HKSAR v. SWANEPOEL PIETER LUTHER

CACC 185/2025 [2026] HKCA 1633

On appeal from [2019] HKCFI 1404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 185 OF 2025

(ON APPEAL FROM HCCC NO 411 OF 2018)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  The appellant pleaded guilty before a magistrate to a single charge of trafficking in a dangerous drug, namely 1.98 kilogrammes of a crystalline solid containing 768 grammes of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 15 May 2019, he was sentenced in the High Court by Anthea Pang J (as Anthea Pang JA then was) (the judge) to 14 years and 8 months’ imprisonment.

2.  On 16 June 2025, the appellant applied for leave to appeal against sentence out of time.  On 5 February 2026, the Single Judge[1] on the papers granted an extension of time within which to file a leave application to appeal against sentence, and also granted leave to appeal. 

The brief facts

3.  On 24 March 2018, while passing through the Green Channel at the Customs Arrival Hall B in Hong Kong International Airport, the appellant was stopped for a customs check.  At the bottom of the suitcase carried by him was a false compartment, in which some grey powder was detected.  He was arrested and cautioned, and he admitted buying the suitcase in a market in South Africa but denied knowing about the powder inside.  It was not disputed that the Ice in question was found hidden in the suitcase.  Also found on the appellant were a baggage claim tag in his name for the suitcase, a Hong Kong Immigration Departure Card in which Happy Land Guest House was stated to be his address in Hong Kong, a hotel booking receipt relating to the reservation of Happy Land Guest House from 24 March to 1 April 2018 at US$1,529, a travel itinerary from Johannesburg in South Africa, via Dubai in the United Arab Emirates, to Hong Kong, US$530 in cash, a notebook containing a handwritten address in Chungking Mansions[2], and a mobile telephone.  It transpired that the handwritten address in Chungking Mansions was an invalid address and there was no booking record in the Happy Land Guest House relating to the appellant[3].

4.  The dangerous drugs in question had a value of HK$1,067,220 and were admitted by the appellant to have been intended for the purpose of unlawful trafficking.

The sentencing

5.  The appellant was born in Southern Rhodesia (now Zimbabwe) and was 58 years of age at the time of sentence.  He holds two degrees, in social sciences and engineering, and had a clear record in Hong Kong before the present offence.  As this was the first time that he had travelled to Hong Kong, his previous record here is of no significance, but, from his antecedent statement, he appeared to be a person of good standing who had previously held a senior managerial position in a company in South Africa.

6.  By reference to the guidelines prevailing at the time of sentence, as set out in HKSAR v Abdallah Anwar Abbas[4], the judge determined that 768 grammes of Ice fell within the band of 600 to 1,200 grammes of narcotic and within the sentencing range of 20 to 23 years’ imprisonment.  Accordingly, the judge adopted a starting point of 20 years and 6 months’ imprisonment. 

7.  The judge enhanced the sentence by 1 year and 6 months (or 18 months) on the basis of the international element involved in the trafficking, resulting in an enhanced starting point of 22 years’ imprisonment.  She gave the appellant a one-third discount for his timely guilty plea, reducing the sentence to 14 years and 8 months’ imprisonment.  

The ground of appeal

8.  The appellant appears in person and appeals against his sentence on the sole basis that he is entitled to benefit from the revised guidelines in HKSAR v Huang Ruifang (No 3)[5] and a consequent reduction in sentence.

The respondent’s submissions

9.  Mr Marcus Lee, for the respondent, does not oppose the appeal.  He submits that, under the revised guidelines in Huang Ruifang (No 3), the arithmetical starting point for trafficking in 768 grammes of Ice would be 18 years and 4.5 months.  He points out that this represents a difference of 2 years and 1.5 months from the original arithmetical starting point.  He suggests an enhancement of 1.5 years for the international element, resulting in a notional sentence of 19 years and 10.5 months.  After a one-third discount for the appellant’s guilty plea, he submits that the revised sentence would be 13 years and 2 months’ imprisonment.  When calculating a sentence, the number of months should not be expressed in decimal form and, when necessary, should be appropriately rounded down. 

Discussion

10.  Having been granted leave to appeal against sentence out of time, the appellant has thereby been brought back into the appeal system.  Since he was sentenced after 18 September 2018 at a time when the “state of affairs” led to the subsequent revision of the guidelines in Huang Ruifang (No 3), we are satisfied that he should be entitled to the benefit of the revised guidelines.[6]

11.  Had the appellant been sentenced under the revised guidelines, the arithmetical starting point, on the assumption that his role was that of a courier, would have been about 18 years and 4 months’ imprisonment, instead of 20 years and 6 months’ imprisonment under the previous guidelines.  We accept that there is nothing in the facts to suggest that the appellant was more than a courier, who had travelled internationally to smuggle the drugs into Hong Kong in a suitcase that he was given.  While he acted on instructions, he was nevertheless involved in the importation of the drugs into Hong Kong.  On this basis, and having regard to the submissions made before us, we assess the notional sentence after trial at 19 years and 6 months’ imprisonment.  Applying a one-third discount for his guilty plea, the sentence on the appellant becomes 13 years’ imprisonment.

12.  Accordingly, we reduce the appellant’s sentence from 14 years and 8 months’ imprisonment to 13 years’ imprisonment.  The appeal is allowed to that extent.

[1]  Macrae Acting CJHC.

[2]  Summary of Facts, at [8]: Appeal Bundle (AB), 15.

[3]  Summary of Facts, at [9]: AB, 16.

[4]  HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.

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

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