HKSAR v. LEUNG CHUN HIM

CACC 311 /2025, [2026] HKCA 1410

On Appeal From [2023] HKCFI 2648

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 311 OF 2025

(ON APPEAL FROM HCCC NO 62 OF 2023)

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REASONS FOR JUDGMENT

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

1.  The appellant pleaded guilty in the Magistrates’ Courts to two charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was committed to the High Court for sentence on 25 August 2023. After confirming his pleas, he was duly sentenced by Deputy Judge Anthony Kwok (as Kwok J then was) (“the judge”) to an overall term of 14 years’ imprisonment, which was achieved by passing a sentence of 7 years and 7 months’ imprisonment on Charge 1 and 14 years’ imprisonment on Charge 2, before ordering both sentences to run concurrently with each other.

2.  With leave granted by the Single Judge[1] on 14 July 2026, the appellant appeals against his sentence.

3.  On 7 August, having heard the arguments of the parties, we allowed the appeal, reduced the sentence and said we would hand down our reasons for doing so later.  These are our reasons. 

Facts accepted by the appellant

4.  On 7 April 2021, at 10 pm, in the course of an anti-narcotics operation, the appellant was intercepted by police officers carrying a paper bag outside Lee Yuen Dim Sum Restaurant in Tsuen Wan Centre, 82-102 Tsuen King Circuit, Tsuen Wan in the New Territories.  The paper bag was found to contain 109.80 grammes of a crystalline solid containing 109.10 grammes of methamphetamine hydrochloride (“Ice”), 1.01 grammes of a solid containing 0.92 gramme of cocaine and 12.40 grammes of a solid containing 10.70 grammes of ketamine, all of which constituted the subject matter of Charge 1. The appellant was arrested after admitting under caution that he was delivering the dangerous drugs for others. 

5.  After being taken to the police station, the appellant was further investigated by police officers, to whom he provided a key to a warehouse situated on the ground floor of a building at Wai Tau Tsuen, Tai Wo Service Road West, Tai Po in the New Territories (“the warehouse”). 

6.  On 8 April 2021, at 1:25 am, police officers escorted the appellant to the warehouse, where further dangerous drugs, namely 715.82 grammes of a crystalline solid containing 715.62 grammes of “Ice”, 37 grammes of a solid containing 33.50 grammes of cocaine, and 317.59 grammes of a solid containing 275.06 grammes of ketamine, were discovered and seized, all of which constituted the subject matter of Charge 2.  Further found and seized in the premises were an electronic scale, a digital scale, two bundles of transparent plastic bags and some packing paraphernalia. The appellant stated under caution that he was responsible for counting and packaging the dangerous drugs.  However, he said that the drugs did not belong to him.  

7.  In a subsequent video recorded interview on 8 April 2021, the appellant stated that:

(i)  He worked for a trafficking syndicate;

(ii)  He earned HK$2,000 to HK$3,000 per week trafficking in dangerous drugs;

(iii)  He was going to pass the dangerous drugs in Charge 1, which he took from the warehouse, to an unknown person upon the instructions of the syndicate;

(iv)  He had worked in the warehouse for 2 or 3 days; and

(v)  He used the electronic scale, digital scale, transparent plastic bags and packing paraphernalia to count and package dangerous drugs.

8.  When confirming his pleas of guilty, the appellant accepted that he was, on 7 April 2021, trafficking in the dangerous drugs in Charge 1 and, between 4 and 8 April 2021, trafficking in the dangerous drugs in Charge 2.

Sentencing

9.  At the time of the commission of the offence, the appellant was 18 years of age with no criminal record.  At the time of sentence, he was 20.

10.  When sentencing the appellant, the judge accepted his claim, which was not disputed by the prosecution, that the dangerous drugs in Charge 1 had come from the stash of dangerous drugs in Charge 2 and, accordingly, they arose out of the same transaction.  The judge properly added the dangerous drugs together for the purpose of identifying a global starting point[2].

11.  In doing so, the judge adopted the so-called “combined approach”, using “Ice” as the base drug.  For 824.72 grammes of narcotic, he adopted a starting point of 21 years and 1.48 months’ imprisonment, in accordance with the prevailing sentencing guidelines in HKSAR v Abdallah[3], which provided that the range of starting point for trafficking in between 600 and 1,200 grammes of narcotic should be between 20 and 23 years’ imprisonment.  Having compared that starting point with the results obtained under the three cross-check tests[4] then applicable, the judge considered that a notional starting point of 21 years and 3 months’ imprisonment was appropriate. 

12.  In terms of the appellant’s role and culpability, the judge considered him an actual trafficker and, accordingly, enhanced the starting point by 6 months to 21 years and 9 months’ imprisonment[5].

13.  For the aggravating factor that the appellant was trafficking in more than one kind of dangerous drug, the judge further enhanced the starting point by 3 months to 22 years’ imprisonment[6].

14.  As for relevant mitigating factors, the judge gave the appellant an overall discount of 35% for his provision of information relating to the warehouse where the dangerous drugs in Count 2 were found, and his timely guilty pleas[7]. As regards his age and the need of rehabilitation[8], the judge reduced the sentence by a further 3 months[9], resulting in a final sentence of 14 years’ imprisonment.

Ground of appeal

15.  Ms Lai, for the appellant, has advanced a sole ground of appeal which avers that the appellant is entitled to a lower sentence in accordance with the revised guidelines in HKSAR v Huang Ruifang (No 3)[10].

The respondent’s submissions

16.  Ms Liu, for the respondent, accepts that the revised guidelines apply in the case of the appellant.  She submits that the arithmetic starting point of the total amount of narcotics involved should be about 19 years’ imprisonment under the revised guidelines, although the final sentence would be subject to the Court’s evaluation of the role of the appellant and the applicable aggravating and mitigating factors. 

Discussion

17.  Since an extension of time and leave to appeal has already been granted, the appellant is now reintroduced into the appeal system.  Given that the appellant was sentenced after 18 September 2018, he is in principle entitled to benefit from the revised sentencing guidelines in Huang Ruifang (No 3), in accordance with this Court’s decision in HKSAR v Lam Man Tak[11]. However, as we have pointed out in HKSAR v Tsui Lok Hin[12], it is not simply a matter of applying the quantity concerned to the revised guidelines.  The whole approach to sentence in cases of drug trafficking has fundamentally altered as a result of this Court’s decision in HKSAR v Herry Jane Yusuph[13] and the cases which have followed in its wake.  In particular, the courts now adopt a six-step approach to sentence in which the accused’s role and culpability is the primary consideration, whilst the quantity concerned will establish the relevant bracket of guideline into which an accused will ordinarily fall.  Furthermore, as we have repeatedly made clear, an appellate Court, if it finds that the revised guidelines are applicable to the case before it, is required to sentence afresh in accordance with the approach established and developed in and since Herry Jane Yusuph.

18.  This case concerns two charges of trafficking, each involving three kinds of dangerous drug, arising out of the same criminal enterprise or transaction.  Applying HKSAR v Sum Ka Wa[14], we agreed with the judge’s approach that the two charges should be treated together for sentencing purposes.  As this Court has recently held in HKSAR v Yau Kai Fung[15], the combined approach should be used in determining the base starting point, subject however to the Court employing the so-called ‘ratio test’ as a cross-check.  In terms of pure narcotic content, the present case involved the trafficking of 824.72 (109.10 + 715.62) grammes of “Ice”, 34.42 (0.92 + 33.50) grammes of cocaine and 285.76 (10.70 + 275.06) grammes of ketamine. 

19.  By itself, 824.72 grammes of “Ice” narcotic would attract a starting point of 17 years and 3 months’ imprisonment on an arithmetical basis[16], before any consideration of role and culpability.  The cocaine and ketamine quantities would each individually attract arithmetical starting points of about 6 years and 10 months’ imprisonment and 8 years and 10 months’ imprisonment respectively. 

20.  In all the circumstances of this case, we used 18 years’ imprisonment as the starting point for trafficking in all of the drugs concerned.  Given the role and culpability in the offence of the appellant, who was no mere courier or storekeeper since he was involved in the weighing, packaging and distribution of the drugs in question, we considered that an overall sentence of 19 years’ imprisonment was appropriate. Given the fact that the appellant was trafficking in three different types of dangerous drugs, thus catering to a wider market of drug consumers, we added to the sentence, as did the judge, a further 3 months’ imprisonment, making an overall notional sentence after trial of 19 years and 3 months’ imprisonment[17].

21.  In terms of the appropriate discount of sentence, we considered, with respect to the judge, that 35% discount was not a sufficient acknowledgment of the valuable assistance the appellant had provided to the police.  When the officers arrested the appellant, we are told that they knew nothing about the warehouse where the bulk of the drugs were found.  We decided that the judge should have given a greater discount for the appellant’s voluntary disclosure and assistance, which we assessed at 38%, to include his timely pleas of guilty.  

22.  Such discount brought the notional sentence after trial down to just below 12 years’ imprisonment.  However, we were impressed by Ms Lai’s submissions on the appellant’s behalf concerning his extenuating personal circumstances; and, clearly, the judge too was also concerned about his young age and disability, because he gave a further 3 months’ reduction of sentence to reflect these considerations. 

23.  The appellant has suffered from Attention Deficit Hyperactivity Disorder since he was a child, for which he is prescribed medication on a daily basis.  When the offence was committed, the appellant had just turned 18 years of age.  He is plainly immature and impressionable and had problems adjusting within society, yet we are satisfied from the letters written on his behalf that he has determined to acquire some skills whilst in prison, to improve himself and to be a useful member of society.  The fact that he cooperated so immediately upon arrest, in revealing his own role and the fact of the warehouse and its contents, seemed to us to reveal a somewhat unsophisticated and callow youth, who displayed natural ingenuousness coupled with genuine remorse.  We were, therefore, prepared to reduce the sentence further for these factors to 11½ years imprisonment.

24.  It was for these reasons that we allowed the appellant’s appeal against sentence, set aside his overall sentence of 14 years’ imprisonment, and substituted in its place a sentence of 11½ years’ imprisonment, which we achieved by making the sentence of 7 years and 7 months’ imprisonment on Charge 1 run concurrently with a sentence of 11½ years’ imprisonment on Charge 2.

[1]  Macrae VP.

[2]  Appeal Bundle (“AB”), p 11H-L.

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

[4]  Based on the agreed calculations by the parties at trial, the so-called ‘absurdity test’, ‘conversion test’ and ‘ratio test’ produced results of 22 years and 8.69 months, 21 years and 4.31 months, and 20 years and 8.28 months respectively: AB, p 14A-C.

[5]  AB, p 14H-I.

[6]  AB, p 14N-P.

[7]  AB, p 15F-I.

[8]  AB, p 15S-T.

[9]  AB, p 16B-C.

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

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

[12]  HKSAR v Tsui Lok Hin (Unrep., CACC 194/2019, 7 August 2026), at [15]-[16].

[13]  HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

[14]  HKSAR v Sum Ka Wa [2024] 4 HKLRD 777.

[15]  HKSAR v Yau Kai Fung (Unrep., CACC 208/2024, 28 May 2026).

[16]  On the basis of the band of 500 grammes to 1,500 grammes of “Ice” which corresponds to 16 to 20 years’ imprisonment, the precise arithmetical calculation for 824.72 grammes of narcotic is 16 years + (20 – 16 / 1500 – 500) x (824.72 – 500) would be 17.2988 years, or 17 years and 3.5856 months.

[17]  We could have enhanced the sentence for this factor by significantly more but decided not to do so, bearing in mind the potential impact of any revised guidelines for ketamine in HKSAR v Choi Tsz Fung (Unrep., CACC 213/2024, 6 August 2025).