HKSAR v. GER BRUCE LEWIS OLUOCH

CACC 188/2025 [2026] HKCA 1013

On appeal from [2021] HKCFI 2754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 188 OF 2025

(ON APPEAL FROM HCCC NO 314 OF 2020)

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J U D G M E N T

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

1.  On 7 December 2020, the appellant pleaded guilty before a magistrate to a single charge of trafficking in a dangerous drug[1] involving 602 grammes of cocaine, and on 14 July 2021, he reaffirmed his plea in the High Court before Deputy High Court Judge Bruce SC (the judge) and was duly sentenced to imprisonment for 12 years and 9 months.

2.  On 17 June 2025, the appellant applied for leave to appeal against sentence out of time.  The respondent indicated that it did not oppose the application and the Court granted leave to appeal against sentence.

3.  The appellant’s sole ground of appeal is that his sentence should be reduced in light of the revised sentencing guidelines laid down in HKSAR v Huang Ruifang (No 3)[2].

The admitted facts[3]

4.  On the afternoon of 2 January 2020, the appellant arrived at the Hong Kong International Airport from Nairobi, Kenya, via Addis Ababa, Ethiopia.  He was refused permission to land and was taken for customs clearance and inspection during which no illegal item was found on him or in his suitcase.

5.  The Customs officers suspected that the appellant had internally concealed dangerous drugs, and conveyed him to a hospital for medical examination, which revealed the presence of foreign objects inside his body.  The appellant was arrested and stated under caution that he had swallowed the objects in Addis Ababa.

6.  The appellant was hospitalised from 2 to 5 January 2020, during which he discharged 62 packets containing a total of 727 grammes of a solid containing 602 grammes of cocaine.

7.  In a subsequent cautioned interview, the appellant admitted that he came to Hong Kong for the purpose of delivering the drugs and for sightseeing.  He maintained that his friend and ex-colleague called “Brenda” introduced him to an unknown person, who gave him the drugs and that he agreed with him to bring them to Hong Kong.  He explained that he had swallowed the drugs in Addis Ababa on 1 February 2020, and that he was told that a person would come to his hotel in Hong Kong to collect them.  He said that “Brenda” had given him some money to purchase the flight tickets and someone had paid for his trip.  He was promised a reward of US$4,500 for bringing the drugs into Hong Kong.

8.  At the time of the arrest, the appellant had in his possession two mobile telephones and cash totalling US$3,045.

9.  The estimated street value of the drugs was about HK$675,444.

The mitigation[4]

10.  The appellant is a Kenyan national, aged 46, with a clear antecedent record in Hong Kong at the time of sentencing.  He was the sole support for his family, consisting of his wife and four children.  He worked for a tobacco company earning about US$400 per month.  

11.  In mitigation, it was submitted that the appellant committed the offence due to financial pressure, as he needed money for treatment for his wife’s serious heart condition and that after his arrest he participated in Father Wotherspoon’s anti-drug campaign[5].

12.  It was further submitted that the appellant also provided information to the authorities, but this was 14 months after the offence, which was assessed to be of no practical use.  Even though it was accepted by defence counsel that the information was valueless, she invited the judge to give the appellant some credit for his genuine attempt to assist the authorities.[6]

The sentence[7]

13.  The judge referred to the applicable sentencing guidelines at the time of R v Lau Tak Ming and Others[8], Attorney General v Pedro Nel Rojas[9] and HKSAR v Abdallah[10].  The relevant guideline band for trafficking in 600 to 1,200 grammes of cocaine then carried a sentence of between 20 and 23 years’ imprisonment.  The quantity of 602 grammes in the present case corresponded to 20 years’ imprisonment.

14.  Upon consideration of the appellant’s role as a cross-border courier and applying the six-step approach in HKSAR v Herry Jane Yusuph[11], the judge adopted a notional starting point sentence of 21 years’ imprisonment.

15.  In addition to a  one-third discount for the appellant’s guilty plea, the judge took into account the assistance he provided to the authorities, his participation in Father Wotherspoon’s anti-drug campaign, and “his other mitigation”, to give him what he called a “rolled-up discount” of 39 percent[12], resulting in a sentence of 12 years and 9 months’ imprisonment.

The respondent’s submissions

16.  Under the revised sentencing guidelines in Huang Ruifang (No 3), a quantity of cocaine between 500 and 1,500 grammes falls within the sentencing band of 16 to 20 years’ imprisonment.  The respondent submits that, on an arithmetic calculation, the 602 grammes of cocaine in the present case corresponds to a term of 16 years and 4 months’ imprisonment, and adopting the judge’s one-year enhancement for the international element, the notional starting point would be 17 years and 4 months’ imprisonment.

17.  The respondent notes that the rolled-up discount of 39 percent (which was equivalent to a further discount of 15 months in addition to the usual one-third discount for the appellant’s timely guilty plea) was unduly generous, given that the appellant’s information to the authorities was of no practical use; that a discount for participation in Father Wotherspoon’s anti-drug campaign is a matter within the court’s discretion with an upper limit of 3 months[13];and a defendant’s personal circumstances are rarely a mitigating factor in the commission of a serious crime such as trafficking in a dangerous drug.[14]

18.  The respondent explains that, having regard to the foregoing matters, the appellant would receive a sentence of 11 years and 3 months’ imprisonment under the revised guidelines.

Discussion

19.  In HKSAR v Lam Man Tak^[15], this Court resolved that the commencement date of the “state of affairs” (as explained in Seabrook v HKSAR[16]) leading to the revision of the sentencing guidelines in Huang Ruifang (No 3) was 18 September 2018 and that the date from which the revised sentencing guidelines should be applied was the date of sentence.  The appellant, who was sentenced on 14 July 2021, should be regarded as still “in the system” and therefore, in principle, entitled to derive benefit from the revised sentencing guidelines.

20.  As is the practice, this Court in allowing an appeal against sentence is required to sentence the appellant afresh.  The Court is not bound by the trial judge’s view or interpretation of the facts or by his understanding or application of relevant sentencing principles.[17]  It is quite apparent that the judge gave the appellant a substantial percentage discount in addition to the one-third reduction for his timely guilty plea, without any proper basis.  The assistance the appellant had rendered to the authorities was of no practical use and was not deserving of any reduction in his sentence, nor was it clear on what basis his personal circumstances constituted meaningful mitigation justifying a reduction in his sentence.[18] There was the appellant’s participation in Father Wotherspoon’s anti-drug campaign, but it is unclear what the judge gave as a discount for this factor. 

21.  We would adopt a starting point of 17 years and 6 months’ imprisonment incorporating the international element.  We would reduce this by one-third for the appellant’s timely guilty plea, resulting in 11 years and 8 months’ imprisonment.  We would then honour the judge’s discount  for the appellant participating in Father Wotherspoon’s anti-drug campaign by reducing the sentence to 11 years and 6 months’ imprisonment. 

22.  The difference in sentence of 1 year and 3 months under the revised guidelines is substantial and warrants the correction of the appellant’s previous sentence.

Conclusion

23.  For the foregoing reasons, we allowed the appellant’s appeal against sentence, quashed the sentence of 12 years and 9 months’ imprisonment and substituted a sentence of 11 years and 6 months’ imprisonment.

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

[2]      HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD l38.

[3]      Appeal Bundle (AB), 3-5.

[4]      AB, 14-22.

[5]      AB, 18L-S and 21Q-S.

[6]      AB, 19H-22F.

[7]      AB, 6-13.

[8]      R v Lau Tak Ming and Others [1990] 2 HKLR 370.

[9]      Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.

[10]     HKSAR v Abdallah [2009] 2 HKLRD 437.

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

[12]     AB, 13C-G; 22O-P; and 21T.

[13]     HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, at [67] and [91]; HKSAR v Cherop Caroline [2021] 3 HKLRD 904, at [44].

[14]     Herry Jane Yusuph, at [44]-[45] and [73].

[15]     HKSAR v Lam Man Tak [2026] 2 HKLRD 199.

[16]     Seabrook v HKSAR (1999) 2 HKCFAR 184.

[17]     HKSAR v Law Ka Fai, unrep., CACC 60/2025, 21 November 2025, at [7].

[18]     HKSAR v Sysoev Igorevich Iurii [2023] 3 HKLRD 20, at [127]-[132].