HKSAR v. CHENG KIN LEUNG, KENVIN

CACC 190/2025 [2026] HKCA 1412

On appeal from [2024] HKCFI 2948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 190 OF 2025

(ON APPEAL FROM HCCC NO 92 OF 2024)

_______________

BETWEEN

_______________

________________

J U D G M E N T

________________

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

1.  The appellant pleaded guilty in the Magistrates’ Court to two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134).  On 23 September 2024, he was sentenced in the High Court by Barnes J (the judge) to a term of 19 years and 4 months’ imprisonment. 

2.  On 17 June 2025, the appellant applied for leave to appeal against sentence out of time on the basis that he was entitled to a reduction of his sentence under the revised guidelines in HKSAR v Huang Ruifang (No 3)[1].  The respondent indicated that it did not oppose the application[2].  Accordingly, the Single Judge granted the appellant an extension of time and leave to appeal against sentence.[3]

The agreed facts[4]

3.  At around 6 pm on 24 January 2022, the appellant was arrested when the police raided his residence in Sai Kung, New Territories.  Inside his bedroom, the police found, amongst other things, 27 blocks of heroin, 3 rolls of vacuum-packing sheets, 1 vacuum sealing machine, cash of HK$1,000 contained in a black pouch, 2 mobile telephones and keys to the appellant’s cars.  Under caution, the appellant admitted that he had agreed to deliver dangerous drugs for others in return for a promised reward of HK$20,000.  The 27 blocks of heroin consisted of 9.5 kilogrammes of a mixture containing 7.844 kilogrammes of heroin hydrochloride (Count 1).

4.  Using information provided by the appellant himself, the police discovered 12 more blocks of heroin in the boot of his vintage car, which was parked near his residence.  Under caution, he admitted that the heroin found in the vintage car, subsequently examined to be 4.22 kilogrammes of a mixture containing 3.5 kilogrammes of heroin hydrochloride, was the remaining part of the large batch of dangerous drugs that he was supposed to deliver to others (Count 2).

5.  In a subsequent video-recorded interview, the appellant stated under caution that an acquaintance called “Gwong Jai” had offered him work to deliver dangerous drugs for a reward of HK$20,000.  He eventually accepted because he needed the money.  In the days prior to his arrest, he purchased drug-packing paraphernalia and picked up the dangerous drugs as instructed by Gwong Jai.  All the heroin blocks were originally stored in the vintage car, which could only be accessed by the appellant.  On the day of his arrest, the appellant took part of the blocks from the vintage car for vacuum sealing.  He had not yet received any monetary reward.

6.  WhatsApp messages suspected to be connected to the delivery of the dangerous drugs were found on one of the seized mobile telephones. The seized heroin was estimated to have a total street value of HK$14,941,080.

The sentence

7.  At the time of sentencing, the appellant was 46 years old.  He did not have a clear record but none of the previous convictions were drug-related.  However, he committed the present offences during the suspension period of his last offence[5], for which he was sentenced on 22 December 2021 to 3 months’ imprisonment suspended for 18 months.  Defence counsel submitted that, against the backdrop of a pandemic, the appellant committed the present offences to pay for “household expenses”.  It was further submitted that the appellant was not the mastermind but merely a storekeeper or courier of the dangerous drugs[6].

8.  Adopting the six-step approach in HKSAR v Herry Jane Yusuph[7], the judge held that trafficking in a total of 11.344 kilogrammes of heroin fell into the band of 4 to 15 kilogrammes with a starting point between 26 and 30 years’ imprisonment under the previous guidelines in HKSAR v Abdallah Anwar Abbas[8].  Since the appellant was involved in both packaging and delivering the dangerous drugs, the judge found that he was not a mere courier, although not in a managerial position.  Taking a global approach, she adopted a starting point of 29 years’ imprisonment for the combined quantity of drugs in the two counts.  She then reduced the notional starting point of 29 years’ imprisonment by one third for the appellant’s guilty plea to 19 years and 4 months’ imprisonment.  She stated that, having regard to the totality principle, she would not activate the 3-month suspended sentence for his previous offence[9].

9.  It is noted that, for 11.344 kilogrammes of heroin, the arithmetic starting point under the previous guidelines would have been 28 years and 8 months’ imprisonment.  It therefore appears that the judge enhanced the starting point by 4 months for the appellant’s role.

10.  Having adopted a global approach in sentencing the appellant, the judge nevertheless imposed the same sentence of 19 years and 4 months’ imprisonment on each of Counts 1 and 2 and ordered that they run wholly concurrently[10].

The ground of appeal

11.  Mr David Ma, for the appellant, submits that the sentence was manifestly excessive under the revised sentencing guidelines in Huang Ruifang (No 3).  He notes that in accordance with HKSAR v Lam Man Tak^[11], the appellant remains within the system, having been sentenced on 23 September 2020, which is after the relevant date of 18 September 2018[12].

12.  Ms Rosa Lo, for the respondent, does not oppose the appellant’s application and submits that, under the revised guidelines, the arithmetic starting point for trafficking in 11.344 kilogrammes of heroin would be 25 years and 10 months’ imprisonment.  After the one-third discount for the appellant’s guilty plea, the sentence would be 17 years and 2 months’ imprisonment, representing a reduction of 2 years and 2 months from the original sentence[13]. Mr Ma agrees with this calculation[14].  

Discussion

13.  An extension of time and leave to appeal having been granted by the Single Judge, the appellant is now reintroduced into the appeal system.  Since he was sentenced after 18 September 2018, he is in principle entitled to benefit from the revised sentencing guidelines in Huang Ruifang (No 3), in accordance with this Court’s decision in Lam Man Tak. As we have emphasised in HKSAR v Tsui Lok Hin[15], when an appellate court is persuaded that the revised guidelines apply, an appellant will be sentenced afresh as the Court thinks appropriate in accordance with the modern approach to sentencing as it has been developed since Herry Jane Yusuph.

14.  We do not agree with Mr Ma’s submission that the appellant was no more than a storekeeper and should be treated as being in the lowest level of the drug hierarchy.  The appellant played an important role in the trafficking of the dangerous drugs in question.  As rightly noted by the judge, the appellant was not a mere courier.  In addition to storing HK$15 million worth of heroin in his home and vintage car, he was involved in the packaging and delivery of the drugs.  Taking the combined quantities of the dangerous drugs and given the appellant’s significant role and overall culpability in this operation, we consider 27 years’ imprisonment to be an appropriate starting point under the revised guidelines.  After a one-third reduction for the appellant’s guilty plea, the resultant sentence is 18 years’ imprisonment. 

15.  The judge did not activate the suspended 3 months’ imprisonment for the appellant’s previous traffic offence, relying on the totality principle because of the substantial sentence she was imposing upon him. 

16.  When considering what course should be taken when an offence has been committed during the currency of a suspended sentence, a sentencing court must bear in mind the provisions of section 109C of the Criminal Procedure Ordinance (Cap 221).  The sentencing court is required to activate the suspended sentence with the term unaltered unless the court forms the opinion that it would be unjust to do so in all the circumstances that have arisen since the suspended sentence was passed.[16]

17.  This Court in HKSAR v Cheung Cho Ming [17], explained that, unless there is an exceptional circumstance, a suspended sentence should be activated by another sentencing court and that the imposition of a lengthy sentence is not an exceptional circumstance justifying a decision not to activate a short sentence for a comparatively less serious offence, or treating it as having been effectively nullified by making it partially or fully concurrent. 

18.  We note that the suspended sentence was for the traffic offence of driving whilst disqualified.  Whilst on its face, it would appear to be a relatively minor offence, it needs to be appreciated that the appellant had an appalling history of traffic offences involving driving either without a licence or whilst disqualified.  This provides a compelling reason to activate the suspended sentence, and it would not be unjust to do so. 

19.  In the circumstances, Mr Ma does not take issue with the activation of the suspended sentence. 

20.  Under the revised guidelines, the appellant would receive a sentence of 18 years’ imprisonment, representing a difference of 1 year and 4 months from the sentence under the previous guidelines, and therefore sufficiently significant to warrant the substitution of his sentence.[18] 

21.  Accordingly, we allow the appellant’s appeal against sentence, set aside the sentence of 19 years and 4 months’ imprisonment on Counts 1 and 2 and substitute in its place a sentence of 18 years’ imprisonment.  We apportion the total sentence for each count, after taking into account the relevant factors, by imposing a sentence of 17 years’ imprisonment on Count 1 and 15 years and 6 months’ imprisonment on Count 2, and order that 1 year of the sentence on Count 2 is to run consecutively to the sentence on Count 1.

22.  We also activate the suspended sentence of 3 months’ imprisonment, which is to run consecutively to the sentence imposed.