HKSAR v. LEUNG CHIU YUN

CACC 156 /2025, [2026] HKCA 926

On Appeal From [2023] HKCFI 1889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 156 OF 2025

(ON APPEAL FROM HCCC NO 183 OF 2022)

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J U D G M E N T

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1.  This application arises out of a retrial ordered by the Court of Appeal on 26 October 2022[1]. On 19 July 2023, the applicant pleaded guilty to one count of trafficking in dangerous drugs, namely 426.4 grammes of methamphetamine hydrochloride (commonly known as “Ice”)  and 11.1 grammes of cannabis in herbal form, contrary to sections 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 and section 159G of the Crimes Ordinance, Cap 200 (Count 1); a second count alleging that the applicant had attempted to traffic in a dangerous drug[2] (Count 2), was marked not to proceed with without the leave of the Court. He was sentenced on the same day by Campbell-Moffat J to 13 years and 1 month’s imprisonment.

2.  By way of a Form XI Notice filed on 3 June 2025, the applicant has applied for leave to appeal against sentence out of time.  The application is opposed by the respondent.

Facts accepted by the applicant

3.  On 10 March 2018, at 2:30 pm, pursuant to an anti-crime patrol operation, police officers observed two men repeatedly entering the password of the main gate to the building at No 212 Cheung Sha Wan Road in Sham Shui Po, Kowloon.  Having entered the building themselves, the officers saw a person (AP2)  open the door to one of the rooms on 8/F (“the room”).  The officers entered the room to conduct an investigation and search.  There were three other persons inside the room: AP1 standing on its right side, AP3 sitting on a chair facing the bed, and the applicant sitting on the bed.  

4.  When the applicant moved his right hand behind his back, one police officer immediately grabbed his hand and found him to be holding a packet of suspected “Ice”, subsequently confirmed to be 12.7 grammes of a crystalline solid containing 9.54 grammes of “Ice”. 

5.  Following a search of the room, there was found next to a rice cooker 2 plastic bags, inside of which were a total of 26.7 grammes of a crystalline solid containing 26.1 grammes of “Ice”.  From the bed inside the room were also found the following items:

(i)  4 plastic bags, inside of which were a total of 4.39 grammes of a crystalline solid containing 3.01 grammes of “Ice”;

(ii)  2 plastic bags, inside of which were 6 plastic bags containing a total of 203 grammes of a crystalline solid containing 198 grammes of “Ice”;

(iii)  1 plastic bag, inside of which were 1.41 grammes of a crystalline solid containing 1.38 grammes of “Ice”;

(iv)  1 plastic bag, inside of which were 0.86 grammes of a crystalline solid containing 0.85 grammes of “Ice”;

(v)  1 plastic bag, inside of which were 6.61 grammes of a crystalline solid containing 4.22 grammes of “Ice”;

(vi)  4 plastic bags and 1 paper/plastic bag, inside of which were a total of 11.3 grammes of a crystalline solid containing 4.05 grammes of “Ice”;

(vii)  5 plastic bags, inside of which were a total of 134 grammes of a crystalline solid containing 110 grammes of “Ice”;

(viii)  1 plastic bag, inside of which were 11.1 grammes of cannabis in herbal form;

(ix)  4 plastic bags, inside of which were 110 grammes of a crystalline solid containing N-isopropylbenzylamine, which was not a substance controlled under the Dangerous Drugs Ordinance, Cap 134 (the subject matter of Count 2);

(x)  1 glass tube shaped as a bulb at one end, inside of which were 0.01 grammes of a solid containing “Ice”, and 1 plastic bottle inserted with 2 straws, inside of which was a total of 280 millilitres of a liquid containing 0.02 grammes of a solid, found upon drying to contain “Ice”;

(xi)  1 electronic scale; and

(xii)  7 mobile telephones.

6.  Upon being cautioned, the applicant admitted that a person nicknamed “Cunning Boy”[3] had brought him the dangerous drugs for him to sell.

7.  Upon further search with the assistance of a drug detection dog, there was seized from a black zipped bag placed on the window sill of the room 1 plastic bag with 20.6 grammes of a crystalline solid containing 20.1 grammes of “Ice”.  Also seized from a zipped bag placed on a bicycle inside the room were 2 plastic bags with 54.5 grammes of a crystalline solid containing 53.2 grammes of “Ice”.

8.  Upon being further cautioned at 6:07 pm, the applicant said that the dangerous drugs were also brought to him by Cunning Boy.  When being arrested, the applicant had in his possession cash of HK$1,010 and RMB 73.

9.  During a subsequent video recorded interview conducted on 10 March 2018, the applicant stated that AP1, AP2 and AP3 had nothing to do with the dangerous drugs seized from him and in the room, all of which were possessed by him.

10.  The street values of the dangerous drugs in question were:

(i)  The total of 426.4 grammes of methamphetamine hydrochloride and 4.05 grammes of methamphetamine: $256,618; and

(ii)  11.1 grammes of cannabis in herbal form: $3,019.

Sentencing

11.  The applicant was 68 years of age at the time of sentencing.  He had 10 court appearances involving 16 criminal convictions, 5 of which were drug-related, including a similar conviction of trafficking dating back to 1989, for which he was sent to a Drug Addiction Treatment Centre.  He had not been found to have committed any further offences following his most recent conviction in 2010, which was not drug-related and for which he received a sentence of 6 months’ imprisonment.

12.  The judge used “Ice” as the base drug for the purpose of sentencing.  With regard to the former sentencing guidelines in HKSAR v Tam Yi Chun[4], for 430.45 grammes of the narcotic content, she stipulated a starting point of 17 years and 2 months’ imprisonment, and enhanced the sentence by 1 month to reflect the applicant’s trafficking in herbal cannabis as well; and by a further 3 months for what she termed the “latent risk” factor, thus resulting in a sentence of 17 years and 6 months’ imprisonment.  She considered that the role played by the applicant was that of storing and distributing the drugs to others.

13.  Since the applicant tendered his plea after trial dates had been fixed, the judge accorded him a discount for plea of 25%, which was duly accepted by defence counsel, thereby reducing the sentence to 13 years and 1 month’s imprisonment. 

Ground of appeal

14.  The applicant is acting in person and bases his appeal solely on the revised sentencing guidelines in HKSAR v Huang Ruifang (No 3)[5], which reduced the starting point for trafficking in 300 to 600 grammes of “Ice” from 15 to 20 years’ imprisonment to 15 to 18 years’ imprisonment.  He seeks to derive a benefit from the revised sentencing guidelines and receive a reduction in his sentence.

The respondent’s submissions

15.  Ms Cheuk, for the respondent, opposes the application on the principal contention that, even if the applicant were to be sentenced afresh under the new sentencing principles and guidelines, the difference in sentence would be insignificant and not exceed 7 months’ imprisonment.

Consideration

16.  In HKSAR v Lam Man Tak[6], the Court of Appeal concluded that the commencement date of the ‘state of affairs’ leading to the revision of the sentencing guidelines in Huang Ruifang (No 3) should be 18 September 2018; and that the date from which the revised sentencing guidelines should be applied was the date of sentence.  Since the applicant was sentenced on 19 July 2023, he should be regarded, subject to the issue of his application being out of time, as still within the appeal system and thereby in principle entitled to derive benefit from the revised sentencing guidelines, if the Court were to accept his appeal and sentence him afresh in accordance with the six-step approach set out in HKSAR v Herry Jane Yusuph[7].With this observation in mind, my task as a Single Judge in this leave application, is to determine whether it is reasonably arguable that the final sentence of 13 years and 1 month’s imprisonment received by the applicant is manifestly excessive, disregarding the mechanics by which the judge came to the resultant sentence.

17.  In terms of role and culpability, the applicant was found to be both a storekeeper and a distributer of dangerous drugs.  Whilst, on a purely arithmetical calculation under the revised guidelines, the starting point for trafficking in 430.45 grammes of “Ice” would now be in the region of 16 years and 3 months’ imprisonment, the applicant was also trafficking in 11.10 grammes of herbal cannabis, for which the judge added 1 month to the starting point.  However, she did not appear to enhance the sentence for trafficking in two distinct types of dangerous drug. 

18.  It is also not entirely clear to me, when making a further enhancement of 3 months’ imprisonment, what the judge meant by a “latent risk”, which is a concept normally associated with those convicted of simple possession of dangerous drugs, as distinct from those convicted of trafficking.  Be that as it may, an appellate court could well take the view that any enhancement for trafficking in two types of dangerous drug, thus catering for a wider clientele, should have been, in this case, about 3 or 4 months’ imprisonment. 

19.  Given the applicant’s role, which was obviously more than a mere storekeeper, the starting point even under the revised guidelines could well have been in the region of 17 years’ imprisonment, with a further 4 months’ imprisonment for trafficking in two types of dangerous drug.  I shall leave aside the applicant’s previous conviction for trafficking, which the judge did not appear to notice.  The courts no longer adopt a purely arithmetical approach to sentence in trafficking cases based on quantity alone but rather look more to a defendant’s role and culpability in the offence, an important factor in which is the quantity of dangerous drugs concerned.  A 25% reduction for late plea of a sentence of 17 years and 4 months’ imprisonment would result in a sentence of 13 years’ imprisonment, which is 1 month less than the applicant actually received.

20.  It must be remembered that the Court of Appeal does not tinker with the result if the difference between the sentence passed at trial and the sentence considered appropriate by the appellate court would not be significant.  The position is the same where the difference in sentence passed at trial based on previous guidelines and the sentence contemplated by the appellate court under revised guidelines is not significant.  In HKSAR v Au Chun Wah and HKSAR v Lau Siu Fung[8], the Court recently held at [54] that:

“A difference of 13 months in the starting point between the former and revised guidelines would translate to a difference of just under 9 months’ imprisonment on a plea. We are of the view that such a difference between the former and the revised guidelines was not significant enough to warrant our interference in this case.”

21.  Despite the advancing age of the applicant, the offence for which he was sentenced was extremely serious.  For the above reasons, I refuse to grant the applicant leave to appeal against his sentence out of time.

22.  The applicant is nevertheless reminded that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time he has served in custody pending the hearing of his appeal, if it were to come to the conclusion that there was no justification for the renewal of the application.