HKSAR v. CHAN WAI HANG AND ANOTHER

CACC 116/2025 [2025] HKCA 960

On appeal from [2025] HKDC 696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 116 OF 2025

(ON APPEAL FROM DCCC NO 56 OF 2024)

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J U D G M E N T

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1.  On 17 April 2025, the 1^st applicant (D1 at trial)  and the 2^nd applicant (D2 at trial)  pleaded guilty before District Court Judge Tam (the judge)  to a joint charge of trafficking in a dangerous drug, namely 27,297.8 grammes of herbal cannabis, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance (Cap 134). The judge sentenced D1 and D2 to 56 months’ imprisonment and 55 months and 10 days’ imprisonment, respectively.

The grounds of appeal

2.  D1 and D2 apply for leave to appeal against their sentences.  Mr Philip Wong, for D1, and Mr P C Lee, for D2, respectively filed Perfected Grounds of Appeal against sentence dated 15 July 2025.  The grounds of appeal for D1 and D2 can be distilled as follows:

Ground 1:   The judge erred in not lowering the sentence for herbal cannabis according to sentencing practice in Secretary for Justice v Lee Siu Kei[1].[2]

Ground 2:   The judge erred in increasing the sentence for the aggravating factors identified.[3]

Ground 3:   The judge failed to consider the mitigating factors for D2.[4] 

Ground 4:   The decision of HKSAR v Nguyen Thang Loi[5] is wrong in applying the same sentencing guidelines for herbal cannabis and cannabis resin.[6]

3.  At the leave hearing, Mr Lee raised a new argument, and leave was granted to amend his Perfected Grounds of Appeal to add Ground 6, which reads:

“The Learned Judge erred in adopting the guidelines as set out in Nguyen Thang Loi as the guidelines formulated by the Court of Appeal is based on contradictory scientific evidence in that what is stated in paragraph 57 of the Judgment is at odds with those under paragraph 95.”

4.  The hearing of the leave application was adjourned to 26 November 2025 for the parties to address this new ground.  I directed that D2 file and serve a written submission, any relevant authorities, and supporting evidence in proper form, if any, by 11 November 2025.  The respondent was to file and serve a written submission and any authorities in response by 18 November 2025.

The facts

5.  The brief facts, as outlined to the judge and admitted by the defendants, were as follows.  On 18 April 2023, police executed a search warrant at an apartment in Yuen Long.  D1 and D2 were found in the apartment and present during the execution of the warrant.  The police found the quantity of herbal cannabis particularised in the charge inside the apartment, together with drug paraphernalia and packaging equipment, including an electronic scale, a sealing machine, and a quantity of transparent bags.  The street value of the drugs at the time of the offence was HK$5,732,538.00.

6.  Upon arrest and caution, D1 admitted helping others to repackage cannabis to earn quick money.  D2 claimed that the cannabis was brought to the apartment by D1 and that she helped him repackage the drugs to earn quick money.

7.  In a video recorded interview, D1 stated that the apartment was his residence.  He had been approached by “Ah Fei” to repackage cannabis for HK$2,000 per kilogramme.  Several days before the offence, D1 met an unknown man and collected four nylon bags containing cannabis, an electronic scale and 30 to 40 plastic bags.  He was instructed to repackage the cannabis into 800 packets of 4.5 grammes each. 

8.  In a video recorded interview, D2 stated that she rented the apartment and lived there with D1.  On 14 April 2023, she returned to the apartment and found the cannabis there.  D1 told her she could earn quick money by repackaging the drugs, and she decided to help him, repackaging the drugs into smaller packets of 4.5 grammes each. 

9.  In mitigation, both D1 and D2 expressed their remorse, as reflected by the guilty pleas and cooperation with the authorities.  D2 further submitted that she committed the offence out of a sense of misguided loyalty to D1 and that she played only a minor role, highlighting her clear record.  They both accepted that the weight of herbal cannabis would attract a starting point of 78 months’ imprisonment, but submitted that this should be adjusted downwards because herbal cannabis, rather than cannabis resin, was involved. 

10.  In sentencing D1 and D2, the judge followed the sentencing approach laid down in HKSAR v Herry Jane Yusuph[7], and applied the sentencing guidelines from Nguyen Thang Loi.  He adopted a starting point of 78 months’ imprisonment and rejected the submission that this should be reduced because herbal cannabis was involved rather than cannabis resin. The judge considered that D1 and D2 were operating a packaging and distribution centre and, for this reason, enhanced the sentence by 3 months.  He further enhanced the sentence by 3 months for D1 and 2 months for D2 for the aggravating factors, including that D1 and D2 were committing the offence as a joint enterprise with D1 as the mastermind.  The notional starting points were reduced by one third for their guilty pleas, resulting in sentences of 56 months’ imprisonment for D1, and 55 months’ and 10 days’ imprisonment for D2.

Ground 1

11.  The judge correctly applied the guidelines in Nguyen Thang Loi.  This ground is without merit.

Grounds 2 and 3

12.  These two grounds will be dealt with together.

13.  In assessing the role and culpability of D1 and D2, the judge found that they were operating a packaging and distribution centre and that their roles and culpability were more than those of a mere courier or storekeeper.  For this reason, he enhanced the basic starting point of 78 months by 3 months.  Separately, he treated the element of joint enterprise as an aggravating factor, finding that D1 and D2 were members of a joint enterprise with D1 clearly performing the role of mastermind.  He enhanced D1’s sentence by 3 months and D2’s by 2 months, respectively.  He noted that D1 was a repeat offender but did not enhance his sentence further because his previous offending occurred some 15 years ago.  He also noted that D2 was a person of previous good character, but due to the seriousness of the offence, this did not warrant a reduction.  Although D2 appeared to be under D1’s influence, it cannot be said that the judge was wrong not to grant her a reduction for her good character.

14.  The only issue arising from these two grounds is whether the judge engaged in double counting by enhancing the sentence for both operating a packaging and distribution centre and for the joint enterprise. The end result is that the judge enhanced the basic starting point that would usually apply for a low-end offender, such as a mere courier or storekeeper, by 6 months for D1 and 5 months for D2.  The judge essentially found that D1 and D2 were operating a packaging and distribution centre for herbal cannabis with D1 as the mastermind.  On this basis, the enhancement to D1’s sentence of 6 months was not inappropriate.  While it is arguable that the enhancement of D2’s sentence could have been about one month less by comparison, given the roles and culpability of D1 and D2 operating the packaging and distribution centre, it is also arguable that D1’s sentence as the mastermind should have been greater than 6 months, and that the 5-month enhancement for D2 was appropriate. 

15.  As for D2’s role, Mr Herman Wan, for the respondent, submits that D2 was not merely assisting D1.  She admitted her involvement in the operation of packaging and distributing a large quantity of herbal cannabis with a street value of over HK$5 million.  Furthermore, she rented the premises where the packaging and distributing operation took place.

16.  I do not find these grounds to be reasonably arguable.

Grounds 4 and 6

17.  These two grounds, submitted by Mr Lee, seek to challenge the scientific study conducted by Dr Lai Kam Ming, the Senior Chemist of the Forensic Science Division of the Hong Kong Government Laboratory, as summarised in Nguyen Thang Loi, which treats herbal cannabis and cannabis resin similarly for sentencing purposes.  He is critical of Dr Lai’s study on the basis that it consisted of a small number of samples over a short period; that it did not involve testing the whole of the cannabis plant; and that it was inconsistent with the findings in the UNODC World Drug Report, 2022, which was quoted at paragraph 57 of Nguyen Thang Loi.

18.  Mr Lee notes that the Court in Nguyen Thang Loi found that current scientific evidence showed a dramatic increase in the tetrahydrocannabinol (THC)  concentration in herbal cannabis and cannabis resin, both having an average of about 19%.  He criticises this finding on the basis of the sample sizes, which were: 108 herbal cannabis samples, 11 cannabis resin samples, and 13 cannabis oil samples.  He appears to have taken the lowest percentage concentration from these samples (3.8% for herbal cannabis and 12.3% for cannabis resin)  to argue for a 1:4 potency ratio based on these figures, rather than accepting the average percentage concentrations of 19.2% for herbal cannabis and 19.7% for cannabis resin.[8]

19.  Mr Lee also produces an extract from a publication of the European Union Drugs Agency concerning the drug profile of cannabis.  He submits that the approach to determining the narcotic content of the cannabis plant is to test the whole of the plant.  This was addressed in Nguyen Thang Loi[9]. He also submits that cannabis resin is a concentrate, but the cannabis resin that was tested was from seizures from the Police and Customs, which as already noted had the same average concentration of THC as the herbal cannabis of about 19%.

20.  Mr Wan submits that Mr Lee’s complaint regarding the inconsistency within Nguyen Thang Loi is illusory.  He rightly points out that the Court of Appeal, in its judgment, referred to a variety of empirical evidence in reviewing the sentencing regime for cannabis related offences.  This included the expert evidence regarding the psychiatric, neurological, health, and sociological effects of cannabis use, as well as statistical evidence of drug abuse trends and Dr Lai’ study on THC concentration in seized cannabis samples.  As pointed out, the UNODC World Drug Report was quoted in Nguyen Thang Loi to demonstrate the trend of increasing THC content in cannabis in other parts of the world.

21.  Dr Lai’s study was conducted specifically for the purpose of the Nguyen Thang Loi case, and his findings were not challenged.  No expert evidence has been submitted to refute Dr Lai’s study.

22.  The complaint under these grounds is not reasonably arguable.

Conclusion

23.  For the reasons stated, I refuse D1 and D2 leave to appeal against their sentences.

24.  D1 and D2 are reminded of their right to renew their application for leave to the Court of Appeal.  However, they are also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending their appeal, if the Court were to come to the view that there was no justification for the renewal of their respective applications.