Case Document

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CACC 13/2025 [2026] HKCA 1883

On appeal from [2025] HKCFI 1033

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 13 OF 2025

(ON APPEAL FROM HCCC NO 277 OF 2024)

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BETWEEN
	HKSAR	Respondent
	and
	Tong Ho Wang, Sean	Appellant

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Before:

Hon Macrae VP and Zervos JA in Court

Date of Hearing:	16 October 2026
Date of Judgment:	16 October 2026
Date of Reasons for Judgment:	29 October 2026

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REASONS FOR JUDGMENT

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

1.On 29 August 2024, the appellant pleaded guilty before a magistrate to one count of trafficking in a dangerous drug[1], namely 71.9 grammes of a solid containing 62.1 grammes of cocaine (Charge 1), and one count of conspiracy to traffic in a dangerous drug[2], namely cocaine (Charge 2). He was committed to the High Court for sentence and, on 27 December 2024, he was sentenced by Recorder Martin Hui, SC (“the Judge”) to a total of 14 years’ imprisonment.

2.In his Form XI Notice filed on 23 January 2025, the appellant sought leave to appeal against his sentence. Two grounds of appeal were set out in the Perfected Grounds of Appeal filed on 22 May 2025. At the leave hearing on 13 November 2025, the appellant abandoned Ground 1, and the Single Judge[3] granted leave “on Ground 2 in the context of HKSAR v Huang Ruifang (No 3)[4]”.

The agreed facts [5]

3.On 28 March 2023, at about 3:40 pm, during an anti-narcotics operation, police officers intercepted the appellant outside a public toilet at Tsz Tin Tsuen, Tsz Tin Road, Tuen Mun. A search revealed three packets in a recycle bag that he was carrying, containing 71.9 grammes of a solid with 62.1 grammes of cocaine, the subject matter of Charge 1. The estimated street value of the cocaine involved was approximately HK$96,202.

4.Upon his arrest and caution, the appellant stated that he was instructed by his “boss” to deliver the cocaine to others. In a subsequent video-recorded interview, he stated that his “boss” would arrange for unknown persons in a white private car to deliver to him, outside Tsz Tin Tsuen, a large bag containing about 10 smaller bags of cocaine, each weighing about 24 grammes. He would then be instructed to deliver the smaller bags, usually one or two at a time, to other unknown persons in another white private car. He said that he had last collected 10 small bags of cocaine about one week before his arrest, and that he had been involved in trafficking in cocaine for about one month. Although he was to be paid HK$500 for each small bag delivered, he had not yet received any payment.

5.The appellant admitted that, at all material times, he knowingly possessed all the cocaine seized for the purpose of unlawful trafficking (Charge 1), and that, between 1 March and 28 March 2023, he conspired with other unknown persons to unlawfully traffic in cocaine (Charge 2).

Sentencing

6.The appellant was 23 years old at the time of sentence. He had only one previous conviction for possession of dangerous drugs for which he was sentenced to a Drug Addiction Treatment Centre in August 2021 and was discharged in November 2022[6].

7.The Judge adopted the six-step approach in HKSAR v Herry Jane Yusuph[7], as complemented by HKSAR v Lee Ming Ho[8].

8.As for Charge 1, trafficking in 62.1 grammes of cocaine, the Judge applied the then prevailing guidelines in HKSAR v Lau Tak Ming & Ors[9], read together with Attorney General v Pedro Nel Rojas[10]. He adopted an arithmetical starting point of 8 years and 3 months’ imprisonment. He accepted defence counsel’s submission that the appellant acted as a storekeeper or courier, and found no basis for departure from that starting point. There being no mitigating factors other than the appellant’s guilty plea, he reduced the starting point by one-third to 5 years and 6 months’ imprisonment.

9.As for Charge 2, conspiracy to traffic in cocaine, the Judge relied on the appellant’s admissions in his video-recorded interview to assess the quantity involved. He found that the conspiracy lasted about one month and involved four deliveries of 10 packets each, with each packet weighing about 24 grammes. He accepted defence counsel’s submission that, given the purity of the cocaine in Charge 1, an assumption could be made in the appellant’s favour that the cocaine trafficked on each of the four occasions under Charge 2 was of roughly the same purity, namely about 86%[11], and that the 3 packets in Charge 1 formed part of the 40 packets involved. On that basis, he assessed the quantity attributable to the conspiracy at 763.7 grammes of cocaine (37 packets x 24 grammes x 86% purity), giving an arithmetical starting point of 20 years and 9 months’ imprisonment. He also accepted that, but for the appellant’s admissions, the police would not have known the details of the conspiracy, and was prepared to allow for a small reduction to his sentence.

10.The Judge then adopted a global approach to determine the overall sentence. Taking the total quantity involved as 825.8 grammes (62.1 grammes + 763.7 grammes), he identified an arithmetical starting point of 21 years and 2 months’ imprisonment. He reduced the starting point to 21 years’ imprisonment to reflect the appellant’s admissions concerning the conspiracy, and treated that as the notional starting point, having accepted that the appellant’s role was that of a storekeeper or courier. With no meaningful mitigation apart from the appellant’s guilty plea, a one-third reduction resulted in a sentence of 14 years’ imprisonment.

11.To give effect to that overall sentence, the Judge ordered that 2 months of the sentence on Charge 1 of 5 years and 6 months’ imprisonment should run consecutively to 13 years and 10 months of the sentence on Charge 2 of 14 years’ imprisonment, resulting in a total sentence of 14 years’ imprisonment.

The grounds of appeal

12.Mr H Y Wong, for the appellant, contended that, in relation to the conspiracy charge, the Judge erred in assuming that the drugs involved in the previous three deliveries had the same purity as the cocaine seized from the appellant, and that the appellant was entitled to the benefit of the revised sentencing guidelines under Huang Ruifang (No 3).

13.Relying on HKSAR v Tsang Ka Wing[12] and HKSAR v Chan Kam Loi[13], he submitted that, absent clear evidence of purity, the Judge should have proceeded on assumptions most favourable to the appellant. He further submitted that the Judge overlooked the defence argument that the drugs already disseminated amounted to “at most” 763.7 grammes and might have weighed less or been of lower purity. A further discount of at least 20% for purity should have been allowed to reflect the likely variation between consignments.

14.As for the application of the revised sentencing guidelines in Huang Ruifang (No 3), Mr Wong merely submitted that the appellant’s current sentence was manifestly excessive and wrong in principle, without addressing how the appellant should be sentenced afresh.

The respondent’s submissions

15.Mr Ng Wing Kit, for the respondent, submitted that the Judge was entitled, on the evidence, to assume 86% purity for Charge 2, but accepted that the appellant should have the benefit of the revised sentencing guidelines in Huang Ruifang (No 3) and that the appeal should be allowed to that extent.

16.Mr Ng submitted that the assumption of 86% purity was supported by the defence’s acceptance that the drugs in Charge 1 were “part and parcel” of the larger quantity in Charge 2[14], and by the appellant’s admissions under caution, which showed that the drugs in both charges came from the same source during the relevant period[15]. Any suggestion that the two charges involved drugs of different purity or came from different consignments was speculative and unsupported by evidence. In any event, the Judge showed leniency by rounding down the overall starting point by two months.

17.He agreed with the Judge’s application of Herry Jane Yusuph and the global approach, and submitted that, had the revised sentencing guidelines in Huang Ruifang (No 3) applied, the arithmetical starting point would have been about 17 years and 3 months, which, after a one-third discount for the guilty plea, would result in a sentence of 11 years and 6 months’ imprisonment for both charges, representing a reduction of 3 years and 6 months from the original overall sentence.

Discussion

18.In light of the circumstances of the appellant’s case, he was entitled to the benefit of the revised sentencing guidelines, and this Court was therefore obliged to sentence him afresh based on the current sentencing approach and principles.

19.There was no basis for complaint about the Judge’s approach in determining the quantity and purity of the cocaine involved in the conspiracy charge. It was based on the facts of the case and had been endorsed by counsel for the appellant. The appellant admitted that he had made four deliveries of 10 packets each, weighing about 24 grammes, during the conspiracy period of about one month. On this basis, the Judge calculated an approximate quantity of cocaine during the conspiracy period, including the 62.1 grammes found in the appellant’s possession in Charge 1, resulting in a total quantity of cocaine of 825.8 grammes.

20.The Judge followed the approach as stated by Macrae JA (as the Vice President then was) in HKSAR v Tsang Ka Wing [16]:

“33. As the Court in Chan Kam Loi explained, where a conspiracy to traffic in an unspecified quantity of dangerous drugs is concerned, the sentencing court must do its best to arrive at a starting point based on inferences and assumptions properly derived from the particular facts in the case. Those facts, and the inferences and assumptions from which they derive, will vary from case to case. We would add that, unless the facts which give rise to the inferences and assumptions are clear-cut, they will inevitably lean in favour of the defence.”

21.As for Charge 1, the quantity of cocaine was 62.1 grammes and therefore the revised guidelines did not apply because they were concerned with very large quantities of cocaine. On an arithmetical basis, the Judge adopted a starting point of 8 years and 3 months’ imprisonment. As for the appellant’s role and culpability, the Judge regarded him as a storekeeper or courier. However, as admitted by the appellant, he played a prominent role in receiving bags of cocaine and then delivering them to various persons in private vehicles. He was to receive a payment for each bag he delivered. He admitted that the 3 packets involved on this occasion were part of 10 packets for a fourth delivery, having made three previous deliveries of 10 packets each. The appellant’s role was more than that of a courier. He surreptitiously supplied the drugs, receiving them in small packets for distribution and then providing them to various persons. We consider, in the circumstances, that the appropriate starting point for the appellant’s role and culpability should be 8 years and 9 months’ imprisonment. Allowing a one-third discount from the starting point for the appellant’s guilty plea, the resulting sentence on Charge 1 was 5 years and 10 months’ imprisonment.

22.As for Charge 2, we considered the Judge’s approach to have been correct in treating the quantity of cocaine in Charge 1 as part of the conspiracy to traffic in cocaine. We agreed with the Judge’s calculation that the approximate overall quantity of cocaine involved in the conspiracy was 825.8 grammes.

23.It is necessary to understand how the approximate quantity of drugs was calculated. According to the agreed facts, the appellant had in his possession 3 packets consisting of 71.9 grammes of a solid containing 62.1 grammes of cocaine, which he admitted were part of the 40 packets, involved in 4 deliveries with each delivery consisting of 10 packets and with each packet consisting of 24 grammes of a solid containing cocaine narcotic. Based on the drugs involved in the 3 packets found in the appellant’s possession, the narcotic content of the solid was 86%. Accordingly, the calculation of the approximate quantity of drugs involved during the conspiratorial period of one month was based on 4 deliveries of 10 packets with each packet containing 24 grammes of a solid with the narcotic content of 86% (4 x 10 = 40 (number of packets) x 24 (total number of grammes of the solids) x 0.86 (proportion of cocaine narcotic) = 825.6 grammes). As the 3 packets in Charge 1 were part of the fourth delivery, the Judge calculated the approximate quantity of drugs under Charge 2 based on 37 packets, which amounted to 763.7 grammes of cocaine narcotic (37 x 24 = 888 grammes; 888 x 0.86 = 763.7 grammes). However, the Judge correctly added these two amounts to come to 825.8 grammes of cocaine narcotic (763.7 + 62.1 = 825.8).

24.It was accepted at trial that the drugs in Charge 1 were encompassed in the conspiracy under Charge 2, so the total quantity of drugs involved in the conspiracy charge consisted of 825.8 grammes of cocaine. Even though this included the drugs in Charge 1, they were separately charged in the event that the conspiracy charge was not proven. There was no risk of double penalty, as the facts of the case acknowledged the overlap between the charges, and this was reflected in the sentence.

25.On an arithmetical basis, the starting point under the revised sentencing guidelines for this quantity of cocaine was 17 years and 3 months’ imprisonment. As we have already indicated, we considered that the appellant’s role throughout this conspiratorial enterprise to be greater than that of a courier, as he surreptitiously received and supplied the drugs in packets for distribution as part of an elaborate scheme. During the conspiracy period he had made three deliveries consisting of ten packets each and was in the process of making a fourth delivery by supplying three packets of the ten packets. We adopted a starting point for his role and culpability of 18 years and 3 months’ imprisonment. The Judge noted that the appellant disclosed his involvement in the conspiracy to traffic in dangerous drugs to the police, for which the court was entitled to exercise its discretion to allow for a small reduction in the sentence. We agreed with the Judge’s approach and, accordingly, we reduced the notional starting point to 18 years’ imprisonment, and, after allowing for a one third reduction for his guilty plea, sentenced the appellant to 12 years’ imprisonment.

26.A relatively minor matter concerns the Judge’s order that 2 months of the sentence in Charge 1 run consecutively to 13 years and 8 months of the sentence in Charge 2. For the reason that the trafficking in the dangerous drugs in Charge 1 was encompassed within the conspiracy to traffic in the dangerous drugs in Charge 2, it would be appropriate to order that the sentence in Charge 1 run concurrently with the sentence in Charge 2. In the sentence we determined under the revised sentencing guidelines, we ordered that the sentence in Charge 1 of 5 years and 10 months’ imprisonment run concurrently with the sentence in Charge 2 of 12 years’ imprisonment.

27.Accordingly, we reduced the appellant’s sentence from 14 years’ imprisonment to 12 years’ imprisonment. The appeal was allowed to that extent.

(Andrew Macrae)
Vice President

(Kevin Zervos)
Justice of Appeal

Mr Ng Wing Kit, SPP, of the Department of Justice, for the respondent

Mr H Y Wong, instructed by the Director of Legal Aid, for the appellant

[1] Contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

[2] Contrary to s.4(1)(a), (3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance (Cap 200).

[3] Macrae VP.

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

[5] Appeal Bundle (“AB”), pp 4-5.

[6] AB, p 13.

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