HKSAR v. LAM MAN TAK

CACC 49/2018, [2026] HKCA 67

On Appeal From [2018] HKCFI 549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 49 OF 2018

(ON APPEAL FROM HCCC NO 462 OF 2016)

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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.  Following a trial in the High Court before Deputy Judge Alex Lee (as Alex Lee J then was) and a jury, on 6 February 2018, the applicant was convicted of two offences of trafficking in a dangerous drug, namely 1,255 grammes of a solid containing 916 grammes of cocaine (Count 1), and 187.11 grammes of a solid and powder containing 158.46 grammes of cocaine (Count 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The facts giving rise to the convictions arose on 26 January 2016, almost a decade ago. The applicant was sentenced on the day of his conviction to an overall term of 22 years and 4 months’ imprisonment.

2.  The applicant subsequently filed a Form XI Notice of Application for leave to appeal against his conviction only. At the conclusion of the hearing of his appeal on 8 May 2019, the Court of Appeal (differently constituted) dismissed his application, delivering its reasons on 20 May 2019[1].

3.  On 19 November 2024, the applicant filed a further Form XI Notice, this time applying for leave to appeal against his sentence out of time on the basis of a single ground of appeal relating to assistance he had provided to the authorities. On 24 April 2025, the case was fixed to be heard on 17 October 2025 before a Single Judge. In light of the Court’s judgment in HKSAR v Huang Ruifang (No 3)[2], handed down on 5 March 2025, which resulted in revised guidelines for large quantities of heroin, cocaine and “Ice”, the applicant has also sought, in a letter to the Court dated 19 June 2025, to raise an additional ground of appeal concerning the applicability of the Huang Ruifang (No 3) guidelines to his sentence. Amended Perfected Grounds of Appeal were duly filed by counsel on 30 June 2025.

4.  On 1 August 2025, the Single Judge directed that the hearing listed for 17 October 2025 be adjourned to another date before the full Court. On 26 August 2025, the appeal was further ordered to be expedited and heard by the English division of this Court on 12 December 2025. On that day, having heard argument from the parties, this Court reserved its decision. This is our judgment and the reasons therefor.

The facts of the case

5.  On the night of 26 January 2016, a team of police officers observed a man named Wong entering an unnumbered squatter hut, or metal shack, at the Yau Ma Tei Wholesale Fruit Market in Yau Ma Tei, Kowloon. Forty minutes later, the applicant also entered the same metal shack. After some two hours, the two men emerged together, with Wong carrying a paper bag, which he subsequently passed to the applicant. They conversed as they walked to a flowerbed nearby, whereupon the applicant placed the paper bag on the pavement next to the flowerbed.

6.  Another man named Chong later appeared at the location and met with Wong and the applicant. After the three of them had talked for a while, Chong picked up the paper bag and left the scene alone. The applicant and Wong then walked off together in the opposite direction. All three men were subsequently intercepted by police officers. When questioned, the applicant admitted that he had been responsible for dividing up cocaine in the metal shack.

7.  It was not in dispute that cocaine was found both in the paper bag and in the metal shack. Accordingly, Count 1 averred that the applicant, Wong and Chong were jointly trafficking in the dangerous drugs found in the paper bag, while Count 2 averred that the applicant had alone trafficked in the cocaine found in the metal shack.

Sentence

8.  The applicant was 41 years of age at the time of his sentence. Prior to the present offences, he had been a fruit buyer in the market. He had three previous convictions, all for dishonesty and all unrelated to dangerous drugs.

9.  Under the guidelines applicable at the time, namely those laid down in HKSAR v Abdallah[3], the judge adopted a starting point of 21 years and 7 months’ imprisonment in respect of Count 1; and 10 years and 11 months’ imprisonment in respect of Count 2. The judge noted that the global starting point would be 22 years and 4 months’ imprisonment if the narcotic quantities of the dangerous drugs in both counts were added together. Accordingly, he ordered 9 months of the sentence on Count 2 to run wholly consecutively to the sentence of Count 1, making a total of 22 years and 4 months’ imprisonment.

Grounds of appeal

Ground 1

10.  By Ground 1, Ms Lau, with her Ms Chan, has argued that the applicant is entitled to a sentencing discount for assistance he has provided to the authorities. For present purposes, it is not disputed that assistance was provided on two occasions in relation to two separate matters.

11.  It is accepted by Mr Lui, with him Mr Tsang, for the respondent that the first offer of assistance was of practical use and had produced a significant result, although the applicant was never required to testify in court as a prosecution witness.

12.  The second offer of assistance, however, was considered to have been ambiguous and incomplete. Although it is accepted that a person was subsequently prosecuted, that had nothing to do with the applicant, and his assistance was assessed as being of no practical use.

13.  The focus of Ground 1 is, therefore, on the first offer of assistance only. On behalf of the applicant, it was submitted that he should be entitled to a minimum discount of 7%. However, as a result of his assistance, he and his family would likely face the risk of retaliation, although no real basis for that fear has been placed before us. In the circumstances, a discount in sentence of between 10% and 12% was suggested as appropriate[4].

Ground 2

14.  By Ground 2, Ms Lau submitted that the revised sentencing guidelines in Huang Ruifang (No 3) should be given retrospective effect and benefit the applicant, notwithstanding that he committed the present offences some 10 years ago on 26 January 2016. That date was some 9 years before the decision in Huang Ruifang (No 3); indeed over a year before the commission of the offence by Huang herself on 8 April 2017. His sentence on 6 February 2018 was some 7 years before the revised sentencing guidelines in Huang Ruifang (No 3) came into existence.

15.  Ms Lau laid considerable stress on Article 12(1) of the Hong Kong Bill of Rights, as incorporated by section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383, when considering the application of any revised sentencing guidelines. In particular, she relied on the concluding statement in Article 12(1) that “[i]f, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby”.

16.  Ms Lau also referred to the decision of the Court of Final Appeal in Seabrook v HKSAR[5] and submitted that the three conditions that would enable a defendant or appellant to benefit from a subsequent downward revision of sentencing guidelines were all satisfied in the present case. Her principal contentions were that:

(a)  The ‘state of affairs’ leading to the change in sentencing guidelines must have been in existence at the time the defendant committed her offence in the case of Huang Ruifang (No 3). Indeed, the very problem with the old sentencing guidelines under Abdallah, which, it was submitted, was itself acknowledged by that Court in its judgment[6], was the limited room for manoeuvre available to sentencing courts when dealing with very large quantities of dangerous drugs; and although the Court in Abdallah itself foresaw the problem as early as 2009, it was not rectified until the decision in Huang Ruifang (No 3)[7].

(b)  Since a much higher sentence was imposed on the applicant under the former sentencing regime, he should be entitled to benefit from any subsequent changes to the guidelines and hence receive a reduced sentence.

(c)  Whilst the sentencing process was no longer extant if the time to appeal against sentence had expired, the Court nevertheless retained a discretion to grant leave to appeal out of time if it considered there was merit in a particular appeal[8]. The arrival of the revised sentencing guidelines in Huang Ruifang (No 3) was itself an exceptional circumstance justifying the grant of an extension of time to appeal[9].

17.  It was argued that, for the sake of fairness, the revised sentencing guidelines should apply retrospectively to any applicant who was able to satisfy the first and second conditions in Seabrook. As to the third condition, she submitted that, whilst there was a need for finality in proceedings, such finality was not absolute, nor was it an insurmountable obstacle in the path of an otherwise meritorious appeal[10].

18.  Ms Lau cited authorities heard by this Court subsequent to the handing down of Huang Ruifang (No 3), in which leave to appeal against sentence out of time had been granted and/or the appeal allowed on the basis of the applicability of the revised sentencing guidelines to the sentences previously passed. The authorities cited included HKSAR v Fadonougbo Frejus Lezin[11]; HKSAR v Gwala Nhlanhla Johannes[12] and HKSAR v Choi Wing Ka[13] , in all of which leave to appeal out of time had been granted. It was submitted that the Court should, consistent with those authorities, grant leave and allow the present appeal.

Respondent’s submissions

19.  Mr Lui, for the respondent, was prepared to concede the present application in respect of Ground 1 only and, to the extent that the first offer of assistance was of practical use, he recognised that, despite the lengthy delay in applying for leave to appeal, it could warrant a discount of up to 7% on the sentence passed. However, Mr Lui submitted that there was nothing to suggest that the applicant and his family were facing, or would face, the risk of retaliation; accordingly, a discount of more than 7% could not be justified.

20.  In respect of Ground 2, Mr Lui accepted that it had been intended by the Court of Appeal, and correctly so, that the revised sentencing guidelines in Huang Ruifang (No 3) should have retrospective effect from the time they were laid down. Indeed, they had actually been applied to Huang herself, resulting in a significant reduction in her sentence; and they were subsequently applied in Fadonougbo Frejus Lezin, resulting in the allowing of another appeal. That said, Mr Lui argued that, where a defendant committed the offence or had been sentenced before Huang Ruifang (No 3) was decided, and subsequently appealed out of time or sought a reduction of sentence based on the revised sentencing guidelines, all three conditions in Seabrook should be satisfied[14]. In the present case, whilst accepting that the first and second conditions were met, the third condition was not.

21.  It was submitted that, when considering whether the sentencing process was still extant, the determining factor was whether the appeal to the intermediate court was lodged within time and whether it had yet been disposed of by that Court. Mr Lui argued that finality in proceedings was important for all concerned, and that a change in the law per se or the merits of an appeal did not necessarily provide sufficient justification for an extension of time to appeal. Exceptional circumstances must be shown[15], and they had not been demonstrated in the present case.

22.  It was the respondent’s position that, given the circumstances, if the applicant wished to benefit from the revised sentencing guidelines, his only recourse was to petition the Chief Executive for the case to be referred to this Court under section 83P of the Criminal Procedure Ordinance, Cap 221.

Discussion

23.  Since we handed down our decision in Huang Ruifang (No 3), a number of applicants and appellants (for the sake of convenience, we shall hereinafter refer to them collectively as appellants) whose sentences have already been passed in accordance with the previous guidelines in Abdallah have sought to derive advantage from that decision. For those whose appeals against sentence are extant, and who are therefore still “in the system”, the revised guidelines emerging after their sentences were passed at first instance under the previous guidelines, but before their appeals have been disposed of, present little difficulty. However, those who have never sought to appeal against their sentences under the former guidelines but now wish to take advantage of the revised guidelines by applying for leave to appeal against sentence out of time; those who have already abandoned their appeals against sentence before the revised guidelines came into existence and now seek to nullify their abandonments; and those whose appeals against sentence have already been disposed of by the Court of Appeal, present differing problems for the courts. It is in everyone’s interests that the Court should set out its approach to the application of the revised guidelines, so that all defendants, appellants or prospective appellants know where they stand and legal advisers can properly advise them.

24.  Before addressing the various categories of appellant who may be considering an appeal, we wish to make several general remarks to explain the principles we are applying. The first and foremost principle is that which may be derived from Article 12(1) of the Hong Kong Bill of Rights. This provision is binding on all courts in this jurisdiction, since the Ordinance provides “for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong”[16], pursuant to Article 39 of the Basic Law. As the Court of Final Appeal has said of the instrument of the Basic Law in Ng Ka Ling & Others v Director of Immigration[17]:

“Like other constitutions, it distributes and delimits powers, as well as providing for fundamental rights and freedoms. As with other constitutions, laws which are inconsistent with the Basic Law are of no effect and are invalid.”

25.  Article 12(1) in its full terms reads:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.” (Emphasis supplied)

Important though these fundamental precepts are, it is still necessary to approach them purposefully and apply them with practicality and common sense. If not, the last sentence of Article 12(1), which contains no retrospective cut-off point, could theoretically apply to anyone who has ever been sentenced for any offence at any time before a relevant change in the law relating to that offence, including someone whose appeal has long been disposed of.

26.  In construing Article 12(1) purposefully as it applies to revised guidelines, we have the benefit of an early interpretation by the Court of Final Appeal in Seabrook, where the Court addressed two questions[18]: (i) Do sentencing guidelines which reduce sentences ever benefit even those who were sentenced before the guidelines were laid down; and (ii) If so, in what circumstances? The first question was answered in the affirmative[19], and it may be noted that guidelines which establish tariff sentences come within the meaning of “law” in Article 12(1): see Secretary for Justice v Wong Chi Fung[20]. Indeed, that must also have been the Court’s underlying assumption in Seabrook.

27.  As to the second question, the Court held[21]:

“The answer so provided, while not necessarily exhaustive, is sufficient for the proper disposal of the present appeal. And it is along these lines. Sentencing guidelines which reduce sentences will benefit even those who were sentenced before the guidelines were laid down provided that:

(i) their offences were committed at a time when the state of affairs on which the guidelines are based was in existence;

(ii) their sentences were imposed at higher levels than those set by the guidelines; and

(iii) the sentencing process is still extant.

As to that third condition, this should be understood. If the time for appealing to, or seeking leave to appeal to, the appropriate intermediate appellate court against sentence has expired, the sentencing process can no longer be regarded as extant unless that court sees fit to entertain the matter on the merits despite such expiry. And the court would not be automatically obliged to do so simply because someone is seeking to take advantage of sentence-reducing guidelines laid down after he was sentenced. It would be a matter of a discretion to be exercised in the light of all the circumstances.”

28.  Clearly, a distinction is drawn between cases where the sentencing process is extant and those where it is not. Where the Court of Appeal has heard and determined the question of sentence, it is functus officio. Where an applicant has abandoned his appeal against sentence, so that it is deemed dismissed by the Court of Appeal under rule 39 of the Criminal Appeal Rules, Cap 221A, the Court is again functus officio, unless it is persuaded that the abandonment can be treated as a nullity. Where an applicant applies for leave to appeal against sentence out of time, the Court of Appeal is not functus officio, but retains a discretion, grounded on established principles, to entertain the appeal in certain circumstances. Thus, there is no real difficulty in the interpretation and application of condition (iii) in Seabrook.

29.  Condition (ii) is not necessarily so clear-cut. If one were approaching sentence in purely arithmetical terms, the sentences for very large or exceptionally large quantities of heroin, cocaine and “Ice” would generally be higher under the former guidelines in Abdallah than under the revised guidelines in Huang Ruifang (No 3). However, whilst this Court has modified the guidelines, it has also moved away from a strict application of quantity to sentence in dangerous drugs cases to a more nuanced, analytical and structured assessment, reflected in the six-step approach set out in HKSAR v Herry Jane Yusuph[22]. Therefore, if an applicant’s role and culpability indicate that he is to be regarded as more than a mere storekeeper or courier, he will receive a correspondingly higher sentence. The recent decision in HKSAR v Lau Kam Hung[23] emphasised this point. Thus, sentencing in dangerous drugs cases is not a simple question of arithmetic.

30.  Furthermore, the difference between a sentence under the revised guidelines in Huang Ruifang (No 3) and a sentence under the former guidelines in Abdallah would have to be significant, even making due allowance for the fact that there has been a change in the range of sentences applicable. It must be remembered that an appeal against sentence may be allowed by the Court where it is either wrong in principle or manifestly excessive, not where it is marginally excessive or simply on the high side. Moreover, appellate courts do not “prune” sentences (R v Kan Chik Tung[24]) nor do they “tinker” with them (HKSAR v Sze Kwan Lung[25]), just because they might have passed different ones.

31.  It is condition (i) in Seabrook, which is, however, more problematic in its application. Before we address what is perceived to be a slight tension between this condition, which holds that an applicant may not benefit from a change in guidelines if his offence was committed before the ‘state of affairs’ which led to the change was in existence, and Article 12(1), which applies to an applicant if the law changes after the commission of the offence, we wish to explain when it was that the ‘state of affairs’ began, which ultimately led to the revised guidelines in Huang Ruifang (No 3).

32.  The term ‘state of affairs’ used by the Court in Seabrook is suitably broad and flexible and allows for the inevitable period of consideration engendered by the appellate courts’ experience in other cases, which ultimately culminates in a revised decision as to guidelines. It is clear from the history and run-up to the issuing of the revised guidelines that there were a number of authorities which pointed towards, and paved the way for, the decision in Huang Ruifang (No 3). Those authorities are readily identifiable and, indeed, the Court has said that they must be read together as a progression, leading to the issuing of the revised guidelines. In Huang Ruifang (No 3) itself, we specifically stated:

“We further wish to make clear that the cases of Herry Jane Yusuph, Lee Ming Ho[26], Raman Kapusamy[27] and Sum Ka Wa[28] should be read together with this decision. All five judgments should fully equip courts and practitioners for sentencing in this important area of the criminal law as we enter the second quarter of the 21^st century.”

33.  Ms Lau has sought to argue that the ‘state of affairs’ which led to the revamping of the sentencing guidelines began as early as Abdallah itself, since even that Court had acknowledged that room must be left at the top end of the sentencing range when dealing with even larger quantities of dangerous drugs than those set out in its judgment. She pointed, in particular, to the following passage from the judgment in Abdallah[29]:

“37. An important consideration in our thinking has been that the courts should have sufficient flexibility to deal with cases where even larger quantities of heroin are trafficked than that in the present case. The maximum sentence available to the courts is life imprisonment and in R v Ng Muk-kam, CACC 685/1993, which involved trafficking in over 306 kilogrammes of heroin in Hong Kong without a proven international element, this court quashed a sentence of life imprisonment and substituted a 35-year sentence after trial.

38.    We have in mind, therefore, not merely as a theoretical possibility but as a matter of practical reality, that room must be left for heroin trafficking sentences which fall into the highest range. Furthermore, the courts need to take into account not only the actual quantities involved but also such aggravating circumstances as may add to the sentence which would otherwise be imposed.”

34.  However, with respect to Ms Lau’s contention, we cannot accept that the ‘state of affairs’ envisaged in Seabrook would have existed at the time of the very judgment whose guidelines were varied some 15 years later. It would have been rather curious, not to say contradictory, for the Court in Abdallah to issue new guidelines for very large quantities of dangerous drugs, and further stipulate a minimum two-year enhancement on top of those guidelines for various aggravating factors, yet at the same time acknowledge that the guidelines needed to be reduced. Moreover, that was not what the Court said in the above passage. In fact, the Court, whilst acknowledging the problem, must have believed it was introducing sufficient flexibility in dealing with even larger quantities of dangerous drugs and that there was sufficient room for manoeuvre by sentencing courts in such cases. Experience, however, was to teach us otherwise.

35.  Two members of this Court sat in all five of the cases referred to above, namely, Herry Jane Yusuph, Lee Ming Ho, Raman Kapusamy, Sum Ka Wa and Huang Ruifang (No 3). We are able to conclude, from reading these authorities in sequence, that the ‘state of affairs’ which resulted in the gradual revision of the guidelines in Abdallah began even before the appeal in Herry Jane Yusuph was heard in 2020. The decision in Herry Jane Yusuph was the most significant attempt to reform sentencing for trafficking in dangerous drugs from what had been treated as an increasingly discretionless approach by courts based purely on quantity to a more principled and structured approach, which looked first to role and culpability and then to aggravating and mitigating factors.

36.  Since the ‘state of affairs’ began before the handing down of the decision of this Court in Herry Jane Yusuph on 26 November 2020, the question is when? Since one member of this Court was also common to an earlier landmark decision, we can state with confidence that the genesis of the ‘state of affairs’ which ultimately led to the changes to the sentencing guidelines in Huang Ruifang (No 3) began with the decision in HKSAR v Kilima Abubakar Abbas[30], which was handed down on 18 September 2018.

37.  Kilima Abubakar Abbas was a decision by a majority, in which all three members of the Court gave full but separate judgments. From the contents of each judgment, it is clear that there had been an exchange of the draft judgment of each member of the Court with his fellow judges before the handing down of the decision on 18 September 2018. This was made plain in the judgments of Lunn VP at [11], [56], [63], [64] and [66]; of Macrae VP at [77] and [93]; and of McWalters JA at [111], [136] and [148]. However, what is significant is that all three judges, albeit in different ways, addressed the problem of sentences at the higher end of the spectrum of offending. Although the decision in the particular case was by a majority, all three judges nevertheless addressed the consequences of the high levels of sentences for trafficking in dangerous drugs, which had emerged in the wake of the judgment in Abdallah. It is, therefore, instructive to see how each member of the Court addressed the problem.

38.  In his judgment, Lunn VP said[31]:

“That case has relevance in this respect. Following the upward revision of the guidelines, in consequence of the judgment in HKSAR v Abdallah, the room to reflect the difference of the role between a mere courier, albeit of a very substantial quantity of heroin, and an offender, like the applicant in R v Ng Muk Kam, who has been involved ‘in a major way’ in the handling of a huge amount of dangerous drugs has narrowed very considerably indeed. Given that the sentence to be imposed on an applicant who is a courier is fixed by reference to the tariff, without regard to his role as such, but the role of others may be taken into account as aggravating their commission of the offence the result has become that the range of sentence available to reflect those aggravating factors has become very narrow.”

It is noteworthy that Lunn VP was speaking of the consequence of the decision in Abdallah as having narrowed the ability of the courts to reflect the role of someone involved in trafficking in a major way. He went on to describe the result of the decision in Abdallah as being that a court’s ability to reflect aggravating factors had also become very narrow. Clearly, Lunn VP was concerned with the consequences of the decision in Abdallah that had emerged in the decade since its handing down.

39.  Macrae VP put the matter slightly differently, when he said[32]:

“The one thing that has struck me, having had to consider in the past few months the trends and statistics for the seizures, arrests and convictions in respect of a wide spectrum of dangerous drugs in Hong Kong since January 2015[33], is that rather than being swamped by a problem which is out of control, as other countries seem to have been, the problem in Hong Kong is being steadily contained, if not, in certain respects, reduced. And since in this jurisdiction we do not have the death penalty for drug trafficking, unlike almost all of our neighbours, that position is in no small measure due to our own particular policy of law enforcement, backed up by harsh, but consistent, sentencing for drug trafficking.”

Whilst acknowledging the role that harsh but consistent sentencing had had in containing the problem of drug trafficking, he noted that in some respects the problem had been reduced. It should be observed, however, that Macrae VP cannot have had cocaine in mind. Indeed, one of the points made by the Court in Huang Ruifang (No 3), after a thorough examination of relevant statistics since 2013, was that “the figures in respect of seizures and arrests for trafficking in cocaine have substantially increased since 2018”[34].

40.  McWalters JA, in his judgment, put the matter as follows[35]:

“I agree with Lunn V-P’s analysis of the law and with his conclusion. At [45] of his judgment Lunn V-P refers to the effect of HKSAR v Abdallah in narrowing the room for reflecting the difference in role between a mere courier and those involved in a more major way in the organization of the drug trafficking activity. This is a matter for concern. The sentencing regime must allow for the possibility that there will be large seizures of dangerous drugs and also for the possibility that persons, other than couriers, who are more heavily involved in this criminal activity, will be prosecuted. When these possibilities coincide, I fear that courts may find that the sentencing range available to them to reflect these aggravating factors may not enable them to adequately distinguish the culpability of the courier from that of the organiser.”

McWalters JA was plainly voicing his concern that, in consequence of the decision in Abdallah, the courts had been rendered unable to adequately distinguish between the culpability and aggravating factors of different traffickers where large seizures were concerned. As was pointed out by the Court in Lee Ming Ho[36], McWalters JA was not simply concerned with ever-increasing quantities of dangerous drugs coming before the courts but with the increasing roles and aggravating features which coincided with trafficking in such large quantities.

41.  It thus becomes clear that, as from 18 September 2018, which was the date the three judgments of the Court in Kilima Abubakar Abbas were published, all members of the Court were in agreement that a problem concerning sentencing in drug trafficking cases for very large or exceptionally large quantities of dangerous drugs needed to be addressed; and that the conditions were in place for a reconsideration of the guidelines in Abdallah. What followed, in quick succession (notwithstanding the hiatus caused by the Covid years), was a systematic review of sentencing principles and policy, commencing with the judgment in Herry Jane Yusuph in November 2020; a re-evaluation of the Abdallah aggravating factors in Lee Ming Ho in February 2024; a realistic acknowledgment of a prevailing sentencing limit of 35 years’ imprisonment in trafficking cases (38 years’ imprisonment in manufacturing cases) in Sum Ka Wa[37] in August 2024; ultimately culminating in the revised guidelines in Huang Ruifang (No 3) in March 2025.

42.  In our judgment, the ‘state of affairs’ leading to the revision of the guidelines in Huang Ruifang (No 3) can be precisely identified as commencing on 18 September 2018. It is the common thread running through all three judgments in Kilima Abubakar Abbas, and it was the first occasion on which all three judges of this Court separately voiced the need to revisit the guidelines.

43.  Having established the date when the ‘state of affairs’ first emerged as a real concern needing to be addressed, we return to the perceived tension between Article 12(1) of the Hong Kong Bill of Rights, with its directive that “[i]f, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby”, and the statement of the Court of Final Appeal in Seabrook that “[s]entencing guidelines which reduce sentences will benefit even those who were sentenced before the guidelines were laid down provided that: (i) their offences were committed at a time when the state of affairs on which the guidelines are based was in existence…”.

44.  On a literal reading of these two statements, an appellant who committed an offence on 17 September 2018 or earlier would not, under Seabrook, be entitled to benefit in terms of sentencing from a ‘state of affairs’ which commenced on 18 September 2018; yet, under Article 12(1), he would be so entitled even where he committed the offence at any time before the lighter penalty came into being. But there is a danger in being too literal in our interpretation and, while the Seabrook formula is a practical construction of the scope of Article 12(1) in the interests of certainty and finality, the Court nevertheless made clear that “[t]he answer so provided, while not necessarily exhaustive, is sufficient for the proper disposal of the present appeal”[38]. It should be remembered that the Court in Seabrook was dealing with a particular dangerous drug, and a less potent and less prevalent dangerous drug than heroin, cocaine or “Ice”, when there had been no guidelines in existence at all in respect of that drug at the time the defendant had been sentenced[39]. The guidelines for MDMA, or “ecstasy” as it is more commonly known, only came into being with the decision in HKSAR v Lee Tak Kwan[40] in May 1998, which were subsequently replaced with the comprehensive guidelines, based on extensive expert evidence, in Secretary for Justice v Hii Siew Cheng[41] in June 2008. The offence in Seabrook had been committed in September 1996.

45.  Furthermore, while a ‘state of affairs’ is a necessarily and suitably vague term, which allows for flexibility in determining when the process leading to the revision of guidelines began, we are able, unlike the position in Seabrook, to pinpoint with precision the date when the ‘state of affairs’ began, as 18 September 2018. If an important objective in the sentencing process is finality, then every appellant, and those advising them, will henceforth know that that is the critical date.

46.  Since we are able to identify the date when the ‘state of affairs’ which led to the revision in Huang Ruifang (No 3) began, we have been concerned with the argument that, if the commission of the offence by an appellant took place on 17 September 2018, he would not be able to benefit from a ‘state of affairs’ that began the following day, when Article 12(1) makes it clear that he is entitled as of right to benefit from a lighter penalty. Similarly, we find problematic the position of appellants such as Huang herself, whose offence was committed in April 2017 but who was not sentenced at first instance until the conclusion of her retrial in July 2022; almost four years after the handing down of the judgment in Kilima Abubakar Abbas. Indeed she remained “in the system” until the Court of Appeal dealt with the appeal from her retrial in March 2025, almost 8 years after the commission of her offence. Equally, we are concerned with the important question of certainty and finality of proceedings so that would-be appellants, and their advisers, should know where they stand. As the Court in Seabrook said of the position of appellants when the law changes[42]:

“Their sentences would not be increased upon review just because they were imposed at lower levels than those set by the guidelines. The law is more humane than that. But the position is different if their sentences were imposed at higher levels than those set by the guidelines. For that may show that they had been sentenced more severely than the law has come to realise is appropriate. And subject to the need for finality, justice may then demand that their sentences be reduced so as to remove that inappropriate measure of severity. Society has no interest in imprisoning people unnecessarily or keeping them in prison longer than necessary.”

47.  Unlike the particular circumstances in Seabrook, there will potentially be many defendants or appellants already sentenced in respect of trafficking in heroin, cocaine or “Ice”, who will be affected by the decision we make in this case. Bearing in mind the humanity of the law, as well as the important need for certainty and finality, we have concluded that appellants still “in the system” on or after 18 September 2018, are in principle entitled to benefit from the revised guidelines in Huang Ruifang (No 3); subject to their eligibility and other sentencing principles, including those comprehensively laid down in Herry Jane Yusuph, as well as those governing appeals against sentence (as explained at [30] supra), and any other relevant considerations which may apply.

48.  It should be remembered that the revised guidelines in Huang Ruifang (No 3) will only affect those convicted of trafficking in very large or exceptionally large quantities of heroin, cocaine or “Ice”. They will only be defendants or appellants whose cases are committed to the High Court to be dealt with by a judge and jury, or by a judge alone: the revised guidelines will not affect sentences in the magistracies or the District Court, for the guidelines for quantities of dangerous drugs in those jurisdictions of the court system remain the same. Cases coming before the High Court after committal inevitably take longer than those fixed before a magistrate or district judge. Thus, the time between commission of the offence and sentence will normally be far longer, as will any consequential appeal process. It seems to us that it is fairer and more convenient to all concerned, not least to judges who have to sentence, that the date from which the revised guidelines should be applied is the date of sentence, so long as it is on or after the operative date of 18 September 2018.

49.  We should make clear that for any defendant or appellant who was sentenced by a court before 18 September 2018 and who is not, or is no longer, “in the system”, the Abdallah guidelines will continue to apply to his or her sentence.

50.  For a defendant or appellant who was sentenced by a court on or after 18 September 2018 but is not, or is no longer, “in the system”, different considerations apply. Thus, for anyone applying out of time to appeal against a sentence passed on or after 18 September 2018, ordinary principles will govern whether the Court will exercise its discretion to permit such an application, bearing in mind that such leave is an exceptional remedy. For anyone applying to treat the abandonment of an appeal against a sentence passed on or after 18 September 2018 as a nullity, the Court is functus officio unless and until it is persuaded that such abandonment can properly be nullified on established principles. For anyone whose appeal against sentence has already been heard and determined by the Court, the Court is functus officio and the only recourse is to petition the Chief Executive.

51.  If a defendant or appellant is not, or is no longer, “in the system”, we must make clear that this Court will, in the ordinary course, only consider interfering with sentences passed on or after 18 September 2018, and only then if it is persuaded that intervention is justified. It is conceivable that there may still be the occasional case, which cannot be readily compartmentalised in this way. However, this Court and sentencing courts always retain a discretion to deal with those rare cases which do not fit neatly within these parameters. Once it is recognised that the critical date for sentence is 18 September 2018 for those still “in the system”, such rare cases will be very exceptional indeed.

The position of the applicant

52.  If we apply these principles to the case before us, the applicant was convicted and sentenced on 6 February 2018, more than seven months before the decision in Kilima Abubakar Abbas was handed down on 18 September 2018. When he appealed, he did so only against his conviction and not against sentence. His appeal against conviction was dismissed by a different division of this Court on 8 May 2019. Thereafter, he waited more than five years, until 19 November 2024, before mounting an appeal against his sentence, by which time he was more than six and a half years out of time. As earlier explained, his appeal against sentence was on two bases. The first ground was not concerned with the propriety of the sentence or the revised guidelines, but we accepted that he was entitled to appeal in the particular circumstances brought to our attention and granted him leave to appeal out of time. It was his second ground that sought to derive a benefit from the revised guidelines in Huang Ruifang (No 3).

53.  Since we have granted the applicant leave to appeal against sentence out of time on the first ground, we have felt it right, in the exceptional circumstances of this case, to treat him as an appellant who is still thereby “in the system” in relation to his second ground. On that basis, we have asked ourselves whether, on the assumption that the sentencing process does not ultimately conclude until it has been dealt with by this Court, he is entitled to a reduction under the revised guidelines in Huang Ruifang (No 3).

54.  The total quantity in which the applicant trafficked in January 2016 was 1,074.46 grammes of cocaine narcotic. On the face of it, if one were to adopt a purely arithmetical basis for sentence, the starting point engaged under the revised guidelines in Huang Ruifang (No 3) would be just over 18 years’ imprisonment. However, the applicant was no mere storekeeper or courier. The evidence revealed, by way of his own admissions and through inevitable inference, that the applicant was running a storage, packaging and distribution centre for dangerous drugs in the heart of Yau Ma Tei in Kowloon. Moreover, he was observed actually trafficking in 916 grammes of cocaine narcotic on the streets to Chong, the subject matter of Count 1, and when intercepted, he tried to flee. He had clearly been trafficking for some time, because he had amassed the equivalent of no less than HK$325,000 in cash inside a safe, over which he had control. His role and culpability were obviously higher than those of a storekeeper or courier and would have warranted a sentence in the region of that which he received under the previous Abdallah guidelines. We should reiterate that, even if his offences had still warranted a slightly lower overall starting point, we would not have interfered.

55.  However, in respect of the first ground of his appeal, we will give the applicant a reduction of 1 year and 7 months in his sentence, which represents a reduction of just over 7%. The appeal is accordingly allowed to the extent that his overall sentence is reduced from 22 years and 4 months’ imprisonment to 20 years and 9 months’ imprisonment. In order to achieve that result, we shall reduce the sentence on Count 1 to 20 years’ imprisonment and leave the sentence on Count 2 as it is, with 9 months of that sentence running consecutively to the sentence on Count 1, thus making an overall term of 20 years and 9 months’ imprisonment.

Mr Ira Lui ADPP and Mr Michael Tsang SPP, of the Department of Justice, for the Respondent

Ms Virginia Lau and Ms Ferrida Chan, instructed by Johnnie Yam, Jacky Lee & Co, assigned by the Director of Legal Aid, for the Applicant