HKSAR v. Hui Yau Tat
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CACC 473 /2025 [2026] HKCA 1616 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 473 OF 2025 (ON APPEAL FROM HCCC NO 497 OF 2016) ________________________ BETWEEN
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_____________________ J U D G M E N T _____________________ 1.On 23 December 2016, almost a decade ago, the applicant pleaded guilty before a magistrate to a single charge of trafficking in a dangerous drug, namely 10.86 kilogrammes of a powder containing 7.266 kilogrammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 2 March 2017, he confirmed his plea before Campbell-Moffat J (“the judge”) and was sentenced to 16 years’ imprisonment. 2.On 5 December 2025, the applicant applied for leave to appeal against sentence, although he was some 8 years and 7 months out of time when he did so. He now appears in person, having had his legal aid application refused on 2 February 2026. 3.The applicant’s sole ground of appeal rests on this Court’s decision in HKSAR v Choi Tsz Fung[1], which has yet to be announced, and the anticipation that it will revise the sentencing guidelines for ketamine. The facts 4.On 15 April 2016, police officers intercepted the applicant outside Tin Shui Wai MTR station in the New Territories. Upon search, police officers found 20 packets of powder weighing a total of 4.94 kilogrammes containing 3.39 kilogrammes of ketamine in his shoulder bag and another 24 packets of powder weighing a total of 5.92 kilogrammes containing 3.876 kilogrammes of ketamine in a red cool box he was holding. A total quantity of 10.86 kilogrammes of powder containing 7.266 kilogrammes of ketamine was thereby seized, with an estimated street value of HK$1,466,100. 5.Under caution, the applicant admitted that he was delivering the drugs to earn some money to repay his debts. In a subsequent video recorded interview, he admitted that he was promised a reward of HK$8,000 to collect and deliver the drugs. He further admitted that upon collecting the shoulder bag and the cool box, he had inspected their contents and saw about 10 or 11 kilogrammes of ketamine. Sentencing 6.At the time of sentencing, the applicant was 26 years of age, single and educated to the equivalent of Form 3 level. He was unemployed at the time of his arrest, although he had previously worked in casual employment in various salons and delivery services. He had three previous convictions, one of which was for trafficking in dangerous drugs[2]. 7.Having considered the sentencing guidelines in HKSAR v Hii Siew Cheng[3] and HKSAR v Sin Chung Kin[4], as well as the circumstances of the present case, the judge adopted a starting point of 24 years’ imprisonment. The judge expressly decided not to enhance the sentence for the applicant’s previous trafficking conviction in the District Court[5] and applied the full one-third discount for his guilty plea. In the result, the applicant was sentenced to 16 years’ imprisonment. The ground of appeal 8.The applicant relies on the Court of Appeal’s anticipated decision in Choi Tsz Fung to argue that his sentence should be reduced by approximately 4 years. He has arrived at this figure by applying the arithmetical approach canvassed by the Single Judge on the application for leave in HKSAR v Choi Tsz Fung[6] to the present case, so that the sentence for trafficking in one kilogramme of ketamine under the guidelines in Hii Siew Cheng would be about 22.2% lower than the sentence for an equivalent quantity of heroin or cocaine under the revised guidelines in HKSAR v Huang Ruifang (No 3)[7]. Applying this 22.2% differential to the 6.80 kilogrammes of ketamine trafficked in Choi Tsz Fung yields a starting point in the region of 19 years and 2 months’ imprisonment on a purely arithmetical basis, representing a reduction of approximately 4 years from the starting point of 23 years’ imprisonment adopted by the sentencing judge in Choi Tsz Fung. The applicant submits that because the quantity of ketamine in his case (7.266 kilogrammes) is comparable with that in Choi Tsz Fung (6.80 kilogrammes), his starting point should likewise be reduced by about 4 years. His argument has assumed that the anticipated sentencing guidelines will adopt the 22.2% differential and that the new sentencing guidelines will take effect in the second half of 2026. 9.Relying on the Court of Final Appeal’s judgment in Seabrook v HKSAR[8] that “sentencing guidelines which reduce sentences will benefit even those who were sentenced before the guidelines were laid down” if certain conditions are established[9], the applicant contends that he is eligible to benefit from any revisions to the existing guidelines. In that context, the applicant advances an application for bail pending his appeal. He also raises compassionate and humanitarian grounds arising out of the severe health deterioration of his father, who is no longer capable of looking after himself, and the need for him to return home to care for his father. 10.As for the delay in appealing, the applicant candidly concedes he had no grounds for appeal until this Court decided to re-examine the sentencing guidelines for ketamine in Choi Tsz Fung, which happened many years after his original sentence. The respondent’s submissions 11.Ms Ma, for the respondent, submits that the applicant’s sentence still falls within the currently applicable guidelines under Hii Siew Cheng and Sin Chung Kin. 12.Furthermore, Ms Ma points out that the applicant has benefited from the judge’s decision not to enhance his sentence for his prior trafficking conviction, for which he was sentenced to 2 years and 10 months’ imprisonment in the District Court in 2010. 13.As for the applicant’s reliance on Choi Tsz Fung, Ms Ma submits that no revised guidelines for ketamine have yet been established as of today. Furthermore, simply applying a differential of 22.2% (or even 25%) from the revised guidelines in Huang Ruifang (No 3) is overly simplistic. She notes the Court’s observations in Choi Tsz Fung concerning the greater popularity and potentially limitless supply of ketamine relative to heroin and cocaine, thereby underscoring the continuing need for deterrence. Accordingly, there is little basis to suggest that any future revision of the sentencing guidelines for ketamine will result in a sentence reduction substantial enough to justify appellate interference, particularly when the applicant is so substantially out of time. Consideration 14.There has so far been no revision of the sentencing guidelines for ketamine. Accordingly, the current, relevant guidelines governing the trafficking of ketamine are still Hii Siew Cheng, Sin Chung Kin and HKSAR v Chan Ka Yiu & Ors[10]. Moreover, it would be extremely unlikely that the Court in Choi Tsz Fung, even if it did decide to revise the ketamine guidelines, would consider a sentencing cut-off date more favourable than 18 September 2018, which was the date when the “state of affairs” leading to the revision of sentences in respect of heroin, cocaine and “Ice” began, as explained in HKSAR v Lam Man Tak[11]. 15.It will be remembered that in Chan Ka Yiu & Ors, there had been an invitation by one of the appellants for the Court to revise the ketamine guidelines. However, the Court declined to do so, holding as follows[12]:
16.Chan Ka Yiu & Ors was decided on 18 July 2018, exactly two months before the judgment in HKSAR v Kilima Abubakar Abbas[13], which provided the cut-off date for sentences passed in other dangerous drugs cases to derive a benefit from the revised guidelines in Huang Ruifang (No 3). Since the applicant’s sentence was passed on 2 March 2017, some 18 months before Kilima Abubakar Abbas was decided, and some 16 months before Chan Ka Yiu & Ors reaffirmed the guidelines in Hii Siew Cheng, it is rather inconceivable that he would be entitled to benefit from any revised ketamine guidelines, should they be issued in the near future. 17.The application for leave to appeal out of time must be refused. Since there is no reasonably arguable ground of appeal against sentence, bail pending appeal will also be refused. The applicant is advised that he has the right to renew his application for leave before 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.
Ms Clara Ma SPP, of the Department of Justice, for the Respondent The Applicant appeared in person [1] HKSAR v Choi Tsz Fung heard by the full Court on 17 July 2026, with judgment reserved. [2] The offence was committed in 2009 and the applicant was sentenced to 2 years and 10 months’ imprisonment on 12 January 2010. [3] HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1. [4] HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 (namely, trafficking in 2,000 grammes and 3,000 grammes of ketamine will invite starting points of 18 years’ and 20 years’ imprisonment respectively. Where more than 3,000 grammes of ketamine is involved, the starting point could exceed 20 years’ imprisonment.) [5] Appeal Bundle (“AB”) p 10N-P. [6] HKSAR v Choi Tsz Fung (Unrep., CACC 213/2024, 6 August 2025). [7] HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138. [8] Seabrook v HKSAR [1999] 2 HKCFAR 184. [9] Ibid., at 198C-D. [10] HKSAR v Chan Ka Yiu & Ors [2018] 4 HKC 591. [11] HKSAR v Lam Man Tak [2026] 2 HKLRD 199. [12] Chan Ka Yiu & Ors, at [16]-[17]. [13] HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88. |
Cases cited in this judgment