HKSAR v. Hui Chi Yuk
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CACC 317/2025 [2026] HKCA 1912 On appeal from [2025] HKCFI 264 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 317 OF 2025 (ON APPEAL FROM HCCC NO 182 OF 2024) _______________
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________________ J U D G M E N T ________________ 1.On 7 October 2024, the applicant was sentenced to 12 years and 10 months’ imprisonment by Anna Lai J (the judge), having pleaded guilty before a magistrate to a single charge of trafficking in a dangerous drug, involving 542 grammes of methamphetamine hydrochloride (commonly known as Ice). 2.On 11 August 2025, the applicant applied for leave to appeal against sentence out of time by over nine months, seeking a reduction in light of the revised sentencing guidelines under HKSAR v Huang Ruifang (No 3)[1], which had recently come to his attention. He appears in person, with his legal aid application having been refused on 31 March 2026. 3.Mr Matthew Hui, for the respondent, opposes the application on the basis that the applicant’s sentence is not manifestly excessive, even if he were to be sentenced afresh under the revised guidelines and applicable principles. He submits that any reduction in sentence would not be significantly enough to warrant appellate interference. 4.The facts admitted by the applicant[2] were that at about 3:00 am on 9 July 2022, police officers observed him holding takeaway food from McDonald’s restaurant at 177A-C Fuk Wa Street, Sham Shui Po and walking quickly to a private car parked outside the restaurant. 5.When intercepted by the police, the applicant had on his person two mobile telephones, HK$1,342.40 in cash, and a sling bag containing HK$136,000 in cash. Upon a search of the car, the police found a backpack, which the applicant said belonged to him, containing his work clothes. Inside the backpack, there was a green zipped bag containing 16 resealable plastic bags of the Ice narcotic particularised in the charge, valued at HK$332,029, and two black zipped bags containing an electronic scale, eight plastic straws, six glass nozzles, and several stacks of empty resealable bags. The applicant first alleged that the green zipped bag contained charms, but later said it contained tea leaves. 6.The applicant was arrested and admitted under caution that someone had given him HK$3,000 to transport the Ice. 7.In a subsequent video-recorded interview, the applicant stated that he was the registered owner of the car and a drug addict who had been consuming Ice for two years and needed to consume it every eight hours. He added that he consumed the drugs on tin foil and had bought them from his friend. 8.The applicant tested negative for drugs in a rapid oral fluid test conducted on him upon his arrest on 9 July 2022, but subsequently tested positive for amphetamine in a urine test conducted on 12 July 2022. 9.At the time of sentencing, the applicant was 47 years old, educated up to Form 3 level, and married with a 14-year-old daughter. He had worked as a driver earning about HK$9,000 per month prior to his arrest. Among his ten previous convictions, five were for drug-related offences, including four for possession of dangerous drugs in 1994, 1995, 1996 and 2013, and one for trafficking in a dangerous drug in 2014.[3] On 8 April 2014, he received a sentence of 8 years and 8 months’ imprisonment for trafficking in 341.13 grammes of Ice found in a car he was parking.[4] He was discharged from custody on 14 January 2020 and committed the present offence approximately two and a half years after his release.[5] 10.In mitigation, it was submitted that he committed the present offence in order to earn more money to support his family and that he was a mere courier only. While accepting that his previous similar convictions could be an aggravating factor, defence counsel submitted that they dated back more than 10 years and urged the court not to increase his sentence. It was not submitted on the applicant’s behalf that the drugs, nor any part of them, were for his own consumption. 11.Applying the previous sentencing guidelines in HKSAR v Tam Yi Chun[6], the judge adopted a starting point of 19 years’ imprisonment for trafficking in 542 grammes of Ice, taking into account his role as a courier. Having considered his previous drug-related convictions, she regarded him as a persistent offender in drug-trafficking and related offences, and enhanced his sentence by 3 months to 19 years and 3 months’ imprisonment.[7] After applying a one-third discount for his guilty plea, she sentenced him to 12 years and 10 months’ imprisonment. Discussion 12.The applicant was sentenced on 7 October 2024, and he therefore satisfied the requirement of having been sentenced after 18 September 2018 for the revised guidelines to apply, as stated in HKSAR v Lam Man Tak[8], subject, however, to the issue that his application for leave had been made out of time. If the Court were to allow his appeal and sentence him afresh under the revised guidelines in Huang Ruifang (No 3)[9] and the applicable principles[10], the arithmetical starting point for trafficking in 542 grammes of Ice, given his role as a courier, would be 17 years and 5 months’ imprisonment. 13.As submitted by Mr Hui, although the judge characterised the applicant’s role as that of a courier, the facts and circumstances reveal that he was substantially involved in the packaging and dissemination of the drugs on the streets, which aggravated the seriousness of his offending. He points out that this case involved a large quantity of Ice, valued at approximately HK$332,000. The drugs were packaged in a manner that could be readily disseminated and were found in a car parked in a public place of which the applicant was the registered owner. The police officers also found at the scene packaging paraphernalia, including an electronic scale and empty resealable bags, a substantial amount of cash and two mobile telephones. Mr Hui argues that the evidence supports the inference that the applicant was effectively operating a “dangerous-drug food truck”, and that his role should be regarded as that of an actual trafficker selling the drugs in a public place. 14.It is clear that the applicant’s role and culpability were far more than that of a courier. He had the drugs packaged for sale hidden in his car parked outside a public place at about 3:00 am. He also had packaging equipment for the drugs and a substantial amount of cash. Given the circumstances, it is evident that the applicant was an actual trafficker who had the equipment to package the drugs for sale and was out in the early hours of the morning to carry out his trade. This would warrant a starting point in the range of imprisonment between 18 years and 2 months and 18 years and 5 months.[11] Furthermore, his previous conviction for trafficking in a dangerous drug is an aggravating factor, as he is a repeat offender, which would justify an enhancement of 3 to 6 months’ imprisonment. The applicant is therefore likely to receive a notional sentence, under the revised guidelines and current principles, of a term of imprisonment between 18 years and 5 months and 18 years and 11 months. 15.With a one‑third discount for his guilty plea, the resulting sentence would be between 12 years and 3 months’ imprisonment and 12 years and 7 months’ imprisonment. There is also the real possibility that the resultant sentence on a reappraisal could be more than this. In any event, the difference between the sentence under the previous and revised guidelines is less than one year, and would not be regarded as significant enough to warrant appellate interference[12]. 16.For the foregoing reasons, the applicant’s application for leave to appeal against his sentence out of time is refused. He has been informed of the consequences of renewing his application, including the risk of a loss of time order.
Mr Matthew Hui, PP, of Department of Justice, for the respondent The applicant appeared in person [1] HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138. [2] Appeal Bundle (AB), 3-6. [3] His other prior convictions comprise one offence of possession of instrument fit for lawful purpose, three theft offences and one offence of handling stolen goods between 1994 and 2013. See AB, 16-20. [4] HKSAR v Hui Chi-yuk, unrep., HCCC 290/2013, 8 April 2014. [5] AB, 11-12. [6] HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 (namely, 15 to 20 years’ imprisonment for trafficking in between 300 and 600 grammes of Ice). [7] AB, 9R-10B. [8] HKSAR v Lam Man Tak [2026] 2 HKLRD 199. [9] Under Huang Ruifang (No 3), 542 grammes of Ice fall within the band of 300 to 600 grammes, which corresponds to a range of 15 to 18 years’ imprisonment. [10] HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. | ||||||||||||||||||||
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