HKSAR v. SHA KAI LUN

CACC 26/2025 [2026] HKCA 51

On appeal from [2025] HKCFI 623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 26 OF 2025

(ON APPEAL FROM HCCC NO 177 OF 2024)

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J U D G M E N T

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1.  On 21 January 2025, the applicant was sentenced by Andrew Chan J (the judge)  to a total term of 7 years and 8 months’ imprisonment (92 months’ imprisonment), following his pleas of guilty to one count of trafficking in dangerous drugs, namely 27.2 grammes of a mixture containing 23.9 grammes of heroin hydrochloride and 54.6 grammes of a crystalline solid containing 54.4 grammes of methamphetamine hydrochloride (commonly known as Ice)  (Count 1); and one count of using an identity card relating to another person (Count 2).

2.  On 11 February 2025, the applicant filed an application for leave to appeal against his sentence (Form XI).  In his Form XI and in a letter filed on 11 June 2025, he complained that the overall sentence was manifestly excessive and took issue with the consecutive elements of his sentence.  He submitted that the judge erred in making 10 months of the sentence on Count 2 consecutive to the sentence of 82 months’ imprisonment on Count 1.  He also contended that the judge erred in ordering that the total sentence run wholly consecutively to the sentence of 33 months’ imprisonment imposed in DCCC 426/2022[1], resulting in an aggregate term of 125 months’ imprisonment, which he said was heavy.

3.  The applicant appeared in person at the leave hearing, having had legal aid refused on 27 February 2025.

The summary of facts

4.  The facts outlined to the judge and admitted by the applicant were as follows.[2]  On the evening of 20 January 2022, the applicant was intercepted by police officers on patrol while driving a vehicle[3] in Yu Chau Street, Mong Kok, accompanied by a female passenger named Hung (“Hung”).  When asked to produce his identification, the applicant produced an identity card belonging to “Lau Chun Hung” (“Lau”), which formed the basis of Count 2.  He then attempted to flee, but was subdued and handcuffed after falling and sustaining minor bruising.  The CCTV footage captured his attempt to escape and the ensuing chase by the police after enquiries were made of him and Hung.

5.  The police searched the vehicle and found, inside the glove compartment beneath the driver’s seat, three resealable plastic bags containing the total quantity of Ice and one resealable plastic bag containing the total quantity of heroin as particularised in Count 1.  The applicant was arrested and remained silent under caution.  He produced an identity card and a driving licence, both in the name of Lau.  These documents had been reported lost around May 2021 by Lau, who stated that he was not acquainted with the applicant.[4]  The applicant’s true identity was discovered upon investigation, revealing that his own driving licence had expired on 17 March 1998.  The police also found HK$77,593.70 in cash and two mobile telephones in his possession.

6.  In his video recorded interviews, the applicant stated that he was unemployed and lived on the income of his girlfriend, with whom he resided at Whampoa Estate.  He said he had known Hung for around ten years, having met her through playing mahjong.  He claimed that Hung had called him to meet in Mong Kok so they could find a place to play mahjong together.  He admitted that the HK$77,593.70 cash belonged to him, claiming it was a debt he had collected from someone whose details he refused to provide.  He remained silent as to his use of Lau’s identity card to mislead the police and his driving without a valid licence.

7.  The total street value of the dangerous drugs was estimated at HK$62,755.  At the applicant’s plea, he admitted possessing the dangerous drugs seized for the purpose of trafficking.

The sentence

8.  At the time of sentencing, the applicant was 45 years old, educated to Form 3 level, and married with two children living in China.  He had previously worked as a car mechanic and air-conditioning technician, and later as a transport worker earning about HK$20,000 per month.  Prior to his arrest, he had been residing with his girlfriend and contributing HK$8,000 per month to support his wife and children.   

9.  Among his 21 previous convictions arising from 12 court appearances, the applicant had two drug-related convictions in July 2016, including one for possession of dangerous drugs and one for possession of equipment fit and intended for smoking, injecting or inhaling a dangerous drug.[5] In February 2020, the applicant committed burglary and driving offences in DCCC 426/2022 and absconded during the court proceedings for those offences from 24 August 2020 until he was arrested for the present offences on 20 January 2022.  On 27 April 2023, he was sentenced in the District Court for DCCC 426/2022 to 33 months’ imprisonment and disqualified from driving for a period of 30 months.[6]

10.  In mitigation, defence counsel submitted that the applicant committed Count 1 due to financial difficulties and in order to support his own drug consumption, and that his role was that of a courier or storekeeper working for others in exchange for a reward.  While accepting that the case involved “cocktail drugs”, counsel argued that there were no other aggravating factors and that the applicant’s previous convictions were not for drug trafficking.  Counsel also urged the judge to reduce the sentence to reflect the applicant’s self-consumption, submitting that he had been a habitual user of Ice since 2000 and was convicted in 2016 of possessing about 3 grammes.  As he would consume around 1 gramme per day, one of the bags seized, containing around 13 grammes, was said to be for his own use and had been received as a reward for delivering the drugs.[7]  As for Count 2, counsel submitted that the identity card had been given to the applicant by a friend and suggested a sentence of 15 months’ imprisonment.  In his oral submissions, counsel invited the judge to order that the sentences for the two offences run concurrently and that the total sentence run concurrently with the sentence imposed in DCCC 426/2022.

11.  In sentencing the applicant, the judge noted that he had numerous previous convictions and had just completed serving a sentence for burglary and traffic offences, although he had no prior conviction for trafficking.  For Count 1, the judge regarded his role as that of a simple courier and adopted a starting point of 10 years and 3 months’ imprisonment for the Ice and heroin involved.  After rejecting his claim of self-consumption, the judge applied a one-third discount for his plea, arriving at 6 years and 10 months’ imprisonment (82 months)  for Count 1.  For Count 2, the judge noted that the applicant had used the identity card upon police inspection and sentenced him to 15 months’ imprisonment after giving him a one-third discount for his plea.  

12.  Applying the totality principle, the judge made 10 months of the sentence on Count 2 consecutive to the sentence of 82 months’ imprisonment on Count 1, resulting in a total of 7 years and 8 months’ imprisonment (92 months).  He ordered this sentence to run wholly consecutively to the sentence of 33 months’ imprisonment imposed in DCCC 426/2022, as the two cases were completely different in nature and time, and considered the overall term to be neither crushing nor manifestly excessive.

Discussion

13.  As submitted by Ms Angela Wong, for the respondent, the consecutive elements imposed by the judge were justified, and the ultimate sentence could not be said to be crushing or manifestly excessive.  The judge properly applied the totality principle and considered the overall offending in respect of the two offences in this case, which was appropriately reflected in the sentence of 92 months’ imprisonment.  Having referred to HKSAR v Ngai Yiu Ching[8]on sentencing for multiple offences, she argued that the present offences were discrete and independent acts of criminality, and that the facts of Count 2 added to the applicant’s overall criminality, thereby justifying a consecutive element.  Although Count 2 was committed during the investigation and arrest for Count 1, they were wholly separate offences, such that the sentence for one could not comprehend the criminality of the other.  She noted that there was no “double counting”, as the judge did not take into account Count 2 when determining the starting point for Count 1. 

14.  Ms Wong further submitted that the starting points for both counts were arguably on the low side, given the applicant’s overall culpability.  She identified several aggravating features that could warrant an enhancement of the sentence, including his attempt to flee during the investigation, and his presentation of Lau’s driving licence, in addition to Lau’s identity card, upon arrest.  She also noted that he had been driving without a valid licence at the material time.

15.  Ms Wong maintained that the judge was correct in ordering the overall sentence in the present case to run wholly consecutively to the earlier sentence imposed in DCCC 426/2022, which concerned a burglary committed by the applicant with three others at a jade manufacturing site on 16 February 2020.  She pointed out that the present offences were committed on 20 January 2022, nearly two years after the burglary, and that, but for the applicant’s absconding, the burglary case could have been disposed of much earlier and would not have been considered alongside the present case.  Accordingly, the applicant should not benefit from his own wrongdoing.

16.  The applicant has no cause for complaint about the sentence imposed on him.  The judge identified the relevant sentencing principles and applied them correctly.  He adopted an appropriate starting point for the combination of the two drugs in the trafficking offence.  The consecutive elements that formed part of the total sentence were consistent with sentencing principles.  There were other aggravating factors that could have warranted further enhancement of his sentence, namely his attempt to flee when the police tried to arrest him for the present offences and his commission of those offences while he had absconded from the court proceedings in the burglary case.

17.  It follows from what I have stated that leave to appeal against sentence is refused.

18.  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 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.