HKSAR v. MA WING HANG

CACC 249 /2025, [2026] HKCA 1080

On Appeal From [2024] HKCFI 260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 249 OF 2025

(ON APPEAL FROM HCCC NO 72 OF 2023)

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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 pleaded guilty before a magistrate to two counts of trafficking in a dangerous drug, namely 41.3 grammes of heroin hydrochloride (Count 1) and 28,501 grammes of heroin hydrochloride (Count 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 18 January 2024, he was sentenced in the High Court by Deputy Judge Tony Li, SC (“the judge”) to 20 years and 5 months’ imprisonment.

2.  In his Form XI Notice filed on 9 July 2025, the applicant seeks leave to appeal against his sentence out of time.

The facts

3.  In the early hours of 4 December 2021, the applicant was intercepted by anti-narcotics police officers on the 8^th Floor of William Enterprises Industrial Building, in Ng Fong Street, San Po Kong, Kowloon.  At the time, the applicant was walking towards the lift lobby from the general direction of Room 130, Flats A and B, 8^th Floor of the said building (“Room 130”).  The applicant was searched and found to be carrying a transparent plastic bag containing suspected dangerous drugs in his trouser pocket.  The dangerous drugs seized on the applicant’s person were later examined and found to be 50.1 grammes of a mixture containing 41.3 grammes of heroin hydrochloride.  This formed the basis of Count 1^[1].

4.  The applicant was arrested and, under caution, admitted that he was hired to help “Si Hing” unpack heroin concealed in handbags for a remuneration of HK$45,000.  The applicant, who also had a key and a mobile telephone when arrested, offered to lead the police to the room housing the handbags and heroin.  Following the applicant and using his key, the police entered Room 130.  Inside, the police found 33 carton boxes, 987 handbags (some of which had already been cut open), 658 transparent plastic bags of dangerous drugs (including those concealed in the handbags), scissors, a cutter, plastic tape, a CCTV camera and a trolley.  Count 2 involved all the dangerous drugs seized inside Room 130, which amounted to a total of 35,015.8 grammes of a mixture containing 28,501 grammes of heroin hydrochloride^[2].

5.  In his subsequent cautioned statement and during a video recorded interview, the applicant stated that a male called “Ah Kit”, whom the applicant had come to know at work, had offered the applicant a job to unpack drugs during a chance encounter several days before.  After giving his telephone number to “Ah Kit”, the applicant was contacted by “Si Hing” by telephone and agreed to unpack the dangerous drugs for HK$45,000.  On 3 December 2021, following instructions from “Si Hing”, the applicant collected the key to Room 130 somewhere nearby, and transported 33 carton boxes from Hi Tech Centre in Sheung Shui, New Territories, to the same building after engaging the services of a GoGoVan.  The applicant was then told to unpack the carton boxes and cut open the bottom layer of the handbags in order to extract the dangerous drugs.  When he was intercepted by the police, the applicant was on his way to buy some food and thereafter show “Si Hing” one of the bags of heroin as instructed.  The applicant had not met “Si Hing” in person and had no way to contact “Ah Kit”^[3].

6.  The estimated street value of the total heroin seized was HK$39,869,928^[4].

Sentence

7.  The applicant had two previous convictions, one for theft^[5] and one for possession of dangerous drugs.  For the latter, he was fined $2,000 in 2021.  At the time of committing the present offences, the applicant was 42 years of age and unemployed.  The applicant’s counsel submitted in mitigation that the applicant had committed the offences for financial reasons.  In June 2021, he had lost his job as a lorry driver because the Covid pandemic had caused the closure of his logistics company, where he had worked for 6 years.  Having used up his savings, the applicant relied on borrowing money.  It was in these circumstances that he succumbed to the offer to unpack dangerous drugs for money.  It was submitted that the applicant had been unaware of the quantity of the dangerous drugs when accepting the job.  The reward money had not been paid to the applicant^[6].

8.  At the hearing before the judge, the prosecution confirmed that without the applicant’s admission under caution and his assistance, the police would not have found the heroin in Room 130.  Citing the Court of Appeal decisions in HKSAR v Ma Ming^[7] and HKSAR v PSY^[8], as well as a recent decision of the Court of First Instance in HKSAR v Leung Chun Him^[9], both parties agreed that, on top of the full one-third discount for the applicant’s plea of guilty, an additional 2 to 3 percent reduction could be given for his assistance to the police in this regard^[10].

9.  Applying the then sentencing guidelines set out in R v Lau Tak Ming & Another^[11]and HKSAR v Abdallah^[12], and finding the applicant’s role to be that of a mere courier or storekeeper, the judge arrived at a starting point of 7 years and 4 months’ imprisonment for Count 1, and 32 years’ imprisonment for Count 2.  The judge found no aggravating factors.  In the light of the prosecution’s position and submission on the applicant’s assistance to the police, the judge granted the applicant a 3 percent discount in addition to the full one-third discount for his early plea of guilty, thereby reducing the sentences on Count 1 and Count 2 to 4 years and 8 months’ imprisonment and 20 years and 5 months’ imprisonment respectively^[13].

10.  Upon considering the overall circumstances of the case, including the submission that the heroin in Count 1 was part of the bulk in Room 130, the judge ordered the sentences for Count 1 and Count 2 to run wholly concurrently.  The applicant was thus sentenced to 20 years and 5 months’ imprisonment^[14].

Ground of appeal

11.  In his homemade submission and affirmation attached to his Form XI notice, the applicant states that he is making this application out of time to try and benefit from the revised sentencing guidelines in HKSAR v Huang Ruifang (No 3)^[15], which came out some 14 months after he was sentenced. 

The respondent’s submission

12.  Ms Ng, for the respondent, does not oppose the application for leave out of time, or the substantive appeal against sentence^[16]. Her submission is that the judge’s sentencing approach was entirely correct and the sentence should now be reduced only because of the change in the starting point under the new guidelines. 

13.  Under the revised sentencing guidelines, the starting point for Count 1 (41.3 grammes of heroin narcotic) would remain at 7 years and 4 months’ imprisonment, but the starting point for trafficking in 28,501 grammes of heroin narcotic in Count 2 would now be about 29 years and 8 months’ imprisonment.  Applying the same 36.33% discount of sentence adopted by the judge, the imprisonment terms in respect of Counts 1 and 2 would be 4 years and 9 months’ imprisonment and 19 years and 2 months’ imprisonment respectively to run concurrently with each other, thus resulting in a sentence which is 1 year and 3 months less than the original sentence^[17].

Discussion

14.  In HKSAR v Lam Man Tak^[18], this Court resolved that the commencement date of the ‘state of affairs’ leading to the revision of the sentencing guidelines in Huang Ruifang (No 3) was 18 September 2018, and that the date from which the revised sentencing guidelines should be applied was the date of sentence.  Since the applicant was sentenced on 18 January 2024, more than five years after 18 September 2018, he falls on the right side of the cut-off date.  His application for leave to appeal against sentence was made some 17 months out of time.  Accordingly, ordinary principles will govern whether the Court will exercise its discretion to permit such an application^[19], the most obviously relevant consideration being that the Court will not generally shut out a substantial and plainly arguable ground of appeal which is made out of time. 

15.  It must nevertheless be repeated that the Court does not prune or tinker with sentences^[20]. In the recent judgment of this Court in HKSAR v Yusuf Lukman Adepoju^[21], it was held that a difference of less than one year between the sentence under the previous guidelines and that under the revised guidelines will ordinarily not be regarded as significant enough to warrant appellate interference, whereas a difference of one year or more will generally be so regarded.  The difference between the sentences under the previous and the revised guidelines in this applicant’s case is about 1 year and 3 months’ imprisonment, which is significant enough to warrant appellate interference.

16.  We agree with the respondent’s concession in respect of the revised guidelines and reduce the applicant’s sentence from 20 years and 5 months’ imprisonment to 19 years and 2 months’ imprisonment.  The application is accordingly granted and the appeal allowed to that extent.

[1] Summary of Facts, [1]-[3] & [9]: Appeal Bundle (“AB”), pp 4 & 6.

[2] Summary of Facts, [4]-[7] & [9]: AB, pp 4-6.

[3] Summary of Facts, [8]: AB, pp 5 & 6.

[4] Summary of Facts, [10]: AB, p 6.

[5] For which he was sentenced to 24 months’ imprisonment in 2014.

[6] Mitigation Submission, [3]-[5]: AB, p 18.

[7] HKSAR v Ma Ming [2013] 1 HKLRD 813.

[8] HKSAR v PSY (Unrep., CACC 279/2015, 16 June 2016).

[9] HKSAR v Leung Chun Him (Unrep., HCCC 62/2023, 25 August 2023).

[10] Transcript of Mitigation: AB, pp 14G-15U.

[11] R v Lau Tak Ming & Another [1990] 2 HKLR 370.

[12] HKSAR vAbdallah [2009] 2 HKLRD 437.

[13] Transcript of Sentencing: AB, pp 11E-12F.

[14] Transcript of Sentencing: AB, p 12 G-H.

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

[16] Submissions for the Respondent, [4].

[17] Submissions for the Respondent, [21] & [25].

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

[19] Ibid., at [50].

[20] Ibid., at [30].

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