HKSAR v. NKAUSU ROOSEVELT

CACC 406/2025, [2026] HKCA 1462

On Appeal From [2021] HKCFI 1720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 406 OF 2025

(ON APPEAL FROM HCCC NO 359 OF 2020)

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BETWEEN

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  On 28 December 2020, the appellant pleaded guilty before a magistrate to a single charge of trafficking in 1,083.92 grammes of solid containing 894.23 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 13 May 2021, he confirmed his plea before Wong J (“the judge”) in the High Court and was sentenced to 15 years’ imprisonment.

2.  On 14 October 2025, the appellant applied for leave to appeal against sentence out of time. The respondent did not oppose the application and, accordingly, the Court granted leave to appeal against sentence out of time on 9 July 2026.

3.  His sole ground of appeal is that the sentence should be reduced in light of the revised sentencing guidelines laid down in HKSAR v Huang Ruifang (No 3)[1].

The facts

4.  At about 8:45 am on 9 February 2020, the appellant was intercepted by Customs officers at the Hong Kong International Airport upon his arrival from Johannesburg, South Africa. During a search and subsequent investigation of the appellant, a total of 894.23 grammes of cocaine narcotic were discovered, with an estimated street value of HK$1,146,787.36, comprising:

(i) Two packets containing a total of 783 grammes of solid containing 648 grammes of cocaine concealed under the insoles of the appellant’s shoes; and

(ii) 31 pellets containing a total of 300.92 grammes of solid containing 246.23 grammes of cocaine later discharged by the appellant.

5.  In a subsequent cautioned interview, the appellant admitted that he was offered US$3,500 to bring 1 kilogramme of drugs from South Africa to Hong Kong. He was given pellets to swallow and shoes to wear. He was instructed to go to a certain hotel in Hong Kong where someone would come to retrieve the drugs. He had not yet received any reward.

The appellant’s background and mitigation

6.  The appellant is a Zambian national. At the time of sentencing, he was 35 years of age, and employed in the business of selling garments, telephone accessories and household items. He is married with four children. He did not have any criminal record in Hong Kong.

7.  In mitigation, his counsel told the court of the appellant’s remorse and explained that the appellant had committed the offence because he was severely in debt. She submitted on his behalf that the appellant had participated fully in biblical studies and Father Wotherspoon’s anti-drugs campaign during his time in prison. She invited the judge to give the appellant a further reduction in sentence for his meaningful contribution to the anti-drugs campaign.

The sentence

8.  Applying the previous guidelines[2], the judge noted that for trafficking between 600 grammes and 1,200 grammes of cocaine, the sentence should be between 20 and 23 years’ imprisonment. The judge adopted a starting point of 21 years and 5 months’ imprisonment, which he enhanced by 16 months for the international element involved in bringing dangerous drugs across the border into Hong Kong. He then reduced the resulting notional sentence after trial of 22 years and 9 months’ imprisonment by one third for the appellant’s guilty plea. The judge reduced the sentence by a further 2 months for the appellant’s participation in Father Wotherspoon’s anti-drugs campaign. In the result, the sentence passed was 15 years’ imprisonment.

The respondent’s submissions

9.  Ms Ko, on behalf of the respondent, accepts that the starting point would be 17 years and 7 months’ imprisonment under the revised guidelines on a purely arithmetical basis. However, the appropriate starting point should take into account the role and culpability of the appellant, which involved a significant international element.

Discussion

10.  It is accepted that the appellant is still within the appeal system and can derive benefit from the revised guidelines in Huang Ruifang (No 3), since he was sentenced in May 2021.

11.  On an appeal against sentence under the revised guidelines, the Court is required to sentence an appellant afresh and is not bound by the trial judge’s view or interpretation of the facts, or his application of sentencing principles[3], although the Court will obviously wish to consider the judge’s reasons. Under the revised guidelines, 500 grammes to 1,500 grammes of cocaine now fall within the band of 16 to 20 years’ imprisonment. If one were to view the matter in purely arithmetical terms, 894.23 grammes of cocaine narcotic would attract a sentence of 17 years and 7 months’ imprisonment. However, the courts no longer view sentencing in this area of the law in purely arithmetical terms. In this case, the appellant was an international courier, who had flown from South Africa to Hong Kong with cocaine concealed in his shoes and in his body. We consider a suitable notional sentence after trial in the circumstances would have been 19 years’ imprisonment. We would allow a full one-third discount for the appellant’s early plea and reduce the sentence to 12 years and 8 months’ imprisonment. We are also prepared to honour the judge’s granting of a token discount for the appellant’s participation and contribution to Father Wotherspoon’s anti-dangerous drugs campaign and reduce the sentence by a further 2 months, resulting in 12 years and 6 months’ imprisonment.

12.  Any difference between a sentence under the previous and the revised guidelines must be significant before this Court will intervene[4]. In our view, a difference of 2½ years’ imprisonment under the revised guidelines is significant enough to warrant interference with the appellant’s sentence.

13.  For these reasons, we allow the appeal against sentence, quash the sentence of 15 years’ imprisonment, and substitute a sentence of 12 years and 6 months’ imprisonment.