HKSAR v. Yue Wai Yan

CACC 130/2025, [2026] HKCA 1863

On Appeal From [2019] HKCFI 1314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 130 OF 2025

(ON APPEAL FROM HCCC NO 396 OF 2018)

________________________

BETWEEN

________________________

_____________________

J U D G M E N T

_____________________

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

1.On 17 December 2018, the appellant pleaded not guilty before a magistrate to two charges of trafficking in a dangerous drug involving 347 grammes of a mixture containing 302 grammes of heroin hydrochloride[1] (Charge 1) and 709 grammes of a mixture containing 520 grammes of heroin hydrochloride (Charge 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The trial was originally scheduled to commence on 10 May 2019 in the High Court.  On 8 May 2019, the appellant informed the court that he would plead guilty to both charges.  On 10 May 2019, the appellant pleaded guilty to both charges before Deputy Judge Anthony Kwok (as Kwok J then was) (“the judge”) and was sentenced to 18 years and 4 months’ imprisonment.

2.On 23 May 2025, the appellant applied for leave to appeal against sentence out of time.  The sole ground of appeal is that the sentence should be reduced in light of the revised sentencing guidelines set out in HKSAR v Huang Ruifang (No 3)[2]. The respondent did not oppose the application and the Court therefore granted the appellant an extension of time within which to appeal against sentence, as well as leave to appeal.

Facts accepted by the appellant

3.On 16 March 2018, at about 10:04 am, a Chinese female (“Fan”) was intercepted by Customs officers while passing through the Green Channel at the Lo Wu Control Point, New Territories.  During a body search of Fan, one green plastic packet containing 347 grammes of a mixture containing 302 grammes of heroin hydrochloride (Exhibit P7) was found concealed between her trousers and underpants (the subject matter of Charge 1). 

4.Customs officers then questioned Fan, following which they intercepted the appellant, at about 10:12 am, at platform No 1 of Lo Wu MTR station.  A body search of the appellant revealed two green plastic packets concealed between his trousers and underpants: one containing 352 grammes of a mixture containing 259 grammes of heroin hydrochloride (Exhibit P14), and another containing 357 grammes of a mixture containing 261 grammes of heroin hydrochloride (Exhibit P20).  The total quantity of drugs seized amounted to 709 grammes of a mixture containing 520 grammes of heroin hydrochloride, with an estimated street value of HK$517,570 (the subject matter of Charge 2).

5.Fan later participated in an identification procedure and identified the appellant as the male travel companion with whom she had crossed the border into mainland China and back.  She was jointly charged with the appellant with trafficking in 347 grammes of a mixture containing 302 grammes of heroin, with an estimated street value of HK$253,310.

6.According to the fingerprint expert’s analysis, fingerprints found on the packaging materials of Exhibits P7 and P14 were those of the appellant.

7.Travel records revealed that the appellant had left Hong Kong at around 6:00 am on 16 March 2018 via the Lok Ma Chau Terminal and returned at 7:34 am via the Lo Wu Control Point.  The appellant left Hong Kong again on the same day at 8:32 am via the Lo Wu Control Point and returned at 10:04 am through the same control point.  The appellant and Fan were seen to have shared the same travel pattern.

The mitigation

8.At the time of sentencing, the appellant was 42 years of age, educated up to Form 3 level and married.  His wife lived in Shenzhen.  The appellant had five previous convictions; two for possession of dangerous drugs, and one for trafficking in dangerous drugs.  His last trafficking conviction was recorded in 2001, for which he was sentenced to 14 years’ imprisonment in the High Court.

9.In mitigation, his counsel contended that the appellant had been determined to begin again after his release from prison in April 2010.  He had worked hard to become a restaurant manager but incurred substantial debts in trying to provide for his wife and family.  He accepted the offer of HK$5,000, to be shared with Fan, to transport the drugs into Hong Kong, because he wanted to earn quick money.  Counsel disputed Fan’s assertion that the appellant was the prime mover in the offences.  Whilst accepting that he had dealt with the drugs found on Fan, it was submitted that his role was simply a courier[3].

10.Counsel acknowledged before the judge that the sentence should be enhanced due to the cross-border element.  He pointed out that the appellant had agreed to assist Customs officers in a controlled delivery, but ultimately was unable to participate because his mobile telephone had run out of battery.  The court was further urged not to enhance the sentence for the appellant’s previous record of trafficking in dangerous drugs, since the offence had taken place some 18 years before.

The sentence

11.The judge sentenced the appellant based on the combined quantity of the two charges, which was 822 grammes of heroin narcotic.  Applying the guidelines prevailing at the time[4], the judge adopted a starting point of 21 years and 3 months’ imprisonment, on the basis that the appellant was a courier.  He then applied an enhancement of 20 months’ imprisonment for the cross-border element.  However, the judge said he would not enhance the sentence for the appellant’s previous trafficking conviction.  He reduced the notional starting point of 22 years and 11 months by 20% for the appellant’s guilty plea indicated three days before the date of trial.  In the result, he passed a sentence of 18 years and 4 months’ imprisonment on each charge, and ordered the two sentences to run wholly concurrently with each other.

The respective submissions of the parties

12.Mr Wong, for the appellant, submits that under the revised guidelines in Huang Ruifang (No 3), the trafficking in a total of 822 grammes of heroin narcotic would warrant a sentence of 17 years and 3 months’ imprisonment in purely arithmetical terms.  After adding the judge’s 20-month enhancement for the cross-border element and applying the same 20% discount, the resultant sentence would be about 15 years and 2 months’ imprisonment.

13.Ms Yuen, for the respondent, accepts that the appellant is entitled to the benefit of the revised guidelines.  She also concedes that the appellant’s role placed him within the courier or storekeeper classification, but submits that a 20-month increase for the international element was on the lenient side.  She points out that in HKSAR v Wong Yu Wo[5], another cross-border trafficking case, it was held that the applicant’s role and culpability in bringing nearly a kilogramme of dangerous drugs from the Mainland worth over HK$417,000 warranted a 2-year increase of the arithmetical starting point.  As such, Ms Yuen submits that a similar increase is appropriate in the present case.  However, we would observe that although the value of the dangerous drugs in the present case was greater than in Wong Yu Wo, the quantity of dangerous drugs brought over the border by the applicant in Wong Yu Wo was just short of a kilogramme of “Ice”; the quantity in the present case was 822 grammes of heroin narcotic.  In any event, on the basis of a 2-year increase, Ms Yuen submits that the resulting sentence under the revised guidelines would be approximately 15 years and 4 months’ imprisonment, representing a reduction of 3 years from the original sentence passed. 

Discussion

14.As we have made clear on a number of occasions[6], any appeal which seeks to benefit from the revision of the guidelines in Huang Ruifang (No 3) will require the appellate Court to sentence afresh in accordance with modern sentencing principle established since this Court’s decision in HKSAR v Herry Jane Yusuph[7].  That means that, while the Court will consider the judge’s reasons for sentence, it is not obliged to adopt them.

15.In the present case, it is accepted that the total quantity of dangerous drugs trafficked would result in a starting point of 17 years and 3 months’ imprisonment, if applied arithmetically in accordance with the revised guidelines.  However, whilst there is nothing to take the appellant’s role beyond that of a courier, his role was a cross-border courier, who effectively imported the drugs into Hong Kong.  We would not disagree with the judge’s increase of the starting point by 20 months for this international factor, given the circumstances of the appellant’s role and culpability and the overall quantity concerned. 

16.Where we would part company with the judge is in his decision not to regard the appellant’s criminal record as an aggravating factor.  Whilst it is true that the appellant’s previous trafficking conviction was recorded in November 2001, the reality is that his 14-year prison sentence handed down by the High Court removed the appellant from the community for the remainder of that decade.  This offence was then committed in March 2018.  Ordinarily, in the circumstances, we would have enhanced his sentence for committing another very serious crime, warranting yet another appearance before the High Court for the same offence, by 6 months’ imprisonment.  However, bearing in mind that the increase for the appellant’s role and culpability as a cross-border trafficker, and the enhancement for his criminal record, would add 26 months to the otherwise appropriate arithmetical starting point, we shall limit the overall increase to 24 months’ imprisonment.  The notional overall sentence after trial thus becomes 19 years and 3 months’ imprisonment.

17.From this notional sentence after trial, we shall reduce the sentence for his late plea by the same discount adopted by the judge, namely 20%, bringing the sentence down to 15 years and 4 months’ imprisonment.  The appeal is accordingly allowed to the extent that the original overall sentence will be reduced from 18 years and 4 months’ imprisonment to 15 years and 4 months’ imprisonment.  We shall achieve this result by passing a sentence of 10 years and 7 months on Charge 1 (from a starting point of 13 years and 3 months’ imprisonment); and a sentence of 14 years and 4 months’ imprisonment on Charge 2 (from a starting point of 18 years’ imprisonment).  We shall then order that one year of the sentence on Charge 1 shall run consecutively to the sentence on Charge 2, while the remaining part of the sentence shall run concurrently with the sentence on Charge 2, thereby making an overall sentence of 15 years and 4 months’ imprisonment.

Ms Zena Yuen SPP, of the Department of Justice, for the Respondent

Mr Wong Po Wing, instructed by the Legal Aid Department, for the Appellant

[1]  The appellant was jointly charged with a Chinese female called Fan in relation to Charge 1.  On 17 December 2018, Fan pleaded guilty to Charge 1 at the Eastern Magistracy and the case was subsequently separated into two with different case numbers. 

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

[3]  The prosecution was content to proceed on the basis advanced by the defence that the appellant’s role was that of a courier, and not a prime mover: Appeal Bundle, p 26H-L.

[4]  HKSAR v Abdallah [2009] 2 HKLRD 437 (namely, a starting point of 20-23 years’ imprisonment for trafficking in between 600 grammes to 1,200 grammes of heroin.)

[5]  HKSAR v Wong Yu Wo [2026] 2 HKLRD 240.

[6]  See, for example, HKSAR v Leung Ho Tak (Unrep., CACC 197/2025, 18 September 2026), at [17].

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