HKSAR v. Wong Shing Bun

CACC 8/2025 [2026] HKCA 1787

On appeal from [2025] HKCFI 427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 8 OF 2025

(ON APPEAL FROM HCCC NO 434 OF 2023)

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REASONS FOR JUDGMENT

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

1.The appellant pleaded guilty before a magistrate to a single charge of trafficking in a dangerous drug, namely 698 grammes of a mixture containing 575 grammes of heroin hydrochloride, 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 7 January 2025, was sentenced by Kwok J (“the judge”) to 13 years and 4 months’ imprisonment.  With leave granted by the Single Judge[1] on paper on 5 November 2025, the appellant appeals against his sentence.

The agreed facts

2.On 5 May 2023, at about 9:37 pm, plainclothes police officers conducting an anti-narcotics patrol observed the appellant acting furtively at a bus stop outside G/F, 167 Yu Chau Street. 

3.As the officers approached, the appellant, who was carrying a red plastic bag, pressed his left trouser pocket firmly with his hand.  After the officers identified themselves, the appellant threw away the bag and ran onto the carriageway, but was soon subdued.  Nothing incriminating was found in the bag.

4.A search of the appellant revealed two packets, each containing 349 grammes of a block-form mixture marked “360.0”, and containing 288 grammes and 287 grammes of heroin hydrochloride respectively, totalling 575 grammes.

5.Under caution, both at the scene and later in a video-recorded interview, the appellant said he had bought the drugs for his own consumption.  

6.Also found on the appellant were HK$300 in cash and a mobile telephone.

7.The estimated street value of the drugs was about HK$663,100.

The sentence

8.At sentence, the appellant was 57 and had a 63-year-old girlfriend who was suffering from cancer.  He had 23 previous convictions, including 7 for possession of dangerous drugs, 1 for possession of drug apparatus, and 2 for trafficking in dangerous drugs, for which he had received High Court sentences of 13 years’ imprisonment in 2004 and 8 years’ imprisonment in 2017[2]. The present offence was committed within a year of his discharge and while he was still under supervision[3].

9.By reference to the guidelines then prevailing in HKSAR v Abdallah[4], the judge adopted a basic starting point of 19 years and 5 months’ imprisonment for trafficking in 575 grammes of heroin hydrochloride. 

10.Applying the six-step approach in HKSAR v Herry Jane Yusuph[5], the judge found that the appellant was a courier and adopted the basic starting point.  For the persistent offending referred to in HKSAR v Chan Pui Chi[6], he considered a 12-month enhancement but reduced it to 7 months in light of the “already lengthy sentence” [7], resulting in a notional starting point of 20 years’ imprisonment.

11.The judge made no reduction for the alleged self-consumption, noting that the appellant’s letter referred only to a small portion for personal use and that he did not testify to support any claim that a significant portion was for that purpose.  Finding no other effective mitigation, he allowed a one-third discount for his guilty plea and imposed a sentence of 13 years and 4 months’ imprisonment.[8]

The ground of appeal

12.Ms Karen Cheung, for the appellant, submitted that the appellant was entitled to benefit from the revised guidelines in HKSAR v Huang Ruifang (No 3)[9].

13.She contended that, applying the revised guidelines and sentencing afresh under Herry Jane Yusuph, the appropriate sentence would be 11 years and 2 months’ imprisonment, based on an arithmetic starting point of 16 years and 3 months’ imprisonment for a courier trafficking in 575 grammes of heroin hydrochloride, enhanced by 7 months for previous convictions and reduced by one-third for his guilty plea.  This represented a reduction of 2 years and 2 months from the original sentence. 

14.In supplemental written submissions, Ms Cheung opposed the respondent’s suggestion that the judge’s 7-month enhancement for persistent offending should be revisited.  Citing HKSAR v Har Tsz Yui[10], she submitted that any such enhancement must be proportionate to the actual sentence.  She further submitted that the present case was less serious than HKSAR v Lam San Yau[11], where the Court of Appeal found a 12-month enhancement to be appropriate.  She therefore contended that the judge’s 7-month enhancement was justified.

The respondent’s submissions

15.Mr Marcus Lee, for the respondent, accepted that the appellant was entitled to the benefit of the revised guidelines in Huang Ruifang (No 3), and agreed with the appellant’s application of the six-step approach in Herry Jane Yusuph, except for the extent of an enhancement for persistent offending.

16.Mr Lee submitted that the enhancement should be reconsidered because the judge had originally reasoned it should be 12 months, but reduced it to 7 months only in view of the length of the sentence[12]. He further submitted that, given the substantial reduction in the starting point under the revised guidelines, it was not appropriate for the appellant to retain the full benefit of that earlier leniency, particularly in light of his appalling criminal record, which included not only drug-related offences but also other serious offences, including multiple counts of robbery.  Relying on HKSAR v Lau Kam Hung[13], he contended that the Court should take into account the appellant’s entire criminal record, and not merely his drug-trafficking convictions, in order to deter further serious offending.  He argued that the appellant’s reliance on Lam San Yau was misplaced, as the overriding consideration, depending on the circumstances of the case, was whether the enhancement was reasonable and proportionate.  On the basis that the appellant’s revised starting point of 16 years and 3 months was more than double that in Lam San Yau (7 years and 4 months), he submitted that, whereas the Court of Appeal in Lam San Yau adopted an enhancement of 12 months, an enhancement of more than 12 months was justified here in order to maintain proportionality.

17.Mr Lee also informed the Court that, before sentence, the appellant gave a statement on 15 October 2024, which the authorities found to be of no practical use, and that the matter was fully canvassed before the judge at sentence.

Discussion

18.The appellant was sentenced after 18 September 2018, at a time when the “state of affairs” which led to the subsequent revision of the guidelines in Huang Ruifang (No 3)[14] had already arisen, and we were satisfied that he was entitled to benefit from the revised guidelines.  Accordingly, the Court was required to sentence the appellant afresh in accordance with the current sentencing approach and principles.

19.Had the appellant been sentenced under the revised guidelines, the starting point on an arithmetical basis, on the assumption that his role was that of a courier, would have been about 16 years and 3 months’ imprisonment, instead of 19 years and 5 months’ imprisonment under the previous guidelines.  We accepted that, on the facts, it was appropriate to treat the appellant as a courier for sentencing purposes, although given his longstanding involvement in the drug trade, it could be argued that he played a more prominent role than that of a courier.  We also accepted that there were no other relevant aggravating factors in his case. 

20.In our view, the appellant’s criminal record demonstrated a serious case of recidivism.  Since 1985, he had accumulated twenty-three previous convictions, including seven for possession of a dangerous drug, one for possession of drug apparatus and two for trafficking in a dangerous drug, for which he had received sentences of 13 years’ imprisonment in 2004 and 8 years’ imprisonment in 2017.  He also had two convictions for robbery in 1993, which, given that he received a DATC order in relation to the first robbery, must have been drug-related. 

21.The appellant’s extensive criminal history demonstrated a persistent disregard for the law, making a more severe penalty necessary both to deter future misconduct of this kind and to reflect his increased culpability as a repeat offender.  The appellant had in the past been sentenced with his rehabilitation in mind, having received DATC orders in 1990, 1993, 2003 and 2016.  He had been given more than enough opportunities to rehabilitate himself but he continued to offend.  An enhanced penalty was required because the appellant’s persistent recidivism reflected an escalating disregard for the law, thereby shifting the focus of sentencing from rehabilitation to strict deterrence, community protection and proportional retribution.  We enhanced the notional starting point of 16 years and 3 months’ imprisonment by 12 months to 17 years and 3 months’ imprisonment.  After applying a one-third discount for his guilty plea, the appellant was to receive a sentence of 11 years and 6 months’ imprisonment. 

22.Accordingly, we reduced the appellant’s sentence from 13 years and 4 months’ imprisonment to 11 years and 6 months’ imprisonment.  The appeal was allowed to that extent. 

23.There is a matter that the judge alluded to in his reasons for sentence which warrants comment because of its potential significance when sentencing an offender who has committed an offence while under post-release supervision.[15] Although we have not received submissions from the parties on the relevance of post-release supervision to the appropriate sentence in such a case, it is appropriate to note the statutory regime under which a prisoner is given early release from his or her sentence.  

24.The Post-Release Supervision of Prisoners Ordinance (Cap 475) establishes a statutory framework designed to facilitate the rehabilitation and social reintegration of adult offenders while safeguarding public safety.  Enacted in 1996, the Ordinance establishes the Post-Release Supervision Board, an independent statutory body that balances the necessity of community rehabilitation against the public’s right to protection from serious crime.  The statutory scheme applies to specific categories of adult prisoners serving determinate sentences, in particular those serving a sentence of 6 years’ imprisonment or more, or a sentence of 2 years’ imprisonment or more but less than 6 years’ imprisonment in respect of specified offences for which the public are in particular need of protection and which, in many cases, appear to be of a kind in respect of which the offender may be at risk of recidivism.  It excludes offenders serving life sentences or indeterminate terms.  When an eligible prisoner demonstrates continuous “industry and good conduct”, the Board may issue a supervision order allowing early conditional release after the prisoner has served at least two-thirds of the sentence actually imposed.  The order specifies the duration of the supervision, which remains in force until the date the sentence would originally have expired without early release or remission.  Once approved, the Commissioner of Correctional Services is responsible for its formal execution and assigns a supervising officer to maintain regular contact with the supervisee through routine home and workplace visits.  The Board retains the statutory authority to vary, suspend, or discharge the order, and if a supervisee breaches the designated terms, the statutory mechanism permits his or her immediate recall to prison to serve out the remainder, or part of the remainder, of the prison term: Lui Tat Hang Louis v The Post-Release Supervision Board & Anor[16].

Mr Marcus Lee, SPP, of the Department of Justice, for the respondent

Ms Karen Cheung, instructed by Ernest Tang, Solicitors, assigned by the Director of Legal Aid, for the appellant

[1]  Macrae VP.

[2]  Appeal Bundle (“AB”), pp 35-37.  Note: In his reasons for sentence, the judge stated that the appellant had 8 convictions for possession of dangerous drugs.  This may have included the conviction for possession of drug apparatus: AB, p 7N.

[3]  AB, p 12Q-T.

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

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

[6]  HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.

[7]  AB, p 9N-O.

[8]  AB, pp 9T-10D.

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

[10]  HKSAR v Har Tsz Yui [2020] 1 HKLRD 307, at [18]-[19].

[11]  HKSAR v Lam San Yau [2026] 1 HKLRD 721, at [8], [9] and [20].  The applicant had 12 previous convictions related to dangerous drugs over 16 court appearances, comprising 2 for possession of equipment fit and intended for smoking, injecting, or inhaling a dangerous drug, 3 for possession of dangerous drugs, and 7 for trafficking-related offences; in particular, he had previously received sentences of 11 years and 6 months’ imprisonment in December 1997 and 12 years’ imprisonment in November 2011 for trafficking in dangerous drugs.

[12]  AB, p 9N-P.

[13]  HKSAR v Lau Kam Hung [2025] 5 HKLRD 1027, at [27].

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

[15]  AB, p 9J-K. 

[16]  Lui Tat Hang Louis v The Post-Release Supervision Board & Anor [2010] 1 HKC 297, at [8]-[12].  See also the Prisoners (Release under Supervision) Ordinance (Cap 325), which is a voluntary early-release program that allows eligible prisoners to apply for conditional early release under supervision, either after serving half of their sentence or within 6 months of the earliest discharge date, in order to facilitate their social rehabilitation through approved employment or community programmes.  The Commissioner of Correctional Services is also responsible for this statutory scheme and, in certain circumstances, the supervision order may be revoked.