HKSAR v. HO KIT KI ERIC

CACC 464 /2025, [2026] HKCA 1374

On Appeal From [2018] HKCFI 550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 464 OF 2025

(ON APPEAL FROM HCCC NO 292 OF 2017)

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J U D G M E N T

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1.  On 21 August 2017, the applicant pleaded guilty in the Eastern Magistrates’ Court to one count of trafficking in a dangerous drug, namely 1,240.43 grammes of a mixture containing 962.61 grammes of heroin hydrochloride, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and was duly committed to the High Court for sentence. On 27 February 2018, he was sentenced by Li J (“the judge”) to 14 years and 7 months’ imprisonment.

2.  More than seven years later, by way of a Form XI Notice filed on 27 November 2025, the applicant has sought leave to appeal out of time against his sentence.  The respondent opposes the application.

Facts admitted by the applicant[1]

3.  On 16 January 2017, at about 10:15 am, the applicant was intercepted by police officers at the lift lobby on the 13^th Floor of Kwun Tong Industrial Centre Phase 4.  A search revealed two packets of heroin hydrochloride concealed in his underpants, containing 2.81 grammes and 21.8 grammes respectively.  Upon arrest and caution, he admitted that he was delivering the drugs for “Ah Keung” for a reward of HK$500.

4.  Using keys found on the applicant, the police entered Room 9 of Flat A on the same floor.  On a desk, they found 10 packets containing 938 grammes of heroin hydrochloride, together with two sets of electronic scales, three packets containing a large number of empty re-sealable plastic bags, five rolls of plastic tape, a clamp, a packet of tissue, a marker, and a pair of gloves.  Heroin traces were also found on a pair of scissors, a plastic bowl, a spoon, and a cutter.

5.  In a subsequent video recorded interview, the applicant admitted that, after meeting Ah Keung in August 2016, he was instructed in September 2016 to rent Room 9, which Ah Keung would pay for, and was told there would be work for him to do.  He further admitted that, on 15 January 2017, Ah Keung told him to go to Kwun Tong Pier the next morning and, on 16 January 2017, directed him to collect a black plastic bag containing heroin, weighing scales, and re-sealable plastic bags, to package the drugs into two packets, and to deliver them to a recipient at Kwun Tong MTR Station at 10:45 am.  He left Room 9 at about 10:15 am that day with the two packets concealed in his underpants.

6.  The total market value of the dangerous drugs seized was HK$957,612.

Sentencing

7.  The applicant was 43 years of age at the time of sentence and had 10 previous convictions, most of them for possession of a dangerous drug[2]. However, his last conviction in 2016 was for trafficking in a dangerous drug, for which he had been sentenced in a magistrate’s court to 12 months’ imprisonment[3].

8.  The judge applied the sentencing guidelines prevailing at the time in HKSAR v Abdallah[4] and adopted a starting point of 21 years and 10 months’ imprisonment for trafficking in 962.61 grammes of heroin narcotic.  No further reduction was given either for the information tendered by the applicant, which yielded no practical result, nor for the claim that 2.81 grammes were for his own consumption, a contention which defence counsel properly accepted would not justify any reduction.  Nor was any reduction allowed by reason of his mother’s unfortunate illness.  Having regard to the quantity involved, the applicant’s background and the mitigation advanced, the judge allowed a one-third discount for his guilty plea and imposed a sentence of 14 years and 7 months’ imprisonment[5].

Ground of appeal

9.  Acting in person, the applicant relies solely on the revised sentencing guidelines in HKSAR v Huang Ruifang (No 3)[6], by which the former bracket of 600 to 1,200 grammes of heroin narcotic, attracting 20 to 23 years’ imprisonment under Abdallah, was replaced by a bracket of 500 to 1,500 grammes attracting 16 to 20 years’ imprisonment.  He also contends that the sentencing tariff in Abdallah was already problematic at the time of his sentencing and that the new guidelines should apply to him.

The respondent’s submissions

10.  Ms Tang, for the respondent, opposes the grant of leave and submits that the first and third conditions in Seabrook v HKSAR[7] are not satisfied, although the applicant’s sentence could have been, on a purely arithmetical basis, 2 years and 8 months lower under the revised guidelines.  As explained in HKSAR v Lam Man Tak[8], the so-called ‘state of affairs’ underlying the revised guidelines in Huang Ruifang (No 3) commenced on 18 September 2018.  Since the offence was committed on 16 January 2017 and sentence was passed on 27 February 2018, the first condition could not be met.  Nor could the third condition be satisfied: the time for filing his Form XI expired on 27 March 2018, but the applicant did not file his notice until November 2025.  The sentencing process was therefore no longer extant, and the applicant was no longer “in the system”.  He cannot, therefore, benefit from the revised guidelines.  Furthermore, the judge correctly applied the guidelines in Abdallah, and the sentence was neither manifestly excessive nor wrong in principle.

Consideration

11.  Under the current practice for sentencing in cases of trafficking in dangerous drugs, the applicant would not be sentenced on the basis that he was a mere storekeeper or courier: his role was much higher up the ladder of culpability.  He had rented and was the tenant of premises obviously rented for the specific purpose of using them as a storage, preparation, packaging and distribution centre for the trafficking of heroin. He was clearly himself involved on the day of his arrest in cutting, packaging and distributing heroin.  Had he been sentenced today, his role and culpability would have merited something in the region of an extra 18 months’ imprisonment on top of the arithmetical guideline figure, in accordance with the modern approach explained in HKSAR v Herry Jane Yusuph[9], which was decided in 2020.

12.  Then there is the matter of the last previous conviction for trafficking in a dangerous drug, which could have justified a further enhancement under the Herry Jane Yusuph approach.  So, given that the Court of Appeal would be sentencing afresh if I or the Court were to yield to this application for leave, I do not see that there would be any significant difference between a sentence under the former guidelines in Abdallah and the new guidelines in Huang Ruifang (No 3), when read together with the other recent authorities on the proper approach to sentencing in such cases, as set out, for example, in Herry Jane Jusuph.

13.  In any event, this application must fundamentally fail because the applicant was sentenced before the ‘state of affairs’ discussed in Lam Man Tak even began.  He not only committed the offence but was convicted and sentenced for it before the genesis of the ‘state of affairs’, which has now been determined to have commenced on 18 September 2018 with the decision in HKSAR v Kilima Abubakar Abbas[10], ultimately leading to the revised guidelines in Huang Ruifang (No 3).  Although he has never appealed against his sentence, so that the Court would not be functus officio in respect of his application even now more than 7½ years after his sentence, he would nevertheless have to persuade the Court that it would be shutting out a viable ground of appeal if it refused to grant him leave to appeal out of time; such an exercise will become more and more difficult the longer the time since sentence was passed.  Since I can see no reasonable argument that he is entitled to avail himself of the new guidelines resulting from a ‘state of affairs’ which did not even exist by the time he was sentenced, his application for leave to appeal out of time must be refused.

14.  The applicant is nevertheless reminded that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time he has served in custody pending the hearing of his appeal, if it were to come to the conclusion that there was no justification for the renewal of the application.

[1]  Appeal Bundle (“AB”), pp 3-7.

[2]  AB, pp 13-14.  The applicant had 10 convictions, 6 for possession of a dangerous drug, 1 for handling stolen goods, 1 for transferring an identity card to another person, and 1 for trafficking in a dangerous drug.

[3]  AB, p 9E-H.

[4]  HKSAR v Abdallah [2009] 2 HKLRD.

[5]  AB, p 9I-P.

[6]  HKSAR v Huang Ruifang (No 3)[2025] 2 HKLRD 138.

[7]  Seabrook v HKSAR (1999) 2 HKCFAR 184, at 195B-G.

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

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

[10]  HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88.