HKSAR v. SHING YIU FUNG

CACC 142/2025 [2026] HKCA 86

On appeal from [2025] HKCFI 2096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 142 OF 2025

(ON APPEAL FROM HCCC NO 246 OF 2021)

_______________

_______________

________________

J U D G M E N T

________________

1.  The applicant (designated as D2 at trial) was committed to the High Court for trial by a magistrate on 20 December 2021, having indicated that he would plead not guilty to one count of trafficking in a dangerous drug. On 9 January 2024, pursuant to a plea bargain, the applicant pleaded guilty before Deputy High Court Judge A Wong (the judge) in the High Court to an amended indictment dated 5 December 2023, charging one count of conspiracy to traffic in a dangerous drug, alleging that he conspired with Li Sing Yan (designated as D3 at trial) and persons known as “Mei Ling” and “Cheung Chai” to traffic in ketamine on 13 February 2019[1].

2.  On 16 May 2025, the applicant was sentenced by the judge in respect of the present case, which was heard together with two related cases, HCCC 247/2021[2] and HCCC 356/2020[3]. The judge adopted a starting point of 14 years and 9 months’ imprisonment and sentenced him to 11 years and 3 months’ imprisonment, after giving him a 20% discount for his late plea and a further discount of 4% for his assistance to the authorities.  He ordered this sentence to be served wholly concurrently with the sentence of 1 year’s imprisonment in HCCC 247/2021.[4]

3.  On 3 June 2025, the applicant filed a notice of application for leave to appeal against sentence, in which he advanced a sole ground of appeal, namely that he should have received a 25% discount, rather than 20% for his guilty plea.  

4.  At the leaving hearing, the applicant appeared in person, having had his application for legal aid refused on 17 July 2025.

The admitted facts

5.  The Summary of Facts dated 15 December 2023[5]which the applicant admitted for the purpose of sentencing, revealed that, on 11 February 2019, Customs officers intercepted two parcels from Germany declared as “Ginger Bread Sample” (referred to as parcels A and B).  Parcel A was found to contain 3,004 grammes of a solid containing 2,600 grammes of ketamine, wrapped in plastic and aluminium foil and concealed in seven pieces of cake placed in transparent bags and paper boxes (the parcel), which formed the basis of the count.  

6.  On 13 February 2019, in a controlled delivery involving a delivery driver who was arrested after collecting the parcel for a consignee called “Chan Wai Wai”, the applicant received the parcel from a Customs officer posing as a delivery attendant and was arrested at once.  After his arrest, there were incoming calls to his mobile telephone from numbers saved as “Cheung Chai” and “Ah Sing” (D3). 

7.  The applicant stated under caution that he was asked by a friend, “Cheung Chai”, to collect and hand over the parcel.  He said that he did not know its contents and would receive no reward.  He provided Cheung Chai’s full name and telephone number to the officers.  

8.  Later that day, the applicant participated in a controlled delivery, during which he spoke with “Cheung Chai” and D3 using his mobile telephone on speaker mode, which was recorded by the Customs officers.  The intercepted call records revealed discussions about their respective roles: the applicant was responsible for “receiving” and “carrying the goods”, while Cheung Chai was responsible for “flowering” (a term meaning packaging or processing dangerous drugs).  D3 instructed the applicant to bring the unopened parcel to a specified location the next day and to say that it contained Taobao goods which he was keeping for a friend.  He also sought to use the applicant’s home for “flowering”.  Cheung Chai told him to say it contained a computer, warned him to “prepare to repay the money and be chopped tomorrow” if it was disposed of, and reminded him that he was the one “who took the job”.  The WhatsApp records on the applicant’s mobile telephone also showed that on 12 February 2019, he asked Cheung Chai whether the parcel had arrived and when the work would start, to which Cheung Chai replied “very soon”; and on 13 February 2019, he asked Cheung Chai to request D3 to advance more money for transportation.

9.  On 19 May 2019, D3 was arrested after his telephone number was found on the applicant’s mobile telephone.  D3 denied knowing either the parcel or the applicant, although his mobile telephones contained both the applicant’s and Cheung Chai’s numbers. D3’s WeChat records with “Mei Ling” showed that, on 17 January 2019, he sent her the applicant’s identity card details and address to recommend him for drug delivery; and on 13 February 2019, he sent her the applicant’s telephone number, saying that the drug transaction would take place that day.  When Mei Ling remarked that the applicant was “too young” and looked “silly”, D3 replied that if he were “smart”, he “would not be distributing stuff”.  D3 later discussed whether the applicant had been arrested and a news report about the intercepted parcel, and queried why it weighed three kilogrammes instead of one.  He also suggested asking the boss to engage a lawyer for the applicant, and expressed concern that the applicant might disclose those involved.

10.  The street value of ketamine was HK$627 per gramme, and the total value of the ketamine in the parcel was HK$1,883,508.

11.  By agreeing to the Summary of Facts, the applicant admitted that he conspired with D3, Mei Ling and Cheung Chai to traffic in 1,000 grammes of ketamine.[6]  

The mitigation

12.  At the time of the offence, the applicant was 17 years of age, educated to Form 3 level, and had a clear record.  He worked as a freelance warehouse keeper and manual labourer, earning about HK$12,000 per month.

13.  In mitigation, defence counsel submitted that the applicant committed the offence because he owed Cheung Chai HK$15,000 in gambling debts and was exploited by his co-conspirators due to his youth and ignorance.  Counsel argued that D3’s non-prejudicial statements implicating the applicant were made in revenge for his cooperation with the authorities, which had led to D3’s arrest.  Counsel urged the judge to sentence on the basis that the applicant conspired to traffic in 1,000 grammes of ketamine, and not to enhance the sentence for the international element.

14.  Defence counsel sought a 25% discount, submitting that the applicant had indicated his intention to plead guilty on 29 December 2023 and had expressed a willingness to admit most of the prosecution evidence in the case management questionnaire for the hearing on 13 April 2023, notwithstanding that he did not enter a guilty plea at an earlier stage.[7]  Counsel also sought a further 6% discount for the applicant’s assistance to the authorities, noting that he had provided Cheung Chai’s full name and telephone number, supplied details of the parcel collection, participated in the controlled delivery that revealed the roles of D3 and Cheung Chai, and permitted inspection of his mobile telephone, which led to the tracing and arrest of D3.  On this basis, counsel submitted that the overall discount should be 31%.[8]  Counsel further urged that the sentence be made concurrent with that imposed in HCCC 247/2021.

The sentence

15.  The judge sentenced the applicant on the basis of trafficking in 1,000 grammes of ketamine, noting that, although a total of 2,600 grammes was found in the parcel, no narcotic quantity was specified in the count, and the agreement underlying the conspiracy, as admitted in the Summary of Facts, was to traffic in 1,000 grammes.[9]

16.  Taking into account that the applicant was the recipient of a well-packed parcel sent from abroad and was aware of his involvement in a conspiracy with others, the judge considered his role to be relatively low in the hierarchy of the syndicate and adopted a notional starting point of 14 years and 9 months’ imprisonment, in applying the relevant guidelines.  The judge did not enhance the sentence for the international element, finding that there was insufficient evidence to infer that the applicant knowingly participated in, assisted or facilitated the importation of the drugs. 

17.  The judge then referred to HKSAR v Ngo Van Nam[10] and gave the applicant a 20% discount for his guilty plea, noting that:[11]

“23. D2, SHING Yiu-fung, is the defendant in this case. He was originally charged with Trafficking in dangerous drug, in relation to the drug contained in Parcel A. He pleaded not guilty and was committed to the Court of First Instance for trial. Prior to the trial, there was plea bargain and the Prosecution indicated that they were prepared to accept a guilty plea to the offence of Conspiracy to Trafficking. The subject matter is the same as in the case that D3 faced. An amended indictment was filed, alleging that D2 conspired with D3, Mei Ling and Cheung Chai. Before me, D2 pleaded guilty to the amended count of offence.

…

78. … D2 only pleaded guilty to the count after the case had been set down for trial and a firm indication of guilty plea was only made pursuant to further plea bargain raised in a PTR hearing about a month before the trial.

79. In this regard, I note that, in August 2021, whilst rejecting a plea bargain proposal by D2, DOJ indicated that they were prepared to take the same approach as regards D3 to amend the charge to Conspiracy to trafficking in 1 kilogram of ketamine. No further action had been taken until November 2023 that in the Case Management Hearing the defence proposed a plea bargain in similar terms”. (Footnotes omitted)

18.  The judge also gave a further discount of 4% for the applicant’s assistance to the authorities, but considered that his young age carried little mitigating weight, given the seriousness of the offence, resulting in a sentence of 11 years and 3 months’ imprisonment.

The procedural history

19.  Initially, the applicant faced one count of trafficking in dangerous drugs in an indictment dated 24 December 2021, alleging that he unlawfully trafficked in 2,600 grammes of ketamine, together with the same individuals named in the amended indictment on the conspiracy charge.

20.  Prior to his committal on 20 December 2021, there was plea bargaining, during which there was an exchange of correspondence regarding the quantity of drugs involved in the proposed conspiracy charge.  In a letter dated 3 August 2021, the prosecution proposed to amend the charge to a single count of conspiracy to traffic in a quantity of 1,000 grammes of ketamine.  This was the same quantity as that agreed in relation to D3.

21.  After committal to the High Court, three case management hearings (CMH) were held, during which further discussions for a plea bargain took place before the applicant pleaded guilty to the amended count of conspiracy to traffic in a dangerous drug on 9 January 2024:

13 April 2023 (first CMH)	The prosecution informed the court that D3 had pleaded guilty to one count of conspiracy to traffic in dangerous drugs in HCCC 356/2020, had provided two non-prejudicial statements implicating the applicant, and would testify as a witness. The defence indicated their intention to challenge the admissibility of the oral admission and the items seized in the house search and required a voir dire. The case was adjourned to 4 September 2023 for trial.
24 November 2023 (second CMH)	Defence counsel indicated that a plea bargain would be proposed to the prosecution, seeking to amend the particulars of the charge regarding the quantity of ketamine from 2,600 to 1,000 grammes. Following the hearing, defence counsel wrote to the prosecuting counsel proposing that the charge be amended to one count of conspiracy to traffic in a dangerous drug (ketamine) without specifying the quantity, on the basis that the Summary of Facts would state that the applicant believed the parcel contained 1,000 grammes of ketamine.
5 December 2023	The prosecution accepted this counter‑proposal and agreed to amend the indictment accordingly to one count of conspiracy to traffic in a dangerous drug (ketamine) without specifying the quantity, on the conditions that: (i) the applicant would plead guilty to the amended indictment; (ii) he would admit to the Summary of Facts, which would state that the conspiracy concerned 1,000 grammes of ketamine narcotic only, while a total of 2,600 grammes of ketamine was in fact found inside the parcel; and (iii) no application for costs would be made against the prosecution.
6 December 2023 (third CMH)	Defence counsel informed the court that the prosecution had accepted the plea bargain on the previous day and submitted a “Chronology of Plea Bargain” showing that the prosecution had made a counter-proposal regarding the charge particulars on 3 August 2021.   On a firm indication by the defence that the applicant would plead guilty to the offence of conspiracy to traffic in a dangerous drug, which was accepted by the prosecution, the judge directed that the matter be set down for plea, mitigation and sentence.  It was fixed to be heard together with HCCC 247/2021 and HCCC 356/2020 on 9 January 2024, and the previously fixed trial dates were vacated.

Discussion

22.  The issue in the applicant’s appeal is whether the judge wrongly exercised his discretion by affording the applicant only a 20% discount to his sentence for his plea of guilty, which was indicated after the case had been set down for trial. 

23.  Mr Wilson Choi, for the respondent, refers to Ngo Van Nam and submits that there is no arguable ground of appeal against sentence, as the judge properly considered the stage at which the guilty plea was entered and gave an appropriate overall discount for the sentence.  He further submits that the resultant sentence of 11 years and 3 months’ imprisonment is neither wrong in principle nor manifestly excessive, given the quantity of narcotics involved.

24.  As already noted, the applicant’s indication to plead guilty was first made in his defence counsel’s letter to the prosecution dated 24 November 2023, which proposed a plea bargain to amend the charge to one count of conspiracy to traffic in a dangerous drug.  This was made following the second CMH held on the same day, after trial dates had been fixed but before the commencement of the trial.  In these circumstances, the appropriate discount from the starting point would fall within the range of 20% to 25%, in accordance with Ngo Van Nam[12], in which it was stated:

“An indication of a plea of guilty after the fixing of trial dates but before the first day of trial: 25% to 20% discount.

214. Next, we are satisfied that, subject to the overriding discretion of the judge in sentencing, the range of discount to be afforded to a defendant who indicates to the Court or the prosecution that he intends to plead guilty after trial dates have been fixed but before the first day of trial, lies between the 25% discount to be afforded to the defendant who indicates that he wishes to plead guilty up to and until dates are fixed for his trial by the Listing Judge and the 20% discount to be afforded to the defendant for a plea of guilty on the first day of trial.  In determining the appropriate discount to be afforded to the defendant in those circumstances, the judge will have regard to the time at which the indication was given and to all the other relevant circumstances.”

25.  In his sentencing remarks, the judge applied the relevant principles, taking into account the timing and overall circumstances of the applicant’s plea, and provided reasons for affording the 20% discount.  He noted that, although the prosecution had indicated as early as August 2021 that they were prepared to take the same approach as in the case of D3 by amending the charge to conspiracy to traffic in one kilogramme of ketamine, the applicant took no further action to indicate an intention to plead guilty until more than two years after, when the defence proposed a plea bargain in similar terms at the second CMH in November 2023.  It is therefore appropriate to examine the procedural history regarding the plea bargain that was negotiated by the applicant’s lawyers.

26.  The Court in HKSAR v So Yat Ting[13]remarked that:

“38. … If a defendant wants to receive the benefit of a percentage discount for pleading guilty to an offence he has committed, the sooner this is done, the greater the percentage discount he will receive as set out in Ngo Van Nam.

…

42. As Ngo Van Nam makes clear, the decision as to an appropriate discount for a plea of guilty is subject to the overriding discretion of the Judge and “all the other relevant circumstances”, in determining where between the 25% and 20% he considers such discount should lie.”

27.  Although the applicant only took issue with the 20% discount given for his plea, it is also relevant, in considering the sentencing appeal, to examine the following matters: (i) whether the starting point of 14 years and 9 months’ imprisonment was correct (and arithmetic calculation for the starting point of 1,000 grammes of ketamine is 14 years’ imprisonment); and (ii) whether a greater discount was warranted in light of the nature and extent of the assistance he rendered to the authorities, in particular, his participation in a successful controlled delivery operation that led to D3’s arrest; and whether the overall reduction of 24% (comprising 20% for the plea and 4% for the assistance) was appropriate in the circumstances.  See HKSAR v Sysoev Igorevich Iurii [14], for the approach to assessing the appropriate discount to be given for assistance to authorities, including participation in a successful controlled delivery operation.

28.  In light of the procedural history of this case, there is a legitimate argument that the applicant should have received a 25% discount for his plea of guilty.  Additionally, the 4% discount for the assistance he rendered to the authorities appears to be on the low side.  He cooperated in a controlled delivery, which resulted in the apprehension of D3, who ultimately pleaded guilty to the conspiracy count.  I am therefore persuaded that the applicant has a reasonably arguable case that the percentage discounts for his plea of guilty and assistance to the authorities ought to have been higher than those given by the judge. 

29.  I am also persuaded that the applicant has a reasonably arguable ground of appeal on the starting point adopted by the judge.  However, the judge explained that because this was a conspiracy charge, he took into account other matters, in arriving at a notional starting point of 14 years and 9 months’ imprisonment. 

30.  Accordingly, the application for leave to appeal against sentence is granted.  I also grant the applicant an appeal aid certificate so that he may be legally represented in his appeal against sentence.

[1] Appeal Bundle (AB), 1.

[2] In HCCC 247/2021, the applicant and Lai Wing Hong (designated as D1 at trial) were charged with trafficking in dangerous drugs found at the applicant’s residence upon his arrest for the present offence.

[3] In HCCC 356/2020, D3 was charged with conspiracy to traffic in ketamine, the same offence as the present case, and was committed to the High Court for sentence following his plea of guilty before a magistrate.  The judge adopted a starting point of 16 years’ imprisonment and sentenced him to 8 years and 9 months’ imprisonment, after giving him a total discount of 45% for his plea and assistance to the authorities.

[4] Reasons for Sentence, at [70], [80], [83] and [86]-[88].

[5] AB, 3-5.

[6] AB, 15, at [25].

[7] AB, 42D-M; 63-64, at [2]-[6].

[8] AB, 45H-L; 63-70, at [17]-[18].

[9] Reasons for Sentence, at [54]-[58].

[10] HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.

[11] Reasons for Sentence, at [23] and [78]-[79].

[12] Ngo Van Nam, at [214].

[13] HKSAR v So Yat Ting [2021] 1 HKLRD 1215, at [38] and [42].

[14] HKSAR v Sysoev Igorevich Iurii [2023] 3 HKLRD 20, at [125]-[134].