HKSAR v. WANG ZHI

CACC 131/2025, [2026] HKCA 977 On Appeal From [2021] HKCFI 3620 in the high court of the hong kong special administrative region court of appeal criminal appeal no 131 of 2025 (on appeal from hccc NO 165 of 2021)

BETWEEN

HKSAR Respondent and Wang Zhi (王植) Appellant Before: Hon Macrae VP and Zervos JA in Court Date of Hearing: 8 May 2026 Date of Judgment: 8 May 2026 Date of Reasons for Judgment: 15 May 2026

R E A S O N S F O R J U D G M E N T Hon Macrae VP (giving the Reasons for Judgment of the Court): The appellant was charged with a single count of trafficking in a dangerous drug, namely 1,999 grammes of a crystalline solid ‍containing 1,992 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded guilty before Barnes ‍J (“the judge”) in the High Court on 4 October 2021, which had originally been the date fixed for the case management hearing after retrial dates had already been set down, and was sentenced on 11 November 2021 to 19 ‍years and 4 ‍months’ imprisonment. By Form XI and an accompanying affirmation filed on 23 ‍May 2025, the appellant sought leave to appeal against sentence out of time. Since the respondent indicated that the present application was not opposed, the matter was directly listed before this Court for determination. On 8 May 2026, we allowed the appeal and reduced the appellant’s sentence from 19 years and 4 months’ imprisonment to 16 years and 10 months’ imprisonment, indicating that we would hand down our reasons for so doing in due course. These are our reasons. Facts accepted by the appellant The appellant, a Mainland national, arrived in Hong Kong at 10:24 am on 23 May 2017 on a two-way permit valid until 30 May 2017. He checked into a hotel in

Shatin for one night. Later that same day, at 8 ‍pm, he was intercepted by two police officers on Kong Pui Street in Shatin, New ‍Territories carrying a shoulder bag and a sealed carton box. Inside the shoulder bag, the officers found a grey bag labelled “Bamboo ‍Charcoal” containing 200 ‍grammes of “Ice”. Inside the carton ‍box were 60 ‍similarly labelled bags, nine of which also contained “Ice”. When asked what the substance was, the appellant replied in Cantonese, “Ice drug.” He was duly arrested and, under caution, remained silent. Subsequent analysis confirmed that the 10 labelled bags contained 1,999 grammes of a crystalline solid, containing 1,992 grammes of “Ice”. At the time, he was in possession of HK$5,400, RMB 113 and two mobile telephones. The value of the “Ice” was estimated at HK$623,688. Sentencing By reference to the guidelines prevailing at the time of sentence, as set out in HKSAR v Tam Yi Chun and HKSAR v Abdallah ‍Anwar Abbas, the judge held that trafficking in nearly 2 ‍kilogrammes of “Ice” fell within the band of 1.2 to 4 kilogrammes, with a sentencing range of 23 to 26 ‍years’ imprisonment. Proceeding on the basis that the appellant was a courier, the judge adopted a starting point of 23 years and 9 months’ imprisonment. The judge then explained that she was enhancing the starting point by 2 years’ imprisonment: “…on the basis that either the [appellant]

brought the drug into Hong Kong from the Mainland, so there is an international element, that is the case of Abdallah, or that the [appellant] entered Hong Kong in order to commit such a serious crime of trafficking in a large quantity of ‘Ice’.” For the latter proposition, the judge referred to the judgment of this Court in HKSAR v Montoya Munoz Mauricio. The uplifted starting point thus became 25 ‍years and 9 months’ imprisonment. For the appellant’s late plea, the judge considered that a discount of the starting point by about 25%, which had in fact been proposed by defence counsel in his submissions, was appropriate. She accordingly discounted the notional sentence after trial by 25% and imposed a sentence of 19 years and 4 ‍months’ imprisonment. Ground of appeal The appellant’s sole complaint is that he should benefit from a reduction in sentence in accordance with the revised sentencing guidelines propounded in HKSAR v Huang Ruifang (No 3), which, as this ‍Court recently stated in HKSAR v Lam Man Tak, could benefit ‍applicants/appellants who had been sentenced on or after 18 ‍September ‍2018 and who were still within the appeal system. The respondent’s submission Mr Lui, for the respondent, did not oppose the application for leave to appeal against sentence out of time. He submitted that, under the revised sentencing guidelines in Huang Ruifang (No 3), the appropriate

starting point for trafficking in 1,992 grammes of “Ice” would be 20.48 ‍years’ (or ‍about 20 years and 6 months’) imprisonment; and that any enhancement for entering Hong Kong for the purpose of committing the offence, or for the international element, could perhaps be less than 2 years, namely between 15 and 18 ‍months’ imprisonment. On that basis, and allowing for a 25% discount for the appellant’s late plea, any reduction in sentence as a result of the revised guidelines would be greater than 2 ‍years’ imprisonment and significant enough to warrant appellate interference. Since to refuse an extension of time would be to shut out a substantial and plainly arguable ground of appeal, Mr Lui did not oppose the grant of leave to appeal against sentence out of time. Discussion The appellant has never appealed against his sentence, and his right to do so subsists, even if it is out of time, subject to the Court granting him an extension of time to apply for leave to appeal against his sentence. In such circumstances, the Court will consider, amongst other things, whether refusing the appellant an extension of time would effectively prevent him advancing a substantial and plainly arguable ground of appeal. We were satisfied that the appellant does have such a ground of appeal, since he was sentenced after 18 September 2018 at a time when the “state ‍of affairs” leading to the

subsequent revision of the guidelines, as explained in Seabrook v HKSAR, was already in existence. Of course, at the time, no one could have anticipated that revised guidelines were to be issued by the Court on 5 March 2025 in Huang Ruifang (No 3), less than two years after the sentence was imposed by the judge. Had the appellant been sentenced under the revised Huang ‍Ruifang ‍(No 3) guidelines, the starting point on an arithmetical basis, assuming his role as a mere courier, would have been about 20 years and 6 ‍months’ imprisonment, instead of 23 years and 9 months’ imprisonment under the previous guidelines. We accept that there is nothing to suggest the appellant was more than a courier, even a cross-border courier, but we also entirely agree with the judge’s view that entering Hong Kong to commit the offence of trafficking in dangerous drugs is an extremely serious aggravating factor, which warranted an enhancement of the starting point by 2 ‍years’ imprisonment. Accordingly, the notional sentence after trial should have been 22 years and 6 months’ imprisonment. Applying a 25% discount for his delayed plea to the notional sentence after trial, the sentence on the appellant thus becomes 16 years and 10 months’ imprisonment. Accordingly, and for the reasons we have given, we reduced the appellant’s sentence from 19 years and 4 months’ imprisonment to 16 years and 10 months’ imprisonment. To that extent the appeal was allowed. (Andrew Macrae) Vice President (Kevin Zervos) Justice of Appeal Mr Pierre Lui SPP, of the Department of Justice, for the Respondent The Appellant appeared in person