HKSAR v. WONG YU WO

CACC 1/2020, [2026] HKCA 153

On Appeal From [2018] HKCFI 2440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 1 OF 2020

(ON APPEAL FROM HCCC NO 148 OF 2018)

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REASONS FOR JUDGMENT

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Hon Macrae Acting CJHC (giving the Reasons for Judgment of the Court):

1.  By a Form XIII Notice filed on 11 June 2025, the applicant has sought to renew his application for leave to appeal against his sentence of 15 years and 10 months’ imprisonment in respect of a single count of trafficking in a dangerous drug, namely 973 grammes of a crystalline solid containing 965 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The respondent did not oppose the present application, or take issue with the background and subsequent development of the law, which is set out in the chronology below:

(i)  The applicant committed the offence on 13 October 2017.

(ii)  Following his plea of guilty, on 10 October 2018, the applicant was sentenced in the High Court by Campbell-Moffat J in accordance with the sentencing guidelines laid down in HKSAR v Abdallah Anwar Abbas[1].

(iii)  On 3 January 2020, the applicant filed a Form XI Notice seeking leave to appeal against his sentence out of time. At the conclusion of the hearing on 3 March 2021, the Single Judge refused the application.

(iv)  On 5 March 2025, this Court handed down its decision in HKSAR v Huang Ruifang (No 3)[2], revising and reducing the sentencing guidelines in respect of the trafficking in very large and exceptionally large quantities of heroin, cocaine and “Ice”.

(v)  On 20 January 2026, this Court further handed down its decision in HKSAR v Lam Man Tak[3]. The Court thereby set out its approach to the application of the revised sentencing guidelines in Huang Ruifang (No 3) stating that an applicant or appellant who has been sentenced by a court on or after 18 September 2018, and who is still “in the system” so far as any appeal is concerned, is in principle entitled to benefit from them.

2.  The facts accepted by the applicant when pleading guilty revealed that, on 13 October 2017, at 11:45 pm, he was intercepted upon entering Hong Kong from the Mainland China through Lo Wu Boundary Control Point. Two plastic bags were discovered wrapped around his waist with cling film containing the dangerous drugs in question, with an estimated value of $417,417. The applicant said under caution that he was instructed by someone called “Ah Chik” to bring the dangerous drugs into Hong Kong for a reward of $9,000. He also detailed in a subsequent video recorded interview how he had collected the dangerous drugs in Shenzhen (where he was living) from a toilet inside a park. He further claimed that he was himself addicted to “Ice”, consuming roughly one gramme of the drug every two days.

3.  The applicant had had six previous appearances before the courts, involving a total of 8 convictions, although only the last conviction was related to trafficking in dangerous drugs.  On that occasion, he had been convicted on his plea of one count of trafficking in 0.49 kilogramme of a powder containing 0.38 kilogramme of ketamine, again for importing the dangerous drugs from Shenzhen to Hong Kong[4], and was sentenced in the High Court by M Poon J (as M Poon JA then was) to 7 years’ imprisonment.

4.  In passing the present sentence, the judge used 21 years and 9 months’ imprisonment as the starting point for the quantity concerned, which she then enhanced by 2 years for the international element of bringing the dangerous drugs across the border into Hong Kong to 23 years and 9 months’ imprisonment. Giving the applicant a one-third discount for his timely guilty plea, the judge passed the sentence of 15 years and 10 months’ imprisonment.

5.  Now represented by Mr Chan, the applicant’s sole ground of appeal is that he should benefit from the downward revision of the sentencing guidelines in relation to “Ice”, which did not come into existence until some 4 years after the refusal of his application for leave to appeal against sentence by the Single Judge. Mr Chan pointed out that the ‘state of affairs’ which ultimately led to the revision of the guidelines was already in existence at the time the applicant was sentenced on 10 October 2018. On that basis, he submitted that on a purely arithmetical basis, 965 grammes of “Ice” narcotic would attract a starting point of slightly more than 18 years and 9 months’ imprisonment (as against 21 years and 9 months’ imprisonment under the former guidelines in Abdallah). However, Mr Chan also accepted that, under the approach explained in HKSAR v Herry Jane Yusuph[5], sentencing in cases of trafficking in dangerous drugs is not a simple arithmetic exercise: the Court must primarily make an assessment of the applicant’s role and culpability, a significant aspect of which is the carrying of nearly a kilogramme of “Ice” across the border into Hong Kong.

6.  It is conceded by Ms Chan, on behalf of the respondent, that, despite the refusal of leave to appeal by the Single Judge on 3 March 2021 and the failure by the applicant to renew his application for leave until 11 June 2025, more than four years later, it is still open to this Court as a discretionary exercise to grant leave to appeal out of time and, by doing so, place an applicant or appellant back “in the system”.  The Court is not functus officio and always retains a discretion to allow an applicant to appeal out of time if his appeal has obvious merit; otherwise, one would be shutting out a plainly meritorious appeal.

7.  She also agreed with the applicant’s calculation of what the starting point should be on an arithmetical basis under the revised guidelines, but pointed out that the applicant is a repeat cross-border trafficker, whose role and culpability are greater than someone trafficking in the same dangerous drugs locally.

8.  We are indebted to Ms Chan for her concession that the applicant, having been sentenced by the judge after 18 September 2018, and having subsequently sought leave to appeal against his sentence, which was later refused by the Single Judge, is nevertheless still within the appeal system, since he plainly has a meritorious ground of appeal. The merit of his appeal would not have been apparent at the time leave was initially refused on 3 March 2021. Since that date, the sentencing guidelines governing the trafficking of large quantities of heroin, cocaine and “Ice” have undergone a significant sea change with the issuing of the Court’s judgments in HKSAR v Lee Ming Ho[6], HKSAR v Raman Kapusamy[7], HKSAR v Sum Ka Wa[8] and, finally, Huang Ruifang (No 3) itself.

9.  There was discussion before us concerning the effect of rule 42(3) of the Criminal Appeal Rules, Cap 221A (“the Rules”), which states that:

“If the appellant does not desire to have his applications determined by the Court of Appeal, or does not return Form XIII duly filled up by him to the Registrar within 14 days, the refusal of his application by such judge shall be final”.

We were of the view that such provision cannot render this Court functus officio, and that the Court still retains a discretion to allow an appellant to seek leave to appeal, or to appeal, out of time. Unlike rule 39 of the Rules, which deems an appeal dismissed upon its specific abandonment made in writing in a prescribed form by the applicant or appellant, the applicant has not in the present case abandoned anything: he has simply failed to renew his application for leave.

10.  There is a significant difference in consequence between the two rules, which may be illustrated in this way. Suppose an applicant applies for leave to appeal on one ground of appeal but it is dismissed by the Single Judge. The failure to then signify his intention to renew his application within 14 days means that the Single Judge’s refusal of leave is “final” under rule 42(3). But what of the position where an applicant renews his application some time later on a completely unrelated ground of appeal, which was not made the subject of the original leave application? Such a renewal is, theoretically at least, not a renewal of the failed ground of appeal but a completely new ground and as such, it would be for the Single Judge to determine whether leave should be granted. Of course, one of the factors which would bear on the Single Judge’s decision is that the new ground may well be an afterthought filed well out of time; another might be if the applicant is seen to be “playing” the system when there is an important issue of finality of proceedings at stake. However, the judge would not shut out a substantial and plainly arguable ground of appeal that had been genuinely overlooked in the first application. He would have a discretion, on ordinary principles, to examine the merits of the new ground of appeal to determine whether leave should be granted. The same must apply to the Court of Appeal.

11.  There is an element of artificiality in labelling one situation as a late renewal of an application for leave to appeal out of time based on an original ground of appeal, and another situation as a late application for leave to appeal out of time based on an entirely new ground of appeal, particularly when the Court, whether Single Judge or full Court, must go through the same process of deciding whether it should exercise its discretion to grant leave out of time. Of course, any court must be vigilant to ensure that its processes are not being abused by the serial applications of applicants, who may harbour a desire to spin the whole process of appeal out for their own reasons. As we have said, finality of proceedings must always be an important consideration. However, the ultimate question in exercising its discretion must be whether a substantial ground of appeal would thereby be shut out if leave were refused.

12.  We would interpret the notion of ‘finality’ in rule 42(3) as preventing any applicant from proceeding to the Court of Appeal after leave has been refused without first renewing his application for leave within 14 days. The rule could have said that where an applicant fails to renew his applications for leave to appeal within 14 days, his application is deemed dismissed. But it does not. And it does not prevent a Single Judge or the Court of Appeal, in the exercise of his or its discretion from granting an extension of time within which to appeal.

13.  It seems to us, therefore, that there is a significant difference between an applicant formally abandoning an appeal in writing by way of a prescribed form set out in the Rules and simply doing nothing to renew his application for leave. The former results in the appeal being deemed dismissed by the Court of Appeal, which then become functus officio: the latter means that, in the absence of a renewed application, the Single Judge’s refusal brings the application to an end but the Court is not functus officio and can permit the appeal to be re-opened on good reason being shown for the exercise of its discretion.

14.  We find some support for this interpretation in the decision of the Court of Final Appeal in Seabrook v HKSAR[9], which held:

“As to that third condition (namely, whether the sentencing process is still extant), this should be understood. If the time for appealing to, or seeking leave to appeal to, the appropriate intermediate appellate court against sentence has expired, the sentencing process can no longer be regarded as extant unless that court sees fit to entertain the matter on the merits despite such expiry. And the court would not be automatically obliged to do so simply because someone is seeking to take advantage of sentence-reducing guidelines laid down after he was sentenced. It would be a matter of a discretion to be exercised in the light of all the circumstances.”

15.  Ultimately, it must remain a matter for the discretion of this Court whether to grant the applicant an extension of time within which to prosecute his appeal.

16.  In HKSAR v Shahid Imran Younas[10], it was argued on behalf of the respondent that there was no power in the Criminal Procedure Ordinance or the Rules empowering the Court of Appeal or a Single Judge to grant an extension of time on an application for renewal. The Court found that not only were rules 39 and 42 of the Rules qualitatively different, but rule 74 gave the Court of Appeal, or a Single Judge exercising the powers of the Court of Appeal, power to waive an applicant’s non-compliance with the 14-day time limit in rule 42. The Court characterised rule 74 as a “slip rule”, which provided that:

“(1) Non-compliance by an appellant with these rules, or with any rule of practice for the time being in force, shall not prevent the further prosecution of his appeal if the Court of appeal, or a single judge acting under r.40, considers that such non-compliance was not wilful, and that the same may be waived or remedied by amendment or otherwise.”

17.  Whilst we have reached the same conclusion by a slightly different route of purposive interpretation, we are satisfied that there was nothing wilful in the applicant’s non-compliance with rule 42(3) and the Court does have power to grant leave to appeal out of time, notwithstanding his failure to renew his application within 14 days of the Single Judge’s refusal of leave. Indeed, had the series of authorities, which paved the way for the revised guidelines in Huang Ruifang (No 3) existed in 2021, the Single Judge would undoubtedly have granted leave to appeal. Accordingly, we shall exercise our discretion to grant him leave to appeal against sentence out of time.

18.  Under the revised guidelines in Huang Ruifang (No 3), the arithmetical starting point would have been 18 years and 9 months’ imprisonment. However, the applicant’s role and culpability were very serious and involved bringing nearly a kilogramme of synthetically manufactured “Ice” worth some HK$417,000 over the border from the mainland into Hong Kong. The appropriate starting point for his role and culpability would have been 20 years and 9 months imprisonment. However, this was not the first time the applicant had smuggled dangerous drugs across the border with the mainland: indeed, he had emerged from prison less than two years earlier in respect of another sentence passed in the High Court for trafficking in dangerous drugs. He had evidently not learned his lesson and we regard this matter as an aggravating factor justifying an enhancement of the starting point to 21 years’ imprisonment.

19.  Allowing the applicant a full one-third discount for his plea, the resulting sentence would become 14 years’ imprisonment. In our judgment, there is a significant enough difference between the sentence that we consider appropriate under the revised guidelines (14 years’ imprisonment) and his original sentence (15 years and 10 months’ imprisonment) to warrant our interference, and Ms Chan rightly accepted as much.

20.  For these reasons, we granted the applicant leave to appeal against sentence out of time, allowed his appeal and reduced his sentence from 15 years and 10 months’ imprisonment to 14 years’ imprisonment.