HKSAR v. TAI SING TIM

CACC 137/2025 [2025] HKCA 966

On appeal from [2025] HKCFI 1086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 137 OF 2025

(ON APPEAL FROM HCCC NO 135 OF 2024)

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J U D G M E N T

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1.  On 27 February 2025, the applicant was sentenced by Barnes J (the judge) to 5 years and 8 months’ imprisonment, following his plea of guilty to a single count of trafficking in dangerous drugs, namely 22.4 grammes of a crystalline solid containing 22.3 grammes of methamphetamine hydrochloride (commonly known as Ice) and 0.26 gramme of a mixture containing 0.22 gramme of heroin hydrochloride.

2.  On 30 May 2025, the applicant filed an application for leave to appeal against his sentence, some two months out of time. In his affirmation dated 29 May 2025, he stated that he decided to appeal after his family obtained legal advice, suggesting his sentence was heavy. He alleged that both the overall sentence and the enhanced starting point of 8 years and 6 months’ imprisonment were excessive.

3.  In a letter filed on 22 August 2025, the applicant elaborated on his grounds of appeal. First, he submitted that the notional starting point of 8 years’ imprisonment for the combined drugs was manifestly excessive. He argued that, based on the three check tests provided by his trial counsel, the starting point should not have exceeded 7 years and 10 months’ imprisonment. Secondly, he contended that the judge failed to properly consider his family circumstances and remorse. He argued that these factors warranted a greater reduction in his sentence.

4.  At the leave hearing on 31 October 2025, the applicant appeared in person, having had legal aid refused on 3 July 2025.

5.  The facts outlined to the judge and admitted by the applicant were as follows.[1] On the night of 1 October 2022, police officers on patrol in Mong Kok observed the applicant behaving suspiciously and tightly pressing his sling bag while walking along Tung Choi Street. When the applicant was intercepted, the police found inside his sling bag a coin pouch containing resealable plastic bags with the total quantity of Ice and heroin particularised in the count. The police also found HK$10,178 in cash in his possession. The total street value of the drugs was estimated at HK$15,542.12. When questioned at the scene, the applicant told the police he was unemployed and that the coin pouch contained “pork” (a term meaning “Ice”). He was arrested and remained silent under caution.

6.  At the time of sentencing, the applicant was 50 years old, educated to Form 3 level, and living in a public housing unit with his parents. He had a 15-year-old daughter who lived with his ex-wife. He had worked in casual jobs earning HK$20,000 per month, but was unemployed prior to his arrest.

7.  Among the applicant’s 15 previous convictions, three were for possession of dangerous drugs in July 1999, May 2001 and March 2002; and two were for trafficking in dangerous drugs in June 2014 and November 2018, for which he was sentenced in the High Court to 5 years’ imprisonment and 7 years and 4 months’ imprisonment, respectively.[2] He committed the present offence three months after his release from prison on 30 June 2022.

8.  In sentencing the applicant, the judge identified the starting points as 7 to 11 years’ imprisonment for the 22.3 grammes of Ice, and 2 to 5 years’ imprisonment for the 0.22 gramme of heroin, according to the applicable guideline bands.[3] Applying the sentencing approach in HKSAR v Islam SM Majharul[4]and HKSAR v Herry Jane Yusuph[5], the judge considered the applicant’s role as a courier and adopted a starting point of 7 years and 9 months’ imprisonment for the Ice, treating it as the base drug. This was enhanced by 3 months to reflect the presence of more than one drug, resulting in a notional starting point of 8 years’ imprisonment. Taking into account the applicant’s previous drug convictions and that he committed a similar offence three months after his release, the judge further enhanced the starting point by 6 months to 8 years and 6 months’ imprisonment. The judge noted that he was entitled to a one third reduction for his guilty plea, but rejected any further reduction for his claim that his aged parents required his assistance. Accordingly, the judge sentenced him to 5 years and 8 months’ imprisonment.

9.  The applicant complains that the starting point was excessive. However, the judge cannot be criticised for the basis on which she determined the starting point. Nor can it be said that the judge erred in enhancing the notional starting point to account for the involvement of multiple drugs and the applicant’s recidivism. Except for his timely guilty plea, there were no other meaningful mitigating factors. The applicant has no cause for complaint against the sentence imposed on him, and his application for leave is refused.

10.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal. However, he is also informed of the potential consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, should the Court find the renewal to be unjustified.