HKSAR v. Lau Kwong Lee
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CACC 487 /2025, [2026] HKCA 1675 On Appeal From [2020] HKCFI 1997 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 487 OF 2025 (ON APPEAL FROM HCCC NO 192 OF 2019) ________________________ BETWEEN
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_____________________ J U D G M E N T _____________________ 1.The applicant pleaded guilty before a magistrate to one count of trafficking in dangerous drugs, namely 656.68 grammes of a crystalline solid containing 641.30 grammes of methamphetamine hydrochloride (commonly known as “Ice”) and 652 grammes of cannabis, in herbal form, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 5 September 2019, after confirming his plea before S T Poon J (“the judge”) in the High Court, the applicant was sentenced to 13 years and 4 months’ imprisonment. He now applies for leave to appeal against sentence out of time. Facts 2.On 23 April 2018, in an anti-narcotics operation, police officers ambushed a flat situated on 8/F of a building in Mong Kok, Kowloon (“the Flat”) and found the applicant (and a female nicknamed “Ah Wah”) inside. 3.Upon search of the Flat, police officers found, amongst other items, dangerous drugs and drug packaging paraphernalia. These included:
Police officers also conducted a body search on the applicant and found a smartphone. 4.Under caution, the applicant admitted that all the dangerous drugs belonged to him and that he was going to sell them[2]. In a subsequent cautioned video-recorded interview, the applicant said that he was unemployed and had not obtained any CSSA subsidies. He used to have a trading business that made around HK$30,000 to HK$50,000 per month but had ceased to carry on such business about 10 years ago. The Flat was rented by Ah Wah and they had become friends for a few months. 5.The estimated street value of the seized “Ice” and herbal cannabis were about HK$352,637 and HK$174,084 respectively. Mitigation 6.The applicant was 57 years of age at the time of sentence and had been educated up to primary level. He was divorced and his ex-wife and daughter were living apart. Since his release from prison in March 2008 in respect of a previous conviction for trafficking in dangerous drugs, the applicant had been unable to secure a stable job and was working as casual worker at the time of the offence. 7.It was said in mitigation that, due to his unstable income in maintaining his drug habit, the applicant was enticed into selling drugs to other drug addicts[3]. Given his age and the anticipated length of any imprisonment, it was highly unlikely that he would commit any further offence again[4]. It was submitted that the strongest mitigation was his timely guilty plea, for which he should be entitled to a full one-third discount on his sentence[5]. Sentence 8.In view of the mixture of drugs and the starting points calculated under the three tests[6], set out in HKSAR v Chan Yuk Leong[7], the judge agreed with the submission of defence counsel that the “combined approach” should be adopted and the appropriate starting point should be 20 years’ imprisonment[8]. According to counsel’s argument, using 641.30 grammes of “Ice” as the base drug in accordance with the former guidelines in HKSAR v Abdallah[9], the arithmetical starting point should have been approximately 20 years’ imprisonment. As for the 652 grammes of herbal cannabis, which was said to attract an arithmetical starting point of about 6 months’ imprisonment under Attorney General v Tuen Shui Ming & Anor[10], it was urged on the court that no upward adjustment was necessary[11]. 9.The judge considered that the only mitigating factor was the applicant’s timely guilty plea. Despite his previous similar convictions in 2005[12], the judge did not apply any enhancement, since the convictions had been entered more than 14 years ago. Accordingly, the applicant was sentenced to 13 years and 4 months’ imprisonment after a discount of one-third for his guilty plea. 10.Since the applicant was sentenced on 5 September 2019, which was before the Court handed down its decision in HKSAR v Herry Jane Yusuph[13], there was no specific discussion as to the applicant’s role and culpability by the judge. Ground of appeal 11.Ms Ng, for the applicant, has advanced a sole ground of appeal, averring that the applicant should benefit from the sentencing guidelines in HKSAR v Huang Ruifang (No 3)[14], which revised downward the sentencing guidelines for trafficking in very large and exceptionally large quantities of heroin, cocaine, and “Ice”. The applicant’s submission 12.Whilst accepting that the applicant is not “in the system” within the definition of HKSAR v Lam Man Tak[15] unless an extension of time within which to appeal is granted, given that the present application is out of time by more than six years, Ms Ng relies on HKSAR v Choy Lap Ho, Daniel[16] and submits that consideration should be given to whether (i) “there is a substantial and plainly arguable ground of appeal, which would be lost to the applicant if (the Court) refused to extend time for him to appeal”[17]; and (ii) “if the ground is successful, it will make any significant difference to the result”[18], thereby inviting the Court to exercise its discretion to grant leave in the present application. 13.Ms Ng submits that, under the revised guidelines in Huang Ruifang (No 3), for 641.30 grammes of “Ice”, the applicable band of sentence would now be 18 to 20 years’ imprisonment[19]. The arithmetic calculation would produce a starting point of 18 years and 1 month’s imprisonment, which is significantly lower than the starting point of 20 years’ imprisonment adopted by the judge based on the then applicable guidelines for quantities of 600 grammes and above in Abdallah, as affirmed in HKSAR v Tam Yi Chun[20]. Even if the sentence were to be adjusted upward for the herbal cannabis, the resulting notional starting point would still be significantly below that adopted by the judge. Using the “combined approach”, “Ice” would be used as the base drug due to its higher potency. Whilst acknowledging that, by reference to HKSAR v Rahman Md Motaleb[21], the guidelines sentence for trafficking in under 2,000 grammes of herbal cannabis would be 4 months’ imprisonment and the sentence for trafficking in 652 grammes of herbal cannabis should therefore attract a sentence of about 1 month, Ms Ng refers to HKSAR v Lai Kwok Hung[22] and invites the Court to disregard the herbal cannabis completely and make no upward adjustment[23]. 14.As for the role and culpability of the applicant, despite drug packaging paraphernalia being found at the Flat, Ms Ng submits that his role was similar to the appellant in HKSAR v Islam Shafiqul[24], who was found to be operating a packaging and distribution centre for dangerous drugs with a co-defendant. In that case, a starting point of 3 months was adopted to reflect his role[25]. On the other hand, in HKSAR v Islam Azharul[26], the appellant was found to be “heavily involved” in the packaging and dissemination of dangerous drugs and 6 months’ enhancement was imposed[27]. 15.Ms Ng submits that, in the present case, since there was no evidence of drug transaction records or evidence of consignments of drugs being taken into the streets for dissemination to members of the public by the applicant, any enhancement for his role and culpability should not exceed 3 months’ imprisonment. 16.As to the multiplicity of drugs involved, Ms Ng accepts that trafficking in more than one type of dangerous drug is an aggravating feature but invites the Court to impose an enhancement of no more than 1 month by reference to Rahman Md Motaleb, HKSAR v Islam SM Majharul[28] and HKSAR v Tai Sing Tim[29]. 17.Lastly, as the applicant had managed to stay out of trouble for more than 10 years before the present case in April 2018, Ms Ng invites the Court not to make any enhancement of his sentence arising from his previous convictions. The respondent’s submissions 18.Ms Chong, for the respondent, objects to the application for leave to appeal against sentence out of time because any difference between the sentences under the revised and former guidelines would not be significant enough to warrant any interference by the Court. Whilst accepting that the applicant is in principle entitled to benefit from the revised guidelines under Huang Ruifang (No 3), if the Court were to allow the applicant’s appeal out of time, she cites recent authority[30] to make the point that it is a matter of principle that the Court does not tinker with the result if the difference in sentence would not be significant[31]. 19.Whilst accepting that the arithmetical starting point for “Ice” under the revised guidelines in Huang Ruifang (No 3) would be 18 years and 1 month’s imprisonment and the “combined approach” should be adopted[32], given that the quantity of herbal cannabis is more or less the same as that of “Ice”, Ms Chong invites the Court to distinguish the present case from Lai Kwok Hung and impose 1 month’s enhancement in accordance with guidelines in existence before Nguyen Thang Loi[33]. 20.As for role and culpability, Ms Chong submits that the applicant’s role was more than a mere courier and storekeeper: rather, he was an actual trafficker in light of his unequivocal admissions under caution[34], which were subsequently confirmed in mitigation[35], that he was selling the drugs to other drug addicts. By reference to the facts of HKSAR v Yau Kai Fung[36], which Ms Chong argues was analogous to the facts of the present case, she submits that an enhancement of 4 months’ imprisonment would be appropriate. 21.Further, Ms Chong submits that it is well-settled[37] that trafficking in more than one type of dangerous drug should be considered an aggravating factor, warranting an enhancement of sentence. Having compared the quantity of drugs involved in Rahman Md Motaleb, Islam SM Majharul, Tai Sing Tim and Islam Azharul, all of which concerned more than one type of dangerous drug, she argues that an enhancement in the region of 3 to 6 months’ imprisonment[38] would be appropriate. 22.The respondent contends that a further enhancement would be justified to reflect the applicant’s previous similar convictions[39]. Although some 10 years had lapsed[40] between his last discharge and his commission of the present offence, it was held in HKSAR v Har Tsz Yui[41]that the passage of time does not preclude such an enhancement. Accordingly, the respondent submits that 3 months’ enhancement would be appropriate to reflect the applicant’s previous similar convictions. 23.Accordingly, Ms Chong submits that the appropriate overall sentence would be 19 years and 3 months’ imprisonment. With a one-third discount for plea, the applicant’s final sentence becomes 12 years and 10 months’ imprisonment, which produces a 6-month difference against the original sentence imposed by the judge. Such a difference in the sentence would not render the original sentence manifestly excessive. Discussion 24.I am grateful to the submissions of both Ms Ng and Ms Chong, both of whom have argued their positions very persuasively, with appropriate use of authority. 25.It must be remembered that if an applicant or appellant is entitled to the benefit of the revised sentencing guidelines, he must also be subject to the other sentencing principles and policies which have been established, explained or refined since his sentence was passed. As appellate courts have endeavoured to make clear since the decision in Herry Jane Yusuph, we have moved away from purely arithmetical sentences to a greater emphasis on role and culpability. 26.Had the applicant been no more than a courier or storekeeper, the arithmetical starting point in respect of 641.30 grammes of “Ice” would have been 18 years and 1 month’s imprisonment. In relation to 652 grammes of herbal cannabis, the relevant guideline prevailing at the time of sentence was Tuen Shui Ming & Anor, which prescribed that for quantities under 2,000 grammes of cannabis resin, the sentence should be up to 16 months’ imprisonment; although a court “must adjust the tariff, which applies to cannabis resin when sentencing for trafficking in either herbal cannabis or cannabis oil”[42]. Had cannabis been the only dangerous drug in which the applicant was trafficking, the sentence in respect of 652 grammes of cannabis could have been about 2-3 months’ imprisonment. Moreover, I do not think an appellate court would accept that trafficking in well over half a kilogramme of herbal cannabis worth HK$174,084 warranted a mere 1 month’s increase on the sentence for “Ice”. A meaningful enhancement of sentence for the cannabis component would have been at least 2 months’ imprisonment. Thus, in my judgment, the arithmetical starting point for trafficking in all of the drugs concerned on the basis that the applicant was a courier or storekeeper would have been 18 years and 3 months’ imprisonment. 27.However, as Ms Chong submits, and as is conceded by Ms Ng, the applicant was not a mere courier or storekeeper: he was, by his own admission, selling drugs to other drug addicts, which he was clearly weighing and packaging at home. In terms of culpability he was, therefore, to be viewed more seriously for his role than was perhaps the practice at the time the judge sentenced the applicant. The applicant could not, in my view, complain of an overall starting point for his role and culpability in trafficking the two dangerous drugs concerned of about 19 years’ imprisonment. 28.There were two aggravating features, which in accordance with Herry Jane Yusuph, the judge should also have borne in mind, but did not. Whilst Herry Jane Yusuph was decided after the sentence was passed in this case, both of these features were accepted aggravating factors at the time of sentence in 2019. The fact that a judge does not take them into account cannot mean that an appellate court will not do so: the Court of Appeal in sentencing afresh under revised guidelines must be guided by its own established principles, otherwise it will lead to inconsistent sentences. 29.The first aggravating feature was the applicant’s trafficking in two different kinds of dangerous drugs, thereby catering to a wider clientele: see HKSAR v Yim Hung-lui, Ricky[43]. I am alive to the double-counting argument but it must be appreciated that the two drugs were to be considered for two very different purposes: (i) in identifying the appropriate starting point for two very different dangerous drugs; and (ii) in judging the scale and reach of the trafficking operation he was conducting. 30.The second aggravating feature was the applicant’s previous conviction(s) for trafficking in dangerous drugs. It must be noted that, although the applicant has kept out of trouble for some 10 years, both his previous trafficking conviction(s) and the present conviction were recorded in the High Court, which is a clear indication of their level of seriousness. I can well see an appellate court enhancing the sentence by 9 months’ imprisonment for these two factors when viewed together, thereby making an enhanced starting point of 19 years and 9 months’ imprisonment. 31.The difference between the judge’s final sentence using the former guidelines, and a proper sentence under the revised guidelines and other sentencing authorities and principles would, according to my assessment, be negligible: 13 years and 4 months’ imprisonment (the original sentence) and 13 years and 2 months’ imprisonment (under the revised guidelines and sentencing principles). 32.This is a difference with which no appellate court would be reasonably persuaded to interfere, because it would amount to mere tinkering with the outcome. For these reasons the application for leave to appeal out of time must be refused. 33.The applicant is advised that he has the right to renew his application for leave to appeal out of time to the Court of Appeal, but he should also be 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 Cherry Chong SPP, of the Department of Justice, for the Respondent Ms Hermina Ng, instructed by Cedric & Co, assigned by the Director of Legal Aid, for the Applicant [1] Together with (i) a black wallet containing the HKID card of the applicant; (ii) 8 keys (later found to open the wooden door and gate of the Flat); and (iii) two smartphones. [2] Summary of facts, at [4] and [6]: Appeal Bundle (“AB”), p 4. [3] Mitigation submission: AB, p 16, at [11]; applicant’s submission, p 4, at [10]. [4] Mitigation submission: AB, p 17, at [14]. [5] Mitigation submission:AB, p 17, at [17]. [6] Based on the calculations by defence counsel, the ‘absurdity test’, ‘conversion test’ and ‘ratio test’ produced results of 23 years’ imprisonment, 20 years’ imprisonment, and 11 years and 10 months’ imprisonment respectively: AB, pp 17-19, at [16(a)-(d)]. [7] HKSAR v Chan Yuk Leong (Unrep., CACC 318/2013, 8 April 2014). [8] AB, p 9E-F. [9] HKSAR v Abdallah [2009] 2 HKLRD 437. [10] Attorney General v Tuen Shui Ming & Anor [1995] 2 HKC 798. [11] Mitigation submission, at [16(a)]: AB, pp 17-18. [12] In fact, there were two counts of trafficking in dangerous drugs, for which the applicant was sentenced on a concurrent basis to 7 years’ imprisonment (AB, p 10). He was released from prison in 2008 (according to counsel’s submission: AB, pp 4-5, at [11]). [13] HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. [14] HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138. [15] HKSAR v Lam Man Tak [2026] 2 HKLRD 199. [16] HKSAR v Choy Lap Ho, Daniel (Unrep., CACC 111/2025, 6 February 2026). [17] Ibid, p 5A-D, at [13]. [18] Ibid, p 5E, at [13]. [19] Huang Ruifang (No 3), at [66]. [20] HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. [21] HKSAR v Rahman Md Motaleb [2023] 1 HKLRD 1259, at [11], referring to HKSAR v Chor Lui [2001] 3 HKLRD 95, at [13]. [22] HKSAR v Lai Kwok Hung (Unrep., CACC 564/2002, 23 April 2003). [23] Ms Ng also refers to HKSAR v Li Gwing Chiu (Unrep., CACC 191/2024, 16 September 2025) and submits that the pre-Nguyen Thang Loi ([2023] 1 HKLRD 1329) position should be used. [24] HKSAR v Islam Shafiqul [2020] 5 HKLRD 471. [25] Ibid., at [4], [28]-[31]. [26] HKSAR v Islam Azharul [2020] 1 HKLRD 644. [27] Ibid., at [14]. [28] HKSAR v Islam SM Majharul [2020] 3 HKLRD 146. [29] HKSAR v Tai Sing Tim (Unrep., CACC 137/2025, 31 October 2025). [30] HKSAR v Au Chun Wah and HKSAR v Lau Siu Fung [2026] 2 HKLRD 1035, at [54] and HKSAR v Yusuf Lukman Adepoju (Unrep., CACC 178/2025, 4 June 2026), at [15]. [31] Respondent’s submission, pp 7-8, at [23]. [32] Respondent’s submission, pp 8-9, at [25] and [27]. [33] Respondent’s submission, p 9, at [28]-[29]. [34] Summary of facts, at [4] and [6]: AB, p 4. [35] Mitigation submission, at [11]: AB, p 16. [36] HKSAR v Yau Kai Fung (Unrep., CACC 208/2024, 28 May 2026). [37] As concluded in Chan Yuk Leong, at [23]-[25] and Islam Azharul, at [15]. [38] Where Ms Chong submits that 6 months would be more appropriate. [39] HKSAR v Lau Tsz Ho [2015] 1 HKC 491, at [18] and HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, 833D. [40] The applicant was released from prison in 2008 and re-offended in April 2018. [41] HKSAR v Har Tsz Yui [2020] 1 HKLRD 307. [42] Tuen Shui Ming & Anor, at 804I-805A. [43] HKSAR v Yim Hung-lui, Ricky (Unrep., CACC 266/2011, 13 February 2012). |
Cases cited in this judgment