HKSAR v. POON CHI KEUNG

CACC 105/2024 [2025] HKCA 919

On appeal from [2024] HKCFI 1504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 105 OF 2024

(ON APPEAL FROM HCCC NO 282 OF 2023)

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D E C I S I O N

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1.  This is an application for bail pending his appeal against sentence.

2.  The applicant was convicted on his own plea to one count of trafficking in a dangerous drug[1] (Count 1) and one count of driving a motor vehicle with any concentration of a specified illicit drug (Count 2) before Andrew Chan J (the judge) in the High Court. On 13 May 2024, he was sentenced to a total term of 7 years’ imprisonment and disqualified from holding or obtaining a driving licence for a period of 2 years.

3.  On 24 May 2024, the applicant filed a notice of application for leave to appeal against his sentence.

4.  On 19 August 2024, Mr Raymond Yu, for the applicant, filed the perfected grounds of appeal against sentence, contending that the judge failed to order the sentences on both counts to be served partly consecutively and partly concurrently. Alternatively, he argued that the total sentence was manifestly excessive as the judge failed to apply the totality principle (Ground 1). At the leave hearing on 3 April 2025, the Single Judge granted the applicant leave to appeal against his sentence.[2]   On 25 June 2025, Mr Yu filed an additional perfected ground of appeal, arguing that the sentence on Count 2 was manifestly excessive (Ground 2).

5.  On 3 September 2025, the applicant filed an affirmation in which he applied for the bail pending appeal. He appears in person in this application.

The brief facts

6.  The facts outlined to the judge and admitted by the applicant were as follows. On an evening in March 2021, the applicant was intercepted by a police officer at the junction of Hoi Yuen Road and How Ming Street, Kwun Tong, Kowloon, while he was driving a private vehicle (the vehicle). The applicant appeared “unfocused” when questioned by the police and tested positive for Ice and cocaine in a rapid oral test. The police found in the vehicle three plastic bags containing the Ice as particularised in Count 1, one set of electronic scales, two iron poles placed inside a grey-white recycle bag, eight resealable plastic bags, and two vehicle registration plates. The applicant was arrested but remained silent under caution. A Government Chemist’s report revealed 0.18 micrograms per millilitre (µg/ml) of Ice in his blood[3], which formed the basis of Count 2.

The applicant’s criminal record

7.  Among his seven appearances before the courts, the applicant had nine previous convictions, including one for trafficking in dangerous drugs in August 2011, for which he was sentenced to 3 years and 4 months’ imprisonment, and two for possessing dangerous drugs in September 2016 and June 2021.[4]  In mitigation, counsel submitted on his behalf that his previous drug-related convictions arose from his long-term addiction to Ice since the age of 25, consuming about 0.5 to 0.6 grammes per day[5].

8.  The applicant had failed to answer bail on two previous occasions in relation to his convictions for drug-related offences in 2011 and 2016.[6]  The respondent notes that the applicant was in breach of his bail on the second occasion for about 8 months from 17 December 2015 to 20 August 2016. The respondent opposes the application on the basis that the applicant is a flight risk, given his previous breaches of bail and lack of family ties in Hong Kong.

The bail application

9.  Bail pending appeal is an exceptional remedy after conviction, which may be granted where it appears that the appeal has a strong likelihood of success (the “merits ground”), or where there is a likelihood that all or a substantial part of the sentence would be served before the disposal of the appeal (the “time ground”)[7]. In considering the time ground, it must also be demonstrated that the appeal is at least reasonably arguable or promising.[8] In other words, the grounds of appeal are reasonably arguable in that they afford some real chance of success.[9] 

The merits ground

10.  The Single Judge considered it reasonably arguable that the starting point of 18 months’ imprisonment for Count 2 (resulting in a sentence of 12 months’ imprisonment on a plea), as well as the overall totality of the sentence when the trafficking and drug driving offences are viewed together, was manifestly excessive[10].

11.  In respect of Count 1, the more serious offence, the judge adopted a starting point of 9 years’ imprisonment for the quantity of Ice concerned, which he then enhanced by 6 months because of the applicant’s previous similar conviction for trafficking, resulting in 6 years and 4 months’ imprisonment after the customary one third discount for his plea. Taking into account the latent risk factor of the drugs in question, the judge considered that “only a small discount” of 4 months would be granted for his claim that he possessed the drugs for his own consumption, resulting in 6 years’ imprisonment on Count 1.

12.  In respect of Count 2, taking into account the applicant’s level of intoxication from the Ice, the absence of any accident or erratic driving, but noting that he was unfocused when questioned by the police, the judge adopted a starting point of 18 months’ imprisonment, which he reduced to 12 months’ imprisonment after his guilty plea.

13.  In addressing totality, the judge considered that the two offences were separate and distinguishable, and ordered that they run wholly consecutively, resulting in a total sentence of 7 years’ imprisonment.

14.  The applicant commenced serving his sentence on 10 March 2021[11], and his estimated discharge date is 26 December 2025. In respect of Count 1, he received a sentence of 6 years’ imprisonment, and after the one third remission for good conduct, he would serve a sentence of 4 years, with a discharge date of 9 March 2025. In respect of Count 2, he received a sentence of one year’s imprisonment, and after the one third remission for good conduct, he would serve a sentence of 8 months.

15.  It is conceded by the respondent that the applicant would have served the entire or a substantial part of his sentence (i.e. about 4 years and 7 months’ imprisonment) by the time his appeal is to be heard on 27 November 2025, taking into account the one third remission for good conduct. Although the applicant was granted leave on 3 April 2025, the hearing of his appeal was scheduled together with another case, which explains the late hearing date.

16.  I note that there is not a strong argument against the sentence on Count 1, and that leave was primarily granted on the basis that the overall sentence was manifestly excessive because the sentence on Count 2 was made entirely consecutive. However, it needs to be borne in mind that the underlying criminality of driving under the influence of drugs is that the offender endangers the safety and lives of other road users, and the fact that he drove his vehicle while pursuing drug trafficking activity may give rise to a separate, distinct criminality.

17.  Whilst the applicant’s previous breaches of bail are a serious consideration, they have little or no bearing in this instance, given that he has a reasonable argument that the sentence on Count 2 should have been partially concurrent and that he has substantially served the sentence originally imposed. In light of the circumstances, the applicant is granted bail pending his appeal against sentence.