HKSAR v. LAI HAIXIAN

CACC 15/2025, [2026] HKCA 1253

On Appeal From [2025] HKDC 54

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 15 OF 2025

(ON APPEAL FROM DCCC NO 787 OF 2024)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  On 20 December 2024, the appellant pleaded guilty in the District Court before Deputy Judge M Chow (“the judge”) to a single charge of possession of a dangerous drug, namely 4.95 grammes of a solid containing 3.99 grammes of cocaine, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134. On 8 January 2025, he was sentenced to 20 months’ imprisonment. He sought leave to appeal against sentence notwithstanding that he had served the sentence in full and had already been discharged on 3 May 2025. On 3 September 2025, the Single Judge granted leave to appeal on Ground 2[1].

Facts agreed by the appellant

2.  The facts accepted by the appellant were that on 24 March 2024, at 12:06 am, he was observed by police officers on anti-crime patrol wandering around Ching Yuk House, Tsz Ching Estate in Wong Tai Sin, Kowloon. When the officers approached him, he lowered his head and quickly walked away. One of the officers, however, intercepted the appellant, revealed his police identity and asked him what he was doing. The appellant said he was looking for his friend but was unable to explain where his friend was. He was then physically searched and in the right pocket of his trousers were found:

(i)  One plastic bag containing 3 stapled plastic bags, inside of which were 0.87 grammes of a solid containing 0.73 grammes of cocaine;

(ii)  One plastic bag containing 14 stapled plastic bags, inside of which were 4.08 grammes of a solid containing 3.26 grammes of cocaine; and

(iii)  HK$9,859 in cash (in the form of eleven HK$100 notes, thirty-eight HK$50 notes, eight HK$20 notes and other coins of different denominations[2]).

3.  The appellant was also found to be in possession of two mobile telephones. Under caution, he claimed that the cocaine was for his own use. The estimated street value of the dangerous drug was HK$4,499.50.

Mitigation and sentence

4.  The appellant was 23 years of age, unemployed and of clear record. It was submitted on his behalf to the judge that no part of the drugs in question was for dissemination[3] (this submission was said to be supported by the fact that no measuring equipment or tools for distributing the drug was found in the appellant’s possession)[4].

5.  The judge was told that the appellant had been given pocket money of about HK$10,000 per month from his parents (out of a joint family income of HK$50,000), which had gone to finance his purported drug habit, but she noted that the source of his funds was “a mere assertion from the bar table”[5].

6.  Before passing sentence, the judge called for a Drug Addiction Treatment Centre report, from which she noted that the appellant had claimed that he started to abuse cocaine (in addition to cannabis) in February 2023, and last took drugs in September 2023. However, a urine test taken on 26 March 2024 had proved negative for any dangerous drugs.

7.  With regard to the small quantity of cocaine in the appellant’s possession, the judge used 12 months’ imprisonment as the starting point for the offence, which she enhanced by 18 months for the ‘latent risk factor’. Since the appellant had tendered a timely plea in the District Court, she accorded him a one-third discount and reduced the enhanced sentence from 30 months’ (or 2½ years’) imprisonment to 20 months’ (or 1 year and 8 months’) imprisonment.

Grounds of appeal

8.  Mr Hui, with Ms Law, whilst accepting the judge’s finding of a “high” latent risk[6], contended that the 18-month enhancement for latent risk was excessive and disproportionate having regard to previous authority (Ground 2, on which leave was granted).

9.  It was submitted that the judge imposed a sentence of 20 months’ imprisonment, only eight months (21%) below what would have been the starting point for trafficking in the same quantity of cocaine (namely, 28 months’ imprisonment under HKSAR v Huang Ruifang (No 3)[7]), thereby in effect treating the appellant as a trafficker, which was contrary to the principle that someone found in possession of a dangerous drug should not be sentenced for the more serious offence of trafficking in the same: see HKSAR v Minney[8].

10.  It was further argued that the enhancement of 18 months’ imprisonment, which represented an increase of 150% for latent risk was manifestly excessive and disproportionate to the original offence, and that the proper range of enhancement should have been 9 to 12 months’ imprisonment. Whilst there is no specific enhancement for latent risk, such enhancements typically ranged “from 6 months for a low degree of risk to 18 months’ imprisonment or more for a very high degree of risk”: see HKSAR v Lee Chun Man[9]. Although the Court had recognised that doubling a sentence may be justified in some cases, such an enhancement would not be appropriate where the quantity was small: see HKSAR v Lai Kam Sang[10]. The Court had established that where the quantity is modest, distribution paraphernalia is limited or absent, and the appellant has few or no prior drug-related convictions, the enhancement should be in the range of 9 to 12 months’ imprisonment: see, for example, HKSAR v Wong Kwan Po (9 months)[11]; HKSAR v Cheng Kong Sang (10 months)[12]; HKSAR v Jarhia Kuldeep Singh (12 months)[13]; HKSAR v Fu Man Kit (12 months)[14]; HKSAR v Mok Cho Tik (12 months)[15]; HKSAR v Norena Gutierrez Cristhian Andres (12 months)[16]; HKSAR v Shek Po Sin (12 months)[17]; HKSAR v Yeung Kam Chun (12 months)[18]; HKSAR v Lee Lai Ming (12 months)[19]; HKSAR v Cheung Chun Fai (12 months)[20]; Lai Kam Sang (12 months); Lee Chun Man (12 months)[21].

11.  Enhancements of 18 months, or 100%, or more, were reserved for “very high risk” cases involving substantial quantities, extensive packaging, trafficking paraphernalia, or repeated offending: see HKSAR v Ng Chi Leung, Alan[22]; HKSAR v Lau Chi Chiu[23]; HKSAR v Ng Hung Chi[24]. It was submitted that an enhancement of 150%, as in the present case, was unprecedented.

12.  On the facts, the quantity of dangerous drug was modest (3.99 grammes of cocaine), there were no clear or obvious distribution tools (17 small bags of drugs and two mobile telephones), and the appellant had a clear record. It was submitted that a more appropriate enhancement would have been 9 to 12 months’ imprisonment.

The respondent’s submissions

13.  Ms Au, for the respondent, accepted that the enhancement of 18 months’ imprisonment was on the high side, but maintained that, given the judge’s finding of a high latent risk, the sentence was neither wrong in principle nor manifestly excessive. Properly read, the reasons for sentence did not suggest that the judge attributed to the appellant an intention to traffic in the drugs; rather, the enhancement was imposed to reflect the societal risk of redistribution and of the drugs finding their way into the hands of others. In Lee Chun Man, the Court of Appeal had stated that the enhancement for latent risk could range between 6 months and 18 months or more. Much would depend on the surrounding circumstances. The Court plainly did not intend to set 18 months as the limit for this factor. The assessment of the degree of risk by the judge was discretionary in nature and each case turned on its own facts.

14.  In the present case, the finding of a ‘high risk’ was supported by the circumstances, including the presence of 17 small bags of drugs in the appellant’s physical possession and ready for redistribution, together with a significant amount of cash (HK$9,859) and two mobile telephones, in a public place after midnight. Furthermore, the appellant was not himself an abuser of cocaine or any other dangerous drugs. However, as noted, the appellant claimed to have begun abusing drugs in February 2023, had last used drugs in September 2023, yet had tested negative on a urine test conducted on 26 March 2024 upon his admission to Lai Chi Kok Reception Centre[25]. It was submitted that the enhancement of 18 months’ imprisonment fell within the range of “around 12 to 18 months”, which had in fact been suggested by the appellant’s own counsel in mitigation[26].

Discussion

15.  The appellant’s complaint in this appeal is very narrow, namely whether an 18-month enhancement of the starting point for the latent risk involved in simple possession of dangerous drugs has led to a manifestly excessive sentence. However, regardless of the issue of enhancement and the mechanics by which the judge arrived at the eventual sentence, the ultimate issue for this Court on appeal must be whether 20 months’ imprisonment on a plea of guilty from a starting point of 30 months’ imprisonment for possessing almost 4 grammes of cocaine was manifestly excessive and/or wrong in principle on the facts and in the circumstances of the case.

16.  The judge was evidently troubled by the facts and circumstances of the appellant’s possession. He was seen wandering around a public housing estate in Wong Tai Sin, Kowloon shortly after midnight and could give no satisfactory explanation as to what he was doing or why he was there, when at the time he was in fact residing miles away in Sheung Shui, New Territories. He was found in possession of 17 packets of cocaine, nearly HK$10,000 in cash and two mobile telephones. Although when cautioned for trafficking in dangerous drugs, he responded that the cocaine was for his own consumption, a urine test following his arrest and remand in custody proved negative for all dangerous drugs and, upon assessment by the Drug Addiction Treatment Centre, he was found not to be drug dependent.

17.  Tempting as it was to believe that the appellant was lurking in the vicinity of a housing estate in order to traffic in dangerous drugs, he was not convicted of that offence: rather, he was convicted on his own plea of simple possession of dangerous drugs. However, the judge found that the latent risk of 17 packets of cocaine being “redistributed” or “finding their way into other hands”, when the appellant was neither a drug addict nor a consumer of cocaine, was “high”[27].

18.  It must be remembered that the maximum sentence for possession of a dangerous drug under section 8(2)(a) of the Dangerous Drugs Ordinance is, on indictment, 7 years’ imprisonment and a fine of HK$1 million, which reflects the seriousness with which the Legislature views this offence. Every case will be different and the factors which bear on the issue of latent risk will vary in nature and strength. For example, a person who is a drug addict or has previous convictions for possession, who is in employment and is found at his home with 17 packets of cocaine without any attendant circumstances suggestive of the possibility of dissemination or sharing drugs, may be in a different position from a person of good character, who is unemployed with no previous drug history, being found at midnight in a housing estate miles away from where he lives with 17 packets of readily distributable cocaine. Much will depend on the facts and circumstances of the offence and the offender.

19.  Had the appellant been trafficking in 4 grammes of cocaine, he would have been looking at a starting point, on a purely arithmetical basis as a courier, of about 3½ years’ imprisonment; more, if he was actually trafficking in those drugs on the street. Given the quantity concerned, we consider that the judge could well have taken a starting point for simple possession of a not insignificant quantity of 4 grammes of cocaine, of 18 months’ imprisonment.

20.  As the judge herself recognized, after referring to the decision in Lee Chun Man[28], the level of enhancement for the latent risk involved in simple possession of dangerous drugs could range “from six months for a low degree of risk to 18 months or more for a very high degree of risk” (our emphasis)[29]. The Court in Lee Chun Man was not laying down prescriptive limits for such enhancements, and it would have been unwise to do so, in the light of the myriad circumstances that attend such cases. Here, the risk was not only obvious, it was very likely indeed that the drugs would fall into the hands of others. We would have considered an enhancement for the latent risk in this case in the region of 12 months’ imprisonment.

21.  If we were to adopt a starting point of 18 months’ imprisonment and then enhance the sentence by 12 months’ imprisonment for the latent risk of redistribution, we would arrive at the same starting point used by the judge, but by a different route. And it would not be open to the complaint of a disproportionate increase for latent risk. Allowing a one third discount for plea, we would arrive at the same sentence the appellant received of 20 months’ imprisonment. As we have said, this Court is ultimately to be guided by whether the sentence was or was not manifestly excessive and or wrong in principle, rather than the route by which it was reached. We do not think it was.

22.  However, even if we had been persuaded that the sentence was manifestly excessive and that the appellant’s arguments might have led to a reduction of 2 or 3 months, we would still not have interfered. This Court does not tinker with sentences and must allow for a judge’s discretion and own assessment of the facts. Otherwise, we should quickly retreat to the position of passing sentences arrived at on a purely arithmetical basis, which could be assessed as well by a computer as by a judge. This Court, since the decision in HKSAR v Herry Jane Yusuph[30], has set its face against such an approach.

23.  The ultimate question for this Court is whether 20 months’ imprisonment for possession of this quantity of dangerous drugs in the circumstances that were revealed was manifestly excessive and/or wrong in principle. We do not think it was. The ultimate sentence was correct and the appeal must, therefore, be dismissed.