HKSAR v. CHEUNG CHO MING

CACC 167 /2025, [2026] HKCA 1010

On Appeal From [2021] HKCFI 1472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 167 OF 2025

(ON APPEAL FROM HCCC NO 258 OF 2020)

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J U D G M E N T

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1.  With leave of the Single Judge[1] granted on 21 November 2025, the appellant appeals against his sentence of 20 years’ imprisonment in respect of a single charge of trafficking in a dangerous drug, namely 18,007 grammes of a solid containing 15,430 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, to which charge he pleaded guilty in the Magistrates’ Court, before confirming his plea before Campbell-Moffat J (“the judge”) in the High Court on 5 May 2021.

The agreed facts^[2]

2.  On 15 September 2019, at 10:05 am, the appellant was intercepted by police officers when approaching a private car WG 5009 (“the car”) inside Tin Fu Court Multi-Storey Car Park in Tin Shui Wai, New Territories.  Found on him upon search was the key to the car and in its boot or trunk, two large bags containing a total of 18 blocks of dangerous drugs, which were subsequently confirmed to be cocaine, the subject matter of the charge. 

3.  When arrested and cautioned, the appellant admitted carrying the dangerous drugs on behalf of someone else.  In his possession were also found a blue Samsung mobile telephone, a black Xiaomi mobile telephone, a black Vivo mobile telephone, two Octopus cards and a key relating to another motor vehicle.

4.  In subsequent video recorded interviews, the appellant admitted that:

(i)     He had rented the car for almost a month at HK$4,000;

(ii)     In about 2017, he had been introduced to a person called Tiger in a pub in Tsim Sha Tsui, Kowloon.  In June 2019, he agreed to help Tiger deliver cocaine for a reward of HK$6,000 per block.  He received a call from Tiger via an application for secured communications on his telephone and was told that the “work” would start in two days’ time.  In accordance with Tiger’s instructions, he obtained his own telephone card in order to enable Tiger to forward his telephone number to another male person, who then contacted him on 12 September 2019.  On 13 September 2019, the appellant met that male person, from whom he obtained the cocaine in question. At the time of his interception, he was awaiting instructions for the delivery of the cocaine, which would be placed inside a black bag and then apparently discarded at a designated location as if it were a bag of rubbish;

(iii)     The Samsung mobile telephone was used to contact Tiger, whilst the Xiaomi mobile telephone was used to receive instructions on how to pick up the cocaine; and

(iv)     He was originally promised HK$6,000, which was subsequently reduced to HK$4,000, as his reward for delivering each block of cocaine.

5.  The value of the cocaine was approximately HK$25.6 million.

The sentence

6.  The appellant was 31 years of age at the time of sentencing.  He worked as a driver and was married with three children.  His only previous conviction was failing to comply with a direction made by an authorised officer or a member of the Customs and Excise Service in the exercise of his duty, contrary to section 26(1)(b) of the Import and Export Ordinance, Cap 60, for which he was sentenced, on 10 May 2019, to 4 months’ imprisonment suspended for 3 years and fined HK$20,000^[3].  It was submitted on his behalf that the appellant committed the offence because he was in need of money to pay for his father’s medical expenses and to repay debts which had accrued^[4].

7.  The judge characterised the appellant’s role as that of a courier.  For the narcotic content of 15,430 grammes of cocaine narcotic, the judge adopted a starting point of 30 years’ imprisonment after trial, in accordance with the guidelines then applicable in HKSAR v Abdallah^[5].  Since the appellant pleaded guilty at committal, the judge gave him a discount of one-third and reduced the sentence to 20 years’ imprisonment.

8.  Although aware that the appellant had committed the present offence during the period of a suspended sentence, the judge nevertheless said^[6]:

“However, I do consider the overall totality of sentence and the nature of the previous offending when your mind might have been on other things…”

In the result, she activated the suspended sentence of 4 months’ imprisonment but ordered it to run wholly concurrently with the present sentence.

The ground of appeal

9.  The appellant seeks to rely on the revised sentencing guidelines for cocaine in Huang Ruifang (No 3)^[7].   He has affirmed in writing that he did not lodge this appeal until 13 June 2025 because the revised guidelines only became available on 5 March 2025.  We should note that leave to appeal out of time has already been granted by the Single Judge, upon the respondent not opposing the grant of leave. 

The respondent’s submission

10.  Ms Lo, for the respondent, does not take issue with the application of the revised guidelines in the present case.  She submits that, in light of the appellant’s role as a courier, such guidelines should apply to him arithmetically, which will result in a starting point of 27 years and 1 month’s imprisonment and, after a one-third discount, an ultimate sentence of about 18 years’ imprisonment.

11.  Ms Lo however points out that, absent any special circumstances, the judge fell into error when ordering the suspended sentence to run concurrently with the present sentence.  She submits that a consecutive order in respect of the suspended sentence breached would have been appropriate, subject to this Court having jurisdiction to interfere.

Discussion

12.  In HKSAR v Lam Man Tak^[8], the Court of Appeal resolved that the commencement date of the ‘state of affairs’ leading to the revision of the sentencing guidelines in Huang Ruifang (No 3) was 18 September 2018 and the date from which the revised sentencing guidelines should be applied was the date of sentence.  The appellant, who was sentenced on 5 May 2021, should be regarded as still “in the system” and therefore entitled in principle to derive benefit from the revised sentencing guidelines.

13.  Given the revision of the sentencing guidelines for trafficking in cocaine in Huang Ruifang (No 3), in which 15,000 to 30,000 grammes of narcotic now attract a starting point of 27 to 30 years’ imprisonment, and the fact that there is nothing to take the appellant’s role beyond that of courier, we agree with the respondent’s submission.   The appropriate sentence after plea should have been about 18 years’ imprisonment. A difference of 2 years between that and the original sentence of 20 years’ imprisonment is significant enough to warrant appellate interference. Accordingly, we allow the appeal and reduce the sentence for the substantive charge from 20 years’ imprisonment to 18 years’ imprisonment.  However, that is not the end of the matter.

14.  Ms Lo has criticised the activation of the suspended sentence to run wholly concurrently with the present sentence.  Section 83G of the Criminal Procedure Ordinance, Cap 221 (“CPO”) provides that:

“A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings.”

15.  Under section 83H of the CPO, the heading of which reads “Appeal against sentence in other cases dealt with at the Court of First Instance”, sub-section 2 specifically provides that:

“(2) The proceedings from which an appeal against sentence lies under this section are those where an offender—

(a) …; or

(b)     having been made the subject of a probation order or an order for conditional discharge or given a suspended sentence, appears or is brought before the court to be further dealt with for his offence.”

16.  We have come across three authorities which may be relevant to the question of our jurisdiction on the matter.  The cases of R v Law Ho Kwan^[9]and R v Li Yuk Ching^[10] each concerned an application for leave to appeal against the activation of a suspended sentence only.  The respective Courts (differently constituted) allowed the application of Law Ho Kwan, along with the appeal, but dismissed the application of Li Yuk Ching.  In R v Ho Miu Yuk and another^[11], this Court (again differently constituted) was faced with two applications for leave to appeal against sentence.  When dealing with the applications, the Court considered whether the total sentence of 3 years and 9 months’ imprisonment received by each applicant, which had resulted from two individual sentences being run concurrently with each other and the activation of a suspended sentence being run consecutively to the concurrent sentence, was or was not manifestly excessive. 

17.  Although the appellant here does not seek to appeal against the judge’s order to activate the suspended sentence, which was made to run concurrently with the principal sentence, we are satisfied that we are entitled to interfere with such order and its terms when considering the ultimate final sentence.

18.  It is pertinent to note that section 109C(2) of the CPO provides that:

“Where a court orders that a suspended sentence shall take effect, with or without any variation of the original term, the term of such sentence shall commence on the expiration of another term of imprisonment passed on the offender by that or another court, unless the court is of opinion that, by reason of special circumstances, the sentence should take effect immediately.”

19.  In respect of the principle concerning the activation of a suspended sentence, it was held in Ho Miu Yuk (supra) at [14], per Silke VP (as Silke NPJ then was), that:

“When a judge considers what course he should take when an offence had been committed during the currency of a suspended sentence he is in duty bound to bear in mind the provisions of section 109C of the Criminal Procedure Ordinance. The sentencing Court is required to activate the suspended sentence with the term unaltered unless that Court forms the opinion that it would be unjust to do so - unjust to do so that is in view of all of the circumstances which have arisen since the suspended sentence was passed including the facts of the subsequent offence. If the Court does form the view that it would be unjust then it must give reasons as to why it does not activate or activates only partially.”

20.  In Secretary for Justice v Chan Ka Wah[12], Yeung JA (as Yeung VP then was) said on behalf of the Court, at [27], that:

“If a defendant commits a fresh offence during the period of suspension, he will be sentenced for the fresh offence, and the suspended sentence, in the absence of any exceptional circumstance, will be activated and be served consecutively to the sentence for the fresh offence, otherwise the suspended sentence will lose its meaning and effect. The length of the sentence for the fresh offence is not an exceptional circumstance.”

21.  In the present case, the fresh offence, namely the offence of trafficking, was committed in the fourth month of the 3-year suspension period in relation to the previous Customs offence.  No exceptional circumstance was present to enable the trial judge or this Court to exercise any discretion to discount the suspended sentence by way of activating it with a reduced term, or making any part of it to run concurrently with the present sentence.  The sentence for the fresh offence, which we have reduced from 20 years’ imprisonment to 18 years’ imprisonment, although lengthy, does not constitute an exceptional circumstance per se.  Equally, the comparatively less serious nature of the previous Customs offence is not a basis for not activating the resulting suspended sentence with the term imposed on the appellant by another sentencing court.  

22.  In our view, the judge, by ordering that the earlier suspended sentence be activated and run wholly concurrently with the sentence for the present offence, particularly in the absence of any cogent reasons for so doing, defeated the whole purpose and effect of a suspended sentence.  There was no special reason for the judge to have made such order, which we accordingly quash.  We order that the suspended sentence of 4 months’ imprisonment should run wholly consecutively to the sentence of 18 years’ imprisonment we have now ordered for the trafficking offence, making an overall sentence of 18 years and 4 months’ imprisonment.

23.  To that extent the appeal is allowed.

[1] Macrae VP.

[2] Appeal Bundle (“AB”), pp 3-5.

[3] Appellant’s criminal record: AB, p 9.

[4] AB, p 7J-K.

[5] HKSAR v Abdallah [2009] 2 HKLRD 437.

[6] AB, p 8G-H.

[7] HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138.

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

[9] R v Law Ho Kwan (Unrep., CACC 9/1988, 4 February 1988).

[10] R v Li Yuk Ching (Unrep., CACC 427/1989, 20 April 1990).

[11] R v Ho Miu Yuk and another (Unrep., CACC 2/1989, 11 January 1990).

[12] Secretary for Justice v Chan Ka Wah [2008] 4 HKLRD 904.