HKSAR v. HO KA HEI

CACC 255/2025 [2026] HKCA 1012

On appeal from [2018] HKCFI 2849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 255 OF 2025

(ON APPEAL FROM HCCC NO 216 OF 2018)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  On 16 July 2018, the appellant pleaded guilty before a magistrate to two offences of trafficking in a dangerous drug, namely 504 grammes of a solid containing 407 grammes of cocaine (Count 1), and 504 grammes of a solid containing 406 grammes of cocaine and 0.03 gramme of a powder containing cocaine (Count 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134). On 23 November 2018, he reaffirmed his pleas in the High Court before Deputy High Court Judge Stuart-Moore (the judge) and was duly sentenced to a total of 14 years’ imprisonment.

2.  On 10 July 2025, the appellant filed an application, supported by an affirmation, for leave to appeal against sentence out of time.  Legal aid was initially refused on 11 August 2025, but was reconsidered and granted on 28 April 2026.  The respondent indicated that it did not oppose the application and the Court granted the appellant leave to appeal against his sentence.

3.  The appellant’s sole ground of appeal is that he should benefit from a reduction in sentence in accordance with the revised sentencing guidelines laid down in HKSAR v Huang Ruifang (No 3)^[1].

The admitted facts^[2]

4.  On 23 November 2017, at about 6:24 pm, police officers observed the appellant enter a building at No. 208 Ha Hang Village, Ting Kok Road, Tai Po.  On the same day at about 6:27 pm, he left a nervous manner, carrying a white plastic bag.  He was intercepted by the police officers for investigation.  In that bag were 21 resealable plastic bags containing a total of 504 grammes of a solid with 407 grammes of cocaine.  The appellant told the police under caution that he was helping someone deliver the drugs.  He was also in possession of a large amount of cash totalling HK$25,270 and RMB350, two mobile telephones, and keys to a room on the first floor of No. 208 Ha Hang Village.  The police searched that room and found inside a further 504 grammes of a solid containing 406 grammes of cocaine, two electronic scales with a trace of cocaine (0.03 grammes), and unused resealable plastic bags.  The total cocaine content involved in both counts was 813 grammes, with an estimated street value of HK$1,376,696. 

The sentence

5.  The appellant was 23 years old with a clear antecedent record at the time of sentencing.  According to the applicable guidelines in HKSAR v Abdallah^[3], the judge adopted a starting point of 21 years’ imprisonment for a total of 813 grammes of cocaine.[4]  He then considered that each count involved approximately 400 grammes of cocaine, for which the starting point after trial would be 15 years’ imprisonment.  He reduced that starting point by one third for the appellant’s timely guilty plea, to 10 years’ imprisonment on each count and ordered that 4 years of the sentence on Count 2 should run consecutively to the sentence on Count 1, resulting in a total of 14 years’ imprisonment.

The respondent’s submission

6.  Ms Lily Yip, for the respondent, acknowledges that the judge correctly applied the applicable tariff, but that the change in the sentencing guidelines produced a significant reduction to the appellant’s sentence.  She submits that, under the revised sentencing guidelines in Huang Ruifang (No 3), the appropriate starting point for trafficking in 813 grammes of cocaine would be 17 years and 3 months’ imprisonment, instead of 21 years’ imprisonment under the previous guidelines.  After a reduction of one third for the appellant’s guilty pleas, the sentence would be 11 years 6 months’ imprisonment.  The difference would be 2 years and 6 months.

7.  Ms Yip points out that, in conjunction with the approach of HKSAR v Herry Jane Yusuph[5], the role and culpability of the appellant are to be considered.  The appellant had the keys to the room where packaging materials and two electronic scales were found, together with a significant amount of cash.  She draws an analogy with HKSAR v Islam Shafiqul [6], where this Court held that an offender who had keys to drug‑storage premises, packaging equipment, and drug transaction records was more than a mere courier and was operating a packaging and distribution centre.  She submits that the same inference arises in this case, and an enhancement of 3 months to the starting point would be appropriate.  She did not oppose the appeal but invites the Court to fix a sentence that properly reflects the appellant’s role and culpability.

Discussion

8.  In HKSAR v Lam Man Tak^[7], this Court resolved that the commencement date of the “state of affairs” (as explained in Seabrook v HKSAR[8]) leading to the revision of the sentencing guidelines in Huang Ruifang (No 3) was 18 September 2018 and the date from which the revised sentencing guidelines should be applied was the date of sentence.  The appellant, who was sentenced on 23 November 2018, should be regarded as still “in the system” and therefore, in principle, entitled to derive benefit from the revised sentencing guidelines. 

9.  This Court is mindful that it is required to sentence the appellant afresh and is not necessarily bound by the judge’s view or interpretation of the facts[9]. In light of the circumstances of the case, we would combine the two quantities for the purpose of determining an appropriate starting point.

10.  Under the Huang Ruifang (No 3) guidelines, the starting point for a mere courier trafficking 813 grammes of cocaine would be 17 years 3 months’ imprisonment.  The arithmetically calculated starting point assumes that the offender is at the lowest level of involvement.  Ms Karen Cheung, for the appellant, contends that the judge considered the appellant’s role and culpability to be no more than that of a courier.[10]  However, the admitted facts show otherwise.  He had keys to a room containing further drugs, electronic scales, packaging materials, and a significant amount of cash.  The only reasonable inference, applying Islam Shafiqul [11], is that he was operating a packaging and distribution centre.  His culpability was therefore higher than that of a simple courier.  The respondent submits that an enhancement should be made to reflect this greater role.

11.  We adopt a starting point of 18 years’ imprisonment, reflecting the appellant’s role and culpability, which we reduce by one‑third for his guilty pleas, resulting in a sentence of 12 years’ imprisonment.

12.  We must now give effect to that total sentence across the two counts.  Under the revised guidelines a quantity of cocaine between 200 and 500 grammes corresponds to a term of imprisonment of 12 to 16 years.  In Count 1, the quantity of cocaine narcotic was 407 grammes and in Count 2 it was 406 grammes.  We adopt a starting point for each count of 15 years and 6 months’ imprisonment, reflecting the appellant’s role and culpability.  We then reduce that notional starting point by one-third for the appellant’s guilty plea to 10 years and 4 months’ imprisonment. 

13.  Accordingly, we impose a sentence of 10 years and 4 months’ imprisonment on each of Counts 1 and 2, and order that 1 year and 8 months of the sentence of Count 2 be served consecutively to Count 1, with the remainder to be served concurrently.  The total sentence is 12 years’ imprisonment.

Conclusion

14.  For the foregoing reasons, we allow the appellant’s appeal and substitute the original sentence of 14 years’ imprisonment with a sentence of 12 years’ imprisonment. 

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

[2]      Appeal Bundle (AB), pp 5-6.

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

[4]      AB, p 8A-D.

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

[6]      HKSAR v Islam Shafiqul[2020] 5 HKLRD 471.

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

[8]      Seabrook v HKSAR (1999) 2 HKCFAR 184.

[9]      HKSAR v Law Ka Fai, unrep.,CACC 60/2025, 21 November 2025, at [7].

[10]     Appellant’s submissions, at [38].

[11]     Islam Shafiqul, at [29]-[31].