HKSAR v. LEUNG HO TAK

CACC 197/2025, [2026] HKCA 1724

On Appeal From [2021] HKCFI 3328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 197 OF 2025

(ON APPEAL FROM HCCC NO 105 OF 2021)

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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.  On 3 May 2021, the appellant pleaded guilty before a magistrate to a single charge of trafficking in a dangerous drug involving 3,457 grammes of a mixture containing 3,038 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 14 September 2021, he confirmed his plea before Deputy Judge Bruce SC (“the judge”) and was sentenced to 17 years’ imprisonment.

2.  In his Form XI Notice filed on 23 June 2025, the appellant sought leave to appeal against his sentence out of time.  The respondent indicated that it did not oppose the application and this Court granted him both an extension within which to file leave to appeal and leave to appeal against sentence.

The agreed facts[1]

3.  In the afternoon of 14 October 2019, police officers conducted an anti-narcotics operation at Shing Tak Mansion, 11-19 Peace Avenue, Kowloon.  The appellant was seen entering Flat 4 on the 6/F.  Police officers intercepted the appellant and entered the flat with a search warrant.

4.  A search of Room C in the flat was duly executed.  The officers found a number of items in the room, which included:

(i)  Five paper boxes, each containing one transparent resealable plastic bag of heroin and two recycle bags;

(ii)  Two electronic scales, on one of which were found traces of heroin;

(iii)  One pair of scissors, subsequently found to contain traces of heroin; and

(iv)  Other items, including three plastic boxes, some transparent resealable plastic bags, one lid, one marker pen, one hammer, one plate, two mobile telephones and three cards, one of which was in the appellant’s name issued by the Construction Industry Training Authority.

5.  A total of 3,457 grammes of a mixture containing 3,038 grammes of heroin hydrochloride were seized.  The retail value of the heroin was approximately HK$2,665,347.

6.  The appellant’s DNA was found on the pair of scissors and four of the plastic bags containing the heroin.  Investigations revealed that the appellant rented Room C in Flat 4 at a monthly rental of HK$6,300.

7.  When cautioned at the time of arrest, the appellant said that his “boss” told him to take care of and store the dangerous drugs in the room.  During a subsequent video-recorded interview under caution conducted in the presence of the appellant’s solicitor, he admitted that he had no boss, that the heroin belonged to him and was for selling, and that the electronic scales were used to weigh the dangerous drugs.

The mitigation

8.  The appellant was 25 years of age and had a clear record at the time of the offence.  It was submitted on his behalf that the appellant committed the offence because of financial pressure after being laid off by his employer whose business was suffering due to the disruption caused by public order events at the time.  The appellant has a good family background and he would pay HK$8,000 per month to his family.  It was said he committed the offence in order to earn money to continue supporting his family, and he would receive HK$3,000 for dealing with the dangerous drugs in question[2].

The sentence

9.  The judge did not accept that the appellant’s income from the drug trafficking operation was only HK$3,000.  Given the scale of the operation and the value of the drugs involved, it defied rational analysis that these were the sole proceeds of the offence[3].

10.  The judge considered the then prevailing guidelines for trafficking in heroin in R v Lau Tak Ming & Anor[4], subsequently confirmed in HKSAR v Abdallah[5].  For 1,200 to 4,000 grammes of heroin, the sentence should be in the band of 23 to 26 years’ imprisonment.  The judge concluded that the arithmetic starting point for the quantity of drugs concerned should be 24 years and 11 months’ imprisonment[6].

11.  Following the approach set out in HKSAR v Herry Jane Yusuph[7], the judge found that the appellant was not a mere courier or storekeeper, but was both a packager and an actual trafficker of a large quantity of heroin.  This was a case where an arithmetical sentence based solely on the relevant guidelines would not have reflected the true seriousness of the offence and the involvement of the accused.  The judge decided that considering the appellant’s level of involvement, but counter-balancing his remorse and determination to better himself through education and training, he would adopt a starting point of 25 years and 8 months’ imprisonment.  This was reduced by one-third for the appellant’s guilty plea, and then rounded down slightly to 17 years’ imprisonment in recognition of mitigating factors[8].

The grounds of appeal and submissions

12.  Ms Yap, on behalf of the appellant, has argued a single ground of appeal that his sentence should be reduced in light of the revised sentencing guidelines in HKSAR v Huang Ruifang (No 3)[9].  In applying the revised guidelines, the arithmetic starting point should be 21 years and 9 months’ imprisonment, which is materially lower than the 24 years and 11 months’ imprisonment under the former Abdallah guidelines.

13.  Ms Yap submits that this Court should sentence the appellant afresh on the approach set out in Herry Jane Yusuph, and cites HKSAR v Tsui Lok Hin[10] in reiterating that this Court is not bound to accept the trial judge’s view of the facts or his application of the sentencing principles.

14.  She argues that the judge accepted the appellant’s role as an actual trafficker, but not as the principal or owner of the drugs.  Although the appellant in his video-recorded interview had sought to take all the blame upon himself and to assert that the drugs were his alone and he was not working for anyone else[11], the judge voiced considerable skepticism about the claim, remarking that the case “certainly doesn’t fit any pattern”; that the appellant may have been “foolishly taking all the blame” and “taking the heat for somebody or some other people”[12]; and that “transport workers can’t put a down payment of $2.6 million”[13].  It seems that the judge was inviting the appellant to benefit himself by cooperating with the authorities in giving information.  However, that encouragement did not bear fruit.

15.  As to whether any further allowance should be made for mitigation beyond the one-third discount, the appellant invites the Court to take into account the personal mitigation advanced at trial.

The respondent’s submissions

16.  Ms Khubchandani, for the respondent, accepts that the revised guidelines in Huang Ruifang (No 3) should apply in the present case and agrees that the arithmetic starting point would now become 21 years and 9 months’ imprisonment.  She then appears to accept the judge’s decision to increase the starting point by approximately 3% for the appellant’s role and culpability, by which the sentence would be enhanced to 22 years and 5 months’ imprisonment, and finally reduced to 14 years and 11 months’ imprisonment after a one-third discount for his early plea.  She further accepts that the difference between the former Abdallah guidelines and the revised guidelines under Huang Ruifang (No 3) would in those circumstances constitute a material reduction of sentence, which would justify this Court in allowing the appeal and adjusting sentence.

Decision

17.  When the Court is persuaded that the revised guidelines apply, it must sentence afresh in accordance with the policies and principles that have been devised for sentencing in this area of the criminal law.  It is not simply a matter of exchanging one set of guidelines for another.  Nor will an appellate court be bound to accept the basis of sentencing adopted, or the findings or assumptions made, by a sentencing judge, which may well have preceded the decision in Herry Jane Yusuph and/or some of the authorities that followed.  All of the authorities since Herry Jane Yusuph was decided have established a modern framework for sentencing in cases of trafficking in dangerous drugs and must govern any sentencing exercise once it is accepted that the revised guidelines apply.  An appellate court will obviously give consideration as to how the judge at first instance has dealt with the case but ultimately it must be a matter for the Court how it will sentence afresh under the revised guidelines in accordance with modern sentencing policy and principle.

18.  Although the judge voiced his concern that the appellant might, for whatever reason, be taking all the blame upon himself when others were almost certainly involved, ultimately the judge also found that the appellant was “no mere courier or storeman”[14]. The appellant had admitted under caution, and the judge so found, that he would himself weigh, package and sell the heroin[15]. Moreover, the evidence of what was seized inside Room C, which was rented by the appellant, amply justified the judge’s conclusion about the appellant’s role, whoever else may have been involved in his trafficking activities.

19.  Accepting that the arithmetical starting point for the quantity concerned would be 21 years and 9 months’ imprisonment under the revised guidelines in Huang Ruifang (No 3), we would adopt a starting point of 23 years’ imprisonment for the appellant’s role and culpability in packaging and selling the heroin in premises he had obviously rented for that purpose.  Applying a one-third discount for the appellant’s early plea, the sentence would become 15 years and 4 months’ imprisonment.

20.  However, the judge further acknowledged the appellant’s remorse and the efforts which he, as a person of hitherto good character, had made whilst in custody to better himself by taking up educational and training opportunities offered in prison, and accordingly made a further slight adjustment of the sentence[16]. We were provided with an update of the appellant’s progress in this regard and it is clear that he has continued to improve himself since sentence.  We are prepared to do as the judge did and make a similar slight adjustment, which will result in a sentence of 15 years and 2 months’ imprisonment.

Disposition

21.  Accordingly, the appellant having been granted an extension of time within which to appeal, his sentence will be reduced from 17 years’ imprisonment to 15 years and 2 months’ imprisonment.  To that extent the appeal is allowed.

[1]  Appeal Bundle (“AB”), pp 3-5.

[2]  Written Mitigation: AB, p 21.

[3]  AB, p 8.

[4]  R v Lau Tak Ming & Anor [1990] 2 HKLR 370.

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

[6]  AB, p 9.

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

[8]  AB, pp 10-11.

[9]  AB, p 4.

[10]  HKSAR v Tsui Lok Hin(Unrep., CACC 194/2019, 7 August 2026), at [15]-[16].

[11]  AB, p 4.

[12]  AB, p 13M-Q.

[13]  AB, p 17H-I.

[14]  AB, p 10F.

[15]  AB, p 10E-F.

[16]  AB, p 10R-S.