HKSAR v. CHOY LAP HO, DANIEL

CACC 111 /2025, [2026] HKCA 211

On Appeal From [2024] HKCFI 1245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 111 OF 2025

(ON APPEAL FROM HCCC NO 174 OF 2023)

________________________

________________________

J U D G M E N T

________________________

Hon Macrae Acting CJHC (giving the Judgment of the Court):

1.  The applicant was charged with a single count of trafficking in a dangerous drug, namely 893.5 grammes of a crystalline solid containing 860.8 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Having pleaded guilty before a magistrate on 3 July 2023, and confirmed his plea in the High Court before Deputy Judge Woodcock (as Woodcock J then was) (“the judge”) on 12 April 2024, the applicant was sentenced on the same day to 14 years’ imprisonment.

2.  By a Form XI Notice, together with an accompanying affirmation, both of which were filed on 8 May 2025, the applicant seeks leave to appeal against his sentence out of time.

3.  The respondent does not oppose the present application, which has been listed before the full Court for determination.

Facts accepted by the applicant

4.  In the early hours of 26 February 2022, police officers conducted a search at an address in Cheung King House, Cheung Wah Estate, No 38 San Wan Road, Fanling, New Territories.  Since the applicant was found to be staying in one of the bedrooms at the address, he was questioned by police officers.  In the course of taking down his Identity Card details during a search, the officers noticed a pile of transparent re-sealable plastic bags in his rucksack.

5.  Further inspection of the rucksack revealed an electronic scale, an electronic heat-sealing machine and a black recycle bag, inside of which were 114 transparent re-sealable plastic bags containing the “Ice” in question.  Each of the plastic bags bore the marking “x22”.  Under a chair next to where the rucksack had been placed was also found a homemade paper compartment in which there were 4 re-sealable plastic bags containing a further 370 unused transparent re-sealable plastic bags.

6.  In relation to the “Ice” found in the rucksack, the applicant said in a subsequent video recorded interview conducted with him that, since he needed of money, a friend of his had introduced him to a person known as “AK” so that he could deliver dangerous drugs for him.  He was given $1,500 for making the delivery.  At the time of arrest, he was in fact awaiting instructions as to where he should deliver the “Ice”. 

7.  The value of the “Ice” was estimated to be $477,129. 

Sentencing

8.  The judge referred to the guidelines prevailing at the time of sentencing, which were laid down in HKSAR v Tam Yi Chun^[1]. She stated that the appropriate range for trafficking in amounts of between 600 and 1,200 grammes of “Ice” narcotic was between 20 and 23 years’ imprisonment. For 860.8 grammes of “Ice”, she took a starting point of 21 years and 4 months’ imprisonment.  The judge considered that the applicant played the role of a courier.  She found no aggravating factors in his case. 

9.  Giving the applicant a one-third discount for his plea of guilty, the judge reduced the sentence to 14 years and 2 months’ imprisonment.  She also afforded the applicant an additional discount of 2 months on the basis of his contribution to Father Wotherspoon’s anti-drug campaign.

10.  In the result, the judge passed a sentence of 14 years’ imprisonment.  It is from this sentence that the applicant now appeals out of time.

Ground of appeal

11.   On behalf of the applicant, Ms Ng has advanced a single ground of appeal, namely, that he should be able to benefit from a reduction in sentence in accordance with the revised sentencing guidelines in HKSAR v Huang Ruifang (No 3)^[2].  It will also be noted that this Court recently stated in HKSAR v Lam Mak Tak^[3] that any appellants who were sentenced on or after 18 September 2018 and were still in the appeal system should generally be eligible to benefit from the revised sentencing guidelines in Huang Ruifang (No 3), subject to relevant provisions and sentencing principles.

The respondent’s submission

12.  Mr Lau, for the respondent, does not oppose the application for an extension of time within which to appeal, and concedes both the application for leave and the appeal itself.  He submits that, in accordance with the revised sentencing guidelines in Huang Ruifang (No 3), the appropriate starting point should now be reduced to 18 years and 7 months’ imprisonment, which, after applying a one-third discount and the additional discount of 2 months (for the Father Wotherspoon factor), would be further reduced to about 12 years and 2 months’ imprisonment.

Discussion

13.  This applicant has never appealed against his sentence and he still has a right to do so, subject to the Court exercising its discretion to allow him to appeal out of time.  Accordingly, this Court is not functus officio.  One of the factors which the Court must consider in deciding to exercise its discretion is whether there is a substantial and plainly arguable ground of appeal, which would be lost to the applicant if it refused to extend time for him to appeal.  Another factor, particularly in the context of sentencing appeals, will be whether, if the ground is successful, it will make any significant difference to the result.  We are satisfied that the applicant does have a substantial and plainly arguable ground of appeal, since he was sentenced after 18 September 2018 and at a time when the ‘state of affairs’, as explained in Seabrook v HKSAR[4], leading to the revision of the guidelines, was already in existence.  However, neither the sentencing court, nor the applicant nor those representing him at the time, knew that revised guidelines were to be issued by the Court on 5 March 2025 in Huang Ruifang (No 3), less than a year after his sentence was passed.

14.  Since the difference between the sentence passed under the previous guidelines and the revised guidelines would be significant enough to warrant our interference, we shall grant the application for leave to appeal out of time.  The applicant was, however, not simply a courier: he was obviously also weighing and packaging drugs and delivering them to customers in accordance with instructions he received.  Given his role and culpability in the offence, and bearing in mind that he is not of hitherto good character but has previous appearances before the courts for dishonesty and possession of drugs, we consider that the appropriate sentence should be 12 years and 6 months’ imprisonment.  We shall honour the judge’s further reduction of 2 months’ imprisonment for the applicant’s involvement in Father Wotherspoon’s anti-drug campaign.  The sentence thus becomes 12 years and 4 months’ imprisonment.

15.  Accordingly, we grant the applicant leave to appeal his sentence out of time and reduce the sentence from 14 years’ imprisonment to 12 years and 4 months’ imprisonment.  The appeal is allowed to that extent.

[1] HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

[2] HKSAR v Huang Ruifang [2025] 2 HKLRD 138.

[3] HKSAR v Lam Man Tak (Unrep., CACC 49/2018, 20 January 2026).

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