HKSAR v. KOUAME EMMANUEL

CACC 48/2024, [2026] HKCA 1005

On Appeal From [2024] HKCFI 688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 48 OF 2024

(ON APPEAL FROM HCCC NO 108 OF 2022)

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REASONS FOR JUDGMENT

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

1.  The appellant (whom we shall call “D1”) was convicted in the High Court on 5 February 2024 before Deputy Judge Tony Li (“the judge”) and a jury of two counts of trafficking in dangerous drugs[1] (Counts 1 and 2) and one count of obstructing a police officer in the due execution of his duty[2](Count 3). He was sentenced to an overall term of 24 years and 10 months’ imprisonment.

2.  On 27 February 2024, by Form XI, D1 sought leave to appeal against his convictions, but the application was refused by the Single Judge[3], and no renewal application was made.

3.  A year later, on 14 May 2025, by another Form XI and an accompanying affirmation, D1 sought leave to appeal out of time against his sentence. It is that application which is now before the Court.

4.  Since the respondent had earlier indicated to the Court that neither the application for leave to appeal nor the substantive appeal was to be opposed, the matter was referred directly to this Court for determination. On 8 May 2026, having heard argument, we allowed the appeal and reduced D1’s sentence from 24 years and 10 months’ imprisonment to 22 years and 7 months’ imprisonment. We said that we would hand down the reasons for our decision in due course. These are our reasons.

The prosecution case[4]

5.  On 2 April 2020 at about 6:16 am, police officers executed a search warrant in relation to premises in Chungking Mansions, Tsim Sha Tsui, Kowloon. When they banged on the locked door of Room 7 of Flat D4 on 17^th floor of Block D of Chunking Mansions (“Room 7”), which room had been rented by D1 and his co-accused (“D2”) since 21 July 2019[5], and identified themselves, they heard the noise of glass breaking inside. Having issued a warning to the occupants, they forced entry to the premises with a door ram, during which they encountered resistance.

6.  Inside Room 7, D1 was found standing in the toilet area with D2 near the door to the premises. Both men struggled with the officers before being subdued. The window of the toilet had been broken, and glass fragments were strewn across the floor. Under the washbasin in the toilet area, police found a rucksack containing dangerous drugs, as particularised in Count 1, namely, 632.7 grammes of a solid containing 211.36 grammes of cocaine; 999 grammes of a crystalline solid containing 958 grammes of methamphetamine hydrochloride (commonly known as “Ice”); and 694 grammes of a solid containing 306 grammes of methamphetamine. D1’s DNA was subsequently found on the outer packaging of a packet of drugs inside the rucksack[6].

7.  Another police team searched the adjacent Room 6 of Flat D4 (“Room 6”), which room had been rented by D2 since 22 July 2019[7], where they found further dangerous drugs on a bed, as particularised in Count 2, namely, 343.7 grammes of a solid containing 103.5 grammes of cocaine; 280 grammes of a mixture containing 217 grammes of heroin hydrochloride; and 24 grammes of a mixture containing 0.87 grammes of cocaine, 3.56 grammes of monoacetylmorphine and 0.52 grammes of heroin. D1’s DNA was found on the outer packaging of a drug packet inside a can, while his fingerprint was found on the display screen of an electronic scale inside Room 6[8].

8.  Count 3 alleged that D1 and D2 had obstructed a police officer during the operation. The prosecution relied on their brief resistance upon the entry of the officers in support of this allegation. Fortunately, no one was injured[9].

Sentencing

9.  The judge treated Counts 1 and 2 together, since they were both trafficking offences committed on the same day, in similar circumstances, in close proximity to each other, and attracted the same guidelines. Applying HKSAR v Wan Lau Mei[10] and the six-step approach in HKSAR v Herry Jane Yusuph[11], the judge converted the drugs in both counts into the equivalent of “Ice” by reference to the then prevailing tariffs in R v Lau Tak Ming & another[12] (in respect of heroin and cocaine) and HKSAR v Tam Yi Chun[13] (in respect of “Ice”). Counts 1 and 2 were thus treated as involving 1,433 grammes and 246 grammes of “Ice” respectively, totalling 1,679 grammes and attracting a starting point under the guidelines of 23 years and 6 months’ imprisonment.

10.  The judge found that D1 was no more than a courier or storekeeper and thus fell within the least culpable band of the guidelines[14]. The starting point was enhanced by 3 months for trafficking in more than one type of dangerous drug and by a further year in respect of D1’s Form 8 status, resulting in an overall sentence after trial of 24 years and 9 months’ imprisonment[15].

11.  In respect of Count 3, the judge adopted a starting point of 1 month’s imprisonment, given the resistance put up upon the entry of the police officers and the absence of injury, without the addition of any enhancement in respect of D1’s Form 8 status[16]. However, he ordered that the sentence on this count should run consecutively to the combined sentences on Counts 1 and 2, resulting in an overall sentence of 24 years and 10 months’ imprisonment[17].

Ground of appeal

12.  In his Form XI Notice, D1’s sole complaint is that the sentence was excessive, but he has filed no further grounds or written submission in support.

The respondent’s submission

13.  Mr Tang, for the respondent, did not oppose the application for leave to appeal out of time, or the substantive appeal against sentence. He further accepted that, since the offences were committed on 2 April 2020, at a time when the ‘state of affairs’ which led to the revision of the guidelines for heroin, cocaine and “Ice” as set out in HKSAR v Huang Ruifang (No 3)[18] was already in existence, D1 should benefit from the revised guidelines.

14.  On that basis, the respondent submitted that the appropriate starting points, after converting all of the drugs involved into “Ice”, would be 19 years and 10 months’ imprisonment in respect of Count 1, and 13 years and 8 months’ imprisonment in respect of Count 2; or about 20 years and 3 months’ imprisonment if the quantities were aggregated.

15.  Mr Tang seemed to accept the judge’s characterisation of D1 as a mere courier or storekeeper, and the enhancements for trafficking in multiple dangerous drugs and D1’s Form 8 status. Applying the judge’s approach, he acknowledged that the difference between the original sentence and the sentence under the revised guidelines in purely arithmetical terms would be substantial enough to warrant appellate interference, subject, of course, to an overall assessment of role and culpability and any aggravating features present.

16.  Since any reduction under the revised guidelines could be said to be substantial, the respondent acknowledged that, despite the lodging of the application for leave 14 months out of time, it was appropriate to grant leave in this case and allow the substantive appeal.

Discussion

17.  This appellant has never appealed against his sentence, and his right to do so subsists, even if he is out of time, subject to the Court granting him an extension of time to do so and his compliance with other necessary formalities. In deciding whether to grant an extension of time, the Court will consider, among other factors, whether the refusal of the application for an extension of time would shut out a substantial and plainly arguable ground of appeal. We were satisfied that D1 does have such a ground of appeal, since he was sentenced after 18 September 2018 at a time when the ‘state of affairs’ leading to the revision of the guidelines, as explained in Seabrook v HKSAR[19], was already in existence. However, at the time, no one could have known that revised guidelines were to be issued by the Court on 5 March 2025 in Huang Ruifang (No 3), less than two years after his sentence was imposed by the judge.

18.  Since the difference between the sentence passed under the previous guidelines and the sentence that would be imposed under the revised guidelines is significant enough to warrant our interference, we granted the application for an extension of time to allow D1 to apply for leave to appeal against sentence.

19.  In addressing the appropriate sentence under the revised guidelines, we should make clear that we did not, with respect, accept the judge’s somewhat generous characterisation (and the respondent’s apparent concession) of D1 as “a mere courier or storekeeper”[20]. The case involved a huge quantity of various dangerous drugs in two adjacent rooms valued, according to the statement of Senior Inspector Ng Ka-lun, which was adduced at trial by way of section 65B of the Criminal Procedure Ordinance, Cap 221 at more than HK$2 million. Yet, D1 was one of two Form 8 Recognizance holders, who were evidently in a position to possess multiple dangerous drugs of such an enormous value, and to rent Room 7 for HK$7,000 per month from July 2019, from which to carry on their nefarious business. The trafficking in multiple dangerous drugs of significant quantity and value, the presence of two sets of electronic scales and a large quantity of re-sealable plastic bags suggested that D1 was far more involved than a mere courier or operator of a storage facility.

20.  Given our assessment of D1’s role and culpability in the offences, we would adopt a starting point for the quantity of dangerous drugs concerned in Count 1 of 21 years’ imprisonment; and 15 years’ imprisonment for the drugs in Count 2. Since we consider it appropriate to enhance the overall sentence for two significant aggravating factors, and to avoid the perception of double counting for such aggravating factors which could apply to each count, we shall initially order the two sentences to run concurrently with each other, making an overall starting point of 21 years’ imprisonment.

21.  We would then enhance the overall starting point of 21 years’ imprisonment by 9 months for the multiplicity of drugs involved and a further 12 months for D1’s non-refoulement status whilst committing such serious crimes, which have plainly tarnished the reputation of this city and abused the hospitality of its citizens as well as affected society in such a deleterious way. Given that these two enhancements would add 21 months to an already lengthy term of imprisonment of 21 years, we reduced the overall enhancement to 18 months’ imprisonment, in accordance with the sixth step in Herry Jane Yusuph[21]. The overall sentence after trial on Counts 1 and 2 thus becomes 22 years and 6 months’ imprisonment.

22.  To this sentence we further add 1 month in respect of Count 3, in accordance with the judge’s approach, to run consecutively to the overall concurrent sentence on Counts 1 and 2, thus making a final sentence of 22 years and 7 months’ imprisonment.

Disposition

23.  For the above reasons, the appeal was allowed and D1’s sentence reduced from 24 years and 10 months’ imprisonment to 22 years and 7 months’ imprisonment.