HKSAR v. LI GWING CHIU

CACC 191 /2024, [2025] HKCA 857

On Appeal From [2024] HKCFI 3379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 191 OF 2024

(ON APPEAL FROM HCCC NO 58 OF 2024)

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J U D G M E N T

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1.  The applicant pleaded guilty in the Magistrate’s Court on 29 February 2024 to a single charge of trafficking in a dangerous drug involving 238.6461 kilogrammes of cannabis in herbal form, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, for which he was committed to the High Court for sentence. On 26 August 2024, Mr Recorder Derek Chan, SC (“the judge”) sentenced the applicant to 8 years and 8 months’ imprisonment.

2.  The applicant now applies for leave to appeal against sentence.

Summary of facts

3.  At about 12:14 pm on 5 February 2021, the applicant was seen coming out of a unit in Mai Po San Tsuen, Lok Ma Chau, New Territories (“the Unit”), and boarding a vehicle.  He was intercepted by police officers conducting an anti-narcotics operation in the area.  A key to the Unit was found on the applicant, and the tenancy agreement and rental receipt showing that the applicant was the tenant of the Unit was found in the vehicle. 

4.  Police officers gained access to the Unit where they detected the strong smell of sanitiser and noted two air purifiers. Further found in the Unit were the following items:

(i)    21 black cloth bags stacked on the floor containing a total of 480 transparent plastic bags, and 7 other transparent plastic bags placed inside a cabinet, containing a total of 238.6461 kilogrammes of cannabis in herbal form;

(ii)   1 bag-sealing machine, a roll of plastic wrap and 4 rolls of adhesive tape on a desk;

(iii)  4 rolls of plastic wrap in a wooden rack; and

(iv)  1 bag-sealing machine (with a roll of plastic bags inside), and some plastic bags on one stack of the above black cloth bags. 

5.  On 9 November 2020, the applicant had signed the tenancy agreement for the Unit for the period from 17 November 2020 to 16 November 2022.

6.  The cannabis in question had a street value of HK$46,774,636.

Mitigation

7.  At the time of sentencing, the applicant was 44 years of age.  He had co-owned a car rental business since 2020 and his income was at the time about HK$35,000 per month.  However, his income had been substantially affected by the Covid pandemic.

8.  The applicant was married in 2014 and had a son, who was 11 years old.  He was the sole provider for the family.  He had several previous convictions going back to 1993, but none of them were drug-related.

Sentencing

9.  The judge considered the sentencing approach set out in HKSAR v Herry Jane Yusuph[1] and HKSAR v Lee Ming Ho[2].  In assessing the relevant guideline band or bracket applicable to the quantity of drugs concerned, the judge held that since the offence was committed in 2021, the revised guidelines set out in HKSAR v Nguyen Thang Loi[3] were not applicable.  Instead, he considered the sentence approved in HKSAR v Chong Chak On[4], namely 20 years’ imprisonment after trial for trafficking in 388 kilogrammes of herbal cannabis; and the first instance decision in HKSAR v Law Wing Nin[5], where a starting point of 9 years’ imprisonment was taken for trafficking in 148 kilogrammes of herbal cannabis.  The judge agreed with the submissions of the applicant’s counsel that the appropriate starting point should be one of 13 years’ imprisonment^[6].

10.  Concerning his role and culpability, the judge considered that there was nothing to suggest that the applicant’s role was anything more than that of an ordinary storekeeper.  Accordingly, he did not see any basis for departing from the starting point of 13 years’ imprisonment^[7].

11.  The judge further considered the Court’s observations in both HKSAR v Abdallah[8] at [32] and Herry Jane Yusuph at [44], where the Courts stressed the seriousness of the crime of drug trafficking and acknowledged the inevitable problems it brings to both families and communities.  Whilst accepting that the applicant was genuinely remorseful and had taken steps to improve himself during his time in custody, personal circumstances in cases of this nature did not constitute mitigating factors and could not provide the applicant with any further sentencing reduction^[9].

12.  He found that the principal mitigating factor was the applicant’s guilty plea, for which he was entitled to a one-third discount.  Thus the sentence was reduced to 8 years and 8 months’ imprisonment^[10].

Grounds of appeal against sentence

13.  In his homemade grounds of appeal dated 10 January 2025, the applicant has referred to the following three cases:

Case	Quantity of herbal cannabis trafficked in	Notional sentence after trial
HKSAR v Wong Kin Hung[11]	109.355 kilogrammes	9 years
HKSAR v Rong Dafeng[12]	145.421 kilogrammes	10 years
HKSAR v Tsang Man-hoi William and Anor[13]	502.977 kilogrammes	24 years

14.  Firstly, the applicant submits that the notional sentence of the case of Rong Dafeng was one year more than that of Wong Kin Hung for trafficking in around 36 kilogrammes more of herbal cannabis.  Hence, he considers that his notional sentence after trial should have been about 2 years more than that of Rong Dafeng for trafficking in 93 kilogrammes more of herbal cannabis.

15.  Secondly, the applicant submits that the quantity of herbal cannabis he trafficked in was less than half of the case of Tsang Man-hoi William and Anor, which seemed to imply that his notional sentence should likewise be less than half.

16.  As such, the applicant suggests that his notional sentence after trial should have been 12 years’ imprisonment.

17.  The applicant further seeks to adduce fresh evidence in the form of an affirmation, enclosing a non-prejudicial statement (“the NPS”) to illustrate his role in the present case^[14].  In gist, the applicant states that he had only helped someone to move five bags of cannabis, and he did not know what they were until he opened one out of curiosity.

The respondent’s reply

18.  Mr Hui, for the respondent, submits that sentencing for trafficking cases should not be a strictly arithmetical exercise and that guidelines are not intended to be applied on a linear scale.  The judge correctly adopted the pre-Nguyen Thang Loi position in order to assess the applicant’s role, and properly gave the applicant the benefit of the doubt in treating him as an ordinary storekeeper.  Accordingly, he argues that the applicant’s sentence was in accordance with appellate authority prevailing at the time and was neither wrong in principle nor manifestly excessive.

19.  In relation to the issue of adducing fresh evidence, the respondent submits that, if the role now suggested by the applicant were true, he had every opportunity to submit the relevant particulars to his defence counsel; however, he did not do so.  In any event, the respondent argues that the contents in the applicant’s affirmation are unreasonable and unworthy of belief.  If the applicant is now suggesting that he was not involved in the present case, such a contention would be plainly inconsistent with his guilty plea tendered when he was properly represented and after he had ample time to consider his position.

20.  The respondent opposes the application to adduce fresh evidence.  I am not prepared to admit it either, other than on a de bene esse basis for the purposes of this application.  Its admission would normally be a matter for the Court of Appeal in due course, should this matter go further.

Consideration

21.  The applicant has raised the fact that there was significant delay between his arrest in February 2021 and his sentence in August 2024.  On the face of it, that is an excessive delay, until one realises that this was such a vast quantity of cannabis that it all needed to be conveyed to the Government Chemist and examined, which I am told took more than 2 years.  One must also remember that the second General Adjourned Period of the courts (“GAP”) took place in the middle of this period (between 7 March 2022 and 11 April 2022), which together with the first GAP, led to a significant backlog and delay in all criminal cases and their processing.  In any event, the applicant will receive the benefit of any period in custody on remand in the computation of his eventual date of discharge.

22.  The quantity and value of the dangerous drugs in this case was enormous, representing almost a quarter of a tonne of herbal cannabis worth a staggering HK$46 million.  Given the sheer quantity concerned, the fact that the applicant took out a tenancy for the premises less than 3 months earlier, the open and obvious bag packaging apparatus and equipment present and the finding of the applicant’s DNA on at least one of the bags of cannabis, the characterisation of the applicant’s role and culpability as a mere storekeeper was perhaps a rather favourable and generous one.

23.  Be that as it may, in terms of precedent, while the judge was right to say that the recent guidelines in Nguyen Thang Loi did not apply, any appellate court will be far more interested in previous sentences approved by the Court of Appeal than those passed at first instance which did not reach the Court of Appeal.  The more relevant authorities, to which I have been taken, are Attorney General v So Chin-chiu[15], where 8 years’ imprisonment was approved after trial for trafficking in 93 kilogrammes of cannabis.  The quantity before me is about 2½ times the quantity in that case.  The other relevant appellate authority is R v Chong Chak On, where the Court endorsed a starting point of 20 years’ imprisonment for trafficking in 388 kilogrammes of herbal cannabis.  

24.  In light of these authorities, I do not regard it as reasonably arguable that the starting point of 13 years’ imprisonment was manifestly excessive for such a vast quantity and value of cannabis; and, although it is not decisive, I note that it was the starting point advocated by the applicant’s own counsel.

25.  Accordingly, whilst I can understand the applicant’s concern that he had to wait 3½ years before he was sentenced, I can see no reasonably arguable ground of appeal that the sentence of 8 years and 8 months’ imprisonment after plea of guilty was either manifestly excessive or wrong in principle.  This application must, accordingly, be refused.

26.  The applicant is reminded that he has the right to renew his application for leave to appeal before the Court of Appeal, but he should also be advised that the Court does have the power to order the loss of any time the applicant has spent in custody pending his appeal if the Court were to come to the view that there was no justification for the renewal of the application.

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

[2]  HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

[3]  HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329.

[4]  HKSAR v Chong Chak On (Unrep.,CACC 633/1994, 31 October 1995).

[5]  HKSAR v Law Wing Nin (Unrep., HCCC 129/2018, 1 August 2018).

[6]  Appeal Bundle (“AB”), p 7S-T.

[7]  AB, p 8A-B.

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

[9]  AB, p 8C-F.

[10]  AB, p 8G-I.

[11]  HKSAR v Wong Kin Hung (Unrep., HCCC 38/2023, 20 July 2023).

[12]  HKSAR v Rong Dafeng (Unrep., HCCC 61/2023, 18 May 2023).

[13]  HKSAR v Tsang Man-hoi William and Anor (Unrep., HCCC 41 & 42/ 2022, 14 August 2023).

[14]  See defence counsel’s written mitigation: AB, p 15, at [22], where he said, “D gave a non-prejudicial statement to police on 8/2/2024.  Prosecution have confirmed that after due consideration no further action would be taken regarding its content.  As such, no sentencing discount is expected out of the statement. Nonetheless, it is a reflection of D’s remorse and willingness to cooperate”.

[15]  Attorney General v So Chin-chiu [1994] 1 HKCLR 106.