HKSAR v. Nguyen Van Tuan Anh

CACC 229/2025 [2026] HKCA 2091

On appeal from [2025] HKCFI 1873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 229 OF 2025

(ON APPEAL FROM HCCC NO 379 OF 2023)

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J U D G M E N T

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1.On 20 November 2023, the applicant was committed to the High Court for trial by a magistrate, having indicated his intention to plead not guilty to one count of trafficking in a dangerous drug, involving 1,366 grammes of heroin hydrochloride.  On 3 April 2024, his case was fixed for a seven-day trial to commence on 8 September 2025, with a case management hearing listed for 26 March 2025.  On 15 March 2025, he informed the court that he intended to plead guilty to the count.  On 3 April 2025, he pleaded guilty before Woodcock J (the judge) and was sentenced to 15 years and 3 months’ imprisonment.

2.On 4 July 2025, the applicant filed an application for leave to appeal against sentence out of time by over two months.  In his notice of application and accompanying affirmation, he complained that his sentence was excessive and sought an extension of time on the basis that he had just become aware of the “new guideline about sentence”, presumably the revised guidelines in HKSAR v Huang Ruifang (No 3)[1], which he contended could support a reduction in his sentence.  He appears in person, having had his legal aid application refused on 29 August 2025. 

3.The summary of facts[2], to which the applicant pleaded guilty, sets out that, at about 9:10 pm on 3 November 2022, police officers on patrol in the lobby on the 4/F of Choi Wan Estate Shopping Centre in Wong Tai Sin (the Centre) observed him holding a black plastic bag and ordered him to stop.  He immediately ran away and threw the bag onto a flower bed at the podium on the 2/F outside Shop No. A207 of the Centre.  The police found in the bag five blocks of heroin narcotic as particularised in the count, with an estimated street value of HK$1,518,117.  Upon search, the applicant had on his person HK$550 in cash, an Indonesian banknote of $100,000, a wallet, a mobile telephone and three SIM cards.  His fingerprints were found on two of the plastic wrappings of the drugs. 

4.The applicant is a Vietnamese national who was a Form 8 recognizance holder at the time of the offence and had been in Hong Kong since July 2021.  He lodged a non-refoulement claim after a removal order was issued against him on 17 August 2021.  At the time of sentence, he was 35 years of age and had a girlfriend in Vietnam with an eight-year-old son.  He had no previous convictions for drug-related offences, but had one prior conviction for theft, for which he was sentenced to 4 days’ imprisonment on 5 November 2022.[3]  

5.In mitigation, defence counsel submitted that the applicant had been addicted to heroin for about a year before his arrest and committed the offence to support his drug habit.  He was lured into acting as a courier for a reward of several hundred dollars that he had never received.  It was accepted that his status as a Form 8 recognizance holder was an aggravating factor warranting an enhancement of sentence and that he was not entitled to a full one-third discount given the timing of his guilty plea.  Counsel invited the judge to grant him a 25% discount for his plea, noting that it was entered more than five months before trial, and also sought leniency in light of his personal and family circumstances.

6.Applying the revised guidelines in Huang Ruifang (No 3), the judge held that 1,366 grammes of heroin fell within the band of 500 to 1,500 grammes, warranting a sentencing range of 16 to 20 years’ imprisonment.  Having considered the applicant’s role as a courier, she adopted a starting point of 19 years and 5 months’ imprisonment and then enhanced it by 1 year to 20 years and 5 months’ imprisonment for the aggravating factor of his status as a Form 8 recognizance holder.  To reflect the timing of his guilty plea, she gave him a 25% discount and reduced the sentence to 15 years and 3 months’ imprisonment.

Discussion

7.The Court of Appeal is less disposed to grant leave to appeal out of time in the absence of cogent and compelling reasons for the delay in filing a notice of appeal[4].  In determining such applications, the Court will consider the length of the delay, whether the applicant has provided a reasonable explanation for it, and whether sufficient grounds of appeal are shown.  The Court may also review those grounds to ensure that, by refusing leave, it does not shut out any substantial and plainly arguable ground of appeal.[5]

8.The applicant has made a general complaint that his sentence is excessive, without filing any grounds of appeal or written submissions to substantiate his claim.  He has not proffered any explanation for his delay in filing, other than relying on the revised guidelines alone as the basis for his application.  It appears that he is under the misapprehension that the judge did not apply the revised guidelines when sentencing him. 

9.As submitted by the respondent, the judge applied the revised guidelines in Huang Ruifang (No 3), which were laid down by this Court on 5 March 2025, about a month before the applicant was sentenced.  As set out in the sentencing remarks, the judge adopted the arithmetical starting point of 19 years and 5 months’ imprisonment in accordance with the revised guidelines and applicable principles[6], taking into account the narcotic quantity involved and the applicant’s role as that of a courier.  It is evident that his status as a Form 8 recognizance holder at the time of the offence was a significant aggravating factor and that the enhancement of 1 year was appropriate in the circumstances: HKSAR v Ali Saif [7].  Given the seriousness of the offence, his personal and family circumstances afforded no further mitigation beyond the 25% discount he was given for his late guilty plea.[8]  The sentence of 15 years and 3 months’ imprisonment is neither wrong in principle nor manifestly excessive.

10.The applicant’s application for leave to appeal against sentence out of time is without merit and is therefore refused.

11.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time in respect of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Ms Grace Au, SPP, 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), 4-12.

[3]  AB, 25-26.

[4]  HKSAR v Fundi Furaha Giles [2019] HKCA 154, at [25].

[5]  HKSAR v Yim Shek Wo [2021] HKCA 965, at [51]; R v Wong Kai Kong & Anor [1990] 1 HKC 279.

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

[7]  HKSAR v Ali Saif [2018] 6 HKC 19.  See also HKSAR v Ebhonun Akonjie Alex (Unrep., CACC 163/2022, 19 August 2026).

[8]  Herry Jane Yusuph, at [44]-[45] and [73] andHKSAR v Ngo Van Nam [2016] 5 HKLRD 1.