HKSAR v. WONG KA MING

CACC 126/2025 [2026] HKCA 434

On appeal from [2025] HKCFI 1797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 126 OF 2025

(ON APPEAL FROM HCCC NO 325 OF 2024)

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J U D G M E N T

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1.  The applicant (D2 at trial) and Cho Kin Cheung (D1 at trial) were jointly charged with one count of trafficking in dangerous drugs, namely 206.61 grammes of a solid containing 175.34 grammes of cocaine, 64.17 grammes of a solid containing 37.59 grammes of ketamine, and 9.24 grammes of a solid containing 7.25 grammes of 2-fluorodeschloro-N-ethyl-ketamine and 0.71 gramme of N,N-dimethylpentylone (Count 2).[1] On 29 April 2025, following his plea of guilty to that count, the applicant was sentenced by Douglas Yau J (the judge) to 8 years and 10 months’ imprisonment.

2.  On 23 May 2025, the applicant filed an application for leave to appeal against sentence, in which he complained that his sentence was excessive.  He further complained of the total enhancement of 1 year and 5 months to the notional starting point of 11 years and 10 months’ imprisonment, resulting in a total 13 years and 3 months’ imprisonment.  

3.  At the leave hearing, the applicant appeared in person, having had his application for legal aid refused on 4 July 2025.

4.  The facts outlined to the judge and admitted by the applicant were as follows.[2]  On 13 February 2023, police officers conducted an anti‑narcotics operation at the lobby of Tower 3, Primrose Hill, No. 168 Kwok Shui Road, Tsuen Wan.  They intercepted D1 as he stepped out of the lift and found in his possession packets of cocaine and ketamine, which formed the basis of the drug trafficking count that D1 faced alone (Count 1).  The police used the keys found on D1 to enter Flat C, 61/F (the flat), where the applicant was present.  On a table in the living room, they found over 400 plastic bags containing the total quantity of dangerous drugs as particularised in Count 2, together with drug paraphernalia, including a bowl, four digital scales with plastic spoons (from which DNA of the applicant and D1 was recovered), empty resealable plastic bags, three pairs of scissors, three sealers, three lighters, and two cigarette boxes.  The police also found in the applicant’s possession HK$20,000 in cash in a safe, HK$6,880 in cash, and a mobile telephone.  The applicant and D1 were then arrested, and both admitted under caution that the cocaine and ketamine belonged to them and that they planned to sell the drugs after packaging them.  

5.  They both participated in a video recorded interview.  The applicant remained silent, while D1 stated that the flat was rented by his mother and that he had moved there and kept the key.

6.  The total street value of the dangerous drugs in the flat was estimated at HK$236,452.  At his plea, the applicant admitted that he knowingly possessed all the dangerous drugs seized for the purpose of trafficking with D1.

7.  The applicant was 21 years old at the time of sentencing, educated to Form 2 level, and had worked as a vegetable stall worker earning around HK$15,000 per month.  He had two previous convictions: one for common assault, for which he was sentenced to 18 months’ probation on 5 January 2021, and one for possession of dangerous drugs, for which he was ordered to attend a Drug Addiction Treatment Centre (DATC) on 14 July 2022[3].  He was released from the DATC on 14 December 2022, and the present offence was committed on 13 February 2023.  In mitigation, it was submitted that he committed the offence under the influence of bad peers who had tempted him into trafficking drugs for quick money.  Defence counsel invited the judge to afford a discount for his youth and produced letters from his mother and cousin seeking leniency.[4]

8.  In sentencing the applicant, the judge did not take into account the N,N‑dimethylpentylone given the negligible quantity involved.  He identified the range of starting points as 8 to 12 years’ imprisonment for the 175.34 grammes of cocaine, and 4 to 6 years’ imprisonment for the 44.84 grammes of ketamine (37.59 grammes of ketamine and 7.25 grammes of 2-fluorodeschloro-N-ethyl-ketamine), in accordance with the applicable guideline bands: HKSAR v Huang Ruifang (No 3)[5] and Secretary for Justice v Hii Siew Cheng[6].

9.  Applying the combined approach[7], the judge treated cocaine as the base drug and adopted a starting point of 11 years and 10 months’ imprisonment, based on an arithmetic calculation of the three check tests (“absurdity test”: 12 years and 3 months’ imprisonment; “conversion test”: 11 years and 10 months’ imprisonment; “ratio test”: 11 years and 5 months’ imprisonment).  To reflect the applicant’s role and culpability as a courier and storekeeper who had engaged in the packaging of the drugs, the judge adopted a notional starting point of 12 years and 6 months’ imprisonment.  The judge enhanced the notional starting point by 6 months and 3 months respectively for two aggravating factors, namely the presence of two different types of dangerous drugs and the fact that the applicant committed the present offence about two months after his release from the DATC, arriving at 13 years and 3 months’ imprisonment.  After giving him a one-third discount for his guilty plea, the judge sentenced him to 8 years and 10 months’ imprisonment.

10.  Mr Fergus Chau, for the respondent, submits that the judge adopted an appropriate starting point for the combination of the two drugs in the offence in accordance with the relevant sentencing principles.  He further submits that the judge properly considered the applicant’s role and culpability in adopting a notional starting point of 12 years and 6 months’ imprisonment, and correctly identified the aggravating factors that warranted enhancements to the sentence, which fell within the appropriate range of enhancement given the circumstances of the case.  He argues that the sentence of 8 years and 10 months’ imprisonment is not manifestly excessive or wrong in principle.

11.  I agree with the respondent’s submissions.  The judge carefully considered the relevant sentencing guidelines and principles applicable to the applicant’s case.  The notional starting point of 12 years and 6 months’ imprisonment, reflecting the combined approach and the role and culpability of the applicant, was within the appropriate range of sentence.  So too were the enhancements for the aggravating factors of the involvement of two types of dangerous drugs and his commission of the offence soon after his discharge from the DATC.  The sentence the judge passed was appropriate in light of the circumstances of the offence and of the offender.

12.  The application for leave to appeal against sentence is refused.

13.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

[1]  D1 also faced an additional trafficking count individually (Count 1) and was sentenced by the judge to a total of 9 years and 2 months’ imprisonment, following his plea of guilty to both counts.

[2]  Appeal Bundle (AB), 5-9.

[3]  AB, 31.

[4]  AB, 22-29.

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

[6]  Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

[7]  HKSAR v Chan Yuk Leong, unrep., CACC 318/2013, 8 April 2014.