HKSAR v. Lam Man Tak

CACC 49 /2018, [2026] HKCA 1556

On Appeal From [2018] HKCFI 549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 49 OF 2018

(ON APPEAL FROM HCCC NO 462 OF 2016)

________________________

BETWEEN

________________________

____________________________________

REASONS FOR JUDGMENT

____________________________________

The Court:

1.By a Notice of Motion filed on 26 January 2026, the applicant sought certification by this Court, under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, of two questions of law of great and general importance, which are said to arise out of the Court’s judgment dated 20 January 2026 (“the Judgment”)[1].

2.The questions proposed by the applicant in the Notice of Motion are as follows:

“In the context of deciding whether the sentencing guidelines which reduce sentences laid down in HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138 (‘the Guidelines’) could benefit those who were sentenced before the Guidelines were laid down in accordance with the principles set out in Seabrook v HKSAR (1999) 2 HKCFAR 184 at 195B-G, and, in particular, when considering the first limb of the principles, namely ‘their offences were committed at a time when the state of affairs on which the guidelines are based was in existence’:

(1) Did the ‘state of affairs’ begin with the decision in HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, which was handed down on 18 September 2018, that is when all members of the Court were in agreement that a problem concerning sentencing in drug trafficking cases for very large or exceptionally large quantities of dangerous drugs needed to be addressed?

(2) If question (1) is answered in the negative, what is the ‘state of affairs’ on which the Guidelines are based and when did that ‘state of affairs’ begin to exist?”

3.The respondent, while opposing the grant of leave on the questions sought to be certified by the applicant, invites the Court to modify the questions by adding to them a third question, namely:

“(3) Should the Guidelines benefit those who committed the offences at the time when the ‘state of affairs’ on which the Guidelines are based were in existence, or those who were sentenced at the time when such ‘state of affairs’ were in existence?”

4.The Court declined to deal with this matter on paper and, on 8 May 2026, set down a hearing for the present application.  The reasons for doing so became rather obvious at the hearing that followed on 23 July 2026, which can only be described as a debacle for both sides.  In the circumstances, it is necessary to set out the history of this matter, which, with respect, neither party seemed fully to comprehend, and without an understanding of which risks plunging a painstakingly crafted progression of cases culminating in the revised guidelines in HKSAR v Huang Ruifang (No 3) into chaos and disarray.  We shall deal with the arguments, such as they were, of both sides in this application.

The applicant’s submissions

5.The basis of the application for a certificate contended for by Ms Virginia Lau, with her Ms Ferrida Chan, for the applicant, is that it was reasonably arguable from the Judgment that the Court erred in identifying the date when the “state of affairs” leading to the revision of the guidelines for heroin, cocaine and “Ice” in Huang Ruifang (No 3) began.  The applicant’s submission is that such “state of affairs” began with HKSAR v Abdallah[2] in 2009 and not with HKSAR v Kilima Abubakar Abbas[3] in 2018.  Three arguments were put forward in support of her contention. 

6.First, Ms Lau submitted that this Court had given “state of affairs” a meaning which was different from that stated in the Oxford English Dictionary[4].  Her contention was that the “state of affairs” which led to the revised guidelines was the point in time when the problem was caused, rather than the point of time when the Court collectively acknowledged and agreed that the problem needed to be addressed.  It flowed from this proposition, secondly, that the “state of affairs” which resulted in the revision in Huang Ruifang (No 3) was the original decision in Abdallah itself on 12 March 2009, which had created sentences that were too harsh in the first place and left little room for manoeuvre by the courts where very large quantities of dangerous drugs were concerned[5].  The relevant “state of affairs” should therefore be understood to be the creation of the problems inherent in the Abdallah guidelines themselves rather than the Court’s later recognition and articulation of them.  Thirdly, Ms Lau submitted that the Court of Appeal (differently constituted) had in the judgment of HKSAR v Leung Wai Man[6], which was handed down on 7 December 2009 (some 6 months after the decision in Abdallah and, of course, almost 9 years before the judgments Kilima Abubakar Abbas) already recognized that the guidelines in Abdallah would deprive the court of room to manoeuvre when sentencing for very large quantities of dangerous drugs.  Therefore, the “state of affairs” was apparent at least from the handing down of the decision in Leung Wai Man[7].  In argument, she explained this was her “fall-back position”, if the Court did not accept that the problem began with Abdallah.

7.Ms Lau submits that the questions proposed by the applicant are of great and general importance for the consideration by the Court of Final Appeal because they have an impact on: (i) the general application of sentencing guidelines laid down by the Court of Appeal; (ii) the correct interpretation of the meaning of “state of affairs” in Seabrook; and (iii) the class of defendants who should, or should not, be entitled to derive benefit from the revised sentencing guidelines in Huang Ruifang (No 3).

The respondent’s submissions

8.Mr Lui, for the respondent, adopted, if we may say, a rather peculiar, and ultimately incongruous, position.  He did not accept the first and third arguments or propositions of the applicant as reasonably arguable, describing the first argument as “untenable”[8], and the third argument as “misconceived”[9].  However, he seemed to accept the second argument that it was reasonably arguable that the “state of affairs” which led to the revision of the guidelines in Huang Ruifang (No 3) had begun with Abdallah itself, yet for reasons which were neither clear nor consistent with his position on the other two arguments. 

9.The incongruity of Mr Lui’s position was laid bare when he was later asked by the Court to explain when it was, if not in the judgments in Kilima Abubakar Abbas, the respondent contended the “state of affairs” began.  He responded that he agreed with this Court that the “state of affairs” had begun with the handing down of the judgments in Kilima Abubakar Abbas.  Given that this is the very nub of the application by the applicant, it is worth reciting his answer in this matter in full:

“MR LUI: …We are not disagreeing with that.  My Lord will notice that we agree with that.  We accept that.  And hence, we disagreed with my learned friend’s argument that the state of affairs began, or should we look back to the date of Abdallah?  We disagree with that.  So we agree with your Lordships on that.”

We were puzzled, therefore, as to why the respondent should so positively accept that the “state of affairs” began with Kilima Abubakar Abbas and so positively reject the argument that the “state of affairs” began with Abdallah, yet assert that the argument was reasonably arguable.  We will return to examine the respondent’s position, and the possible reasons behind it, in due course.

A discussion of the submissions

10.We must first deal with the applicant’s proposition that the “state of affairs” began with the decision in Abdallah itself or, if not Abdallah, then with the decision in Leung Wai Man.  The first and most obvious observation to make is that it would be somewhat bizarre if a “state of affairs” had commenced with the very set of guidelines themselves crafted by the Court in 2009, which 16 years later the Court sought to revise.  The Court in Abdallah conducted a thorough survey of all relevant sentences at the time in order to arrive at guidelines which it considered were a logical extension of those in R v Lau Tak Ming & Anor[10], which had been laid down in 1990 but run out at 600 grammes and 20 years’ imprisonment.  The Court in Abdallah plainly intended to cater for sentences up to 30 years’ imprisonment and beyond and, in doing so, expressly referred to the problem associated with high sentences and very large quantities[11]:

“37. An important consideration in our thinking has been that the courts should have sufficient flexibility to deal with cases where even larger quantities of heroin are trafficked than that in the present case.  The maximum sentence available to the courts is life imprisonment and in R v Ng Muk Kam (unrep., CACC 685/1993, [1995] HKLY 428), which involved trafficking in over 306 kg of heroin in Hong Kong without a proven international element, this Court quashed a sentence of life imprisonment and substituted a 35-year sentence after trial.

38.  We have in mind, therefore, not merely as a theoretical possibility but as a matter of practical reality, that room must be left for heroin trafficking sentences which fall into the highest range.  Furthermore, the courts need to take into account not only the actual quantities involved but also such aggravating circumstances as may add to the sentence which would otherwise be imposed.”

11.At the same time, and in the same judgment, the Court also issued what were termed “guidelines to supplement” those in Lau Tak Ming & Anor[12].  It would be even more bizarre if, having acknowledged the problem, which is now said to have initiated the “state of affairs”, the Court then compounded that problem by adding supplementary guidelines, which had the effect of further increasing its own prescribed “problematic” sentences in certain cases by not less than 2 years[13].

12.Clearly, the Court must have intended, on the basis of the authorities to which it referred, to issue the extension of the guidelines and supplementary guidelines it did.  Therefore, it is difficult to understand Ms Lau’s submission that the Court in 2009 initiated the “state of affairs”, which ultimately led to a reduction of the guidelines at the top end of the spectrum, when the Court in Abdallah plainly acknowledged the problem but decided to press ahead with the guidelines extending Lau Tak Ming & Anor anyway.

13.One recalls that Oliver Wendell Holmes Jr, the renowned American jurist, wrote in his 1881 treatise ‘The Common Law’:

“The life of the law has not been logic: it has been experience.”

And it was the experience of the decade following Abdallah that led to the judgments in Kilima Abubakar Abbas and the recognition that things needed to change.  In particular, Lunn VP referred in his judgment in Kilima Abubakar Abbas to the experience of the courts in the aftermath of Abdallah when he said[14]:

“…Following the upward revision of the guidelines, in consequence of the judgment in HKSAR v Abdallah, the room to reflect the difference of role between a mere courier, albeit of a very substantial quantity of heroin, and an offender, like the applicant in The Queen v Ng Muk Kam, who has been involved ‘in a major way’ in the handling of a huge amount of dangerous drugs has narrowed very considerably indeed.  Given that the sentence to be imposed on an applicant who is a courier is fixed by reference to the tariff, without regard to his role as such, but the role of others may be taken into account as aggravating their commission of the offence the result has become that the range of sentence available to reflect those aggravating factors has become very narrow.”  (Emphasis supplied)

14.McWalters JA expressly agreed with Lunn VP’s analysis in the above passage and went on to hold[15]:

“…This is a matter for concern.  The sentencing regime must allow for the possibility that there will be large seizures of dangerous drugs and also for the possibility that persons, other than couriers, who are more heavily involved in this criminal activity, will be prosecuted.  When these possibilities coincide, I fear that courts may find that the sentencing range available to them to reflect these aggravating factors may not enable them to adequately distinguish the culpability of the courier from the organiser.”

15.Macrae VP, while not disposed to alter the guidelines at that stage, noted that[16]:

“…the trends and statistics for the seizures, arrests and convictions in respect of a wide spectrum of dangerous drugs in Hong Kong since January 2015, is that rather than being swamped by a problem which is out of control, as other countries seem to have been, the problem in Hong Kong is being steadily contained, if not, in certain respects, reduced. …”

A small, but important, matter should perhaps be noted from this latter passage.  The case, which was referred to in a footnote for the trends and statistics in 2015, namely HKSAR v Chan Ka Yiu[17], was handed down exactly two months before the judgments in Kilima Abubakar Abbas were published.  Notwithstanding the recent trends and statistics referred to, Macrae VP, giving the judgment of the Court (which included McWalters JA), did “not accept that there is any warrant for relaxing those guidelines”.  The specific guidelines under consideration were, of course, the Hii Siew Cheng guidelines[18] in respect of ketamine, a drug which has traditionally been viewed as slightly less serious than heroin, cocaine and “Ice”.

16.The point to be derived from these authorities and events and their sequence is that, while there was clearly no attempt to revise the guidelines in Kilima Abubakar Abbas itself, the Court collectively acknowledged a “state of affairs”, thus providing a basis for the decisions which followed, ultimately culminating in Huang Ruifang (No 3) in 2025.  With respect, what was said in Kilima Abubakar Abbas in 2018 was not the Court’s experience in 2009: it was the result of three judges coming together and separately acknowledging that a problem existed which needed to be addressed.

17.It must be understood that any attempt to revise sentencing guidelines downwards is not a task lightly undertaken by any Court.  Guidelines for sentencing in cases of trafficking in dangerous drugs are not subject to whim, caprice or any other vicissitudes of individual judicial sentiment.  They derive and, where necessary, are refined, extended or replaced by experience and empirical data and evidence adduced before the full Court, the latter being essential because, as the Court in Huang Ruifang (No 3) explained[19]:

“…the patterns and prevalence of drug abuse, the types of drugs used and their potency, as well as the scale and ingenuity of offending, have changed, and will continue to change in the future.  Such changes will necessarily require the Court to assess its sentencing policy and approach from time to time.”

18.It will be obvious that it is procedurally simpler to increase guideline sentences than to reduce them.  Increases will generally take effect from the day when the revised guidelines are issued by the Court: reductions are far more complex and must factor into them the notion that the “state of affairs” which led to their reduction had, as explained in Seabrook v HKSAR[20], “been in existence for an appreciable period prior to the laying down of the guidelines” and may benefit those who were sentenced during such “state of affairs”.  The Court has to consider the effect on future cases and those cases already in the trial and appeal system.  A change which revolutionises sentencing policy can be extremely disruptive and, therefore, needs to be dealt with methodically, systematically and, above all, justly.  What the Court did in the aftermath of Kilima Abubakar Abbas, and upon recognition that things needed to change, was to deal with several important issues which were necessary stepping stones to the ultimate revision of the guidelines.

19.The first major step in the process following Kilima Abubakar Abbas was the decision in HKSAR v Herry Jane Yusuph[21] in November 2020.  The importance of this decision cannot be understated and was explained by the Court in HKSAR v Lee Ming Ho[22]:

“The leading modern approach to sentencing in cases of drug trafficking was set out in the Court’s decision in Herry Jane Yusuph in 2020.  Given the importance of that particular appeal, the case was heard by three members of the Court rather than two, comprising the two Vice Presidents of the respective Chinese and English divisions of the Court of Appeal, sitting together with a Justice of Appeal.  What resulted was a comprehensive examination of sentencing authority principally from Hong Kong but also from other common law jurisdictions stretching back more than 40 years.  One of the more salient changes to emerge from Herry Jane Yusuph was a move away from the rigid arithmetical application of starting points and sentences based purely on narcotic quantity to a more discretionary approach involving an assessment of the offender’s role and culpability.”

20.Herry Jane Yusuph, therefore, changed the whole structure and focus of sentencing in drug trafficking cases from one which had become increasingly arithmetic and routine to one which focused on role and culpability and engaged the judge’s sentencing discretion.  The six-step approach to sentencing has been applied ever since and has been extended to sentencing for other offences throughout the various jurisdiction of the criminal courts.

21.What followed, after the interregnum caused by the Covid pandemic, was the decision in Lee Ming Ho itself in February 2024.  The significance of this decision, after consultation with all other judges of the two criminal divisions of the Court of Appeal[23], was that it dismantled the supplementary guidelines in Abdallah and rationalised and refocused them as part of the role and culpability of the defendant, in accordance with Herry Jane Yusuph.  It will be noted that it was made clear in the ‘Postscript’ to the judgment in Lee Ming Ho that the decision was intended to complement what was said in Herry Jane Yusuph and should be read in conjunction with it[24].

22.The next important case in the sequence was HKSAR v Raman Kapusamy[25] in April 2024, which sought to clarify, in a way that Abdallah perhaps, with respect, did not, what was meant by “international element” and its likely permutations before the courts in this jurisdiction[26].  It also made clear that not all couriers and storekeepers were as culpable as each other and that, as explained in Lee Ming Ho, the courts had moved away from the ‘one size fits all’ to a more nuanced examination of role and culpability[27].  The Court also cemented a point which had been made in Lee Ming Ho at [86] and moved to dispel a misunderstanding which had crept into sentencing at first instance in the High Court as to the meaning and scope of the sixth step in Herry Jane Yusuph[28].

23.The next important case in the run up to the revision of the sentencing guidelines in Huang Ruifang (No 3) was HKSAR v Sum Ka Wa[29] in August 2024.  This was the very first attempt in Hong Kong to engage the issue of the practical sentencing maximum for trafficking in dangerous drugs and manufacturing dangerous drugs.  The Court determined, in the context of trafficking in dangerous drugs, that, while the legislative maximum for the offence was life imprisonment, the maximum sentence likely to be encountered in practice was 35 years’ imprisonment.  This decision was not only a critical step on the path to revising the guidelines but it further rendered the need for revision even more imperative, since if 30 years’ imprisonment was the appropriate sentence in arithmetical terms for a courier trafficking in 15 kilogrammes of heroin, cocaine and “Ice” under Abdallah, then what was the appropriate sentence for trafficking in three times, or ten times or twenty times that amount, if in real, practical terms the sentencing maximum was 35 years’ imprisonment?  Clearly, the room for manoeuvre was reduced even further, and had rendered rather meaningless any distinction between a courier and a major trafficker, such as the organiser (local or international) or financier of very large drug shipments.

24.All of these cases since the decision in Herry Jane Yusuph dealt with different aspects of the Abdallah guidelines and were necessary steps along the way to their revision in Huang Ruifang (No 3).  Accordingly, we held in Huang Ruifang (No 3)[30]:

“We further wish to make clear that the cases of Herry Jane Yusuph, Lee Ming Ho, Raman Kapusamy and Sum Ka Wa should be read together with this decision.  All five judgments should fully equip courts and practitioners for sentencing in this important area of the criminal law as we enter the second quarter of the 21^st century.”

25.We have set out the history to this matter, because it is important that the parties understand and are properly informed as to how the revision of the guidelines came about and how matters developed after Kilima Abubakar Abbas, so as to provide the basis for a modern approach to sentencing in drug trafficking cases in Hong Kong.  Indeed, to be fair to Mr Lui, he invited us to set this development and history out in this judgment.  In doing so, it will be noted that one member of this Court has had the advantage of sitting in Herry Jane Yusuph, Lee Ming Ho, Raman Kapusamy, Sum Ka Wa and Huang Ruifang (No 3), as well as in Kilima Abubakar Abbas itself; while another has sat in all of the cases except Kilima Abubakar Abbas.  With respect, the applicant’s contention that the “state of affairs” began in 2009 with either the decisions in Abdallah or Leung Wai Man is misconceived and is not correct.

26.In any event, the argument is entirely otiose because this Court in this very appeal actually decided, in the exceptional circumstances of acceding to the appellant’s first ground of appeal (concerning an additional discount of sentence sought for assistance to the authorities since sentence was passed) that he was still thereby “in the system” so far as his second ground of appeal was concerned.  And it was his second ground that sought to derive a benefit from the revised guidelines in Huang Ruifang (No 3), notwithstanding that he was sentenced on 6 February 2018, more than 7 months before the decision in Kilima Abubakar Abbas was handed down.  In acceding to his appeal, we said this[31]:

“52. …As earlier explained, his appeal against sentence was on two bases.  The first ground was not concerned with the propriety of the sentence or the revised guidelines, but we accepted that he was entitled to appeal in the particular circumstances brought to our attention and granted him leave to appeal out of time.  It was his second ground that sought to derive a benefit from the revised guidelines in Huang Ruifang (No 3).

53. Since we have granted the applicant leave to appeal against sentence out of time on the first ground, we have felt it right, in the exceptional circumstances of this case, to treat him as an appellant who is still thereby ‘in the system’ in relation to his second ground.  On that basis, we have asked ourselves whether, on the assumption that the sentencing process does not ultimately conclude until it has been dealt with by this Court, he is entitled to a reduction under the revised guidelines in Huang Ruifang (No 3).” (Emphasis supplied)

27.Accordingly, we do not understand the applicant’s argument for a certificate when this Court in fact granted his appeal and agreed that he was entitled to avail himself of the revised guidelines in Huang Ruifang (No 3).  We ultimately reduced his sentence by virtue of Ground 1 by 19 months’ imprisonment.  It may be that he disagrees with our resolution that the revised guidelines made no difference to his position under Ground 2, given his role and culpability in “running a storage, packaging and distribution centre for dangerous drugs in the heart of Yau Ma Tei”[32].  That, however, is not a point of law of great and general importance, but at most an argument that there has been a grave and substantial injustice, which must be a matter for the Court of Final Appeal alone.

28.However, the application reveals a misunderstanding on everyone’s part, which we are keen to dispel.  Having now explained the Court’s progression of cases since Kilima Abubakar Abbas, it will be appreciated that the revised guidelines were not plucked from the air by judicial whim but resulted from a methodical and systematic change in the approach to sentencing in drug trafficking cases carefully worked out, based on evidence and formulated by this Court over the past 5 or 6 years.  There is, therefore, a misconception amongst applicants that one simply supplants one set of guidelines for another.  The process is far more intricate and considered than that.  As we have endeavoured to demonstrate, one cannot apply the revised guidelines without understanding that they are part of a whole new regime and approach to sentencing, which began with Herry Jane Yusuph and was refined in the cases that followed.  This was explained by the Court in HKSAR v Tsui Lok Hin[33]:

“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.  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, 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.”

29.If the applicant’s real complaint is how we applied the revised guidelines in Huang Ruifang (No 3) to his case, as Ms Lau seemed to indicate when tackled by us on her response to Mr Lui’s proposed third alternative question of law of great and general importance, then we found her position even more baffling and extraordinary.  Having re-affirmed that she had no objection to the third alternative question put forward by Mr Lui, we pointed out to Ms Lau that the third alternative question might well be to her client’s disadvantage, if the Court of Final Appeal did not accept her primary or “fall-back” positions, and answered the first part of Mr Lui’s alternative question in the affirmative.  In such circumstances, her client’s case would then fall outside the application of Huang Ruifang (No 3) altogether, the offence having been committed in January 2016 (more than 2½ years before Kilima Abubakar Abbas was decided and the “state of affairs” even began).  To this, Ms Lau candidly responded “I haven’t thought of that…” and continued:

“MS LAU: My Lord, if it is a question of law of great importance, I think my client’s interests should not be placed before that.”

Leaving aside the professional implications of that last answer, this exchange prompted the Court to caution Ms Lau to “beware of Trojan horses”.

30.It is perhaps an appropriate opportunity to deal with the respondent’s position and Mr Lui’s contribution to what we have described as a debacle for all concerned.  It should be noted that Mr Lui was himself counsel for the respondent in Lam Man Tak’s appeal against sentence.  We have to say we found his submissions at the time in Lam Man Tak extremely thorough, considered and helpful.  Accordingly, we were surprised that Mr Lui should be advancing a question as fundamental as his third alternative, by way of an alternative to an argument he otherwise regarded as “untenable” and “misconceived”, when neither he nor the Department of Justice had ever sought to appeal our decision to the Court of Final Appeal following Lam Man Tak; and when the respondent would be seriously out of time if Mr Lui sought to do so now as a point of law of great and general importance.  Moreover, at no time following the decision in Huang Ruifang (No 3), since when both criminal divisions of the Court of Appeal have dealt with more than 75 cases[34] almost all in accordance with its reasoning in Lam Man Tak, has the respondent sought to certify the question which is now put forward as a third alternative.  Indeed, the respondent has conceded most of the subsequent appeals in principle. 

31.When we asked Mr Lui whether the third alternative question he was proposing arose out of the questions framed by the applicant, he accepted that it did not; nor was it properly before us by way of an application for a certificate, supported by a notice of motion taken out within the appropriate time limit as prescribed by law.  Nor, indeed, had he advanced any substantive written argument in support of his alternative question.  Furthermore, he accepted in oral argument that the Court in Seabrook had made clear, in the context of the particular application before it, that “the answer so provided, while not necessarily exhaustive, is sufficient for the disposal of the present appeal”[35] where there were no guidelines for ketamine at all and no precision, unlike the present case, as to when the “state of affairs” began.

32.With great respect to the respondent, where so many people are likely to be affected by any reversal of a clear position that has been arrived at by the Court after years of careful preparation before being painstakingly set out and explained in order that everyone involved in the appeal process should fully understand their position, it behoves the respondent to act properly and prudently in accordance with the legal procedures by which it and we are bound, rather than attaching itself to an application that the respondent has itself regarded as “untenable” and “misconceived”.  The result will be confusion in an area of the law, which above all needs consistency and certainty.

33.In any event, as we have indicated, this entire exercise is misconceived because the Court in this applicant’s appeal proper accepted in terms that he was entitled to benefit from the revised guidelines in Huang Ruifang (No 3).  Yet, the questions sought to be certified by the applicant were predicated on the assumption that somehow he was not.  We could see no proper basis, therefore, for the certification of any of the questions put before us and refused the application.

Mr Ira Lui ADPP and Mr Michael Tsang SPP, of the Department of Justice, for the Respondent

Ms Virginia Lau and Ms Ferrida Chan, instructed by Johnnie Yam, Jacky Lee & Co, assigned by the Director of Legal Aid, for the Applicant

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

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

[3]  HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88.

[4]  Written Submissions for the Applicant, at [6].

[5]  Written Submissions for the Applicant, at [11].

[6]  HKSAR v Leung Wai Man (Unrep., CACC 24/2007, 7 December 2009).

[7]  Written Submissions for the Applicant, at [22].

[8]  Respondent’s Skeleton Submissions, at [22].

[9]  Respondent’s Skeleton Submissions, at [29].

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

[11]  Abdallah, at [37]-[38].

[12]  Ibid., at [40]-[43].

[13]  Ibid., at [43].

[14]  Kilima Abubakar Abbas, per Lunn VP at [45].

[15]  Ibid., per McWalters JA, at [148].

[16]  Ibid., per Macrae VP, at [71].

[17]  HKSAR v Chan Ka Yiu & Ors [2018] 4 HKC 591.

[18]  Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

[19]  Huang Ruifang (No 3), at [34].

[20]  Seabrook v HKSAR (1999) 2 HKCFAR 184, at 194C.

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

[22]  HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186, at [47].

[23]  Ibid., at [69].

[24]  Ibid., at [95].

[25]  HKSAR v Raman Kapusamy [2024] 2 HKLRD 955.

[26]  Ibid., at [60]-[62].

[27]  Ibid., at [67].

[28]  Ibid., at [82].

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

[30]  Huang Ruifang (No 3), at [68].

[31]  Lam Man Tak, at [52]-[53].

[32]  Ibid., at [54].

[33]  HKSAR v Tsui Lok Hin (Unrep., CACC 194/2019, 7 August 2026), at [15]; see also HKSAR v Leung Chun Him (Unrep., CACC 311/2025, 14 August 2026), at [17].

[34]  The 75 cases include all appeals either allowed or dismissed by the full Court following Huang Ruifang (No 3), refused applications for leave not renewed within time and abandoned applications for leave or appeals.  On top of this figure are some 85 cases where leave to appeal has already been granted by the Court on the papers, usually with the respondent’s concession, but the substantive appeals have yet to be heard or the judgments handed down.

[35]  Seabrook, at 195C-D.