HKSAR v. Tang Yik Tsun

CACC 46/2025, [2026] HKCA 1909

On Appeal From [2025] HKCFI 785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 46 OF 2025

(ON APPEAL FROM HCCC NO 190 OF 2024)

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BETWEEN

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.The appellant pleaded guilty before a magistrate to a single charge of conspiracy to traffic in a dangerous drug, namely 19.427 kilogrammes of a crystalline solid containing 19.191 kilogrammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to sections 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200.  He was committed to the High Court for sentence and, on 6 February 2025, sentenced by Deputy Judge Vinci Lam, SC (“the judge”) to 20 years’ imprisonment.  On 6 March 2025, he applied within time for leave to appeal against both conviction and sentence but, on 14 March 2025, abandoned his appeal against conviction.  On 16 December 2025, the Single Judge[1] granted leave on the papers to appeal against sentence.

The facts[2]

2.On 21 March 2022, at about 12:27 pm, during an anti-narcotics operation, police officers intercepted the appellant and his girlfriend at the lift lobby on the 17^th floor of a building in Ho Man Tin, Kowloon.  Using one of the keys found on the appellant, the officers entered a flat on the same floor owned by the appellant’s maternal aunt, where the appellant and his girlfriend were at the time living.

3.Upon a search of the premises, 1 bag and 19 packets with a total of 19.427 kilogrammes of a crystalline solid, containing 19.191 kilogrammes of “Ice”, were found in a cupboard in a bedroom.  The estimated market value of the “Ice” at the time was about HK$10.4 million. 

4.Under caution, the appellant admitted that he had agreed to deliver dangerous drugs for money to meet his living expenses because he had been unable to find a job during the Covid pandemic.

5.In a subsequent cautioned video-recorded interview, the appellant admitted, inter alia, that he agreed, about a week before the offence, to pick up “some goods” for money for one “Ah Ming”, despite having refused his requests twice before.  On the day before the offence, Ah Ming instructed him to pick something up in Yuen Long, New Territories.  Guessing that they would probably be dangerous drugs, he collected a backpack and a plastic bag and brought them back to the premises.  Upon instructions from Ah Ming, he then counted the goods, found 20 packets containing something which he believed to be “Ice”, and placed them in the cupboard in the bedroom.  Ah Ming was supposed to contact him a few days later to deliver the drugs, for which he would be paid HK$20,000; however, he had not yet received any money[3].

6.By confirming the Summary of Facts, the appellant admitted that he had conspired with Ah Ming to traffic in the “Ice” in question.

Mitigation and sentence

7.The appellant was 23 years of age at the time of sentence and 20 years and 4 months at the time of the offence.  He had no prior criminal record.  He had begun studying for a diploma and, on remand, had enrolled in a post-secondary programme with a view to continuing his studies whilst serving his sentence.  In mitigation[4], counsel sought a reduction in sentence for the appellant’s relative youth and submitted that the offence was both “one-off” and out-of-character, brought about by financial difficulties, in particular his inability to secure stable employment during the pandemic and the need to pay off his girlfriend’s medical expenses for an operation in respect of a failed pregnancy.  Counsel also relied on letters from the appellant, his parents, a chaplain and a school social worker, which the judge described as demonstrating that he had “genuinely reflected on his erroneous values” and was “determined to become a useful person and to take care of his parents when released”[5].

8.In passing sentence, the judge applied the six-step approach set out in HKSAR v Herry Jane Yusuph[6] and HKSAR v Lee Ming Ho[7]. Although trafficking in 19.191 kilogrammes of “Ice” fell above the cut-off figure of 30 years imprisonment for 15 kilogrammes of narcotic and therefore lay within the sentencer’s discretion under the then prevailing guidelines in HKSAR v Tam Yi Chun[8] and HKSAR v Abdallah[9], she nevertheless adopted a starting point of 30 years’ imprisonment, having regard to the appellant’s role and culpability, his age and antecedents, his reasons for committing the offence, and all the circumstances of the case[10].  She assessed his role as that of both courier and storekeeper and found no other aggravating factors.  Accordingly, she gave a full one-third discount from a starting point of 30 years’ imprisonment and imposed a sentence of 20 years[11]. 

Grounds of appeal

9.Mr Wong, who appeared for the appellant below, together with Mr Chow, has advanced a single ground of appeal that the appellant should be entitled to the benefit of the revised guidelines in HKSAR v Huang Ruifang (No 3)[12].  It is submitted that all three conditions identified in Seabrook v HKSAR[13] had been met.  He urged that the Court should do as the judge did and not go beyond the limit of the now penultimate guideline band, namely 5,000 to 15,000 grammes of narcotic in the revised guidelines.

The respondent’s submissions

10.Ms Ma, for the respondent, has accepted that the appellant is not only within time in appealing but is entitled to avail himself of the revised guidelines under Huang Ruifang (No 3).  Her only dispute is in identifying the appropriate starting point under the revised guidelines, which she submits should, at least arithmetically, be 27 years and 10 months’ imprisonment.  Although the appellant was properly characterised by the judge as both a courier and storekeeper, his role and culpability were not minimal, given that he made a conscious decision to embark on the criminal enterprise after repeated invitations from Ah Ming, with a full understanding of the nature and quantity of the drug concerned. 

11.Given the seriousness of the offence, no complaint could be made if no reduction was allowed for his relative, but not extreme, youth.  Since there were no other exceptional mitigating factors, a one-third discount of a starting point of 27 years and 10 months’ imprisonment under the revised guidelines would produce a sentence of about 18 years and 6 months’ imprisonment, which would represent a reduction in sentence of 1 year and 6 months.  To that extent, the respondent did not oppose the appeal. 

Discussion

12.There is no dispute between the parties that the appellant’s role was to be a storekeeper and courier, although he had not yet delivered the dangerous drugs in question.  Certainly, there is nothing that takes the appellant beyond that characterisation.  On that basis, the starting point under the revised guidelines, viewed strictly arithmetically, should be 27 years and 10 months’ imprisonment for trafficking in 19.191 kilogrammes of “Ice” narcotic.  While the respondent argued that this appropriately reflects the appellant’s role and culpability, the appellant contended that a starting point of 27 years’ imprisonment would be appropriate.  The difference, therefore, is 10 months’ imprisonment.

13.On any analysis, this was a tragic fall from grace for a young man, who was under 21 at the time of the offence, who came from a decent family and was of good character, but who made a terrible mistake.  However, consistent with the person he appears to be, he had taken steps to improve himself whilst in custody by enrolling in a post-secondary programme of the Hong Kong Metropolitan University.  We understand that since sentence, the appellant has continued with his studies with the aim in due course of obtaining sufficient credits for a University degree.  

14.The judge was evidently impressed by everything she had heard and read from the various sources placed before her that the appellant’s remorse and determination to learn from his mistake were genuine.  Given his relative youth and supportive family, she decided to adopt a starting point at the top or limit of the penultimate band of the previously applicable guidelines, namely 30 years for trafficking in 4,000 to 15,000 grammes of “Ice”.  We have been persuaded to follow the same course and whilst, strictly speaking, the starting point, on a purely arithmetical basis, should now be 27 years and 10 months’ imprisonment under the revised guidelines, we are prepared to adopt 27 years’ imprisonment, which is the top or limit of the penultimate band under the revised guidelines, namely for 5,000 to 15,000 grammes of narcotic. 

15.We are fortified in doing so because we too accept that this was almost certainly a single fall from grace in the appellant’s otherwise blameless life, that he was not the prime mover in this matter and that the only part he had so far played, upon the instructions of others, was to store the drugs in the cupboard of his bedroom.  We are also confident that the type of person the judge thought she was dealing with is exemplified by the way he has conducted himself in custody since his arrest, conduct which has continued after his sentence, in seeking to improve himself and change the direction of his life.

16.Allowing, therefore, a full one-third discount from a starting point of 27 years’ imprisonment, we accordingly reduce the appellant’s sentence from 20 years’ imprisonment to 18 years’ imprisonment.  The appeal is allowed to that extent.

Ms Clara Ma SPP, of the Department of Justice, for the Respondent

Mr Dick Wong and Mr Ulysses Chow, instructed by Yip, Tse & Tang, for the Appellant

[1]  Macrae VP.

[2]  Appeal Bundel (“AB”), pp 4-9.

[3]  AB, pp 7-9, at [12].

[4]  AB, pp 14-21.

[5]  AB, pp 11K-12D.

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

[7]  HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

[8]  HKSAR v Tam Yi Chun [2014] 3 HKKLRD 691.

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

[10]  AB, p 12L-U.

[11]  AB, pp 12E-13G.

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

[13]  Seabrook v HKSAR (1999) 2 HKCFAR 184.