HKSAR v. YUSUF LUKMAN ADEPOJU

CACC 178/2025 [2026] HKCA 1050

On appeal from [2020] HKCFI 1436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 178 OF 2025

(ON APPEAL FROM HCCC NO 45 OF 2020)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  On 6 April 2020, the appellant pleaded guilty before a magistrate to a single charge of trafficking in a dangerous drug,[1] involving 626 grammes of a powder containing 501 grammes of cocaine. On 16 June 2020, he confirmed his plea before Campbell-Moffat J (the judge) and was sentenced to 12 years and 4 months’ imprisonment.

2.  On 13 June 2025, he applied for leave to appeal against sentence out of time.  The appellant appears in person, having had his application for legal aid refused on 9 September 2025.  The respondent indicated that it did not oppose the application and the Court therefore granted leave to appeal against sentence.

3.  The appellant’s sole ground of appeal is that his sentence should be reduced in light of the revised sentencing guidelines laid down in HKSAR v Huang Ruifang (No 3)[2].

The agreed facts

4.  On 28 February 2019, the appellant arrived at Hong Kong International Airport on a flight from Sao Paulo via Dubai.  He was suspected of having internally concealed drugs and was sent to the hospital for a body cavity examination.[3]

5.  While awaiting to be medically examined, the appellant said that he had about 500 grammes of cocaine in his stomach.  He subsequently discharged 64 pellets containing 626 grammes of a powder with 501 grammes of cocaine.  The retail value of the cocaine was approximately HK$585,310.[4]

The mitigation

6.  The appellant was 49 years old at the time of sentence.  He was born in Nigeria and left for Mexico in 2011.  He met a drug dealer in Brazil and was told to traffic dangerous drugs to mainland China.  He was supposed to meet a Brazilian man in mainland China but was intercepted in Hong Kong.  It was submitted on his behalf that he committed the offence out of poverty and greed.[5]

The sentence

7.  The judge considered the sentencing guidelines in R v Lau Tak Ming & Anor[6] and noted that trafficking between 400 grammes and 600 grammes of cocaine attracts a starting point of 15 to 20 years’ imprisonment.  She adopted a starting point of 17 years and 6 months’ imprisonment, enhancing it by one year for the international element.  She then reduced the notional starting point of 18 years and 6 months’ imprisonment by one-third for the appellant’s guilty plea, resulting in a sentence of 12 years and 4 months’ imprisonment.[7]  There were no other mitigating factors warranting a further reduction in sentence.  

Discussion

8.  In HKSAR v Lam Man Tak^[8], this Court resolved that the commencement date of the “state of affairs” (as explained in Seabrook v HKSAR[9]) leading to the revision of the sentencing guidelines in Huang Ruifang (No 3) was 18 September 2018, and that the date from which the revised sentencing guidelines should be applied was the date of sentence.  The appellant, who was sentenced on 16 June 2020, should be regarded as still “in the system” and therefore, in principle, entitled to derive benefit from the revised sentencing guidelines.

9.  As is well established, this Court, in allowing an appeal against sentence, is required to sentence the appellant afresh.  In so doing, the Court is not bound by the trial judge’s view or interpretation of the facts, or by his or her understanding or application of the relevant sentencing principles.[10]

10.  The sentence imposed by the judge was in accordance with the relevant authorities at the time.  She adopted a starting point of 17 years and 6 months’ imprisonment, which was proposed by the defence during mitigation.[11] The one-year enhancement for international element cannot be regarded as excessive, given that the appellant had the drugs concealed in his body cavity and had smuggled them into Hong Kong with the intention of delivering them to mainland China.  

11.  Under the revised sentencing guidelines in Huang Ruifang (No 3), a quantity of cocaine between 500 grammes and 1,500 grammes falls within the sentencing band of 16 to 20 years’ imprisonment.  The respondent submits that, on an arithmetic calculation, the 501 grammes of cocaine in the present case corresponds to a term of 16 years’ imprisonment, and that, adopting the judge’s one-year enhancement for the international element, the notional starting point would be 17 years’ imprisonment.  Applying a one-third discount for the appellant’s guilty plea, the final sentence would be 11 years and 4 months’ imprisonment, which is one year lower than the original term of 12 years and 4 months’ imprisonment.

12.  We would adopt a starting point of 17 years’ imprisonment, incorporating the international element.  We would reduce this by one-third for the appellant’s guilty plea, resulting in a sentence of 11 years and 4 months’ imprisonment. 

13.  As a matter of principle, the Court of Appeal does not tinker with the result if the difference between a sentence passed at trial and the sentence considered appropriate by the appellate court would not be significant.  The same applies where the difference in sentence passed at trial under the previous guidelines and the sentence contemplated by the appellate court under revised guidelines is not significant.  As observed by Macrae VP in Lam Man Tak:

“30. …, the difference between a sentence under the revised guidelines in Huang Ruifang (No 3) and a sentence under the former guidelines in Abdallah would have to be significant, even making due allowance for the fact that there has been a change in the range of sentences applicable. It must be remembered that an appeal against sentence may be allowed by the Court where it is either wrong in principle or manifestly excessive, not where it is marginally excessive or simply on the high side. Moreover, appellate courts do not ‘prune’ sentences (R v Kan Chik Tung^[12]) nor do they ‘tinker’ with them (HKSAR v Sze Kwan Lung^[13]), just because they might have passed different ones.”

14.  In the present case, the difference in sentence of one year under the revised guidelines is significant enough to warrant correction of the appellant’s previous sentence.  This approach is consistent with the reasoning of the Court of Appeal in HKSAR v Au Chun Wah^[14] :

“A difference of 13 months in the starting point between the former and revised guidelines would translate to a difference of just under 9 months’ imprisonment on a plea. We are of the view that such a difference between the former and the revised guidelines was not significant enough to warrant our interference in this case.”

15.  Depending on the actual term of sentence, a difference of less than one year between the sentence under the previous guidelines and that under the revised guidelines will ordinarily not be regarded as significant enough to warrant appellate interference, whereas a difference of one year or more will ordinarily be so regarded.

Conclusion

16.  For the foregoing reasons, we allow the appellant’s appeal against sentence, quash the sentence of 12 years and 4 months’ imprisonment and substitute a sentence of 11 years and 4 months’ imprisonment.

[1] Contrary to s.4(l)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134), Appeal Bundle (AB), 1.

[2] HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD l38.

[3] Summary of Facts, at [1], Appeal Bundle (AB), 3.

[4] Summary of Facts, at [2]-[7], AB, 3.

[5] Mitigation submissions, AB, 7L-9C.

[6] R v Lau Tak Ming & Anor [1990] 2 HKLR 370.

[7] Reasons for Sentence, AB, 6K-R.

[8] HKSAR v Lam Man Tak [2026] 2 HKLRD 199.

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

[10] HKSAR v Law Ka Fai, unrep., CACC 60/2025, 21 November 2025, at [7].

[11] Oral mitigation submissions, AB, 9G-I.

[12] R v Kan Chik Tung [1963] HKLR 721, at 732.

[13] HKSAR v Sze Kwan Lung (Unrep., CACC 92/2002, 11 December 2003).

[14] HKSAR v Au Chun Wah [2026] HKCA 592, at [54].