HKSAR v. Siu Hon Fai
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CACC 218/2024 [2026] HKCA 1722 On appeal from [2024] HKCFI 3195 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 218 OF 2024 (ON APPEAL FROM HCCC NO 424 OF 2023) _______________
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________________ J U D G M E N T ________________ Hon Zervos JA (giving the Judgment of the Court): 1.On 11 December 2023, the appellant pleaded guilty before a magistrate to one count of attempting to traffic in a dangerous drug[1], namely 1,752 grammes of a mixture containing 1,460 grammes of heroin hydrochloride (Count 1), and one count of conspiracy to traffic in a dangerous drug[2], namely heroin hydrochloride (Count 2). 2.On 23 September 2024, the appellant confirmed his pleas before Deputy High Court Judge Eric Kwok SC (“the judge”) who heard mitigation and adjourned his decision on sentence. On 30 September 2024, the appellant was sentenced to 18 years and 8 months’ imprisonment on Count 1, and 19 years and 4 months’ imprisonment on Count 2, the two sentences being ordered to run concurrently, resulting in a total of 19 years and 4 months’ imprisonment. 3.In his Form XI Notice filed on 16 October 2024, the appellant seeks leave to appeal against his sentence. The respondent indicated that it did not oppose the application and the Single Judge[3] granted him leave to appeal against his sentence on 17 November 2025. The agreed facts [4] 4.Customs officers intercepted two inbound postal parcels from Malaysia on 12 and 13 January 2022 respectively. Each parcel concealed heroin inside toy cars. The first parcel (“Parcel 1”), addressed to “Angel Choi” at an address in Kwun Tong, contained 1,460 grammes of heroin. The second parcel (“Parcel 2”), addressed to “Zhao Jo” at an address in Sham Shui Po, contained 1,468 grammes of heroin. The total retail value of the heroin in both parcels was estimated at HK$3,816,945. 5.Customs officers carried out a controlled delivery operation in respect of Parcel 1. On 20 January 2022, a girl known as Choi Ching-yi (“Choi”), then aged 16, attended Shun Lee Post Office to collect Parcel 1 using the relevant post office notification card and her Hong Kong identity card. Choi identified herself as “Angel Choi”, the name of the consignee on Parcel 1. 6.After collecting Parcel 1, Customs officers followed Choi as she left the post office and walked towards the direction of Shun King Street. At the junction of Shun King Street and Lee On Road, the appellant, who had been waiting on the opposite side of the road, waved at her and signalled her to board a taxi already parked there. As they were about to board the taxi, Customs officers intercepted and arrested them. 7.When cautioned at the time of arrest, the appellant claimed that he did not know Choi and was merely there to hail a taxi. Choi stated under caution that she helped the appellant to collect Parcel 1 for a reward and was told by him that it contained some items of clothing. Customs officers seized a mobile telephone from Choi and two mobile telephones from the appellant. The appellant was then taken to his residence for a house search, where Customs officers found a photocopy of Choi’s Hong Kong identity card, which also bore the consignee address and the name “Angel Choi” shown on Parcel 1. Customs officers seized four mobile telephones from the appellant’s residence, in addition to two telephones seized at the time of arrest.[5] 8.Investigation revealed WhatsApp communications between the appellant and a person known as “Xx Man”. The appellant asked Xx Man to help him recruit young people for the collection of drug-laden parcels.[6] The appellant offered a reward of HK$20,000 for collecting each drug-laden parcel of 1,000 grammes, and the job would be arranged by his boss. Xx Man provided the contact information of Choi and another young woman named Zhao Zhixin (“Zhao”), who said she was aged 18. Xx Man also told the appellant that Choi was only aged 16. The appellant contacted each of them directly to arrange for the collection of the drug-laden parcels. 9.Communications between the appellant and Choi via the instant messaging application Signal show that the appellant had recruited and arranged Choi to receive Parcel 1 from the post office using her personal details and address. 10.Communications between the appellant and Zhao via Signal show that the appellant had similarly recruited and arranged for her to receive Parcel 2, although the intended controlled delivery of Parcel 2 did not proceed as the Customs officers were unable to locate the address in Sham Shui Po. 11.During the cautioned interview, the appellant denied that he was the user of the Signal account on his telephone. In relation to the copy of Choi’s identity card found at his residence, he claimed that someone else had given it to him. 12.By pleading guilty to Count 1, the appellant admitted that on 20 January 2022, he attempted to unlawfully traffic in 1,460 grammes of heroin contained in Parcel 1 which Choi collected. 13.By pleading guilty to Count 2, the appellant admitted that between 1 November 2021 and 20 January 2022, both dates inclusive, he conspired together with Xx Man and others to unlawfully traffic in heroin by recruiting young persons to collect drug-laden parcels imported from overseas. Pursuant to that conspiracy, Parcels 1 and 2 were arranged to be sent from Malaysia to Choi and Zhao respectively as named consignees. The appellant’s background and mitigation 14.The appellant was 45 years old at the time of sentence. He worked in the construction industry earning about HK$15,000 per month before his arrest. It was submitted that the appellant committed the present offences as a result of bad influence and financial hardship brought about by the economic downturn.[7] He was drawn to commit the present offences to earn some quick money, and that he would receive only HK$5,000 for his involvement in Count 1.[8] 15.The appellant accepted that the case involved the recruitment of an underage person and international delivery of dangerous drugs. On the other hand, it was submitted that the appellant’s role was only that of a person awaiting instructions from those higher up the line, and there was no evidence to show that he knew the full scale of the conspiracy.[9] 16.The appellant has a lengthy criminal record. He had been convicted of 16 charges on 13 occasions between 1993 and 2016, nine relating to dangerous drugs, four of which were for drug trafficking.[10] He had received substantial custodial sentences for the drug trafficking offences, including 8 years’ imprisonment passed in 1997, 4 years and 6 months’ imprisonment passed in 2009, and 3 years and 6 months’ imprisonment passed in 2016.[11] The sentence [12] 17.Count 1 involved 1,460 grammes of heroin. The applicable range under the former guidelines under HKSAR v Abdallah [13] for quantities between 1,200 and 4,000 grammes of heroin was 23 to 26 years’ imprisonment. 18.The judge took into account this Court’s decision in HKSAR v Lee Ming Ho [14] which gave guidelines, inter alia, in assessing the role and culpability of a defendant in accordance with step two in HKSAR v Herry Jane Yusuph[15]. It was held that the appellant was not a mere courier, as he had assumed a managerial role and recruited others into the drug trafficking operation. Moreover, he had knowingly recruited a minor, obtained and used the minor’s personal particulars to facilitate the importation of the dangerous drugs, arranged collection of the drugs, and attempted to take control of the drugs. Although there was no evidence that he was the ultimate mastermind, the judge regarded him as being close to the control level of the operation, as he had contacted Xx Man to recruit as many couriers as he could and offered monetary rewards. In light of the appellant’s role and culpability, the judge adopted an initial starting point of 26 years’ imprisonment for Count 1. 19.The judge then considered the appellant’s criminal record, which was both serious and highly relevant as an aggravating factor. He rejected the suggestion that the appellant had been drawn to the present offences by bad influence or financial hardship, as the appellant appeared to have been making a living from drug trafficking rather than construction work as alleged. The judge also rejected the claim that the appellant stood to receive only HK$5,000, noting that the reward offered for parcel collection was HK$20,000. As a result, the judge increased the starting point for Count 1 by 2 years, bringing it to 28 years’ imprisonment. After allowing the one-third discount for the guilty plea, the sentence imposed for Count 1 was 18 years and 8 months’ imprisonment. 20.Count 2 involved a conspiracy to traffic 2,928 grammes of heroin, extending over a period of about three months and involving two drug-laden parcels imported on two consecutive days. The quantity was within the range of 23 to 26 years’ imprisonment under the Abdallah guidelines. The judge regarded Count 2 as more serious than Count 1, noting that the conspiracy involved at least five persons, included the recruitment of young persons and a minor to collect the drug-laden parcels, and involved asking others to recruit even more people. The judge adopted an initial starting point of 27 years’ imprisonment, which was further enhanced by 2 years for the appellant’s criminal record. After granting the one-third discount for the guilty plea, the sentence imposed for Count 2 was 19 years and 4 months’ imprisonment. 21.As the attempted trafficking offence of Count 1 formed part of the execution of the conspiracy in Count 2, the judge ordered the two sentences to run concurrently. The total sentence was therefore 19 years and 4 months’ imprisonment. The appellant’s grounds of appeal and submissions 22.The appellant’s sole ground of appeal is that his sentence should be reduced in light of the revised sentencing guidelines laid down in HKSAR v Huang Ruifang (No 3)[16], which apply to appellants who had been sentenced on or after 18 September 2018 and who remained within the appeal system.[17] 23.Ms Catherine Fung, with Mr Eric Wong, for the appellant, submitted that in light of the revised guidelines, and following the sentencing principles adopted by the judge in ordering that Count 1 and Count 2 be served concurrently, the total and final sentence should properly be 17 years and 2 months’ imprisonment. She explained her calculation as follows:
The respondent’s submissions 24.Mr Glen Kong, for the respondent, accepts that the appellant should benefit from the revised guidelines under Huang Ruifang (No 3), whilst submitting that the overall sentence should be 17 years and 4 months’ imprisonment, as opposed to 17 years and 2 months’ imprisonment as advocated by the appellant. 25.The respondent submits that, in light of the role and culpability of the appellant, he deserves to receive at least the highest sentence in the relevant band under the revised guidelines, that being 24 years’ imprisonment as the initial starting point, as opposed to 23 years and 9 months’ imprisonment as advocated by the appellant. It is submitted that this is highly favourable to the appellant, given that the judge had actually gone above the former band for Count 2 by one year upon assessing the appellant’s role and culpability. 26.A further enhancement of 2 years for the appellant’s criminal record would bring the notional starting point to 26 years’ imprisonment, and, upon the usual one-third discount for his guilty plea, the sentence under the revised guidelines would be 17 years and 4 months’ imprisonment, which is 2 years lower than the current sentence of 19 years and 4 months’ imprisonment. Discussion 27.The conspiracy count to traffic in a dangerous drug reflects the overall criminality of this drug trafficking operation, in particular its reliance on recruiting youngsters to collect overseas parcels laden with heroin for the syndicate. During the conspiracy period from 1 November 2021 to 20 January 2022, two parcels with a total of 2,928 grammes of heroin were sent from Malaysia to Hong Kong on consecutive days, 12 and 13 January 2022. The appellant’s role was to recruit young girls, one of whom was as young as 16, to act as addressees and to collect the parcels once they had arrived. They would then hand the parcels containing the drugs to the appellant at an arranged location. 28.We will address first the sentence on Count 2. The two parcels consisted of 2,928 grammes of heroin, which falls within the band under the revised guidelines of between 1,500 and 5,000 grammes that corresponds to 20 to 24 years’ imprisonment. On an arithmetical basis, this quantity of heroin narcotic would attract a sentence of 21 years and 7 months’ imprisonment. We adopt a notional starting point of 24 years and 7 months’ imprisonment, having regard to the nature and scope of the conspiratorial enterprise and the appellant’s role and culpability. The appellant was a significant manager within this drug trafficking operation responsible for recruiting young girls to receive and collect overseas parcels laden with heroin. He employed a contact to recruit the girls, and engaged in extensive communications with them to arrange for the collection of the parcels, which he falsely represented as containing clothing. After the girls had collected the parcels, he would arrange for them to deliver the parcels to him at another location. The involvement or exploitation of a minor in a criminal matter is taken very seriously by the courts and may be taken into account as part of the overall circumstances of role and culpability or as a specific aggravating feature: HKSAR v Leung King Hung[18]. There is also the aggravating factor that the appellant has an appalling criminal record, evidencing that he has been actively involved in trafficking in dangerous drugs over several decades, for which he has been convicted and sentenced to substantial terms of imprisonment. As the judge correctly concluded from the appellant’s criminal record, he has effectively made his living by trafficking in dangerous drugs.[19] We therefore enhance his notional sentence by 1 year and 6 months to 26 years and 1 month’s imprisonment, and, after a one-third discount for his guilty plea, arrive at a sentence of 17 years and 4 months’ imprisonment. 29.We will next address the sentence on Count 1. The trafficking of the heroin in this count is encompassed in the terms and scope of the conspiracy to traffic in Count 2. As we have already stated, this involved the appellant recruiting a 16-year-old girl to collect the parcel containing dangerous drugs and for her to pass it on to him at another location. He knew she was a minor and arranged for her to give her particulars as the addressee and to subsequently collect the parcel when it arrived in Hong Kong. The parcel consisted of 1,460 grammes of heroin, which falls within the band under the revised guidelines of between 500 and 1,500 grammes that corresponds to 16 to 20 years’ imprisonment. On an arithmetical basis, this quantity of heroin narcotic would attract a sentence of 19 years and 10 months’ imprisonment. Having regard to the appellant’s role and culpability, which in the circumstances of this case was very serious, including the recruitment and grooming of a minor, we adopt a notional starting point of 22 years and 6 months’ imprisonment. For the aggravating factor of the appellant’s prior convictions for trafficking, we enhance the notional starting point by 1 year and 6 months to 24 years’ imprisonment. After a one third discount for the appellant’s guilty plea, we sentence the appellant to 16 years’ imprisonment on Count 1. 30.For the reason that the trafficking in the dangerous drugs in Count 1 is encompassed within the conspiracy to traffic in the dangerous drugs in Count 2, we would order that the sentence in Count 1 run concurrently with the sentence in Count 2. 31.Accordingly, we reduce the appellant’s sentence from 19 years and 4 months’ imprisonment to 17 years and 4 months’ imprisonment. The appeal is allowed to that extent.
Mr Glen Kong, SPP, of the Department of Justice, for the respondent Ms Catherine Fung, instructed by K W Wong & Co, instructed by the Director of Legal Aid and Mr Eric Wong, instructed by K W Wong & Co, on a pro bono basis, for the appellant [1] Contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134) and section 159G of the Crimes Ordinance (Cap 200), Appeal Bundle (AB), 1. [2] Contrary to s.4(1)(a), (3) and 39 of the Dangerous Drugs Ordinance (Cap 134) and sections 159A and 159C of the Crimes Ordinance (Cap 200), AB, 1-2. [3] Macrae VP. [4] Summary of Facts, at [1]-[16], AB, 5-11. [5] AB, 7-8, at [8]-[9]. [6] AB, 8, at [11]. [7] Mitigation submissions, at [10]-[13], AB, 28-29. [8] Transcript of mitigation, AB, 23P-Q. [9] Transcript of mitigation, AB, 23S-24C. [10] AB, 38-40. [11] Criminal record, AB, 38-41. [12] Transcript of sentence, AB, 16K-18P. [13] HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437. [14] HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. [15] HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. [16] HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD l38. [17] HKSAR v Lam Man Tak [2026] 2 HKLRD 199. [18] HKSAR v Leung King Hung [2024] 4 HKLRD 794, at [57]-[59]. [19] AB, 17O. | ||||||||||||||||||||
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