HKSAR v. YAU KAI FUNG

CACC 208/2024 [2025] HKCA 642

On appeal from [2024] HKCFI 3190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 208 OF 2024

(ON APPEAL FROM HCCC NO 442 OF 2023)

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J U D G M E N T

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1.  On 26 September 2024, following his plea of guilty to a single count of trafficking in dangerous drugs, namely 130.44 grammes of a solid containing 112.66 grammes of ketamine and 6.57 grammes of a solid containing 1.95 grammes of cocaine[1], the applicant was sentenced by Deputy High Court Judge Eric Kwok (the judge)  to 5 years and 4 months’ imprisonment.

2.  On 7 October 2024, the applicant filed a notice of application for leave to appeal against his sentence, in which he complained that his sentence was too severe given that he was not a repeated offender; both the prosecution and defence counsel submitted that a term of 6 years and 9 months’ imprisonment would be imposed on him; he had attended rehabilitation programmes; and defendants in other cases involving larger narcotic quantities were given lighter sentences than his.

3.  On 20 February 2025, Mr Franco Kuan, with Ms Manalie Chan, for the applicant, filed perfected grounds of appeal against sentence.  Mr Kuan takes issue with the starting point and the approach adopted by the judge and advances three grounds.  He complains that the initial starting point of 7 years and 6 months for the combined drugs of ketamine and cocaine was manifestly excessive, according to the combined approach and tests in HKSAR v Chan Yuk Leong[2]provided by the prosecution and defence[3] (Ground 1); the judge wrongly took into account “selling the material drugs in bars” as a factor in enhancing the starting point when that was not what the applicant admitted under caution (Ground 2); and the overall starting point of 8 years’ imprisonment was wrong in principle and/or manifestly excessive (Ground 3).

The summary of facts

4.  The facts outlined to the judge and admitted on behalf of the applicant were as follows.[4] On 22 May 2022, the police officers conducted an anti-narcotic operation at Room 2113, 21/F, Yuet Wah House, Tin Yuet Estate, Tin Shui Wai, New Territories (the flat), during which the applicant opened the door of the flat to receive a delivery of meal boxes.  As the police approached the flat, the applicant attempted to close the gate but was subdued inside the flat when they gained entry. 

5.  Upon search of the flat, the police found, inside a tote bag placed in a drawer under the bed in the applicant’s bedroom, a plastic bag containing 26 resealable plastic bags containing a total of 112.66 grammes of ketamine, and a resealable bag containing 1.95 grammes of cocaine, as particularised in the Count, and other items including two resealable plastic bags containing 16 empty resealable plastic bags, and a digital scale with battery.  On a computer desk, the police also found cash of HK$390; two keys for the door and gate of the flat; and a mobile telephone with a SIM card.  The applicant was arrested and stated under caution that he had sold some illicit drugs to make a living. 

6.  The street value of the ketamine was estimated at HK$61,829, and that of the cocaine was HK$5,966 in powder form or HK$8,843 in crack form.

7.  In a subsequent cautioned video recorded interview, the applicant stated that he knew the drugs seized by the police were ketamine and crack cocaine.  He had collected a tote bag from his friend about three weeks ago, which contained the drugs, the plastic bags and the digital scale.  He planned to pay his friend HK$20,000 to $30,000 for the items and earn money by selling the drugs in bars with the help of his friend, but was unable to pay his friend or start selling the drugs because his friend had been previously arrested[5].

The sentence

8.  At the time of sentencing, the applicant was 28 years of age, unemployed, and resided with his father[6]. He had one previous conviction for possession of a dangerous drug in November 2018, for which he was ordered to attend a Drugs Addiction Treatment Centre[7]. 

9.  Applying the combined approach, the judge used 112.66 grammes of ketamine as the base drug with a starting point of 6 years and 9 months, which he enhanced by 9 months for the 1.95 grammes of cocaine, arriving at a notional starting point of 7 years and 6 months’ imprisonment.  The judge considered that the applicant’s role was “not just a courier, which is at the lowest end of culpability”[8].  Referring to the applicant’s admission under caution that he sold the drugs in bars, the judge found that he was not only a direct trafficker, but also a seller of the drugs, for which he enhanced the notional starting point by 6 months to 8 years’ imprisonment.[9]  After giving the applicant a full one third discount for his guilty plea, the judge sentenced him to 5 years and 4 months’ imprisonment.

Discussion

10.  The issue engaged in the applicant’s challenge to his sentence is whether the resultant sentence was within the appropriate range for the offending involved.  What is primarily in issue is the approach taken by the judge in sentencing the applicant for trafficking in two types of drugs.  The bulk of the drugs were ketamine, packed in twenty six bags, together with a small quantity of cocaine, packed in one bag.  In the applicant’s residence were drug paraphernalia for the packaging of drugs.

11.  The quantity of drugs is an important consideration, as well as the number and type of drugs.  In the present case, we have two types of drugs. The judge adopted a starting point of 6 years and 9 months’ imprisonment for the quantity of ketamine, which he enhanced by 9 months for the quantity of cocaine to 7 years and 6 months’ imprisonment.  Mr Kuan argues that the starting point for the combination of the two drugs should have been 6 years and 11 months’ imprisonment based on the three check tests in Chan Yuk Leong (“absurdity test”: 9 years and 9 months’ imprisonment for cocaine and 6 years and 10 months’ imprisonment for ketamine; “conversion test”: 6 years and 11 months’ imprisonment; “ratio test”: 6 years and 11 months’ imprisonment).  He submits that the starting point adopted by the judge was 7 months too high.

12.  Another important consideration when sentencing for drug trafficking is the role and culpability of the offender.  The judge found that the applicant was a direct trafficker who sold drugs in public places.  He considered the enhancement of 6 months was warranted for the role and culpability of the applicant.  Mr Kuan argues that whilst the applicant made this admission, the judge failed to give weight to his statement that he was unable to start selling the drugs because his friend had been previously arrested.  I do not consider that this has any bearing on the fact that he admitted that he was to sell the drugs in bars.  In fact, highlighting this factor, it may be considered that 6 months enhancement was insufficient.

13.  Mr Ivan Cheung, for the respondent, essentially argues that the sentence was in the appropriate range, taking into account the circumstances of the offence and the offender.  He submits that the notional starting point of 7 years and 6 months based on the facts of the present case was not wrong in principle or manifestly excessive.

14.  Both counsel advance valid arguments concerning the sentence.  However, if Mr Kuan’s argument is accepted, the applicant could receive a reduction to his sentence of between 4 to 6 months.  In these circumstances, I grant the applicant leave to appeal against his sentence.

15.  This case may also give the Court of Appeal the opportunity to examine the utility of the three check tests and the approach a sentencing court should take when sentencing an offender for trafficking in two or more dangerous drugs.  It had been established that a sentencing court may either take an individual approach or a combined approach in sentencing for trafficking in a cocktail or combination of drugs: HKSAR v Cheung Wai Man [10]. The individual approach involves the court looking at the individual quantities of the different types of drugs.  The combined approach consists of the court looking at the overall quantity of the different types of drugs.  Both approaches normally require an adjustment to arrive at a sentence that is just and appropriate.  To ensure this is the case, the Court of Appeal (Yuen and Lunn JJA)  in Chan Yuk Leong set out three tests to cross-check the sentence: the “absurdity test”; the “conversion test”; and the “ratio test”.  It was intended that these tests be used to assess whether the extent of upward adjustment to the overall starting point for trafficking in more than one kind of dangerous drug was excessive.  The calculation of these tests can be complicated and have had a tendency of replacing the determination of a starting point by the individual or combined approaches.  It is important to have both certainty and consistency in the determination of just and appropriate sentences, and to make the process straightforward and uncomplicated.