammes.  As the quantity was 2.95 kilogrammes of narcotic, it fell within the guideline band attracting a sentence of 23 to 26 years’ imprisonment after trial.  The judge adopted a starting point of 24 years and 9 months’ imprisonment, which he enhanced by 3 months to reflect the cross-border element, resulting in a notional starting point of 25 years’ imprisonment[7].

8.The judge considered that the guilty plea was the only effective mitigation in the applicant’s case.  His previous good character and youth carried little weight given the seriousness of the offence. Nevertheless, although the plea was late (four days before the trial was due to begin[8]), the judge gave him a full one-third discount.  The reason for this was that the Court of Appeal’s decision in HKSAR v Ngo Van Nam[9], which would have reduced the discount for a late plea, was handed down on 2 September 2016, which was after the earliest stage when the applicant could have pleaded guilty, namely his committal to the High Court on 30 June 2016[10].

9.Accordingly, the applicant’s sentence was reduced from 25 years’ imprisonment to 16 years and 8 months’ imprisonment.

Grounds of appeal

10.Acting in person, the applicant has set out his grounds of appeal in his Form XI Notice and his submissions in letters dated 18 September 2025, 16 March 2026 and 21 August 2026.  In essence, he contends that his sentence should be reduced in light of the revised guidelines in HKSAR v Huang Ruifang (No 3)[11]. He further submits that his case is similar to HKSAR v Cedeno Mejias Angel Rafael[12], in which the offence was committed in 2017 but it was nevertheless held that the appellant was entitled to the benefit of the revised guidelines.

The respondent’s submissions

11.Mr Lau for the respondent opposes the grant of leave.  First, he submits that the applicant committed the offence on 21 January 2016 and was sentenced on 6 November 2017, both dates being before the “state of affairs” giving rise to the revised sentencing guidelines had come into existence.  In HKSAR v Lam Man Tak[13], that point was identified as 18 September 2018.  The revised guidelines therefore do not apply to the applicant. Secondly, Cedeno Mejias Angel Rafael does not assist the applicant.  Although the appellant in that case committed the offence in 2017, he was sentenced on 1 February 2019, by which time the relevant “state of affairs” had come into existence. 

Consideration

12.Since the applicant is not entitled to benefit from the revised guidelines in Huang Ruifang (No 3), having been sentenced before the cut-off date of 18 September 2018, his application for leave to appeal against sentence must be refused: see, for example, HKSAR v Ho Kit Ki Eric[14]. The applicant’s reliance on Cedeno Mejias Angel Rafael is misplaced for the reasons explained by Mr Lau.  I can see no other reasonable grounds of appeal on the merits.

13.Whilst the applicant has composed a sincere and heartfelt letter to the Court today, unfortunately, the principles governing the application of the revised guidelines in Huang Ruifang (No 3) are against him.

14.I advise the applicant that he has the right to renew his application for leave to the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.

Mr Douglas Lau SPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person

[1]  The applicant pleaded guilty to Count 2 on the indictment.  Count 1, namely conspiracy to traffic in a dangerous drug with persons unknown, was left on the court file marked not to be proceeded with without leave.

[2]  Appeal Bundle (“AB”), pp 10-13.

[3]  AB, pp 14-17.

[4]  AB, pp 15O-16M (Sentencing of D1).

[5]  HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

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

[7]  AB, p 15H-O.

[8]  According to the court record, on 3 August 2016 the case was fixed for a 15-day trial commencing on 7 November 2017. The applicant pleaded guilty on 3 November 2017, four days before trial.

[9]  HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.  

[10]  Ngo Van Nam was handed down on 2 September 2016.  

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

[12]  HKSAR v Cedeno Mejias Angel Rafael (Unrep., CACC 205/2025, 3 February 2026).

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

[14]  HKSAR v Ho Kit Ki Eric (Unrep., CACC 464/2025, 31 July 2026), at [13].