HKSAR v. LO KWOK SHING

CACC 207/2024 [2026] HKCA 1584

On appeal from [2024] HKCFI 3193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 207 OF 2024

(ON APPEAL FROM HCCC NO 435 OF 2023)

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BETWEEN

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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.  The appellant (D2 at trial) pleaded guilty before a magistrate on 14 December 2023 to three charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134), and was committed to the High Court for sentence. The offences involved solids containing a total of 123.78 grammes of cocaine. On 27 September 2024, Deputy Judge Kwok (“the Judge”) sentenced the appellant to a total term of 8 years’ imprisonment.

2.  On 4 October 2024, the appellant applied for leave to appeal against sentence out of time. On 3 June 2025, the Single Judge granted the appellant leave to appeal in respect of his homemade Grounds 2 and 3, and granted him an appeal aid certificate.[1]

The Summary of Facts^[2]

The first incident

3.  On 1 November 2021, at about 2:22 am, police officers on patrol observed the appellant and another person (D1 at trial) alighting from a private car parked on Hanoi Road, Tsim Sha Tsui, and entering a nearby building in a furtive manner. The police officers followed and intercepted them inside the building. D1 struggled with the police officers and was found to be holding a plastic bag containing a white solid, later confirmed to be 10.1 grammes of cocaine (the subject matter of Charge 1). D1 was also in possession of a car key. Upon enquiry, the appellant admitted that he was the owner of the car.

4.  A search of the car revealed further dangerous drugs in two re-sealable plastic bags and a plastic tray, later confirmed to be 3.18 grammes of cocaine (the subject matter of Charge 2), together with an electronic scale and numerous empty re-sealable plastic bags[3]. Both D1 and the appellant were arrested. Further searches uncovered HK$202 and two mobile telephones on D1, and HK$2,008 and one mobile telephone on the appellant. The estimated street value of the drugs in Charges 1 and 2 was HK$16,213. Both the appellant and D1 admitted possession of all the drugs in Charges 1 and 2 for the purpose of unlawful trafficking[4].

The second incident

5.  On 4 April 2022, at about 12:50 am, the appellant was observed by police officers on Hanoi Road acting suspiciously. Upon seeing the police officers, he threw a package under a parked car owned by a third party and fled, but was apprehended nearby. The package was found to contain six re-sealable bags holding a total of 110.5 grammes of cocaine (the subject matter of Charge 3). Its estimated street value was HK$129,714. Under caution, both at the scene and in a subsequent video recorded interview, the appellant claimed that the drugs were for his own consumption. However, by admitting the Summary of Facts, he also admitted possessing all the drugs in Charge 3 for the purpose of unlawful trafficking[5].

The reasons for sentence^[6]

6.  The Judge was not persuaded by defence counsel’s submission that some unspecified quantity of the drugs was for personal use, and so warranted a reduced sentence: HKSAR v Kong Tat Lung[7]. He offered the defence an opportunity to put further material before him to substantiate this claim, but that offer was declined. He noted the absence of consumption paraphernalia at either scene, whereas the drugs were packaged in a manner consistent with trafficking, and there were also an electronic scale and multiple empty re-sealable bags. Accordingly, the Judge gave no sentencing discount to the appellant on that basis[8].

7.  The Judge expressly disregarded the appellant’s 2009 conviction for simple possession[9]. He acknowledged the appellant’s unfortunate family background (his mother was in ill health and his father had died while the appellant was in custody[10]) but emphasised that personal circumstances carried little weight in sentencing for serious drug trafficking offences[11].

8.  The first incident involved two charges of trafficking in a total of 13.28 grammes of cocaine. The Judge treated the two quantities as one for sentencing purposes. Referring to the guidelines in R v Lau Tak Ming & Another[12] (5 to 8 years’ imprisonment for trafficking in 10 to 50 grammes) and accepting that both defendants acted as couriers, he adopted a starting point of 5 years and 3 months’ imprisonment. As there were no aggravating factors relevant to those offences, and after a one-third discount for their guilty pleas, each defendant was sentenced to 3 years and 6 months’ imprisonment on each charge, the terms to run concurrently.

9.  The second incident involved 110.5 grammes of cocaine, which fell within the Lau Tak Ming guideline range of 8 to 12 years’ imprisonment for trafficking in 50 to 200 grammes. Again accepting that the appellant acted as a courier, the Judge adopted a starting point of 9 years and 7 months. He added 8 months for the aggravating factor of reoffending while on bail, producing a notional starting point of 10 years and 3 months’ imprisonment. With no other mitigating factors, and after a one-third discount for his guilty plea, the sentence was reduced to 6 years and 10 months’ imprisonment.

10.  The Judge held that fully concurrent sentences across all three charges would be wrong in principle, as the incidents were separate and distinct, and Charge 3 had been committed while the appellant was on bail. He also accepted, however, that wholly consecutive sentences would be unduly harsh. He therefore ordered 2 years and 4 months of the sentence on Charge 3 to run concurrently with the sentences on Charges 1 and 2, with the remaining 4 years and 6 months to run consecutively. The result was a total sentence of 8 years’ imprisonment, reflecting a global starting point of 12 years, which the Judge considered just, fair and balanced.

The grounds of appeal

11.  Ms Virginia Lau, for the appellant, reformulates the appellant’s homemade grounds as a single ground, namely that the total sentence of 8 years’ imprisonment was manifestly excessive and/or wrong in principle.

12.  First, Ms Lau contends that the 8-month enhancement for committing Charge 3 while on bail for Charges 1 and 2 was excessive and contributed to an inflated overall starting point of 12 years’ imprisonment. She submits that the appropriate enhancement was 3 months, as in HKSAR v Mohamed P Shafik[13].

13.  Secondly, Ms Lau submits that insufficient regard was paid to the totality principle. She argues that the Judge did not stand back “far enough” to reach a sentence proportionate to the appellant’s role and culpability: The Queen v Wong Kwai Pui[14]. She further contends that, in fixing the overall starting point, the Judge did not adequately reflect the relevant factors identified in HKSAR v Lin Chi Man and Another[15], including the nature of the two cases and any similarities between them, the extent to which they could properly be treated together, how the sentence for the other offence was determined, and the length of, and time served on, the sentence for the other offence. This resulted, she says, in an excessive overall starting point of 12 years for the two incidents. That would correspond to a courier trafficking in about 200 grammes of cocaine, whereas the total quantity of drugs involved was only 123.78 grammes.

14.  As to the appellant’s role, Ms Lau submits that he was no more than a driver, transporting the drugs from one location to another, as in HKSAR v Chu Ho Wa[16]. Accordingly, she contends that he should be placed at, or even below, the lower end of the “courier or storekeeper” bracket identified in Herry Jane Yusuph[17].

15.  Given the appellant’s role and the total quantity involved in the three charges, Ms Lau submits that the appropriate starting point, whether under the previous guidelines or the revised guidelines in Huang Ruifang (No 3) [18], was 9 years and 11 months. On that basis, she argues that the circumstances justified a 9-month enhancement[19], producing an overall notional starting point of 10 years and 8 months. After a one-third discount for the appellant’s guilty plea, the sentence would be 7 years and 2 months’ imprisonment. To arrive at that sentence, the Judge should have ordered 3 years and 8 months of the sentence on Charge 3, representing about half of that sentence, to run consecutively to the sentences of 3 years and 6 months on Charges 1 and 2, with the balance to run concurrently.

Discussion

16.  The issue in this appeal is whether the total sentence of 8 years’ imprisonment was fair and appropriate given that the appellant was involved in two separate incidents of drug trafficking. The principal challenges to the sentence concern the 8-month enhancement for the appellant’s committing Charge 3 while on bail and the consecutive element in the sentences for the two incidents.

17.  The appellant committed Charges 1 and 2 on 1 November 2021 at 2:22 am. He was observed behaving suspiciously together with another person, and the police officers apprehended him, finding cocaine on his person and in his car. He tried to flee and struggled with the police officers. He was subsequently charged with trafficking in a dangerous drug and released on bail. He committed Charge 3 on 4 April 2022, nearly five months later, at the same location at 12:50 am, when police officers intercepted him after he tried to discard a significant quantity of cocaine. On each occasion, the police officers were conducting an anti-drug patrol in an area known for its drug trade.

18.  In the Summary of Facts, the appellant admitted that, in respect of the two incidents, the drugs were for the purpose of unlawful trafficking. He nonetheless claimed that he had purchased the drugs in the second incident for his own consumption; but when invited by the Judge to support that claim at a Newton hearing, he declined to do so.

19.  The question whether the overall sentence of 8 years’ imprisonment was manifestly excessive is answered by examining the sentences for the two incidents.

20.  There is no dispute as to the starting points adopted for the sentences for the two incidents. The starting point for the combined drugs in Charges 1 and 2, on an arithmetic basis, is 5 years and 3 months’ imprisonment and after a one-third discount for the appellant’s guilty plea the sentence is 3 years and 6 months’ imprisonment. The starting point for the drugs in Charge 3, on an arithmetic basis, is 9 years and 7 months’ imprisonment. Together with the 8-month enhancement for committing the offence while on bail, the notional starting point is 10 years and 3 months’ imprisonment, and after a one-third discount for the appellant’s guilty plea, the sentence is 6 years and 10 months’ imprisonment.

21.  It is appropriate to deal with the issue of the 8-month enhancement for committing Charge 3 while on bail for Charges 1 and 2. Offending while on bail is a serious aggravating factor: HKSAR v Leung Ting Fung[20]; HKSAR v Suen Ping[21]. The appellant reoffended within five months, and the quantity in Charge 3 was considerably greater than the total quantity in Charges 1 and 2. The two incidents were closely similar, involving the same drug and the same location. As the respondent submitted, these features demonstrated a blatant disregard for the law and persistent offending, which is itself a serious aggravating factor. We agree that the appellant’s proposed 3-month enhancement is plainly inadequate and that the 8-month enhancement was proportionate to the actual sentence and was therefore not excessive.

22.  We also agree with the respondent that the appellant’s role and culpability were greater than that of a mere courier. The agreed facts pointed to his involvement in packaging and disseminating the drugs, as evidenced by the presence of the electronic scale and numerous re-sealable plastic bags found in the car, the mobile telephones and cash found on the appellant and his co-accused in the first incident, and his trafficking in a much larger quantity of the same drug at the same location in the second incident. He committed the offences in the two incidents in the early hours of the morning, at a location known for its drug-trafficking activity.

23.  When dealing with the two separate and distinct sets of offences, it was appropriate to address the more serious offence first in calculating the consecutive element. The sentence for Charge 3 with an enhancement of 8 months is 6 years and 10 months’ imprisonment. It is clear that Charges 1 and 2 were plainly separate and distinct, having been committed by the appellant with another person some five months earlier, and so warranted a consecutive element. The sentence for Charges 1 and 2 was 3 years and 6 months’ imprisonment, ordering 1 year and 2 months of it to run consecutively to the sentence on Charge 3, and so producing an overall sentence of 8 years’ imprisonment, is justified and appropriate.

Conclusion

24.  It follows from what we have said that we find no merit in the appellant’s appeal, which is accordingly dismissed.