HKSAR v. CHAN CHING WA

CACC 247/2025 [2026] HKCA 1521

On appeal from [2024] HKCFI 3335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 247 OF 2025

(ON APPEAL FROM HCCC NO 151 OF 2024)

_______________

BETWEEN	

		HKSAR	Respondent

and

			Chan Ching Wa (陳清華)	Applicant

_______________

Before:  Hon Zervos JA in Court

Date of Hearing:  20 August 2026

Date of Judgment:  28 August 2026

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J U D G M E N T 

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On 23 October 2024, the applicant was sentenced to 18 years’ imprisonment by Andrew Chan J (the judge) for two counts of trafficking in dangerous drugs, namely 6.63 grammes of cocaine and 857 grammes of cocaine hydrochloride (Count 1), and 224.65 grammes of cocaine and 1,380.07 grammes of cocaine hydrochloride (Count 2), and one count of conspiracy to manufacture a dangerous drug, alleging that, between 1 April and 9 July 2021, he conspired with Ah Shing and other persons unknown to unlawfully manufacture cocaine (Count 3). 

Before I address this application, it is relevant to briefly describe the common forms of cocaine in the drug trade.  Cocaine is derived from the leaves of the coca plant and is commonly refined and processed into a hydrochloride salt, known as cocaine hydrochloride, a white, crystalline powder that is usually snorted or dissolved in water and injected.  Crack cocaine is the same active drug in a different chemical form.  It is produced by mixing powdered cocaine with a base, such as baking soda (sodium bicarbonate) or ammonia, in water and heating it, so that the base removes the hydrochloride, which has no psychoactive effects, and leaves cocaine in its base form.  Crack cocaine is therefore a solid, usually in the form of small rocks, which, unlike powdered cocaine, can be smoked, producing a rapid and intense effect.

The Government Chemist, in his statement, stated that “cocaine” refers to crack cocaine, and “cocaine hydrochloride” refers to powdered cocaine.

On 9 July 2025, the applicant applied for leave to appeal against sentence out of time by about seven months, relying solely on the ground that he would be entitled to a reduction in sentence under the revised sentencing guidelines in HKSAR v Huang Ruifang (No 3).  The applicant appeared in person, legal aid having been refused on 6 August 2025 and again on 12 August 2026.

Mr Ng Wing Kit, for the respondent, does not oppose the applicant’s application for an extension of time within which to apply for leave to appeal against sentence.  However, he opposes the leave application on the basis that if the applicant were to be sentenced afresh under the revised guidelines and applicable principles, any reduction in his sentence would not be sufficiently significant to justify appellate intervention.  

The Summary of Facts admitted by the applicant was that, on 9 July 2021, he was intercepted by police officers as he left his residence carrying a recycled bag containing two resealable plastic bags of cocaine as particularised in Count 1.  Inside the premises, the police found a further quantity of cocaine as particularised in Count 2, together with paraphernalia and chemicals commonly used for making crack cocaine, which formed the basis of Count 3.  His DNA and fingerprints were found on various items inside the premises.  

The total estimated street value of the dangerous drugs seized was HK$3,108,971.46 for powdered cocaine and HK$3,663,582.02 for crack cocaine.  

The applicant admitted under caution to manufacturing and delivering “cooked” cocaine for others to earn money.  In a subsequent video-recorded interview, he stated that he had been delivering cocaine for a person called “Ah Shing” or “KK” for about three months.  On Ah Shing’s instructions, he met an unknown person near his home, who supplied him with cocaine and handwritten instructions to cook the drugs.  He admitted taking the cocaine home and manufacturing it into “bricks” by adding baking soda and hot water to the cocaine, steaming and drying the mixture, wrapping and placing it into resealable plastic bags for delivery, and weighing it on an electronic scale.  He had communicated with Ah Shing via Signal, frequently reporting to him, sending photographs of the cocaine during the manufacturing process, and delivering the “cooked” cocaine to others when instructed.  He had received cash rewards on about five or six occasions, totalling about HK$50,000.  

The applicant was 43 years old at the time of sentence and had five previous convictions, including one for trafficking in dangerous drugs, for which he was sentenced to 7 years and 4 months’ imprisonment in the High Court on 17 February 2014.  In mitigation, defence counsel submitted that he had offended for “easy money” and had been a drug addict dependent on Ice.  It was accepted that his prior trafficking conviction warranted an enhanced sentence.  Apart from acknowledging that the offence of conspiracy to manufacture dangerous drugs is more serious than trafficking, no submissions were made by defence counsel regarding the manufacturing count.  

In sentencing the applicant under the previous guidelines for cocaine, the judge combined the quantities of drugs in Counts 1 and 2 on the basis that they were part of a single transaction.  He adopted a starting point of 24 years and 4 months’ imprisonment for trafficking in the combined quantity of 2,468.35 grammes of cocaine.  He considered the applicant’s role to be more than that of a courier, and found that he had effectively been running a manufacturing and distribution centre at his residence, for which he enhanced the starting point by 1 year and 8 months to 26 years’ imprisonment.  The judge noted that he had a previous trafficking conviction and had reoffended “shortly after his release” from prison for that sentence, warranting a further enhancement of 1 year to 27 years’ imprisonment.  Applying a one-third discount for his guilty pleas, the judge sentenced him to 18 years’ imprisonment on each of Counts 1 and 2.  Having concluded that Count 3 added little, if anything, to the applicant’s overall culpability and that its criminality was subsumed within Counts 1 and 2, the judge also imposed a sentence of 18 years’ imprisonment on Count 3 and ordered all sentences to run concurrently, resulting in a total term of 18 years’ imprisonment. 

Discussion

This was a case of manufacturing dangerous drugs, but the sentence was passed by reference to the quantities of dangerous drugs particularised in the trafficking offences.  However, the judge enhanced the sentence to reflect the applicant’s operation of a manufacturing and distribution centre at his residence.  

It is common for a sentencing court to refer to the guidelines for trafficking in dangerous drugs when sentencing for a manufacturing offence, although sentences for manufacturing should be considerably higher than those for trafficking in the same quantity of dangerous drugs.  

The applicant was sentenced on 23 October 2024, and, as he was sentenced on the basis of the trafficking offences, it may be argued on his behalf that he is therefore eligible to have his sentence considered under the revised guidelines as clarified by this Court in HKSAR v Lam Man Tak, subject to the issue of his leave application being out of time.  Under the revised guidelines in Huang Ruifang (No 3), a quantity of cocaine between 1,500 and 5,000 grammes falls within a sentencing band of 20 to 24 years’ imprisonment.  Accordingly, the 2,468.35 grammes of cocaine involved in Counts 1 and 2 corresponds to an arithmetic starting point of 21 years and 1 month’s imprisonment.  

The applicant admitted that he was a member of the conspiracy with Ah Shing and other persons unknown to manufacture crack cocaine between 1 April 2021 and 9 July 2021.  He received instructions on how to “cook” the powdered cocaine to make crack cocaine.  He rented premises where he manufactured crack cocaine for three months prior to his arrest.  During that time, he had delivered crack cocaine to others for Ah Shing on five or six occasions, for which he received total rewards of about HK$50,000.  When the applicant was arrested, he was delivering mainly cocaine hydrochloride with a small amount of crack cocaine and, at his residence, where he conducted the manufacturing operation, there was a substantial quantity of cocaine hydrochloride and several hundred grammes of the finished product, namely crack cocaine.  

It has long been held that the offence of manufacturing is to be regarded as much more serious than the offence of trafficking.  That is because the amount of drugs found in relation to a manufacturing operation will invariably be just a part of the drugs actually manufactured and the capacity of the operation.  Apart from the quantity of drugs seized, the length of time for which the manufacturing operation has existed and operated, its scale and productivity, the quantity and standard of the drug-manufacturing paraphernalia, the extent to which the offender participated in the manufacturing, and the role that he or she played are important factors to be taken into account when sentencing (HKSAR v Sum Ka Wa).  

As stated in HKSAR v Au Chun Wah, the seriousness of the manufacturing offence should be assessed first and made the anchor of the sentence, before considering the sentence for the accompanying offences of trafficking.  In assessing the sentence for manufacturing first, the court should take into account the quantity of any dangerous drug trafficked when gauging the seriousness and extent of manufacturing.  By this approach, double counting would be less likely because the sentencing court would have already dealt with the defendant as a manufacturer.  To sentence in the reverse order would however mean that the assessment of the offender’s role and culpability in the trafficking offence would involve an assessment of his role as a manufacturer, which is central to the more serious manufacturing offence.  Also, where drugs are found in a place where they had been manufactured, the most obvious course would be to order that the sentences on each count run concurrently.  Where the manufacturer played two roles as both producer of the drugs and retailer of them to the public, it might be necessary, depending on the facts, to reflect this dual role by making some of the sentence for trafficking run consecutively to the sentence for manufacturing, whilst ensuring proper overall totality in the sentence.

On 17 February 2014, the applicant was sentenced to 7 years and 4 months’ imprisonment for trafficking in a dangerous drug.  He was released from prison in June 2018 and, around three years later, was involved with others in manufacturing crack cocaine from 1 April 2021 to 9 July 2021.  He admitted that he had set up and operated the manufacturing operation and that he had delivered cocaine to others for Ah Shing on five or six occasions. 

Given the length of time during which the applicant was involved in manufacturing crack cocaine, which only came to an end because of police intervention, and the nature and scale of the manufacturing operation, including the fact that he was operating a manufacturing and distribution centre from his residence, it is arguable that an appropriate starting point would be in the range of 24 to 26 years’ imprisonment.  As the applicant had a prior conviction for trafficking in a dangerous drug, it is likely that the notional starting point would be enhanced by 9 months to a range of between 24 years and 9 months and 26 years and 9 months’ imprisonment.  After a one-third discount for the applicant’s guilty plea this would result in a sentence of between 16 years and 6 months’ imprisonment and 17 years and 10 months’ imprisonment. 

The following questions arise from the sentence imposed on the applicant.  First, to what extent, if any, do the revised guidelines in Huang Ruifang (No 3) apply to, or have a bearing on, the determination of a sentence for manufacturing a dangerous drug?  As evidenced by this case, there is invariably an interrelationship between trafficking in and manufacturing a dangerous drug.  Secondly, irrespective of whether the revised guidelines apply in this case, the question is whether the applicant’s sentence is manifestly excessive in the circumstances.

For the foregoing reasons, I grant the applicant leave to appeal against his sentence.  I also grant him an appeal aid certificate, so that he can be legally represented in the appeal. 

			(Kevin Zervos)

			Justice of Appeal

Mr Ng Wing Kit, SPP, of Department of Justice, for the respondent

The applicant appeared in person