In a surprising move, the Court of Appeal ended the use of “the three tests” in the sentencing of trafficking that involved multiple drugs. Now only one test remained.
In HKSAR v Yau Kai-fung (邱啟峰) [2026] HKCA 885, the appellant was trafficking a total of 112.66g of ketamine and 1.95g of cocaine (totalling 114.61g of narcotics). He successfully appealed against his sentence.
The Court of Appeal reduced the starting point of imprisonment from 8 years to 7 years and 4 months. After taking into account his guilty plea, the final sentence was reduced from 5 years and 4 months to 4 years and 10 months.
In coming to this conclusion, the court considered the use of the “Three Tests” or “Three Check Tests” in light of the new 6-step sentencing approach of drug traffickers in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
The Three Tests are set out in HKSAR v Chan Yuk Leong (陳旭亮) CACC 318/2013 and are tests to cross-check the sentence in trafficking cases involving multiple types of drugs.
- the “absurdity test”
- the “conversion test”
- the “ratio test”
1. The “Absurdity Test”
This requires identifying the most potent drug and assumes that the entire quantity consists of it.
- I.e. Trafficking in 114.61 grams of cocaine is 9 years and 9 months.
2. The “Conversion Test”
This compares the tariffs applicable to different drugs to determine a conversion rate and applies the quantity of the drug to a single tariff.
- I.e. Trafficking in 112.66g of ketamine is 6 years and 9 months, equivalent to about 33g of cocaine. The converted quantity is thus 34.95g cocaine (1.95g + 33g), resulting in 6 years and 11 months.
- On the other hand, trafficking in 1.95g of cocaine is 2 years and 7 months, equivalent to about 3.6g of ketamine. The converted quantity is thus 116.26g ketamine (112.66g + 3.6g), resulting in 6 years and 10 months.
3. The “Ratio Test”
This allows for the ratio of the weights of the two different drugs and their corresponding ranges of sentences.
I.e. In this case:
| Dangerous drug | Sentence assuming all 114.61g is a single drug | Ratio | Sentence |
|---|---|---|---|
| Ketamine | 6 years and 10 months | 112.66/114.61=0.983 | 6 years and 8 months |
| Cocaine | 9 years and 9 months | 1.95/114.61=0.017 | 2 months |
| Total | 6 years and 10 months |
As can be seen, the Three Tests are complicated and prone to error (even in that case, the parties arrived at different figures under the Ratio Tests). The Court of Appeal held that the absurdity and conversion tests “no longer serve any useful or principled purpose”, leaving only the ratio test, which is more readily aligned with the 6-step sentencing framework under Herry Jane Yusuph.
When sentencing for multiple drugs, under steps 1-3 of Herry Jane Yusuph, the court must identify a single notional sentence, and to do so it must identify the respective guideline band of each drug, then assess the overall seriousness of the offence, considering both the potency and the quantity of each drug, and the relative contribution of hard and soft drugs. The ratio test is used only for cross-checking.
In this case, the Court of Appeal:
- Adopted 6 years and 9 months as the base starting point for the ketamine, and 18 months for the cocaine.
- Enhanced the base starting point for ketamine by 6 months for the cocaine and 4 months to reflect the appellant’s role and culpability, not being a mere courier.
- Applied the totality principle, the total enhancement is reduced from 10 months to 7 months
- Arrived at the notional starting point of 7 years 4 months.
- Cross-checked with the ratio test, which does not take into account role and culpability or aggravating factors, yielded 6 years 10 months.
- Applied a one-third discount for a guilty plea, resulting in 4 years and 10 months.
The Court of Appeal in Yau Kai-fung not only revamped sentencing for trafficking in multiple drugs but also demonstrated how sentencing should be conducted in the Herry Jane Yusuph 6-step sentencing framework.
Gordon Chan, Esq
Barrister-at-law, Archbold Hong Kong Editor on Public Health, and Member of the Bar Association's Committee on Criminal Law and Procedure. Specialised in medical, technology and criminal law.
