HKSAR v. Pangosban Nellie Alisangco

CACC 145/2023 [2026] HKCA 1852

On appeal from [2023] HKCFI 2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 145 OF 2023

(ON APPEAL FROM HCCC NO 119 OF 2022)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.On 1 August 2022, the appellant pleaded guilty before a magistrate to a charge of attempted trafficking in a dangerous drug involving 4.960 kilogrammes of a crystalline solid containing 4.924 kilogrammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and section 159G of the Crimes Ordinance, Cap 200.  On 1 August 2023, the appellant confirmed her plea before Deputy High Court Judge Douglas Yau (the judge), as Yau J then was, and was sentenced to 17 years and 10 months’ imprisonment.

2.On 8 August 2023, the appellant applied for leave to appeal against sentence.  She appeared in person at her leave application on 7 February 2025, during which the Single Judge[1] indicated that a review of the sentencing guidelines regarding trafficking in large quantities of dangerous drugs might be forthcoming, and the case was accordingly adjourned.  The case of HKSAR v Huang Ruifang (No 3)[2] was subsequently handed down on 5 March 2025, and the Single Judge granted the appellant an appeal aid certificate on 13 May 2025.  Mr Andrew Raffell was assigned to represent her.  The sole ground of appeal advanced on behalf of the appellant was that her sentence should be reduced in light of the revised sentencing guidelines laid down in Huang Ruifang (No 3).  The respondent did not oppose the application, and the Court therefore granted the appellant leave to appeal against sentence on 5 November 2025.

The facts accepted by the appellant

3.On 14 May 2021, a consignment originating from Thailand was selected for cargo examination.  The consignment contained 50 spools of rubber tube in nine carton boxes.  Upon examination, a total of 4.96 kilogrammes of a crystalline solid containing 4.924 kilogrammes of Ice were found concealed in five spools of rubber tube in five of the carton boxes.  A Customs officer took over the consignment and replaced the drugs with sugar for a controlled delivery (the dummy consignment).  The intended recipient of the consignment was stated to be one Fan Ye Kenneth (Kenneth).

4.On 20 May 2021, the driver delivering the dummy consignment arranged to meet the recipient, Kenneth, at a car park opposite Ng Ka Tsuen Public Toilet.  At about 11:00 am, the appellant appeared instead.  She showed the Customs officer, who was disguised as a courier for a logistics company, a Canadian passport bearing the name Kenneth and an identification photograph of him, both stored on her mobile telephone.  When the Customs officer asked the appellant if she was Kenneth, she replied, “I helped Kenneth to collect these”.  The Customs officer contacted the logistics manager who in turn called Kenneth’s telephone number and was informed that the new recipient was Nellie Alisangco Pangosban.  The Customs officer was notified and wrote the new recipient’s name on the Delivery Cartage Advice.  When the officer asked for the appellant’s name, she provided a Form 8 recognizance form as proof of identity.  The appellant then signed two copies of the Delivery Cartage Advice and collected the dummy consignment.

5.At about 11:35 am, the operation then turned overt.  The appellant was arrested and cautioned.  Under caution, she stated that the consignment belonged to her friend and that she was waiting for further instructions on what to do with it.  She added that she did not know her friend’s name and had not been promised any reward for collecting the consignment.  She refused to participate in a controlled-delivery operation with the Customs officers.

6.In a subsequent video-recorded interview, the appellant stated that on the morning of 20 May 2021, she accepted a job offered by “My Friend” (also known as “Ip-Gu”), whom she had met through her ex-boyfriend in September 2020.  Having been unemployed since 2019, she accepted the work.  Ip-Gu asked her to wait for a truck at Ng Ka Tsuen to collect a consignment.  When she asked Ip-Gu what kind of delivery it was, he told her simply to wait for the truck and that there was no need for her to ask what it was.  She was shown a WhatsApp message she sent to her friend “Ate Birthday” at 8:53 am on 20 May 2021, and she explained its meaning in English: “I will just pick something up … that I did for my boyfriend … the pay is a little big”.  She added that the payment was about HK$2,500, though she had not yet received any payment.

7.Messages retrieved from WhatsApp between the appellant and “My Babe” ( the appellant’s ex-boyfriend) revealed the following:

(i)  On 4 February 2021, the appellant was sent a photograph of Cheng Sze-tung’s HKID card, which bore the same photograph as Kenneth’s HKID card.  “My Babe” then instructed the appellant to collect a parcel.

(ii)  On 5 February 2021, “My Babe” instructed her to deliver the parcel to Jordan.  She messaged “My Babe” expressing fear of carrying the parcel because the police were everywhere.

(iii)  On 6 February 2021, the appellant messaged “My Babe” complaining that “he did this to her again” after he had received the box of drugs, and that he was using her for work rather than treating her as his girlfriend.

8.The estimated street value of the Ice seized was about HK$2,703,200.

The mitigation

9.At the time of sentence, the appellant was 36 years of age, and her two daughters, aged 12 and 14, were living in the Philippines.  She had previously worked as a domestic helper but had been unemployed since 2019.  She was diagnosed with breast cancer in January 2021 and was in remission at the time of sentencing.

10.Defence counsel submitted that the appellant’s role was slightly below that of a courier, as there was no evidence that she was aware of the quantity or quality of the drugs involved.  It was accepted that the appellant’s status as a Form 8 recognizance holder was an aggravating factor, but defence counsel invited the judge to consider the totality principle and exercise his discretion not to increase the sentence, as the appellant would be in her late 40s by the time she was released.  It was also submitted that the appellant had given non-prejudicial statements, but they were assessed to be of no practical use.

The sentence

11.Applying the previous sentencing guidelines[3], the judge noted that trafficking in between 4,000 grammes and 15,000 grammes of Ice attracted a starting point of 26 to 30 years’ imprisonment.  The judge sentenced the appellant based on the full quantity of the particularised narcotic contents of the drugs, finding that the appellant’s attempt to receive the drugs with the intention to pass them on to someone else was equal in seriousness and culpability to the substantive offence.  The judge found that there was insufficient evidence to suggest that the appellant had facilitated the drug importation and therefore treated her as a courier.  Given that the quantity was 4.924 kilogrammes of Ice, the judge adopted a starting point of 26 years and 4 months’ imprisonment, which he enhanced by 6 months for the aggravating factor of the appellant’s status as a Form 8 recognizance holder.  The resulting notional sentence of 26 years and 10 months’ imprisonment was reduced by one-third for the appellant’s guilty plea, resulting in a final sentence of 17 years and 10 months’ imprisonment.

The submissions

12.Mr Raffell, for the appellant, accepts that her status as a Form 8 recognizance holder was an aggravating factor and therefore does not take issue with the 6-month enhancement.  He submits that under the revised guidelines, the starting point would be a maximum of 24 years, or slightly below, at 23 years and 11 months, resulting in an ultimate sentence of approximately 16 years and 4 months’ imprisonment after applying the one-third discount for her guilty plea.  

13.Ms Jocelyn Ng, for the respondent, accepts that the appellant is entitled to benefit from the revised guidelines.  She submits that 4.924 kilogrammes of Ice corresponds, on an arithmetical basis, to a term of 23 years and 11 months’ imprisonment.  She accepts that there is no evidence the appellant took part in facilitating the importation of the drugs, but notes that the appellant’s status as a Form 8 recognizance holder was an aggravating factor.  While not taking issue with the enhancement of 6 months, she nevertheless points out that the Court in HKSAR v Ebhonun Akonjie Alex[4] had suggested that the enhancement could have been up to 12 months. 

Discussion

14.In light of the circumstances of this case, the appellant is 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[5]. As has been repeatedly made clear, if the revised guidelines are found to be applicable to an appellant, the Court is required to sentence afresh in accordance with the approach established and developed since HKSAR v Herry Jane Yusuph[6].

15.In light of the text messages found on the appellant’s telephone, she knew she was collecting a parcel containing dangerous drugs.  As a collector of the parcel, we treat her as a courier for sentencing purposes.  She was a Form 8 recognizance holder at the time of the offence, which is a critical aggravating factor.  Committing a serious criminal offence while permitted to remain in Hong Kong on recognizance constitutes, in a general sense, a breach of trust, involving a grave abuse of the city’s hospitality and a breach of conditional liberty attaching to the status of a claimant while awaiting the outcome of his or her immigration or torture claim.

16.Under the revised guidelines, we adopt a starting point of 23 years and 11 months’ imprisonment, which we enhance by 9 months to 24 years and 8 months’ imprisonment for the appellant’s immigration status at the time of the offence.  After reducing the notional sentence by one-third for the appellant’s guilty plea, the resulting sentence is 16 years and 5 months’ imprisonment.  

17.Accordingly, we reduce the appellant’s sentence from 17 years and 10 months’ imprisonment to 16 years and 5 months’ imprisonment.  The appeal is allowed to that extent.

Ms Joycelyn Ng, SPP, of the Department of Justice, for the respondent

Mr Andrew J Raffell, instructed by Morley Chow Seto, assigned by the Director of Legal Aid, for the appellant