Case Detail

CACC 105/2024 [2025] HKCA 919

On appeal from [2024] HKCFI 1504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 105 OF 2024

(ON APPEAL FROM HCCC NO 282 OF 2023)

_______________

BETWEEN
	HKSAR	Respondent
	and
	Poon Chi Keung (潘志強)	Applicant

_______________

Before:

Hon Zervos JA in Court

Date of Hearing:	9 October 2025
Date of Decision:	9 October 2025

______________

D E C I S I O N

______________

1. This is an application for bail pending his appeal against sentence.

2. The applicant was convicted on his own plea to one count of trafficking in a dangerous drug[1] (Count 1) and one count of driving a motor vehicle with any concentration of a specified illicit drug (Count 2) before Andrew Chan J (the judge) in the High Court. On 13 May 2024, he was sentenced to a total term of 7 years’ imprisonment and disqualified from holding or obtaining a driving licence for a period of 2 years.

3. On 24 May 2024, the applicant filed a notice of application for leave to appeal against his sentence.

4. On 19 August 2024, Mr Raymond Yu, for the applicant, filed the perfected grounds of appeal against sentence, contending that the judge failed to order the sentences on both counts to be served partly consecutively and partly concurrently. Alternatively, he argued that the total sentence was manifestly excessive as the judge failed to apply the totality principle (Ground 1). At the leave hearing on 3 April 2025, the Single Judge granted the applicant leave to appeal against his sentence.[2] On 25 June 2025, Mr Yu filed an additional perfected ground of appeal, arguing that the sentence on Count 2 was manifestly excessive (Ground 2).

5. On 3 September 2025, the applicant filed an affirmation in which he applied for the bail pending appeal. He appears in person in this application.

The brief facts

6. The facts outlined to the judge and admitted by the applicant were as follows. On an evening in March 2021, the applicant was intercepted by a police officer at the junction of Hoi Yuen Road and How Ming Street, Kwun Tong, Kowloon, while he was driving a private vehicle (the vehicle). The applicant appeared “unfocused” when questioned by the police and tested positive for Ice and cocaine in a rapid oral test. The police found in the vehicle three plastic bags containing the Ice as particularised in Count 1, one set of electronic scales, two iron poles placed inside a grey-white recycle bag, eight resealable plastic bags, and two vehicle registration plates. The applicant was arrested but remained silent under caution. A Government Chemist’s report revealed 0.18 micrograms per millilitre (µg/ml) of Ice in his blood[3], which formed the basis of Count 2.

The applicant’s criminal record

7. Among his seven appearances before the courts, the applicant had nine previous convictions, including one for trafficking in dangerous drugs in August 2011, for which he was sentenced to 3 years and 4 months’ imprisonment, and two for possessing dangerous drugs in September 2016 and June 2021.[4] In mitigation, counsel submitted on his behalf that his previous drug-related convictions arose from his long-term addiction to Ice since the age of 25, consuming about 0.5 to 0.6 grammes per day[5].

8. The applicant had failed to answer bail on two previous occasions in relation to his convictions for drug-related offences in 2011 and 2016.[6] The respondent notes that the applicant was in breach of his bail on the second occasion for about 8 months from 17 December 2015 to 20 August 2016. The respondent opposes the application on the basis that the applicant is a flight risk, given his previous breaches of bail and lack of family ties in Hong Kong.

The bail application

9. Bail pending appeal is an exceptional remedy after conviction, which may be granted where it appears that the appeal has a strong likelihood of success (the “merits ground”), or where there is a likelihood that all or a substantial part of the sentence would be served before the disposal of the appeal (the “time ground”)[7]. In considering the time ground, it must also be demonstrated that the appeal is at least reasonably arguable or promising.[8] In other words, the grounds of appeal are reasonably arguable in that they afford some real chance of success.[9]

The merits ground

10. The Single Judge considered it reasonably arguable that the starting point of 18 months’ imprisonment for Count 2 (resulting in a sentence of 12 months’ imprisonment on a plea), as well as the overall totality of the sentence when the trafficking and drug driving offences are viewed together, was manifestly excessive[10].

11. In respect of Count 1, the more serious offence, the judge adopted a starting point of 9 years’ imprisonment for the quantity of Ice concerned, which he then enhanced by 6 months because of the applicant’s previous similar conviction for trafficking, resulting in 6 years and 4 months’ imprisonment after the customary one third discount for his plea. Taking into account the latent risk factor of the drugs in question, the judge considered that “only a small discount” of 4 months would be granted for his claim that he possessed the drugs for his own consumption, resulting in 6 years’ imprisonment on Count 1.

12. In respect of Count 2, taking into account the applicant’s level of intoxication from the Ice, the absence of any accident or erratic driving, but noting that he was unfocused when questioned by the police, the judge adopted a starting point of 18 months’ imprisonment, which he reduced to 12 months’ imprisonment after his guilty plea.

13. In addressing totality, the judge considered that the two offences were separate and distinguishable, and ordered that they run wholly consecutively, resulting in a total sentence of 7 years’ imprisonment.

14. The applicant commenced serving his sentence on 10 March 2021[11], and his estimated discharge date is 26 December 2025. In respect of Count 1, he received a sentence of 6 years’ imprisonment, and after the one third remission for good conduct, he would serve a sentence of 4 years, with a discharge date of 9 March 2025. In respect of Count 2, he received a sentence of one year’s imprisonment, and after the one third remission for good conduct, he would serve a sentence of 8 months.

15. It is conceded by the respondent that the applicant would have served the entire or a substantial part of his sentence (i.e. about 4 years and 7 months’ imprisonment) by the time his appeal is to be heard on 27 November 2025, taking into account the one third remission for good conduct. Although the applicant was granted leave on 3 April 2025, the hearing of his appeal was scheduled together with another case, which explains the late hearing date.

16. I note that there is not a strong argument against the sentence on Count 1, and that leave was primarily granted on the basis that the overall sentence was manifestly excessive because the sentence on Count 2 was made entirely consecutive. However, it needs to be borne in mind that the underlying criminality of driving under the influence of drugs is that the offender endangers the safety and lives of other road users, and the fact that he drove his vehicle while pursuing drug trafficking activity may give rise to a separate, distinct criminality.

17. Whilst the applicant’s previous breaches of bail are a serious consideration, they have little or no bearing in this instance, given that he has a reasonable argument that the sentence on Count 2 should have been partially concurrent and that he has substantially served the sentence originally imposed. In light of the circumstances, the applicant is granted bail pending his appeal against sentence.

(Kevin Zervos)
Justice of Appeal

Mr Jonathan Chu, PP, of Department of Justice, for the respondent

The applicant appeared in person

[1] Consisting of 41.17 grammes of a crystalline solid containing 40.97 grammes of methamphetamine hydrochloride (commonly known as Ice).

[2] HKSAR v Poon Chi Keung [2025] HKCA 328, per Macrae VP.

[3] Summary of Facts: Appeal Bundle (AB), 5, at [7].

[4] The applicant’s Criminal Record Summary – Part A: AB, 14-15.

[5] Written Mitigation, AB, 21, at [3].

[6] The applicant’s Criminal Record Summary – Part B: AB, 17.

[7] HKSAR v Xu Zhou, unrep., CACC 139/2021, 22 October 2021, at [6].

[8] HKSAR v Fong King-choi, unrep., CACC 319/2018, 2 May 2019, at [3]-[6].

[9] HKSAR v Chung Ho Yin, unrep., CACC 75/2020, 17 September 2021, at [39]-[40].

[10] Poon Chi Keung, at [23].

[11] AB, 10.

CACC 105 /2024, [2025] HKCA 328

On Appeal From [2024] HKCFI 1504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 105 OF 2024

(ON APPEAL FROM HCCC NO 282 OF 2023)

________________________

BETWEEN

	HKSAR	Respondent
	and
	Poon Chi Keung(潘志強)	Applicant

________________________

Before:

Hon Macrae VP in Court

Date of Hearing:	3 April 2025
Date of Judgment:	3 April 2025

________________________

J U D G M E N T

________________________

1. The applicant pleaded guilty before a magistrate, on 18 September 2023, to one count of trafficking in a dangerous drug, namely 41.17 grammes of a crystalline solid containing 40.97 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“Count 1”); and one count of driving a motor vehicle with any concentration of a specified illicit drug, contrary to section 39K(1) of the Road Traffic Ordinance, Cap 374 (“Count 2”). Having confirmed his pleas before Andrew Chan J (“the judge”) in the High Court on 13 May 2024, the applicant was sentenced to an overall term of 7 years’ imprisonment and was further disqualified from obtaining a driving licence for a period of 2 years.

2. By his Form XI Notice filed on 24 May 2024, the applicant has sought leave to appeal against his sentence of imprisonment only.

Facts accepted by the applicant

3. At about 11:50 pm on 8 March 2021, the applicant was intercepted by a police officer on motorcycle duty at the junction of Hoi Yuen Road and How Ming Street, in Kwun Tong, Kowloon while he was driving a private vehicle (“the vehicle”). The applicant was observed to be unfocused upon enquiry and tested positive for “Ice” and cocaine when a Rapid Oral Fluid Test was conducted on him. Upon a search of the vehicle, the officer found three plastic bags containing the subject matter of Count 1; one set of electronic scales; two iron poles placed inside a grey-white recycle bag; eight re-sealable plastic bags; and two vehicle registration plates.

4. The applicant was arrested but remained silent under caution. A Government Chemist’s report subsequently revealed 0.18 micrograms per millilitre (µg/ml) of “Ice” in his blood[1], which led to the laying of the charge in Count 2.

5. In pleading guilty, the applicant admitted that he was knowingly in possession of the dangerous drugs seized and particularised in Count 1 for the purpose of unlawful trafficking.

Personal circumstances and mitigation

6. The applicant was 37 years of age, having been educated up to Form 3 standard. He was working as a delivery assistant with a daily salary of HK$600 at the time of his arrest. Amongst his seven previous court appearances, he had nine convictions, including one for trafficking in dangerous drugs in 2011, for which he was sentenced to 3 years and 4 months’ imprisonment; and two for possessing dangerous drugs in 2016 and 2021[2].

7. Defence counsel (who was not Mr Yu) urged the judge not to regard the applicant’s drug-related record as an aggravating factor, suggesting that his previous convictions arose out of his long-term addiction to “Ice”, with the trafficking record dating back some 10 years. It was submitted that he had been addicted to “Ice” since the age of 25, consuming about 0.5 to 0.6 grammes per day[3]. Counsel invited the judge to grant a sentencing discount of 10% to 25% to reflect the fact that a portion of the drugs in Count 1 was for his own consumption[4], and a full one-third reduction for his timely plea of guilty.

8. Counsel further submitted that Count 2 was committed in close proximity to Count 1, both in time and circumstance. Had the offence not been indicted along with Count 1, it could have been addressed in a magistrate’s court, resulting in a lower penalty upon summary conviction. The judge was then urged to impose concurrent sentences in respect of both counts, applying the principle of totality[5].

Sentencing

9. In respect of Count 1, the judge adopted a starting point of 9 years’ imprisonment for the quantity of “Ice” concerned, which he then enhanced by 6 months because of the applicant’s previous similar conviction for trafficking, thus resulting in 6 years and 4 months’ imprisonment after the customary one-third discount for his plea. Noting that the applicant could easily access and obtain the drugs, despite his claim that he possessed drugs for his own consumption, the judge considered that “only a small discount” of 4 months would be granted for his own consumption[6], resulting in 6 years’ imprisonment on Count 1.

10. In respect of Count 2, taking into account the applicant’s level of intoxication from “Ice”, the absence of any accident, injury or erratic driving, but that he was unfocused upon being questioned by police, the judge adopted a starting point of 18 months’ imprisonment, which was then reduced to 12 months’ imprisonment after plea.

11. In addressing totality, the judge considered that “the two offences are two separate and distinguishable offences and bear no relationship to each other”[7], and ordered the sentence of imprisonment on Count 2 to run wholly consecutively to that imposed on Count 1, making a total sentence of 7 years’ imprisonment.

Ground of appeal against sentence

12. Mr Raymond Yu, appearing for the applicant, has advanced a sole ground of appeal that the judge failed to order the sentences on both counts to be served partly consecutively and partly concurrently. Alternatively, he argued that the total sentence was manifestly excessive, since the judge had failed to apply the principle of totality.

13. By reference to HKSAR v Lam Chi Wa[8] and HKSAR v Tsang Chun Hin[9], Mr Yu submitted that partly consecutive sentences could be imposed on drug and driving offences in spite of their distinct nature, by application of the principle of totality. He also referred the Court to HKSAR v Lam Chun Yin[10], where part of the sentence for drug driving was ordered to run consecutively to the trafficking and dangerous driving counts, notwithstanding that different types of drugs were involved in the different offences.

14. It was further argued that the two offences in the present case should be regarded as related to each other as one course of criminal conduct, in accordance with the ‘one transaction’ rule[11], given that they were committed at the same place and time, and involved the same type of drugs, and that the judge had accepted that a small part of the drugs in Count 1 was for the applicant’s own consumption. Accordingly, Mr Yu suggested that the sentences on the two counts should be served partly consecutively and partly concurrently.

Respondent’s submission

15. Mr Jonathan Chu, on behalf of the respondent, fully adopted the written argument of Ms Lily Yip, submitting that the ‘one transaction’ rule was not an inflexible one and was “sensitive to the individual circumstances of the case and the offender”[12]. He contended that the judge was correct to determine that the two counts were separate and distinct, given that the applicant had admitted consuming the “Ice” before he drove to Kwun Tong that night, which was not part of the drugs obtained by him from the supplier and seized in Count 1[13]; and that the judge had a discretion to order the sentences to run consecutively: see Clarkson v R[14]. The overall sentence of 7 years’ imprisonment could not be said to be manifestly excessive or wrong in principle in the circumstances, having regard to the principle of totality.

16. Mr Chu submitted that Lam Chi Wa should be distinguished from the present case in terms of the different charges and facts involved (although it would appear that, if the two counts of trafficking and drug driving are “separate and discrete”, Lam Chi Wa is also an authority in favour of the respondent: see paragraph 33 therein). He further invited the Court to note that in HKSAR v Chan Pui Ming[15], the defendant was charged with exactly the same offences arising out of a similar factual background, and the same judge also ordered wholly consecutive sentences for the two offences. An application for leave has already been lodged to appeal against that sentence, which will be determined in May 2025.

Consideration

17. I shall deal with Mr Yu’s specific argument as to whether the applicant’s trafficking activity and drug driving should have been regarded as a single transaction, although it seems to me that his principal argument is really concerned with the totality of the sentence for the criminality involved when the two offences are viewed together. Whilst the underlying criminality of drug driving is that, having consumed a drug or been influenced by such consumption, the applicant nevertheless drives or attempts to drive on the road and therefore puts the safety and lives of other road users at risk, the fact that when he drives he is also in pursuance of a trafficking activity may give rise to a separate and distinct criminality.

18. The answer to Mr Yu’s specific argument also depends on the facts and evidence, which will vary from case to case. In the present case, there is no apparent linkage between the “Ice” consumed by the applicant and that used for trafficking, or in the vehicle. That may also be consistent with what the applicant accepted by way of mitigation, namely, that he obtained his own “Ice” from a different source and consumed it before driving the vehicle, despite his claim that the plastic bag of 8 cm x 5 cm, containing 13.6 grammes of “Ice”, was purchased for his own consumption (and had not in fact been consumed at the time).

19. It is relevant to note in this connection that, in Lam Chi Wa (supra), when speaking of “the correct approach to be taken when the drug trafficker is also charged with the offence of dealing in or with the proceeds of his own crime”, the Court held (at [33]):

“In a situation where a person is charged with a drug trafficking offence and at the same time a money laundering offence with respect to the proceeds of that very same drug trafficking, then allowance can properly be made for this by making the whole or a substantial part of the sentences concurrent. However, when the drug trafficking and money laundering charges are separate and discrete, and by this we mean that the funds are not referable to the actual drug trafficking charged, then it is only in the context of totality that a sentencer should consider making some part of the sentences on the money laundering charges concurrent to the sentence for drug trafficking.”

In my view, the same logic should apply in the present case.

20. Having said that, and whilst no criticism has been levelled by counsel against the individual sentences passed, I am concerned with the sentence on Count 2. The offence of driving a motor vehicle with any concentration of a specified illicit drug, contrary to section 39K(1) of the Road Traffic Ordinance may attract different maximum sentences depending on whether a person is convicted summarily or on indictment. Section 39K(1) specifically provides that:

“(1)  A person who drives or attempts to drive, or is in charge of, a motor vehicle on any road while any concentration of a specified illicit drug is present in the person’s blood or urine (whether or not any other drug is also so present)  commits an offence and is liable—
(a)  on conviction on indictment, to a fine at level 4 and to imprisonment for 3 years; and
(b)  on summary conviction—
(i)  on a first offence under this subsection, to a fine at level 3 and to imprisonment for 6 months;
(ii)  subsequent to a conviction on indictment under this subsection, to a fine at level 4 and to imprisonment for 12 months;
(iii)  subsequent to a summary conviction under this subsection, to a fine at level 4 and to imprisonment for 12 months; or
(iv)  subsequent to a conviction under section 39J, 39L, 39O(1)  or 39S, to a fine at level 4 and to imprisonment for 12 months.”

21. In the present case, no traffic accident was caused and no serious allegation was made against the applicant in respect of his driving manner or for imperilling other road users. Clearly he was indicted with the offence in the High Court not because of any facts relating to his drug driving but because of his drug trafficking activity at or around the same time. Had he been separately convicted of the offence in a magistrate’s court, it would seem that the maximum sentence would normally have been 6 months’ imprisonment (and a fine) for a first-time offender.

22. I am aware that in Secretary for Justice v Chan Hon Hoi[16], a case on review, this Court increased the starting points in respect of two drug driving related offences (namely, driving a motor vehicle under the influence of drugs, contrary to section 39(1) of the Road Traffic Ordinance[17]) to 2 years and 2½ years respectively; whilst in HKSAR v Yip Sing Yeung[18], the Single Judge refused to grant leave to appeal against, inter alia, the starting point of 27 months’ imprisonment (reduced to 18 months’ imprisonment for the applicant’s guilty plea) for a similar offence (namely, driving a motor vehicle without proper control under the influence of a specified illicit drug, contrary to section 39J(1) of the Road Traffic Ordinance[19]) on the basis that it was not manifestly excessive. Nevertheless, it should be noted that the facts of those two cases were very bad cases of their type.

23. I consider it reasonably arguable that the starting point of 18 months’ imprisonment (and the resulting sentence of 12 months’ imprisonment on a plea) in respect of Count 2 was manifestly excessive. Furthermore, apart from any argument as to what is appropriate as the individual sentence for Count 2, it seems to me reasonably arguable that the overall totality was manifestly excessive. That, of course, necessarily engages the issue of whether the sentences should have been partly consecutive and partly concurrent, which is Mr Yu’s current ground of appeal.

24. Accordingly, I shall grant leave to appeal on that basis.

	(Andrew Macrae)
	Vice President

Mr Jonathan Chu SPP (Ag), of the Department of Justice, for the Respondent

Mr Raymond Yu, instructed by Tse Yuen Ting Wong, assigned by the Director of Legal Aid, for the Applicant

[1] Summary of Facts: Appeal Bundle (“AB”), p 5, at [7].

[2] The applicant’s Criminal Record Summary – Part A, AB, pp 14-15.

[3] Written Mitigation, AB, p 21, at [3].

[4] Written Mitigation, AB, p 22, at [9]; Transcript of Mitigation, AB, pp 8Q-9C.

[5] Written Mitigation, AB, p 23 at [13]-[14].

[6] Transcript of Sentence, AB, p 7E-F; Transcript of Mitigation, AB, pp 11T-12F.

[7] Transcript of Mitigation, AB, p 7O-P.

[8] HKSAR v Lam Chi Wa [2009] 1 HKLRD 483, at [33].

[9] HKSAR v Tsang Chun Hin (Unrep., CACC 174/2021, 23 December 2021) at [2]-[3] and [19].

[10] HKSAR v Lam Chun Yin (Unrep., HCCC 115/2023, 12 December 2023), at [14], [52] and [77].

[11] HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690, at [17]-[18].

[12] Ngai Yiu Ching, at [19] and [23].

[13] Written Mitigation, AB, pp 21-22, at [4], [5] and [10].

[14] Clarkson v R (2007) 171 A Crim R, at [264].

[15] HKSAR v Chan Pui Ming (Unrep., HCCC 339/2023, 30 April 2024).

[16] Secretary for Justice v Chan Hon Hoi [2011] 1 HKLRD 808.

[17] The maximum sentence is the same as section 39K(1).

[18] HKSAR v Yip Sing Yeung (Unrep., CACC 216/2021, 25 January 2022).

[19] The maximum sentence is also the same as section 39K(1).

HKSAR v. POON CHI KEUNG

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