HKSAR v. Mutyaba Robert

CACC 113/2025 [2026] HKCA 2023

On appeal from [2023] HKCFI 2256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 113 OF 2025

(ON APPEAL FROM HCCC NO 78 OF 2022)

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J U D G M E N T

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

1.The appellant was committed to the High Court for trial after having indicated that he would plead not guilty to one charge of trafficking in a dangerous drug involving 10.995 kilogrammes of crystalline solid containing 10.86 kilogrammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1) and to one charge of conspiracy to traffic in dangerous drugs, contrary to section 4(1)(a) and (3) of the same Ordinance and section 159A and 159C of the Crimes Ordinance, Cap 200 (Charge 2).  The trial commenced on 3 August 2023 before Recorder Martin Hui SC (the judge).  On 8 August 2023[1], following two days of voir dire and a discussion about pleas, the appellant pleaded guilty to Charge 1 in return for Charge 2 not being proceeded with.  The appellant was duly convicted of Charge 1, and Charge 2 was left on the court file.  On 9 August 2023, the appellant was sentenced to 23 years and 4 months’ imprisonment.  

2.On 9 May 2025, the appellant applied for leave to appeal against sentence out of time, relying on the revised guidelines laid down in HKSAR v Huang Ruifang (No 3)[2]. The respondent did not oppose the application, and the Court therefore granted the appellant, on 10 February 2026, an extension of time within which to appeal against sentence, as well as leave to appeal.  On 23 June 2026, the appellant was granted legal aid, and Mr Andrew Raffell was assigned to represent him. 

The facts accepted by the appellant

3.On 30 December 2020, at about 5:00 pm, police officers observed the appellant and another person moving two carton boxes into a back alley off Kweilin Street, Sham Shui Po.  The police officers approached the appellant as he was opening one of the boxes.  The appellant attempted to run away but was intercepted and escorted back to the back alley for questioning.  A search of the two carton boxes revealed the following:

(1)  Carton box 1:

i.  Two rice cookers containing 4 packets with a total weight of 2.37 kilogrammes of a crystalline solid containing 2.34 kilogrammes of Ice;

ii.  Forty-five CCTV cameras, 21 of which contained a total weight of 21 packets with a total of 3.12 kilogrammes of a crystalline solid containing 3.09 kilogrammes of Ice; and

iii.  Four video recorders.

(2)  Carton box 2:

i.  Three rice cookers containing 6 packets with a total weight of 3.51 kilogrammes of a crystalline solid containing 3.46 kilogramme of Ice;

ii.  Thirty-five CCTV cameras, 14 of which contained a total weight of 14 packets with a total of 1,995 grammes of a crystalline solid containing 1,970 grammes of Ice; and

iii.  Six video recorders.

4.A total of 10.995 kilogrammes of crystalline solid containing 10.86 kilogrammes of Ice was found in the two carton boxes.  The estimated street value of the drugs seized was HK$6.8 million.

The mitigation

5.The appellant is a Ugandan national who, at the time of sentencing, was 37 years of age and a Form 8 recognizance holder.  He resided in Nigeria prior to entering Hong Kong in 2017.  Upon arrival, he was held in administrative detention for 8 months before being released on recognizance as a Form 8 holder.  He married a domestic helper in 2020.  He had no prior criminal conviction in Hong Kong.

6.Defence counsel invited the court to grant a 20% discount despite the late plea, entered after two days of voir dire but prior to jury empanelment.  While accepting that the appellant’s status as a Form 8 recognizance holder was an aggravating factor, counsel urged the judge to exercise his discretion to reduce that enhancement in light of the appellant’s previous administrative detention.

The sentence

7.Applying the previous guidelines[3], the judge noted that trafficking between 4,000 grammes and 15,000 grammes of Ice carries a starting point of 26 to 30 years’ imprisonment.  He adopted a starting point of 28 years and 6 months’ imprisonment, on the basis that the appellant was a courier.  He then applied an enhancement of 8 months’ imprisonment, as the appellant was a Form 8 recognizance holder committing a serious criminal offence.  He reduced the notional starting point of 29 years and 2 months by 20% for the appellant’s late plea after trial had commenced.  The judge did not find sufficient basis to exercise his discretion to grant a further reduction for the appellant’s previous administrative detention.  In the result, the appellant was sentenced to 23 years and 4 months’ imprisonment.

The submissions of the parties

8.The sole ground of appeal advanced by Mr Raffell on behalf of the appellant is that the sentence should be reduced in light of the revised guidelines in Huang Ruifang (No 3).  Mr Raffell does not take issue with the 8-month enhancement for the aggravating feature.  He submits that under the revised guidelines, the starting point for trafficking in 10.86 kilogrammes of Ice should be 25 years and 6 months (being the midpoint of that sentencing band), and that adding the enhancement of 8 months yields a notional starting point of 26 years and 2 months.  Applying a 20% discount for the appellant’s late plea of guilty reduces the sentence to 20 years and 11 months’ imprisonment.

9.Ms Elisa Cheng, for the respondent, accepts that the revised guidelines in Huang Ruifang (No 3) are applicable in the present appeal.  However, she submits that the starting point should be about 25 years and 9 months, on a purely arithmetical basis, instead of the midpoint of 25 years and 6 months proposed by the appellant.  Accordingly, the final sentence after an enhancement of 8 months for his status at the time of the offence and the 20% discount should be 21 years and 1 month’s imprisonment.

Discussion

10.The appellant has been granted leave to appeal against his sentence, and if the Court were to allow his appeal and sentence him afresh under the revised guidelines and the applicable sentencing principles, it would then need to consider whether and how those principles should be applied in his case.

11.Under the guidelines in Huang Ruifang (No 3), trafficking in 10.86 kilogrammes of Ice would attract a starting point of 25 years and 9 months’ imprisonment if the guidelines were applied arithmetically.  As the appellant was a Form 8 recognizance holder at the time of the offence, it is appropriate to enhance his sentence by 8 months to 26 years and 5 months’ imprisonment.  After a 20% discount for his late plea of guilty, the resultant sentence would become 21 years and 1 month’s imprisonment.

12.For these reasons, the appellant’s appeal against sentence is allowed and his sentence of 23 years and 4 months’ imprisonment is set aside and replaced with a sentence of 21 years and 1 month’s imprisonment.

Ms Elisa Cheng, SPP, of the Department of Justice, for the respondent

Mr Andrew J Raffell, instructed by Boase, Cohen & Collins, assigned by the Director of Legal Aid, for the appellant

[1]  The appellant sought time to reconsider his plea on 7 August 2023.

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

[3]  HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.