HKSAR v. Nguyen Hing Ning

CACC 133/2025 [2026] HKCA 2024

On appeal from [2022] HKCFI 2336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 133 OF 2025

(ON APPEAL FROM HCCC NO 24 OF 2021)

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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.On 4 January 2021, the appellant pleaded guilty before a magistrate to two charges of trafficking in a dangerous drug, involving 1,000 grammes of a solid containing 951 grammes of cocaine .hydrochloride (Charge 1) and 4.59 grammes of a powder containing 3.87 grammes of cocaine hydrochloride and 173.59 grammes of a solid containing 150.67 grammes of cocaine (Charge 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 13 July 2022, he confirmed his plea before Barnes J (the judge) and was sentenced to 15 years and 2 months’ imprisonment.

2.On 28 May 2025, the appellant applied for leave to appeal against sentence out of time.  On 8 January 2026, he was granted an appeal aid certificate, and Mr James Tze was assigned to represent him.

3.By a set of perfected grounds of appeal filed on 16 January 2026, the main ground advanced by Mr Tze was that the appellant’s sentence was manifestly excessive in light of the revised sentencing guidelines in HKSAR v Huang Ruifang (No 3)[1].  The respondent accepts that the appellant is entitled to benefit from the revised guidelines.  In light of the respondent’s concession, the Court granted leave to appeal against sentence out of time.

The facts accepted by the appellant

4.On 22 August 2019, at about 11:57 am, during an anti-narcotics operation in Yuen Long, Customs officers noticed the appellant carrying two plastic bags and a brown paper bag while walking towards Crystal Park, a residential building in Yuen Long.  The officers intercepted the appellant near the carpark entrance to Block 2 of Crystal Park (the building).  Upon searching the appellant, Customs officers found inside the brown paper bag a solid block wrapped with silver plastic tape, containing 1,000 grammes of a solid containing 951 grammes of cocaine hydrochloride.  The appellant was arrested and cautioned.  Under caution, the appellant stated that he had no knowledge of the drugs found in the brown paper bag (Charge 1).

5.The officers also found a bundle of keys in the appellant’s pocket, which the appellant said were the keys to Flat 29E of the building.  Under caution, the appellant said the flat was rented by him.  Customs officers subsequently escorted the appellant to the flat to conduct a search. Upon searching the flat, the following items were found:

i.  On the bathroom floor: 1 electronic scale; 1 beaker containing 4.11 grammes of a powder containing 3.48 grammes of cocaine hydrochloride; 1 plastic box containing 1 spoon of 0.25 grammes of a powder containing 0.2 grammes of cocaine hydrochloride; and 1 plastic box containing 0.23 grammes of a powder containing 0.19 grammes of cocaine hydrochloride.

ii.  On the bedroom windowsill: 2 electronic scales; 8 plastic bags containing 167 grammes of a solid containing 145 grammes of cocaine; and 2 plastic bags containing 6.59 grammes of a solid containing 5.67 grammes of cocaine.

iii.  In the flat: cash amounting to HK$5,400, US$200, AUD$100 and Vietnamese Dong 20,000, electricity and gas bills issued to the appellant, and, a tenancy agreement naming the appellant as the tenant.

6.Under caution, the appellant stated that he had no knowledge of the drugs and paraphernalia found inside the flat (Charge 2).

7.The total quantity of cocaine across the two charges was 1,105.54 grammes, with an estimated street value of HK$1,238,000.

The mitigation

8.At the time of sentencing, the appellant was 28 years of age and employed as a construction worker, earning approximately HK$30,000 per month.  He had one similar conviction, for which he was sentenced to 16 months’ imprisonment on 9 December 2010. 

9.Defence counsel explained that the appellant frequently struggled to make ends meet due to unstable employment.  When the appellant’s friend “Ah Sing” offered him a reward of HK$16,000 per kilogramme of drugs delivered and promised to pay half his rent in return for storing the dangerous drugs at the flat, the appellant agreed to what he believed was a lucrative deal.  The appellant had not received any payment.  Counsel urged the judge to grant a further reduction in sentence for the appellant’s attempt to assist the authorities[2].

The sentence

10.The judge sentenced the appellant based on the aggregate quantity of the two charges, that is, 1,105.54 grammes of cocaine.  Applying the previous guidelines[3], the judge noted that trafficking between 600 grammes and 1,200 grammes of cocaine carries a starting point of 20 to 23 years’ imprisonment.  She rejected the submissions that the appellant simply allowed Ah Sing to store drugs at his flat and to make deliveries.  Instead, the judge found that he was more than a courier or storekeeper, noting that he was involved in packaging the dangerous drugs, judging from the way the drugs and other items were found in the flat.  Taking into account all the circumstances of the case, she adopted a starting point of 22 years and 6 months’ imprisonment, and applied an enhancement of 3 months for the appellant’s previous similar conviction.  She reduced the notional starting point of 22 years and 9 months’ imprisonment by one-third for the appellant’s guilty plea.  No further reduction was given for the appellant’s assistance to the authorities, as the information provided was assessed to be of no practical use.  The appellant was sentenced to 15 years and 2 months’ imprisonment. 

The submissions

11.The appellant’s appeal against sentence is primarily based on the revised guidelines in Huang Ruifang (No 3).  Mr Tze submits that under the revised guidelines, trafficking in 1,105.54 grammes of cocaine warrants a starting point of 18 years and 5 months’ imprisonment (Ground 1).  The second ground, that the final sentence is manifestly excessive, is consequential upon the first (Ground 2).  As for the appellant’s role, Mr Tze accepts that his involvement went slightly beyond that of a courier or storekeeper.  He invites the Court not to increase (or, alternatively, to reduce) the 3-month enhancement imposed for the appellant’s previous similar conviction.  On Mr Tze’s calculation, after the one-third discount for the guilty plea, the appellant’s ultimate sentence should be about 12 years and 2 months’ imprisonment.  

12.Mr Raymond Chan, for the respondent, accepts that the appellant is entitled to benefit from the revised guidelines and that the starting point thereunder would be 18 years and 5 months’ imprisonment.  He notes that the arithmetic starting point under the guidelines in HKSAR v Abdallah[4] was 22 years and 6 months’ imprisonment, which the judge adopted despite finding that the appellant’s role was more than that of a courier or storekeeper.  He submits that the appellant’s role and culpability may warrant an upward adjustment from the starting point.  Furthermore, he submits that the 3-month enhancement was proportionate to the basic sentence, having regard to the appellant’s previous record of four offences of trafficking, for which he was sentenced on 9 December 2010 to concurrent terms of 16 months’ imprisonment, and the heightened seriousness of his role in the present case, which involved storing, packaging, and delivering dangerous drugs.

Discussion

13.The appellant was sentenced on 13 July 2022, and therefore meets the requirement of having been sentenced after 18 September 2018 for the revised guidelines to apply, as stated in HKSAR v Lam Man Tak[5].  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.

14.Under the revised guidelines, 1,105.54 grammes of cocaine would attract a starting point of 18 years and 5 months’ imprisonment.  We consider that an appropriate starting point is 19 years and 6 months’ imprisonment, given that his role and culpability were greater than that of a storekeeper, involving him in storing, weighing, packaging and delivering dangerous drugs.  The notional starting point of 19 years and 6 months’ imprisonment is enhanced by a further 3 months for his previous conviction for drug trafficking and, after a one-third discount for his guilty plea, this results in a sentence of 13 years and 2 months’ imprisonment.

15.For these reasons, the appellant’s appeal against sentence is allowed and the sentence of 15 years and 2 months’ imprisonment is set aside and replaced with a sentence of 13 years and 2 months’ imprisonment.

Mr Raymond HM Chan, SPP (Ag), of the Department of Justice, for the respondent

Mr James Tze, instructed by Robertsons, assigned by the Director of Legal Aid, for the appellant

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

[2]  The appellant provided three non-prejudicial statements in an attempt to assist the authorities. Appeal Bundle (AB), 13. 

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

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

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