HKSAR v. See Chak Foon

CACC 287 /2025, [2026] HKCA 1851

On Appeal From [2019] HKCFI 1524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 287 OF 2025

(ON APPEAL FROM HCCC NO 8 OF 2019)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Macrae Acting CJHC (giving the Reasons for Judgment of the Court):

1.The appellant pleaded guilty before a magistrate to two counts of trafficking in a dangerous drug, involving between them a total of 916.60 grammes of crystalline solid containing 878.50 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 and, on 10 June 2019, sentenced by Deputy Judge Anthony Kwok (as Kwok J then was) (“the judge”) to 14 years and 10 months’ imprisonment.  With leave granted on the papers by the Single Judge[1] on 8 January 2026 for an extension of time within which to appeal against sentence and for leave to appeal, which applications were not opposed by the respondent, the appellant appealed against his sentence.

The facts

2.On 21 May 2018, at about 9 pm, the appellant was intercepted by police officers outside a unit on 1^st Floor, Chi Cheong Building, No’s 2-4E Yee On Street, in Kwun Tong, Kowloon, where he appeared to be acting furtively.  A search revealed a plastic bag wrapped in tissue paper at the right ankle of his jeans, with 27.60 grammes of crystalline solid containing 26.50 grammes of “Ice”.  Under caution, the appellant said that the “Ice” belonged to him and he intended to sell it to a customer.  These facts formed the basis of Charge 1.

3.Using keys found on the appellant, the police searched one of the units on the floor and found 22 plastic bags, inside of which were 889 grammes of crystalline solid containing 852 grammes of “Ice”, together with an electronic scale and six piles of empty resealable plastic bags.  Under caution, the appellant admitted that he had borrowed the room from a friend in order that he could “hide” the “Ice”, intending to sell it to customers.  He claimed that his friend did not know anything about the dangerous drugs.  These facts formed the basis of Charge 2.

4.In a subsequent video-recorded interview, the appellant admitted, amongst other things, that he had bought all the seized drugs from a man called “Ah Ming”, whom he had met at the Methadone Centre in Kwun Tong, for between HK$170,000 and HK$280,000; he intended to sell the drugs in Charge 1 to a man known as “Ah Gau” for HK$9,000; and he would earn some HK$300,000 from the sale of the drugs in both charges.  He further admitted using the electronic scale found in the unit to weigh the drugs and re-package them into smaller packets for re-sale.

5.The estimated market value of all the dangerous drugs was HK$523,378.  

Sentencing

6.The appellant was 61 years of age at the time of sentence (he is now 68).  Between 1983 and 2017, he had appeared before the courts on 15 occasions, amassing some 21 convictions, including four for trafficking in dangerous drugs, one for keeping a divan, and numerous convictions for possession of dangerous drugs.  His last appearance before the courts was in October 2017 for an offence of possession of dangerous drugs and possession of an offensive weapon, for which he was concurrently sentenced to be detained in a Drug Addiction Treatment Centre. 

7.In mitigation, defence counsel submitted that the appellant faced substantial family and financial difficulties, including responsibility for his eldest son, then aged 25, who had suffered a stroke at the age of 3, leaving him severely disabled; and a younger son, aged 20, who was still in further education.  The appellant was unemployed at the time of his arrest and committed the offences because of his drug addiction and financial difficulties.  It was said that he was used by a drug dealer to distribute the drugs on a commission basis.

8.In sentencing, the judge found that financial pressure and family circumstances carried little weight with an offence of such gravity.  As the two charges were closely connected in time, place and subject matter, and involved the same batch of drugs said to have been obtained from Ah Ming, the judge adopted a global approach and then ordered concurrent sentences on each charge.  

9.Applying the then prevailing guidelines in HKSAR v Abdallah[2] to the total quantity of dangerous drugs, the judge held that 878.50 grammes of “Ice” narcotic fell within the 600 to 1,200 grammes bracket, warranting a sentencing range of 20 to 23 years’ imprisonment.  Having adopted a starting point of 21 years and 6 months’ imprisonment[3], the judge increased it by 9 months to reflect the appellant’s repeated drug trafficking history, and then reduced it by one third for his early guilty plea, resulting in a sentence of 14 years and 10 months’ imprisonment on each charge, which he ordered to run concurrently.

Grounds of appeal

10.Ms Ho, for the appellant, advanced two grounds of appeal, submitting that the appellant, having never appealed before, still remained within the appeal system, if leave were granted to appeal out of time, and was, therefore, entitled to benefit from the revision to the sentencing guidelines as set out in HKSAR v Huang Ruifang (No 3)[4].

11.She endorsed the judge’s global approach and submitted that, under the revised guidelines, the arithmetical starting point for trafficking in 878.50 grammes of “Ice” would be 18 years and 7 months’ imprisonment.  She accepted that the appellant’s role as an actual trafficker would attract an “enhancement” and that his repeated offending was a further aggravating factor, for which the judge properly imposed a 9-month enhancement.  However, she contended that the combined effect of the two “enhancements” (15 months’ imprisonment) would be excessive when the overall sentence was considered at Step 6 of the process set out in HKSAR v Herry Jane Yusuph[5].

The respondent’s submissions

12.Ms Chong, for the respondent, does not oppose the appeal. Adopting a global approach for the two charges, she accepted that, under the revised guidelines in Huang Ruifang (No 3), the appropriate starting point for trafficking in 878.50 grammes of “Ice” would be 18 years and 7 months’ imprisonment.  Although she made no submission in her written argument as to the appellant’s role, she took no issue with the judge’s 9-month enhancement for the appellant’s repeated convictions for trafficking in dangerous drugs.

Discussion

13.An extension of time and leave to appeal having been granted by the Single Judge, the appellant is now reintroduced into the appeal system.  Since the appellant was sentenced after 18 September 2018, he is in principle entitled to benefit from the revised sentencing guidelines in Huang Ruifang (No 3), in accordance with this Court’s decision in HKSAR v Lam Man Tak[6].  However, as we have pointed out in HKSAR v Tsui Lok Hin[7], it is not simply a matter of applying the quantity concerned to the revised guidelines.  The whole approach to sentence in cases of drug trafficking has significantly changed as a result of this Court’s decision in Herry Jane Yusuph and the cases which have followed in its wake.  In particular, the courts now adopt a six-step approach to sentence and, whilst the quantity concerned will establish the relevant bracket of the guidelines into which an accused will ordinarily fall, a court’s primary focus is on the role and culpability of the accused.  Furthermore, as has been repeatedly made clear, if the revised guidelines are found to be applicable to an appellant, the Court will be required to sentence afresh in accordance with the approach established and developed since Herry Jane Yusuph.

14.In the present case, the appellant was more than a mere courier or storekeeper: he was an actual street trafficker, with a considerable quantity of “Ice” at his disposal, all of which he weighed and packaged in a separate unit, from which he carried out his trade.  If the arithmetical starting point for the quantity concerned was 18 years and 7 months’ imprisonment, we would assess his role and culpability as an actual trafficker in such a quantity at 20 years’ imprisonment.  With respect to Ms Ho’s argument, the uplifting of the arithmetical starting point by 1 year and 5 months’ imprisonment is not an “enhancement” in its technical sense as understood in this area of sentencing: it is the adjustment of the arithmetical starting point that is made to reflect the appellant’s true role and culpability as an actual trafficker. 

15.The only aggravating feature which properly goes to enhance the appellant’s sentence in this case is his appalling criminal record of four previous convictions for trafficking in dangerous drugs, the last of which was recorded before the High Court.  For this factor, the judge increased the starting point by 9 months’ imprisonment.  We shall adopt the same increase, thus bringing the notional sentence after trial to 20 years and 9 months’ imprisonment.

16.Applying a discount of one-third for the appellant’s early guilty plea before a magistrate to the notional sentence after trial, the sentence thereby becomes 13 years and 10 months’ imprisonment.

17.Before departing from this case, we would like to caution judges against the practice of applying the same sentence arrived at globally for the total quantity of dangerous drugs involved in two (or more) charges or counts of trafficking on a concurrent basis; particularly where one charge involves a small quantity and another charge (or charges), a much larger quantity.  Here, the judge, having arrived at a global starting point for both quantities of “Ice” of 14 years and 10 months’ imprisonment, ordered the same sentence of 14 years and 10 months’ imprisonment to run concurrently as between the two charges.  Yet, the quantity in Charge 1 was only 27.50 grammes of “Ice” narcotic.  Had that charge stood alone, it could not have merited anything like a sentence after plea of 14 years and 10 months’ imprisonment, under either the former or the revised sentencing guidelines. 

18.Whilst no harm was done in this case, there could be problems in such an approach where conviction was also in issue.  If, for example, an appellate Court found itself in the position of having to allow the conviction in respect of Charge 2, it would inevitably have to set the sentence on Charge 1 aside and re-sentence in accordance with principle and the relevant guidelines.  The better course would be to sentence in respect of each charge or count and then, if necessary, using the partly consecutive/partly concurrent device or practice, to arrive at an appropriate overall sentence.  Such a course will further obviate any ground of appeal that the sentence for the smaller quantity of dangerous drugs was manifestly excessive.

19.For the reasons we have given, we reduce the appellant’s sentence from 14 years and 10 months’ imprisonment to 13 years and 10 months’ imprisonment.  Given that the quantity in Charge 1 makes no significant difference to the much greater quantity in Charge 2, we shall impose a sentence of 5 years and 4 months’ imprisonment (from a starting point of 8 years’ imprisonment) on Charge 1; and 13 years and 10 months’ imprisonment (from a starting point of 20 years and 9 months’ imprisonment to reflect the appellant’s role and culpability and the aggravating factor of his criminal record) on Charge 2.  The two sentence will be ordered to run wholly concurrently in this case, making an overall sentence of 13 years and 10 months’ imprisonment.

20.The appeal is allowed to that extent.

Ms Cherry Chong SPP, of the Department of Justice, for the Respondent

Ms Ho Yuen Han Anna, instructed by Littlewoods, Solicitors, assigned by the Director of Legal Aid, for the Appellant

[1]  Macrae VP.

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

[3]  Under Abdallah, trafficking in 878.50 grammes of “Ice” would, on a strictly arithmetical basis, attract a starting point of about 21 years and 7 months’ imprisonment.

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

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

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

[7]  HKSAR v Tsui Lok Hin (Unrep., CACC 194/2019, 7 August 2026), at [15]-[16].