HKSAR v. LEUNG WING FUNG

CACC 324 /2018

[2026] HKCA 1369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 324 OF 2018

(ON APPEAL FROM HCCC NO 476 OF 2015)

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1.  Following a trial before Campbell-Moffat J (“the judge”) and a jury, the appellant was convicted of one count of trafficking in a dangerous drug, namely 1,212.20 grammes of a solid containing 657 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 29 October 2018, he was sentenced to 20 years and 3 months’ imprisonment. On 3 September 2019, his application for leave to appeal against conviction was refused by a Single Judge[1]. After initially renewing his unsuccessful leave application in respect of conviction, on 27 July 2020, the appellant abandoned the renewed application, which was accordingly marked as dismissed by the Court.

2.  On 10 July 2025, the appellant filed a Form XI Notice of Application for leave to appeal against sentence out of time, which I granted on the papers on 18 June 2026.  On 8 July 2026, he filed a summons, together with a supporting affirmation, applying for bail pending appeal, which application is now listed before me.

3.  The facts, which I shall set out only briefly, were these.  In the evening of 8 May 2015, the appellant was intercepted by police officers in Mong Tseng Tsuen, Tin Shui Wai, New Territories.  He was carrying a red bag, which was found to contain 52 packets of cocaine in resealable plastic bags.  The cocaine had a retail value of HK$1,511,613.  He admitted under caution that he sold the cocaine to other people for money.

4.  In his Perfected Grounds of Appeal, Mr Chan, for the appellant, argues that his sentence should be reduced in light of the revised guidelines in HKSAR v Huang Ruifang (No 3)[2] (Ground 1), subject to the Court granting him an extension to appeal out of time (Ground 2), which the Court has already done.  It is submitted that under the revised guidelines, the arithmetical starting point should have been in the region of 16 years and 7 months’ imprisonment, rather than 20 years and 3 months’ imprisonment, which was adopted by the judge on the basis of the then prevailing guidelines under HKSAR v Abdallah[3].

5.  In HKSAR v Lam Man Tak[4], the Court of Appeal declared that 18 September 2018 marked the commencement date of the ‘state of affairs’, which ultimately led to the changes to the sentencing guidelines in Huang Ruifang (No 3).  By the grant of leave and extension of time, the appellant is now brought back into the appeal system and he is entitled to avail himself of the revised guidelines. 

6.  It is reasonably arguable that the resulting difference in sentence under the revised guidelines will be significant enough to warrant the interference of the Court of Appeal, which is why he was granted leave to appeal out of time.  However, I do not accept that it is a simple matter of arithmetic.  The appellant was arrested in a public place at 9:51 pm with 52 packets of cocaine ready for sale and distribution.  When arrested, he said, “Sir, I took the Coke and sold it to people only because I had no money”.  That appears to be an admission of direct trafficking, which put the appellant in a more serious position than a mere storekeeper or courier.  It is true that he back-tracked on that admission in his record of interview, but the judge did not believe his explanation in his record of interview and nor would an appellate court necessarily accept it either.  The judge did, however, accept his answer to the caution upon arrest and, since this was heavily attacked at trial, the jury must have accepted that he did make the answer in question.  If so, the appellant may well be looking at something more than a mere arithmetic application of the revised guidelines to quantity in order to reflect his greater role and culpability in the offence.

7.  If he were to be looking at a sentence of something in the region of 18 years’ imprisonment under the revised guidelines, given his role and culpability, then his earliest date of release would be sometime in May 2027.

8.  It must be remembered that the revised guidelines are something of a windfall for the appellant, who cannot have been expecting it when he was sentenced in October 2018, just over a month after the cut-off date declared by the Court in Lam Man Tak.  And they must be applied in accordance with the principles set out in HKSAR v Herry Jane Yusuph[5] in November 2020, which had not been established at the time the judge passed her sentence, but which certainly bind the Court of Appeal now.  It is no longer simply a question of arithmetic and any appellate Court sentencing under the revised guidelines will have to make a proper assessment of role and culpability when sentencing afresh.

9.  I am refusing bail pending appeal, but I will set the matter down for an early date before the Court of Appeal on 10 November 2026.  Mr Chan is to file a new written argument by 2 October 2026 and Ms Xiao, by 16 October 2026.

[1]  McWalters JA.

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

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

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

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