HKSAR v. CHUNG SAI WAH

CACC 367/2017

[2026] HKCA 1671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 367 OF 2017

(ON APPEAL FROM HCCC NO 224 OF 2017)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  The applicant was originally charged with trafficking in a dangerous drug, namely 1 kilogramme of a powder containing 852 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  Following a trial before M Poon J (as M Poon JA then was) (“the judge”) and a jury, on 2 November 2017, he was convicted and sentenced to 21 years’ imprisonment.

2.  The applicant thereafter applied for leave to appeal against his conviction only.  Such application was directed to be heard by the full Court (differently constituted by Macrae VP, McWalters and Zervos JJA).  At the conclusion of the hearing on 29 January 2019, the Court granted the application, quashed the conviction for trafficking and, pursuant to its powers under section 83A(1) of the Criminal Procedure Ordinance, Cap 221, substituted a conviction for attempted trafficking.  The Court also re-sentenced the applicant to 21 years’ imprisonment[1], which was the same period as his original sentence.  The applicant subsequently applied for leave to appeal to the Court of Final Appeal, which application was dismissed by the Appeal Committee of the Court of Final Appeal on 18 June 2020 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A (“Rule 7”).  We are not told whether that application was related to his conviction or his sentence, or both.

3.  On 9 May 2025, the applicant filed a Form XI Notice with the Court of Appeal applying for leave to appeal against his sentence out of time.  Legal aid for such intended application was refused on 7 July 2025.  By the Court’s directions on 4 August 2025 and 24 October 2025, the Criminal Appeals Master suggested to the applicant that the Court of Appeal may lack jurisdiction in entertaining his intended application.  He was advised that he could petition the Chief Executive, if he so wished.  The applicant nevertheless indicated his intention to pursue the matter before this Court.  Accordingly, the case has been listed for legal argument on the jurisdictional issue.

Facts of the case; and previous proceedings

4.  The facts of the case are not perhaps of great significance in the context of the jurisdictional argument.  On the night of 1 November 2016, Liu Jinzhan (“PW1”) was intercepted by Customs officers in Cheung Sha Wan, Kowloon while he was carrying the dangerous drugs in question.  He told the Customs officers that he had been offered HK$2,000 to make a delivery to Room 1200 of Hotel Harbour Grand Kowloon in Hung Hom[2] and someone would then go there to deal with the dangerous drugs[3].  He assisted Customs officers in making a controlled delivery to Room 1200[4], where the officers lay in ambush from 21:10 hours[5].

5.  On 2 November 2016, between 00:26 and 00:33 hours, two calls were made to PW1 from the applicant’s telephone number[6]. After telling the applicant where he was, the applicant arrived and entered Room 1200 at 00:35 hours on the same day[7]. He was duly arrested by a Customs officer for trafficking.

6.  When sentencing the applicant, the judge adopted a starting point of 21 years’ imprisonment, on the basis that 852 grammes of cocaine narcotic fell within the range of 600 to 1,200 grammes, in respect of which the applicable band of sentence was 20 to 23 years’ imprisonment, as set out in HKSAR v Abdallah[8]. The judge saw no other aggravating or mitigating factors and, accordingly, sentenced him to 21 years’ imprisonment[9].

7.  When allowing the appeal against conviction, the Court of Appeal held that[10]:

“…given the way in which the officers turned their investigation overt, the offence committed by the applicant could only be an attempt”.

However, the Court also observed that[11]:

“By its verdict, the jury must have been satisfied that the applicant knew there were drugs in the hotel room and he intended to go to the hotel room to deal with them in some way.”

8.  In the result, the Court acceded to the Department of Justice’s invitation and substituted for the conviction for trafficking a conviction for attempted trafficking.  The Court then re-sentenced the applicant accordingly on 29 January 2019[12].

Existence of new sentencing guidelines

9.  On 5 March 2025, the Court of Appeal handed down its judgment of HKSAR v Huang Ruifang (No 3)[13] revising downward the sentencing guidelines for trafficking in very large and exceptionally large quantities of heroin, cocaine, and “Ice”.  By a further judgment in HKSAR v Lam Man Tak[14], handed down on 20 January 2026, the Court resolved that the commencement date of the ‘state of affairs’ leading to the revision of the sentencing guidelines was 18 September 2018; and that the date from which the revised sentencing guidelines should be applied was the date of sentence.

Intended grounds of appeal and the respondent’s submissions

10.  Although the applicant was sentenced on 2 November 2017, before the cut-off date of 18 September 2018, he nevertheless asserts that by virtue of his re-sentencing by the Court of Appeal on 29 January 2019, he is entitled to benefit from the revised sentencing guidelines in Huang Ruifang (No 3) and has therefore continued with his intended appeal against sentence.  He submits it would be unfair if he was unable to appeal against the sentence of the Court of Appeal.

11.  Ms Wong, for the respondent, submits that the sentence which the applicant now seeks to appeal is no longer one passed by the Court of First Instance, for it was duly set aside and replaced by the Court of Appeal.  Accordingly, the Court of Appeal has no jurisdiction to alter its own sentence. 

Decision

12.  In Attorney General v Yeung Sun Shun and Anor[15], Roberts CJ alluded to the absence of an applicant’s right to appeal to the Court of Appeal against a sentence passed by itself.  Albeit in the context of section 84 of the District Court Ordinance, Cap 336, in relation to an appeal by way of case stated, Roberts CJ observed that[16]:

“…the respondent [i.e. the defendant], if sentenced by this court, has effectively no right of appeal, as he would have if the matter were returned to the trial judge for sentence...”

13.  A similar observation was also made by the Court of Appeal (differently constituted) in HKSAR v Chan Chi Wan Stephen[17]. Yeung VP pointed out that, in an appeal by way of case stated, if the Court were to reverse the verdict and pass a sentence on the respondent, the respondent would thereby have been deprived of the opportunity to appeal to the Court against his conviction and sentence.

14.  The argument is somewhat technical but, although there was no appeal against sentence, the Court at this applicant’s appeal against conviction did obviously intend to pass a sentence for the substituted attempted offence, and it was the same sentence as the judge had passed for the original substantive offence.  There is perhaps one thing in common between a Court passing a sentence after reversing a verdict of not guilty in a case-stated appeal, and a Court passing a new sentence for a substituted conviction under section 83A of the Criminal Procedure Ordinance: the original sentence (if any) is duly set aside, and a fresh sentence passed, by the Court of Appeal.  Although the original sentence for the substantive offence of trafficking and the new sentence for the substituted attempted offence were the same, strictly speaking, the original sentence passed by the judge related to a different charge; it was set aside by the Court of Appeal and no longer exists.  The only sentence which is appealable is the sentence passed by the Court of Appeal.  The applicant cannot, however, invite the same sentencing court to reconsider its own sentence.

15.  The above reasons are sufficient to deal with this application.  However, there is a further consideration we should mention.  The applicant appealed against the Court of Appeal’s decision to the Court of Final Appeal and his appeal has already been dismissed by the Appeal Committee of that Court under Rule 7 “on the ground that it discloses no reasonable grounds for leave to appeal”.  Where the Appeal Committee dismisses an application, there is no appeal from that decision.  Whether or not he did raise the question of sentence before the Court of Final Appeal, for the reasons set out at [14] above he has no further right of appeal to the Court of Appeal against a sentence of the same Court, which is now functus officio.

16.  For several reasons, therefore, we consider that we do not have jurisdiction to entertain the applicant’s appeal.

17.  However, even if we did entertain his appeal, we would not have altered the applicant’s sentence.  The applicant was convicted after trial of trafficking in 852 grammes of cocaine narcotic.  On a purely arithmetical basis, the starting point under the former guidelines in Abdallah could have been about 21 years and 3 months’ imprisonment; in fact, the judge adopted 21 years’ imprisonment.  Under the revised guidelines in Huang Ruifang (No 3), the starting point would be about 17 years and 6 months’ imprisonment on a purely arithmetical application of guideline to quantity. 

18.  However, since HKSAR v Herry Jane Yusuph[18] was decided, the Court now looks more to a defendant’s role and culpability in the offence rather than mere arithmetic.  In the present case, the applicant made an admission to Customs officers that he came up to the hotel room to mix cocaine (上去攪可樂)[19].  Inside Room 1200 were discovered various items consistent with that purpose, including plastic gloves, a cooker, a pot, plastic bags, plastic bowls, a mixer and a set of electronic scales[20].

19.  In HKSAR v Ho Kit Ki Eric[21], it was said by the Single Judge that, where the premises were specifically rented for the storage, preparation, packaging and distribution of dangerous drugs, a trafficker who involved himself in the cutting, packaging and distributing of those dangerous drugs assumed a greater role, or fell within a category of higher culpability, which would have merited an enhancement in that case of something in the region of an extra 18 months’ imprisonment.  Whilst it is not absolutely clear what the applicant meant by “mixing” the cocaine, adulterating and refining a dangerous drug would be viewed as playing a more significant role in the trafficking of dangerous drugs[22], which would have warranted a significant enhancement of the starting point for his role and culpability.

20.  Furthermore, the applicant had a similar previous conviction for trafficking in 2009, for which he was sentenced on his own plea in the High Court to 8 years and 8 months’ imprisonment[23]. As the judge noted, the applicant had been discharged on 20 September 2014, slightly more than two years before the commission of the present offence.  This ought to have constituted a significant aggravating factor yet, strangely, the judge, whilst singling the matter out for mention, did not actually enhance the sentence for it at all.  That does not mean that the Court of Appeal, properly seized of a sentencing appeal should likewise ignore the matter; since the Court would have to sentence afresh, it would be bound as a matter of sentencing principle and policy to consider enhancing the sentence for this aggravating factor.

21.  Whilst the starting point for trafficking in 852 grammes of cocaine narcotic would merit a sentence of about 17 years and 6 months’ imprisonment on an arithmetical basis under the revised guidelines, the applicant’s significant role and culpability in the present case would have justified a sentence of about 19 years and 6 months’ imprisonment.  A similar enhancement for role was recently considered in HKSAR v Tsui Lok Hin[24], where the quantity concerned was 784.10 grammes of cocaine narcotic and the enhancement for role, 22 months’ imprisonment.  The Court in that case noted that while the appellant[25]:

“…was not charged with manufacturing any of the drugs in question, we cannot sensibly disregard his admission that he was in possession of the cooking utensils found in the kitchen for manufacturing part, if not all, of the dangerous drugs throughout the charged period from 30 to 31 January 2018.  Nor can we ignore his obvious connection with premises which were a centre for the manufacturing, packaging and distribution of cocaine…”

22.  Furthermore, the applicant before us had committed exactly the same offence some two years after getting out of prison.  That case and this were both serious offences tried in the High Court.  Any sentencing court would be entirely justified in enhancing the sentence by at least one year for the applicant’s blatant repeat of a very serious crime, which would take the overall sentence to about 20½ years’ imprisonment.

23.  The revised guidelines in Huang Ruifang (No 3) do not assist the case of the applicant, for the reasons we have stated.  Even if they were applied, any projected difference (of some 6 months) between a sentence under the former Abdallah guidelines and the revised guidelines would not be significant enough to warrant interference by this Court[26].

[1]  HKSAR v Chung Sai Wah [2019] 2 HKLRD 437.

[2]  Admitted Facts, at [5]: Appeal Bundle (“AB”), pp 7-8.

[3]  AB, p 21F-G.

[4]  Admitted Facts, at [6]: AB, p 8.

[5]  Admitted Facts, at [13]: AB, p 9.

[6]  Admitted Facts, at [21]: AB, p 10.

[7]  Admitted Facts, at [14]: AB, p 9.

[8]  HKSAR v Abdallah [2009] 2 HKLRD 437.

[9]  AB, pp 32S-33B.

[10]  Chung Sai Wah, at [49].

[11]  Ibid., at [54].

[12]  Ibid., at [55].

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

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

[15]  Attorney General v Yeung Sun Shun & Anor (1987) HKLR 987.

[16]  Ibid., at 999C-D.

[17]  香港特別行政區訴陳志雲 (Unrep., CACC 183/2014, 15 December 2015), at [13] (the full text in Chinese reads: “根據《香港人權法案條例》香港人權法案第十一條第四款，陳是‘有權聲請上級法院依法覆判其有罪判決及所科刑罰’的。如本庭直接將陳定罪及判刑，則該決定可視為剝奪他向上級法院申請覆判的權利。事實上本庭在2015年10月26日作出的裁決已等同裁定陳有罪，本庭根據該條例第(c)(iii)條，將案件發還原審法官將陳定罪和判刑的目的是避免陳喪失他要求上級法院覆判有罪判決及刑罰的機會。”)

[18]  HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

[19]  AB, p 17O-P.

[20]  Admitted Facts, at [9]: AB, p 8.

[21]  HKSAR v Ho Kit Ki Eric (Unrep., CACC 464/2025, 31 July 2026), at [11], per Macrae VP.

[22]  HKSAR v Au Chun Wah and HKSAR v Lau Siu Fung [2026] 2 HKLRD 1035, at [39].

[23]  AB, p 37.

[24]  HKSAR v Tsui Lok Hin (Unrep., CACC 194/2019, 7 August 2026).

[25]  Ibid., at [18].

[26]  HKSAR v Yusuf Lukman Adepoju (Unrep., CACC 178/2025, 4 June 2026).