HKSAR v. Li Shun To

CACC 223/2024 [2026] HKCA 1617

On appeal from [2024] HKCFI 3191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 223 OF 2024

(ON APPEAL FROM HCCC NO 98 OF 2024)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.On 27 September 2024, following his plea of guilty to a single count of trafficking in a dangerous drug, namely 11.79 grammes of a crystalline solid containing 11.72 grammes of methamphetamine hydrochloride (commonly known as Ice) and 0.01 gramme of a solid containing cocaine, Deputy High Court Judge Eric Kwok SC (the Judge) sentenced the appellant to 6 years’ imprisonment.

2.On 18 October 2024, the appellant filed a notice of application for leave to appeal against his sentence.  On 29 April 2025, the Single Judge[1] granted the appellant leave to appeal against his sentence on the ground of whether the enhancement of 1 year and 6 months’ imprisonment, for the aggravating factors of his previous similar criminal convictions and committing the offence while on bail was too high in the circumstances: HKSAR v Islam Azharul.[2] 

3.The facts outlined to the Judge and admitted on behalf of the appellant show that on 22 February 2023 at around 4:30 am, police officers had set up a roadblock outside 16 Dundas Street, Yau Ma Tei.  At about 5:00 am, the police stopped a taxi at the roadblock.  The appellant was sitting in the front passenger seat, and two female passengers were sitting in the back seat.  The police searched the appellant and found concealed in his underpants a piece of white tissue containing four transparent resealable plastic bags containing various quantities of Ice and one transparent resealable plastic bag containing a trace of cocaine.  The appellant was arrested and cautioned, and in response, he said that the five packets of Ice were for his own consumption.

4.The only meaningful mitigation on behalf of the appellant was his timely plea of guilty.  At the time of sentencing, the appellant was 38 years of age and had an appalling criminal record.  Between June 2007 and December 2023, he had appeared before the court on ten previous occasions. On five occasions, he was convicted of possession of a dangerous drug, and on one occasion, he was convicted of trafficking in a dangerous drug, for which he was sentenced to 3 years and 4 months’ imprisonment on 15 April 2010.  He was a drug addict with previous convictions for drug offences and a history of being compulsorily treated for his addiction since 2017.  After his arrest for the present offence, he tested positive for both Ice and cocaine.

5.The estimated value of the Ice was HK$5,730 and the cocaine was between HK$8 and HK$10, depending on whether it was sold as powdered cocaine or crack cocaine.

6.The Judge applied the sentencing guidelines for Ice, noting that the quantity of drugs fell within the band of 10 grammes to 70 grammes, which attracted a sentence of 7 to 11 years’ imprisonment.[3]  He noted that the appellant had four packets of Ice that were packed so as to suggest that they were ready for supply to others, but nevertheless, he applied the sentencing guidelines applicable to a courier or storekeeper.  He also noted that a negligible quantity of cocaine was included in the drugs found in the appellant’s possession, which was an aggravating factor.  He therefore adopted a starting point of 7 years and 6 months’ imprisonment.  The Judge enhanced the starting point by 1 year and 6 months for the aggravating factors of his previous criminal record, which included offences of trafficking in and possession of a dangerous drug, and for committing the offence whilst he was on bail for other matters awaiting sentence.  He noted that other than the one-third discount for the appellant’s guilty plea, there were no other mitigating factors in his favour.  He reduced the notional starting point of 9 years’ imprisonment by one-third, and sentenced the appellant to 6 years’ imprisonment.

7.Mr Duncan Percy, who represented the appellant before the Judge, acknowledged that the quantity of Ice corresponded to a starting point of 7 years and 2 months’ imprisonment.[4]  He accepted that the aggravating factors that the court could take into account were the appellant’s previous convictions for drug-related offences[5] and the presence of two different drugs.  He acknowledged that whilst the quantity of cocaine was very small, it was either trafficable or residual after use.[6]  He suggested that the starting point be enhanced by 12 months for the appellant’s prior criminal record and the two different types of drugs involved.  In his submissions to the Judge, he referred to the fact that the appellant had committed the offence whilst on bail, but did not make any allowance for it in his calculations of an appropriate sentence.[7]  

8.Mr Percy confirmed to the Judge that no claim was being made that a substantial proportion of the drugs were for the appellant’s own consumption.[8]  It was a concession that was properly made given the circumstances of the appellant’s arrest, in the early hours of the morning, in a public vehicle with others, and that the drugs were packaged for supply. 

9.The Judge allowed for the presence of two different drugs when he adopted a starting point of 7 years and 6 months’ imprisonment.  He then enhanced the starting point by 1 year and 6 months for the two aggravating factors without quantifying the enhancement attributable to each.  This raises the issue of whether the total enhancement was too high and whether it was proportionate to the base sentence, having regard to the totality principle.

10.On an arithmetical basis, the quantity of 11.72 grammes of Ice corresponds to a sentence of 7 years and 1 month’s imprisonment.  There was also a very small quantity of cocaine, 0.01 gramme.  It would appear that the cocaine may have been consumed socially, since the appellant tested positive for both Ice and cocaine at the time of his arrest.  It seems that the Judge enhanced the starting point by 5 months to 7 years and 6 months’ imprisonment because of the presence of two different types of drugs.  Given these circumstances, it would have been perfectly understandable if only a small enhancement had been given for the trace of cocaine.  As already noted, the Judge then enhanced the notional starting point of 7 years and 6 months’ imprisonment by 1 year and 6 months, for the appellant’s previous convictions for drug-related offences and committing the offence while on bail, to 9 years’ imprisonment.  After a one-third reduction for the appellant’s guilty plea, the Judge arrived at a sentence of 6 years’ imprisonment.

11.It is acknowledged that the appellant had a history of drug abuse, and in all likelihood was engaged in trafficking the drugs to support his drug habit.  However, personal hardships, such as drug addiction or financial difficulties, generally count for very little as mitigating factors when sentencing for commercial drug trafficking, which prioritises severe deterrence and public protection over personal circumstances.  The trace of cocaine would indicate that it had been consumed or trafficked in some way and at the time of the offence, the appellant was in the company of others.  We consider that its presence would have been more appropriately dealt with as an aggravating factor, although the Judge’s approach of treating this minuscule quantity of cocaine as part of the trafficking was not incorrect, since it formed part of the charge.  Based on a starting point of 7 years and 1 month’s imprisonment, we would enhance the notional starting point by 2 months for the presence of the trace of cocaine; 6 months for the appellant’s previous conviction for trafficking in a dangerous drug, for which he received a sentence of 3 years and 4 months’ imprisonment more than 10 years ago; and 8 months for the appellant committing the offence while on bail (he was on bail in respect of two fraud offences), resulting in a total enhancement of 16 months.  In applying the totality principle and ensuring that the total enhancement was proportionate to the base sentence, we would reduce this figure by 2 months to 14 months.  This would result in a notional sentence of 8 years and 3 months’ imprisonment, and, after a one-third discount for the appellant’s guilty plea, a sentence of 5 years and 6 months’ imprisonment.

12.It follows from what we have said that we allow the appellant’s appeal.  We set aside the appellant’s sentence of 6 years’ imprisonment and substitute in its place a sentence of 5 years and 6 months’ imprisonment.  

Mr Prakash L Daryanani, SPP, of the Department of Justice, for the respondent

Mr Duncan Percy, instructed by Hastings & Co, assigned by the Director of Legal Aid, for the appellant

[1]  HKSAR v Li Shun To [2025] 2 HKLRD 1013, per Zervos JA.

[2]  HKSAR v Islam Azharul [2020] 1 HKLRD 644, at [20].

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

[4]  Appeal Bundle (AB), 11K.

[5]  AB, 10Q.

[6]  AB, 10R.

[7]  AB, 11E.

[8]  AB, 11O.