HKSAR v. Lam Ping Kwong

CACC 297 /2025, [2026] HKCA 1657

On Appeal From [2024] HKCFI 897

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 297 OF 2025

(ON APPEAL FROM HCCC NO 322 OF 2023)

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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.On 10 October 2023, the appellant pleaded guilty before a magistrate to a single charge of trafficking in a dangerous drug, involving 7 kilogrammes of a solid containing 5.73 kilogrammes of cocaine narcotic[1], contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 6 March 2024, he confirmed his plea before Barnes J (“the judge”) and was sentenced on the same day to 17 years and 4 months’ imprisonment.

2.On 24 July 2025, he applied for leave to appeal against sentence out of time.  The respondent indicated that it did not oppose the application.  On 10 February 2026, the Single Judge[2] granted an extension of time and leave to appeal against sentence.

3.The appellant’s sole ground of appeal is that his sentence should be reduced in light of the revised sentencing guidelines set out in HKSAR v Huang Ruifang (No 3)[3]. Having been sentenced by the court after 18 September 2018, the appellant remains in the appeal system[4]. Furthermore, the difference in sentence between the previous and the revised guidelines would be significant and exceed one year’s imprisonment[5].

The agreed facts[6]

4.In the early hours of 21 December 2022, a team of Customs officers were conducting an anti-narcotics operation in the Yau Tong area, Kowloon.  They observed a light goods vehicle arrive and park at Ka Wing Street, whereupon the appellant was seen alighting from the driver’s seat of the vehicle and taking a batch of empty paper bags from the passenger compartment.  He then approached the cargo compartment of the vehicle, after which he took three loaded and sealed paper bags from the cargo compartment and placed them in the passenger compartment, before returning to the driver’s seat.  The appellant was intercepted by Customs officers when he alighted from the vehicle again.

5.A total of 7 kilogrammes of a solid, in block form, containing 5.73 kilogrammes of cocaine were seized from the light goods vehicle.  The retail value of the cocaine was approximately HK$5,803,000.

6.Under caution, the appellant stated that he did not know the nature of the “blocks” found in the vehicle, which he had been asked to deliver for a monetary reward of several thousand dollars.

7.By pleading guilty, the appellant admitted that he knowingly possessed all of the seized cocaine for the purpose of unlawful trafficking.

The mitigation

8.The appellant was 40 years of age at the time of sentence.  He had one spent conviction, which involved fines for eight different traffic offences in 2015.  The appellant was employed as a truck driver earning about HK$18,000 per month prior to his arrest.

9.It was submitted that the financial circumstances of his family were tight after his daughter was born in 2022 and his wife had given up her online business to take care of their daughter.  The appellant had committed the offence in order to earn quick money on the promise of earning about HK$20,000 to deliver the drugs.  It was submitted that the appellant had merely acted as a courier and accepted a financial reward in respect of what was a one-off assignment[7].

The sentence

10.The judge applied the six-step approach set out in HKSAR v Herry Jane Yusuph[8]. Since the present case involved 5.73 kilogrammes of cocaine narcotic, it fell within the bracket of 4 to 15 kilogrammes in accordance with the then applicable guidelines of HKSAR v Abdallah[9], thus meriting a starting point of between 26 to 30 years’ imprisonment.  The judge found that the appellant was a mere courier and adopted a starting point of 26 years’ imprisonment, which was at the lowest end of the applicable range.  There were no other aggravating factors to enhance the starting point.  The judge then reduced the sentence by one-third for the appellant’s timely guilty plea, resulting in a sentence of 17 years and 4 months’ imprisonment.  She found that there were no other mitigating factors warranting a further reduction in sentence.

The appellant’s submissions

11.Ms Hui, with her Mr Chong, for the appellant, has submitted that in respect of 5.73 kilogrammes of cocaine under the revised guidelines in Huang Ruifang (No 3), the arithmetic starting point would be 24 years and 2.6 months’ imprisonment.  Applying the one-third discount for guilty plea, the final sentence would become 16 years and 1.7 months’ imprisonment, which would be a difference of 1 year and 2.3 months from the previous sentence.

The respondent’s submissions

12.Mr Chen, for the respondent, agreed that under the revised guidelines, the final sentence would become 16 years and 1.7 months’ imprisonment.  All relevant aggravating and mitigating factors had been properly considered by the sentencing judge.  Since the difference between the sentence previously imposed and the sentence under the revised guidelines would exceed one year, it would be appropriate for the sentence to be reduced to 16 years and 1.7 months’ imprisonment.

Decision

13.We have said before[10], with respect, that we are not greatly assisted by submissions or sentences where years or months are expressed in decimal points.  Such a method of expression tends to perpetuate the impression that sentencing for trafficking in dangerous drugs is still a purely arithmetical exercise, when this Court has been at pains to put in place a more nuanced system, which concentrates more on role and culpability and caters for an element of judicial discretion.  The quantity of a dangerous drug will still normally identify the relevant bracket in the guidelines concerned, as well as where in the bracket the starting point should normally fall.  However, pure arithmetic should not be seen as the beginning and end of the sentencing exercise. 

14.In this case, for example, the experienced judge took the view from all she had seen and heard that she could properly adopt a starting point at the lowest end of the applicable bracket, namely 26 years’ imprisonment, when, on a purely arithmetical basis under Abdallah, the starting point could have been just over 26½ years’ imprisonment.  Given the facts and circumstances as well as the part and role admitted by the appellant, we would not interfere with the exercise of the judge’s discretion in this regard.

15.Whilst on a strictly arithmetical basis, the quantity of 5.73 kilogrammes of cocaine narcotic would merit about 24 years and 2 months’ imprisonment under the revised guidelines in Huang Ruifang (No 3), we would accept the judge’s intention to place the appellant at the lowest end of the relevant bracket and adopt a starting point of 24 years’ imprisonment.  Allowing a full one-third discount for the appellant’s early plea, the sentence thus becomes 16 years’ imprisonment.

16.Accordingly, this appeal is allowed and the appellant’s sentence is thereby reduced from 17 years and 4 months’ imprisonment to 16 years’ imprisonment.

Mr Timothy Chen SPP, of the Department of Justice, for the Respondent

Ms Cherry Hui and Mr Benjamin Chong (on a pro-bono basis), instructed by Chan Ching Man & Co, assigned by the Director of Legal Aid, for the Appellant

[1]  Appeal Bundle (“AB”), p 1.

[2]  Macrae VP.

[3]  HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD l38.

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

[5]  HKSAR v Yusuf Lukman Adepoju (Unrep., CACC 178/2025, 4 June 2026).

[6]  Summary of facts: AB, p 3.

[7]  Mitigation submissions: AB, pp 6-8.

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

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

[10]  Most recently in HKSAR v Swanepoel Pieter Luther (Unrep., CACC 185/2025, 4 September 2026), at [9].