HKSAR v. LAM HOI SANG

CACC 231/2025 [2026] HKCA 1057

On appeal from [2021] HKCFI 3000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 231 OF 2025

(ON APPEAL FROM HCCC NO 206 OF 2020)

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J U D G M E N T

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1.  On 14 September 2021, the applicant was sentenced to 11 years and 8 months’ imprisonment by D’Almada Remedios J (the judge), following his guilty plea before a magistrate to a single charge of trafficking in dangerous drugs, namely 448.68 grammes of a crystalline solid containing 438.62 grammes of methamphetamine hydrochloride (commonly known as Ice), 34.21 grammes of a solid containing 27.75 grammes of cocaine, and 103.8 grammes of a solid containing 85.5 grammes of ketamine (Count 2)[1]. 

2.  On 4 July 2025, the applicant applied for leave to appeal against his sentence out of time by more than three years and eight months.  In an accompanying affirmation dated 2 July 2025, he alleged that the sentence was excessive and unfair, and sought a reduction in his sentence in light of the revised sentencing guidelines laid down in HKSAR v Huang Ruifang (No 3)[2] after his sentence was passed.  He explained that the delay in filing was because he had only recently received the revised guidelines.

3.  Ms Gladys Chan, for the respondent, opposes the grant of an extension of time.  She submits that the applicant has not proffered any explanation for the delay in filing, other than relying solely on the revised sentencing guidelines as the basis for his appeal.

The Summary of Facts

4.  The facts agreed by the applicant and outlined to the judge were as follows.[3]  At about 00:48 hours on 4 May 2019, the applicant and a woman referred to as “Lee” entered Flat D, 17^th Floor, Block C, Upper East, No. 23 Sung On Street, Kowloon (the flat).  At about 00:53 hours, Lee left the flat and was arrested.  Under caution, she denied any involvement or knowledge of the drugs subsequently found in the flat.  The police officers then laid ambush outside the flat.  At about 01:20 hours, they discovered that a key had been left in the door lock.  They entered the flat and found the applicant inside, handling suspected dangerous drugs stored in a blue plastic box.  

5.  The applicant was arrested and was found in possession of HK$461 in cash and a mobile telephone.  Under caution, he stated that:

“Someone give me money, asked me to follow the fat woman to come up and get some dangerous drugs to find him or her, but I have not received the money.”

6.  The police searched the flat and found various resealable plastic bags containing the dangerous drugs particularised in Count 2.  The drugs were packed in over 70 plastic bags of various designs and markings, including resealable plastic bags bearing blue triangle patterns and sealing lines in different colours, some of which were marked with “9”, “10”, “5中”, “10大” and “私”.  They also found a plastic bag containing a pile of empty resealable plastic bags with blue triangle patterns, a plastic bowl, a metal spoon, three plastic straws, several plastic boxes, two toothbrushes and a shaver. 

7.  In a subsequent video recorded interview, the applicant admitted that he had been recruited through WeChat by a person called “Ah Ben” to handle dangerous drugs, and stated the following:

(i)  Someone had passed his telephone number to Ah Ben, after which he received a call from an unknown person instructing him to meet him in Mongkok.  He complied and was approached there by an unknown man.  Following a confirming call from an unknown woman that this was the man he was to meet, the man gave him a key and told him to go to the flat. 

(ii)  Subsequently, the woman who was the “fat woman” he had referred to under caution, and whom he had seen once or twice before when selling dangerous drugs, called him and asked him to meet her at the main entrance of Upper East.  He met her there and entered the flat with her.  Inside the flat, she checked a letter about the repossession of the flat and remarked, “so no one paid the rent”.  She then changed her slippers, put them into two bags and left, instructing him to bring the drugs to her at the podium on the second floor.  When he asked where the drugs were kept, she said she did not know and that this was a matter for her predecessor.

(iii)  Thereafter, he found a box on top of the air conditioner on the balcony of the flat.  He opened it in the flat and found the dangerous drugs.  Ah Ben also contacted him and asked whether he had found the drugs and the weighing scale, to which he replied that he had not found the scale[4]. Ah Ben then instructed him to separate the “pig” and the “perfume”, but he did not know how to do so.  He took photographs of the drugs and sent them to Ah Ben, who taught him how to distinguish them.  He was then asked to count the total quantity of the drugs, but as he was doing so, the police entered the flat.

(iv)  He confirmed that he went to the flat with the woman; that he would usually receive several hundred dollars as a reward after each transaction; and that two mobile telephone numbers were used by the unknown man and the woman to call him.  Examination of his mobile telephone revealed corresponding WeChat messages, voice clips and photographs exchanged between him and a person called “Ben Chai”.

8.  The estimated street values of the drugs seized from the flat at the time of the offence were: HK$249,915 for the Ice; HK$33,834 in powder form or HK$44,199 in crack form for the cocaine; and HK$58,336 for the ketamine.

9.  The applicant admitted that he was in possession of the dangerous drugs seized for the purpose of trafficking.

The sentence  

10.  At the time of sentencing, the applicant was 43 years of age, single, and educated up to Form 3 level.  He lived with his mother, while his father, who suffered from dementia, resided in an elderly home.  He was the sole support for his family and had worked as a restaurant manager, earning about HK$20,000 per month.  He had two previous convictions for an offence of committing an act outranging public decency, for which he received a community service order.[5]

11.  In mitigation, defence counsel submitted that the applicant  committed the offence to obtain quick money to repay debts owed to a number of finance companies after assisting his girlfriend.  He had been recruited by Ah Ben to handle the drugs for a few thousand dollars a day.  It was said that he was not a drug addict, was new to the trade, and could not distinguish the drugs.  He left the key inserted in the door lock as he panicked and was eager to complete the task quickly.  He cooperated with the police by providing full details of the offence in his video recorded interview and consenting to the search of his mobile telephone. He indicated his intention to plead guilty at the earliest opportunity on 31 July 2020.  Defence counsel suggested that the three check tests produced the following results on an arithmetic calculation: 19 years’ imprisonment under the absurdity test; 18 years’ imprisonment under the conversion test; and 17.68 years’ imprisonment under the ratio test.[6] 

12.  In sentencing the applicant, the judge noted that three types of drugs were involved and adopted a combined approach, using Ice as the base drug.  She identified that trafficking in 27.75 grammes of cocaine and 85.5 grammes of ketamine would each attract a starting point of 6 years and 3 months’ imprisonment under the sentencing guidelines[7], if calculated on a purely arithmetic basis.  She then treated each of the quantities of cocaine and ketamine as equivalent to approximately 8 grammes of Ice and notionally converted all the drugs into Ice, resulting in an overall total of 454.62 grammes of Ice[8].  Applying the sentencing guidelines for trafficking in Ice[9], she arrived at a starting point of 17 years and 6 months’ imprisonment.  After giving the applicant a one-third discount for his timely plea, she sentenced him to 11 years and 8 months’ imprisonment.

Discussion

13.  The applicant was sentenced on 14 September 2021, nearly three years after 18 September 2018.  He therefore falls on the favourable side of the cut-off date for the application of the revised guidelines in Huang Ruifang (No 3), as clarified by this Court in HKSAR v Lam Man Tak[10]. However, he did not seek to appeal against his sentence until he was significantly out of time.  The question is whether the change in the sentencing guidelines affords him a reasonably arguable ground of appeal so as to justify granting leave to appeal out of time.  It must be remembered that an appeal against sentence lies only where the sentence is wrong in principle or manifestly excessive.  An appellate court does not tinker with the result if the difference between the sentence under the previous and the revised guidelines is not significant.[11]

14.  As Ms Chan submits, even if this Court were to allow the applicant’s appeal and sentence him afresh under the revised guidelines in Huang Ruifang (No 3)[12], trafficking in 438.62 grammes of Ice alone would attract a starting point of 16 years and 4 months’ imprisonment.[13]  Applying the combined approach, the appropriate base drug for determining the starting point should be Ice.  Having regard to the three types of drugs involved, an appropriate starting point would be approximately 16 years and 6 months’ imprisonment. 

15.  The sentencing court should apply the six-step approach, first by assessing the defendant’s role and culpability, and then by considering any aggravating and mitigating factors in accordance with relevant sentencing principles[14].  In the circumstances of this case, it is likely that an appellate court sentencing afresh would enhance the base starting point of 16 years and 6 months’ imprisonment by 6 months to reflect the applicant’s role in handling the drugs found in the flat, which were packaged in various markings, and the involvement of multiple types of dangerous drugs capable of catering for a wider market. 

16.  The ratio test used as a cross check, yields a figure of about 16 years and 6 months’ imprisonment.  Therefore, the notional starting point of 17 years’ imprisonment is appropriate, as the ratio test does not take into account the applicant’s role and culpability or the aggravating factor of the multiplicity of drugs.[15]  Applying a one-third discount for his guilty plea, the resulting sentence would be 11 years and 4 months’ imprisonment, which is 4 months lower than the original term of 11 years and 8 months’ imprisonment.  A difference of 4 months between the sentence under the previous and the revised guidelines would not be considered as sufficiently significant to warrant appellate interference with the applicant’s sentence.  There is no justification for granting him leave to appeal his sentence out of time.  Accordingly, the application for an extension of time to file an application for leave to appeal against sentence is refused.

17.  The applicant is reminded of his right to renew his application for leave out of time to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for 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.