HKSAR v. Chen Wei You

CACC 368 /2019, [2026] HKCA 1628

On Appeal From [2020] HKCFI 148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 368 OF 2019

(ON APPEAL FROM HCCC NO 220 OF 2019)

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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.The appellant was D1 on the indictment.  Following his plea to a single charge of trafficking in a dangerous drug, namely 1,982 grammes of a solid containing 1,957 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, he was committed to the High Court for sentence before Johnny Chan J (“the judge”).

2.On 3 December 2019, he was sentenced to 17 years and 4 months’ imprisonment.  With leave granted by the Single Judge[1] on the papers on 24 August 2026 for an extension of time within which to appeal against sentence and for leave to appeal, the appellant now appeals against his sentence.

Facts

3.On 15 October 2018, two Taiwanese males, who are the appellant and D2, arrived at Hong Kong International Airport on a flight from Phnom Penh in Cambodia.  When passing through the Customs Arrival Hall together, they were intercepted by Customs officers.

4.Upon a search of the appellant, it was found that a total of four plastic bags were wrapped around his abdomen, back and thighs by bandages and duct tape underneath his clothing.  The four plastic bags were found to contain the subject matter of the charge, which had an estimated value of HK$1,117,848.  More or less the same quantity of “Ice” (1,961 grammes in terms of pure narcotic content) was concealed in a similar way over the body of D2, who therefore faced a separate charge of trafficking, to which he pleaded guilty and was sentenced to an identical term of 17 years and 4 months’ imprisonment[2].

5.Under caution, the appellant claimed that he had no knowledge of the substance which he had been asked to carry by someone for a reward of NT$100,000.  In a subsequent preliminary enquiry, he admitted receiving the drugs in Phnom Penh. 

6.At the time of the arrest, there was also found on the appellant cash of HK$300, NT$10,201, a small amount of Cambodian Riel, US dollars and Euros, a mobile telephone and seven SIM cards.

7.In his video-recorded interview, the appellant admitted he was in debt of NT$1.6 million and committed the present offence for money on the instructions of a person known as “Xu”.  He also provided the details on his importation of dangerous drug into Hong Kong.  He said that he was simply asked to call Xu upon his arrival in Hong Kong and did not know what to do with the drugs.

Sentencing

8.At the time of sentence, the appellant was 23 years of age.  He received education and worked in Taiwan.  He also lived there with his parents and younger sister.

9.By reference to the guidelines prevailing at the time of sentence, as set out in HKSAR v Abdallah[3], the judge held that 1,957 grammes of “Ice” fell within the band of 1,200 to 4,000 grammes of narcotic and the sentencing range of 23 to 26 years’ imprisonment.  Accordingly, the judge adopted a starting point of 23 years and 9 months’ imprisonment.

10.The judge enhanced the sentence by 27 months on the basis of the international element involved in the trafficking, resulting in an enhanced starting point of 26 years’ imprisonment.  He gave the appellant a one-third discount for his timely plea, thereby reducing the sentence to 17 years and 4 months’ imprisonment.  

Ground of appeal

11.Mr Ng acts for the appellant here but not below.  His sole complaint is that the appellant is entitled to benefit from the revised guidelines in HKSAR v Huang Ruifang (No 3)[4] and a consequent reduction in sentence.

The respondent’s submissions

12.Ms Kwok, for the respondent, does not oppose the appeal.  She submits that, under the revised guidelines in Huang Ruifang (No 3), the appropriate starting point for trafficking in 1,957 grammes of “Ice” would be 20 years and 6 months’ imprisonment.  She invites the Court to uphold the enhancement of 27 months given by the judge, and submits that, after a one-third discount for the appellant’s plea, the resultant sentence would be 15 years and 2 months’ imprisonment.

Discussion

13.Having been granted leave to appeal against sentence out of time, the appellant has thereby been brought back into the appeal system.  Since he was sentenced after 18 September 2018 at a time when the “state of affairs” led to the subsequent revision of the guidelines in Huang Ruifang (No 3)[5], we are satisfied that he should be entitled to benefit from such revised guidelines.

14.Had the appellant been sentenced under the revised guidelines, the starting point on an arithmetical basis, assuming his role as a mere courier, would have been about 20 years and 6 months’ imprisonment, instead of 23 years and 9 months’ imprisonment under the previous guidelines.  We accept that there is nothing to suggest the appellant was more than a courier, albeit an international one.  He was not the organiser of the drug trafficking operation: he merely transported the drugs on instructions.  However, his importation of the dangerous drugs across the border into Hong Kong made his role and culpability much more serious.  We would assess his notional sentence after trial at 22 years and 6 months’ imprisonment.

15.Applying a one-third discount for his plea, the sentence on the appellant thus becomes 15 years’ imprisonment.  Accordingly, we reduce the appellant’s sentence from 17 years and 4 months’ imprisonment to 15 years’ imprisonment.  The appeal is allowed to that extent.

Ms Anthea Kwok SPP, of the Department of Justice, for the Respondent

Mr Chris Ng, instructed by Stevenson, Wong & Co, assigned by the Director of Legal Aid, for the Appellant

[1]  Macrae Acting CJHC.

[2]  D2 abandoned his application for leave to appeal against sentence, which was marked as dismissed on 15 January 2021.

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

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

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