HKSAR v. LAW KA FAI

CACC 60/2025, [2025] HKCA 1054

On Appeal From [2024] HKCFI 3410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 60 OF 2025

(ON APPEAL FROM HCCC NO 7 OF 2024)

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BETWEEN

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J U D G M E N T

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1.  The applicant was convicted after confirming his pleas of guilty before Deputy Judge Eric Kwok SC (“the judge”) in the High Court, having earlier entered pleas in the magistrate’s court to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. In terms of their pure narcotic content, Counts 1 and 2 respectively involved 501 grammes of cocaine, which was found inside a vehicle driven by the applicant on the night of 2 November 2021; and 140.9 grammes of ketamine, which was found in a wardrobe at his home the next day following a video recorded interview with police officers.

2.  The applicant was given an overall sentence of 12 years and 4 months’ imprisonment on 26 September 2024, which predated the new sentencing guidelines propounded in HKSAR v Huang Ruifang[1] and handed down on 5 March 2025, thereby revising the sentencing brackets for trafficking in large quantities of cocaine, heroin and “Ice”.

3.  The present application for leave to appeal against sentence was made 5 months out of time. The applicant has been refused legal aid and acts in person. In his Form XI, without any specific reference to the new sentencing guidelines or Huang Ruifang, he merely stated that his sentence was excessive.

4.  The applicant filed a Notice of Abandonment on 2 October 2025 which was received by the Court on 3 October 2025. In accordance with Rule 39 of the Criminal Appeal Rules, Cap 221A, the appeal was deemed dismissed by the Court of Appeal. However, when such Notice of Abandonment was drawn to my attention, I immediately considered that it would be fairer to the applicant if the position of the appeal was explained to him in the light of the decision in Huang Ruifang before there could be a formal acceptance by the Court of his abandonment. Accordingly, I directed that the hearing should be restored before me.

5.  Mr Chau, on behalf of the respondent, has taken issue with this procedure for dealing with the matter and there is an obvious issue as to whether a deeming provision can overcome the decision of a judge who is already seized of the appeal, in the sense that he has reviewed the appeal papers, and in front of whom the leave application has already been listed. Be that as it may, and without resolving the correctness of Mr Chau’s argument, I have decided to hear the application on a de bene esse basis.

6.  Mr Chau opposes the substantive application for leave to appeal out of time. He submits that there is no justification for the delay in lodging the present application and the applicant was correctly sentenced based on the old sentencing guidelines, which prevailed at the time of sentence. He also argues, even on an application of the new sentencing guidelines under Huang Ruifang, the applicant could at most benefit from a reduction in sentence of 1 year and 5 months, which should be offset by the aggravating feature that this case presents more than one occasion of drug trafficking.

Consideration

7.  It should be remembered that, even if an applicant were able to mount an argument that he is entitled to benefit from the new guidelines under Huang Ruifang, any appellate Court would have to sentence afresh and the Court would not necessarily be bound by the sentencing judge’s view or interpretation of the facts.

8.  Having looked at the facts and circumstances of this case, it seems to me to have been a rather more serious set of facts than have been acknowledged by either the judge or, with respect, the respondent. Firstly, I do not believe that an appellate Court would necessarily agree with the judge’s acceptance of the applicant’s role “as a courier, therefore, the lowest end of culpability”[2]. The applicant was found in possession of no less than half a kilogramme of cocaine narcotic in 27 packets in readily distributable form in a motor car on public streets, which he had hired for the specific purpose of delivering cocaine according to the orders he received. That is what he admitted he was doing on the night of his arrest. He was not a storekeeper or courier in the sense of taking drugs from one place to another or being found in possession of dangerous drugs for an unexplained or neutral purpose. He was in the actual process of distributing cocaine according to instructions he received.

9.  In HKSAR v Herry Jane Yusuph[3], the Court said of such circumstances[4]:

“…the defendant who can be shown by admission, or by direct or circumstantial evidence, to be dealing in dangerous drugs to others, sometimes referred to as actual (or direct) trafficking, is not a courier or storekeeper, and is in a more serious position”. (Original emphasis)

If an appellate Court were, therefore, to look at the applicant’s role and culpability, it might have no difficulty in finding that he was in a more culpable position than a storekeeper or courier. And if that be so, his role and culpability would require a higher starting point than the simple arithmetical application of guideline to quantity would produce. Thus a defendant facing this quantity of cocaine alone in circumstances of actual (or direct) trafficking might be looking at a starting point of 17 or 17½ years’ imprisonment under the Herry Jane Yusuph approach and the Huang Ruifang guidelines.

10.  However, and secondly, the applicant did not face one count of trafficking in cocaine alone. He also pleaded guilty to another count of trafficking in a substantial quantity of ketamine. Had that quantity of dangerous drugs stood alone, the applicant would have faced a starting point of some 7 years imprisonment for trafficking under the applicable guidelines in Secretary for Justice v Hii Siew Cheng[5]. And while the ketamine was found in the applicant’s home and he might normally be regarded as a storekeeper, he admitted that he would be delivering the ketamine to order as well, although he claimed he had not yet done so. I note that the drug was also discovered in 12 packets in readily distributable form. The ketamine component or count, therefore, had two functions in sentence: firstly, it called for a partly consecutive sentence in addition to the sentence for the principal count and drug, cocaine; secondly, it was an aggravating feature inasmuch as the applicant was evidently trafficking in more than one kind of dangerous drug: see HKSAR v Yim Hung Lui, Ricky[6]. Again, neither the judge nor the respondent has referred to or acknowledged the second function.

11.  I would point out that Count 2 was a separate allegation dealing with a separate and different dangerous drug found in a different place in different circumstances: the ketamine was not part of a cocktail of dangerous drugs found in the possession of the applicant and forming a single count or charge. Accordingly, it called for separate consideration, which needed to be properly reflected in the overall sentence. I am in some doubt, therefore, whether HKSAR v Chan Yuk Leong[7], which was referred to by the judge[8], and which dealt with a single count of trafficking in a cocktail of three different dangerous drugs has application to the facts of this case. Indeed, I am further concerned that the approach in Chan Yuk Leong and other cases, with their somewhat elaborate and complicated concentration on arithmetic should now yield to the new approach of the courts set out in Herry Jane Yusuph.

12.  I note that Zervos JA in his recent judgment in HKSAR v Yau Kai Fung[9] has also voiced his concern about the approach established by the three tests set out in Chan Yuk Leong, as applied in HKSAR v Cheung Wai Man[10] (which also concerned a cocktail of three drugs in one count). This matter, and the continued correctness of this approach, will be addressed when the appeal in Yau Kai Fung is heard.

13.  Returning to the present case, if a Court were properly to apply the new guidelines in Huang Ruifang, on the assumption that they operate and apply, in conjunction with the approach in Herry Jane Yusuph, in my judgment it could still arrive at a starting point of about 18½ years’ imprisonment. The Court would not be bound to sentence afresh on the basis the judge sentenced.

14.  Whilst any appellate Court is loath to shut out a plainly arguable ground of appeal because of the late filing of a Notice of Application for leave to appeal against sentence on the basis that the applicant could benefit from the new guidelines in Huang Ruifang, I am not persuaded that the ground is reasonably arguable. Given that the applicant is more than 5 months out of time with his application, and assuming that I had jurisdiction to hear the application, I would refuse leave to appeal. In the circumstances, it is not necessary for me to resolve the issue of jurisdiction because the substantive appeal has no reasonably arguable grounds of appeal or prospects of success.

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

[2]   Appeal Bundle (“AB”) p 10D-E.

[3]   HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

[4]   Ibid., at [61].

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

[6]   HKSAR v Yim Hung Lui, Ricky (Unrep., CACC 266/2011, 13 February 2012).

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

[8]   AB, p 10C-D.

[9]   HKSAR v Yau Kai Fung (Unrep., CACC 208/2024, 14 July 2025), at [15].

[10]   HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.