HKSAR v. Chan Wing Cheong, Virchow
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CACC 468/2025, [2026] HKCA 1642 On appeal from [2023] HKCFI 792 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 468 OF 2025 (ON APPEAL FROM HCCC NO 138 OF 2022) ________________________ BETWEEN
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___________________ J U D G M E N T ___________________ 1.On 28 August 2022, the applicant pleaded guilty before a magistrate to one count of trafficking in dangerous drugs, namely:
2.On 19 September 2022 the case was committed for sentence. On 16 February 2023, D’Almada Remedios J (the “Judge”) sentenced him to 7 years and 6 months’ imprisonment. 3.On 1 December 2025, the applicant lodged his Form XI and sought leave to appeal against sentence out of time. He stated therein that “過期及上訴原因是販運危險藥物的新量型指引。”. 4.For this application, the applicant appears in person. 5.The respondent, represented by Senior Public Prosecutor Mr Daryanani, opposes the application. Admitted Summary of Facts 6.At around 3:40pm on 6 September 2021, PC 23521 and his teammates were conducting an anti-narcotic operation in the vicinity of King’s Road, Fortress Hill. The applicant was walking past the location. He started to run as soon as he saw the police officers. He was intercepted. Upon search:
7.The total estimated street value of the drugs was about HK$84,000, as follows:
8.Upon arrest and under caution, the applicant admitted that someone had asked him to deliver the dangerous drugs to clients. During video-recorded interview, he said that he met a man (known as “Sing Sing”) in a bar in Mong Kok. Sing Sing subsequently asked him to deliver drugs to clients. He collected the drugs and lysergide from Prudential Centre in Jordan on 5 September 2021. Before arrest, he was in Fortress Hill waiting for Sing Sing’s instruction as to where to deliver the drugs and lysergide. Mitigation 9.The applicant was 52 years old at the time of sentence. He was married, with no children. He was well educated, with a Bachelor’s Degree in Economics and a Master’s Degree in Internet Security and Digital Forensics. He was of clear record. He had been employed as a salesman since 2019, and had been running his own IT and migration consultancy businesses. His overall monthly income was about HK$20,000. 10.It was said on his behalf in mitigation that he ran into problems with his businesses. He had to work long hours but still could not make ends meet. He felt tired, and under friends’ suggestion, took “Ice” to try to boost his spirit. He became addicted to “Ice”. He met Sing Sing in late August 2021. Sing Sing offered the applicant quick money for delivering dangerous drugs. The applicant agreed. It was submitted that the strongest mitigating factors were the applicant’s early plea of guilty, and his cooperation/admission after arrest. Reasons for Sentence 11.The Judge accepted on the facts that the applicant was a courier. The case concerned a cocktail of drugs of “Ice”, ketamine and cocaine. At one stage, the applicant through counsel asserted that 20g of the “Ice” involved was his reward and for his own consumption. That claim was subsequently abandoned. Accepting the suggestion put forward by the applicant’s counsel, the Judge took the combined and conversion approach. She used “Ice” as the base drug. She applied the guidelines laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 for “Ice”, Secretary for Justice v Hii Siew Cheng & Anor [2009] 1 HKLRD 1 for ketamine, and R v Lau Tak Ming [1990] 2 HKLR 370 for cocaine. She converted the cocktail of dangerous drugs into 91.43g of “Ice”. On that basis, she adopted 11 years and 3 months’ imprisonment as the starting point. 12.The Judge was of the view there was no aggravating factor given the nominal amounts of ketamine and cocaine involved. She gave the applicant a full one-third discount for his plea of guilty at the earliest opportunity. The final sentence was 7 years and 6 months’ imprisonment. The applicant’s submissions 13.The sole ground that the applicant relies on in his application is that the sentence should be reduced in light of the revised sentencing guidelines. He did not specify in his Form XI what precisely those guidelines were. During the hearing, upon this Court’s clarifications with him, it was confirmed that he meant those revised guidelines laid down in HKSAR v Huang Ruifang (No.3) [2025] 2 HKLRD 138. Discussion 14.Without meaning to be critical, I am afraid the applicant’s ground of appeal is misconceived. As explained by Macrae VP in HKSAR v Lam Man Tak [2026] 2 HKLRD 199 at §41, the state of affairs which led to the revision of the relevant tariffs was the problem concerning sentencing in drug trafficking cases for “very large or exceptionally large quantities of dangerous drugs”. Also as explained by Zervos JA in HKSAR v Yau Kai Fung [2026] HKCA 885 at §34, those “revisions require the earlier guideline decisions for very large quantities in Lau Tak Ming and [Tam Yi Chun], and the approach in Abdallah, give way to the new framework …”. Specifically, the revised guidelines in Huang Ruifang (No.3) do not affect the pre-existing sentencing guidelines, in relation to cocaine and heroin, below 200g, and in relation to “Ice”, below 300g. 15.I have set out above the types and quantities of the dangerous drugs particularised in the only count the applicant faced. The guidelines revised by Huang Ruifang (No.3) do not concern ketamine. For the quantities of “Ice” and cocaine as charged, the applicable guideline bands whether under the old guidelines or the revised guidelines are the same. In other words, in the light of the quantities of the dangerous drugs involved in the present case, the revised guidelines are not engaged. 16.The sentence passed by the Judge was in the appropriate range. Cross-checking the same with the ratio test (using “Ice” as the base drug, which yields the starting point of about 11 years and 2 months) reinforces that. I record in this regard that during the oral hearing the applicant also raised the case of Yau Kai Fung. I have also explained to him the result of the ratio test, which does not assist him. 17.The applicant’s intended appeal has no chance of success. Conclusion 18.For the reasons set out above, I refused the applicant leave to extend time to appeal against his sentence. 19.I have informed the applicant that he is entitled to within 14 days seek to have his application determined by the Court of Appeal. I have also warned him that if the Court of Appeal considers that his renewed application is devoid of merits, the Court of Appeal has the power to direct that part of his time spent in custody pending the determination of his appeal shall not be reckoned as part of his term of sentence.
Mr Prakash Lachmandas Daryanani, SPP, of the Department of Justice, for the respondent The applicant appeared in person |
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