HKSAR v. LEUNG KA MAN

CACC 449/2025 [2025] HKCA 1055

On appeal from [2024] HKDC 898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 449 OF 2025

(ON APPEAL FROM DCCC NO 735 OF 2022)

____________________

____________________

________________

J U D G M E N T

________________

1.  This was originally an application for bail pending appeal against sentence, but, by agreement of the parties, it was also treated as a leave application to appeal against sentence.

2.  On 4 June 2024, the applicant, following his guilty plea to a single charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, was sentenced to 30 months’ imprisonment by District Court Judge G Lam (the judge).  It was alleged that, between 11 November 2013 and 31 July 2017, the applicant (D2 at trial) and his wife, Zhou Jielian (D1 at trial), conspired with Choi Chi Man (Choi) to deal with the sum of HK$6,437,963.90 in a bank account held in D1’s name with The Hongkong and Shanghai Banking Corporation Limited (HSBC). 

3.  Briefly stated, the applicant lent his wife’s HSBC account to his friend Choi by providing him the bank card and password.  The account was used to receive commissions from claimants who, assisted by a moneylending company of which Choi was shareholder and director, made false MPF early withdrawal claims.  During the conspiracy period, mirrored deposits and withdrawals totalling HK$6.4 million passed through the account, including transfers to and from Choi’s personal and company accounts.[1] 

4.  In sentencing the applicant, the judge adopted a starting point of 4 years’ imprisonment and applied a 37.5% discount, (including a one third reduction for his guilty plea), resulting in a sentence of 30 months’ imprisonment.  The remainder of the discount reflected his assistance to the police by providing two non-prejudicial statements, in November 2022 and March 2023, which led to Choi’s arrest.

5.  On 10 April 2025, Choi stood trial in District Court [2], pleading not guilty to the same offence, with the applicant testifying as PW3 that it was Choi who had borrowed the HSBC account from him.  Choi was convicted on 7 November 2025 and sentenced on 14 November 2025, respectively.  In his Reasons for Verdict, the judge noted that the prosecution had relied on the applicant’s evidence, despite flaws identified in his evidence.

6.  On 17 November 2025, the applicant filed a notice of application for leave to appeal against his sentence, approximately one year and four months out of time (Form XI), together with two affirmations, explaining the delay and the basis of his application.

7.  Mr Victor Lau, who represented the applicant at trial and in these applications, has yet to file the perfected grounds of appeal.  The ground of appeal put forward in Form XI is that the applicant should receive an additional discount for his post-sentence assistance in testifying on behalf of the prosecution in Choi’s trial. 

8.  Mr Lau argues that the applicant should be granted leave to appeal his sentence, and bail pending his appeal.  He submits that, as the applicant had testified against Choi and the prosecution relied on his evidence, it is reasonably arguable that he is entitled to a greater sentencing discount (potentially up to 50%), in line with Z v HKSAR[3].  It is noted that the applicant has been in custody since 4 June 2024, and his earliest release date is 6 February 2026.  By the time the appeal is heard, which has yet to be fixed, he will have served all or a substantial part of his sentence, taking into account the one third remission for good conduct. 

9.  The respondent does not oppose the application for leave or bail.  It is conceded that the applicant has a reasonably arguable case on appeal, and that an appropriate range for a sentencing discount would be between 40% and 50%.

10.  In appropriate cases, a defendant who has provided assistance to the authorities without testifying in court will receive a “usual” discount of 40% (including the one third reduction for a guilty plea).  If the assistance extends to the defendant giving “truthful and material” evidence against an accomplice, the “usual” discount can be as high as 50%.[4]  However, as explained by this Court in HKSAR v Chan Yat Wah[5], the 50% discount is not automatically applied.  It depends on whether the evidence given was “truthful and material”, which requires an overall assessment of the nature and circumstances of the evidence, including the outcome of the case and the bearing that the defendant’s evidence has had on the result.[6]

11.  In the present case, any discount exceeding 45% would result in the applicant’s immediate release, factoring in the one third remission for good conduct. 

12.  In Chan Yat Wah[7], although the applicant’s evidence was consistent with his non-prejudicial statements and his assistance was considered “useful”, the Court noted the concerns regarding his credibility and reliability as a witness.  The jury, in acquitting the accomplice, did not believe him, and his evidence impacted on the outcome of the trial.  In light of these circumstances, he was granted a 45% discount.

13.  The applicant’s explanation for the delay in filing the notice of application for leave to appeal against sentence was that he waited until he had given evidence at Choi’s trial.  It was after providing further assistance to the authorities by giving evidence against his accomplice that he believed he had a basis on which to appeal his sentence.  I grant him an extension of time to file his leave application.

14.  The applicant is undoubtedly deserving of a further discount on his sentence, which would fall in the range of between 40% to 50% and likely to result in his immediate release from prison as of today’s date.  Accordingly, he has a reasonably arguable ground of appeal against sentence.

15.  For the reasons stated, I grant the applicant leave to appeal against his sentence and bail pending appeal.

[1]  Reasons for Sentence, at [6] to [15].

[2]  HKSAR v Choi Chi Man, unrep., DCCC 734/2023, 7 November 2025.

[3]  Z v HKSAR (2007) 10 HKCFAR 183.

[4]  Z, at [23]. See also HKSAR v Khan Sadam Biland (No 2) [2023] 4 HKLRD 799, at [32].

[5]  HKSAR v Chan Yat Wah [2024] 3 HKLRD 824, at [31]-[32].

[6]  HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692, at [33]. 

[7]  Chan Yat Wah, at [34]-[38].