HKSAR v. LAU SIU FUNG

CACC 206/2024 [2025] HKCA 375

On appeal from [2024] HKCFI 2724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 206 OF 2024

(ON APPEAL FROM HCCC NO 46 OF 2024)

_______________

_______________

________________

J U D G M E N T

________________

1.  On 16 September 2024, following his guilty plea to two counts of trafficking in a dangerous drug (Counts 1 and 3) and one count of conspiracy to manufacture a dangerous drug (Count 2) before Barnes J (the judge), the applicant was sentenced to an aggregate term of 14 years’ imprisonment.

2.  On 4 October 2024, the applicant filed a notice of application for leave to appeal against his sentence.  On 4 December 2024, Perfected Grounds of Appeal against sentence were filed on behalf of the applicant by Mr Trevor Beel, who the Legal Aid Department assigned to represent the applicant.

3.  On the evening of 13 June 2022, the applicant was intercepted by police officers as he was walking along Liberty Avenue, Ho Man Tin.  Upon a search of the applicant, the police officers found in his possession a plastic bag that contained 13 plastic bags and 3 paper packets, containing a total of 275 grammes of a solid containing 191 grammes of cocaine (Count 1).  He was arrested and cautioned, and stated that the drugs were for sale and he had just come from his flat, which was located nearby.  He was escorted to his flat by the police officers.  Following a search of the flat, the police officers found inside items that were typically used for the manufacturing of “crack” cocaine from cocaine hydrochloride, as well as electronic scales and plastic resealable bags for weighing and packaging of the manufactured product.  Under caution, the applicant stated that he had been manufacturing “crack” cocaine for about a month from a starting quantity of 1 kilogramme of cocaine (Count 2).  The police officers also found inside the flat 17 plastic bags containing a total of 323 grammes of a solid containing 266 grammes of cocaine and 2 plastic bags containing a total of 12.9 grammes of a solid containing 12.1 grammes of cocaine hydrochloride (Count 3).  The applicant stated that the 323 grammes found in the 17 packets represented the manufactured product from the original 1 kilogramme of cocaine.

4.  Mr Beel, who represented the applicant at his sentencing, submitted in mitigation that, in addition to the applicant’s timely plea, was the assistance he had rendered to the authorities.  This had resulted in the arrest of five people who were charged with drug-related offences and dealt with in the District Court.  The applicant was not required to testify against the defendants in the case because they had pleaded guilty to the charges they faced.

5.  In sentencing the applicant, the judge first considered the conspiracy to manufacture (Count 2) and determined that a starting point of 21 years’ imprisonment was appropriate in the circumstances of the case and in view of the applicant’s assistance gave him a reduction of 48% (incorporating the one third discount for his guilty plea), resulting in a sentence on Count 2 of 10 years and 11 months’ imprisonment.  The judge next considered Counts 1 and 3 together and treated the combined quantity of the “crack” cocaine and cocaine hydrochloride of 469.1 grammes.  The quantity fell within the sentencing band of 400 to 600 grammes, corresponding to 15 to 20 years’ imprisonment.  The judge adopted a starting point of 19 years’ imprisonment and, after applying the discount of slightly higher than 48%, sentenced the applicant to 9 years and 10 months’ imprisonment on each count. In applying the totality principle, the judge ordered that the sentences on Counts 1 and 3 run concurrently and 4 years and 2 months of the sentence on Count 2 run consecutively to the concurrent sentences of 9 years and 10 months’ imprisonment on Counts 1 and 3, resulting in a total sentence of 14 years’ imprisonment.

6.  Mr Beel submits that the judge erred in sentencing the applicant by (1) adopting a starting point of 19 years on Counts 1 and 3, given the quantity of cocaine involved; (2) failing to properly take into account the totality principle in that the applicant’s culpability on Count 3 also crossed over into Counts 1 and 2; and (3) wrongly apportioning the quantum of sentence on Count 2 to run consecutively to Counts 1 and 3.

7.  Mr Beel takes no issue with the discount afforded to the applicant for the assistance he rendered to the authorities, nor the starting point adopted for Count 2 of 21 years’ imprisonment.  He distills his complaint into two points.  First, the starting point adopted for the combined cocaine in Counts 1 and 3 was manifestly excessive.  Secondly, the term of consecutiveness in relation to Count 2 following the concurrent sentences on Counts 1 and 3 was manifestly excessive and failed to properly take into account that the culpability in Counts 1 and 3 overlapped with that in Count 2. 

8.  Mr Antony Leung, for the respondent, essentially argues that the aggregate sentence of 14 years’ imprisonment for all three counts was appropriate in reflecting the applicant’s overall criminality in the present case.  He points out that this is the equivalent of an overall starting point of 26 years and 11 months’ imprisonment after a 48% discount as allowed by the judge.

9.  In a similar case, where the applicant was sentenced for manufacturing and trafficking in crack cocaine, Macrae VP in HKSAR v Au Chun Wah [1], granted leave to appeal sentence on the question of what a sentencing court should do when dangerous drugs are found and formed the basis of a trafficking charge, but those same drugs are either derived from or associated with a more serious manufacturing operation being carried on in the same place at the same time.  This Court in HKSAR v Sum Ka Wa [2], explained that in such circumstances, caution should be exercised when imposing a consecutive element in respect of the sentences of the two offences of manufacturing and trafficking because of the potential common criminality in respect of the drugs allegedly trafficked that were part of the manufacturing operation. 

10.  There also seems to be an argument for a reduction of the overall sentence in light of the new guidelines laid out in HKSAR v Huang Ruifang [3].

11.  For the reasons I have given, I grant the applicant leave to appeal against his sentence.  I also direct that the appeal of this case be heard together with the appeal of Au Chun Wah. 

[1]   HKSAR v Au Chun Wah, unrep., CACC 62/2024, 6 December 2024.

[2]   HKSAR v Sum Ka Wa [2024] 4 HKLRD 777, [32]-[35].

[3]   HKSAR v Huang Ruifang, unrep., CACC 106/2022, 5 March 2025.