How retrospective is Huang Ruifang?

Huang Ruifang continues to be a landmark case in Hong Kong’s jurisprudence. It is a case that revamped sentencing for trafficking in very large quantities of drugs; It reinforced Hong Kong’s firm stance in protecting the right to silence. It now becomes a seed of discussion as to the retrospective effect of a sentencing guideline that benefits the accused.

In HKSAR v Lam Man Tak (林文德) [2026] HKCA 67, the Court of Appeal observed that since the handing down of the judgment in Huang Ruifang (No 3), many appellants sought to appeal their sentence, which applied the old sentencing guideline under Abdallah. The CA took the opportunity to clarify the application of Huang Ruifang (No 3) retrospectively, and laid down a clear cut-off date of 18 September 2018.

Why 18 September 2018?

To understand the cut-off date, one must go back to the Court of Final Appeal judgment in Mark Anthony Seabrook v HKSAR (1999) 2 HKCFAR 184, whereas the first condition for retrospective application is for those with “their offences were committed at a time when the state of affairs on which the guidelines are based was in existence” – In other words, the triggering event of the change to sentencing guideline already exists when the offence is committed.

In Lam Man Tak, the CA traced its recent judgments and identified the case of HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88 as the genesis of the change in the “state of affairs” which was handed down on 18 September 2018:

“41… 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.”

Is the Cutoff Absolute?

If the offence occurred before the cut-off, it would not benefit from the new guideline. This is for the sake of certainty and finality. However, the Court of Appeal do recognise those still “in the system” on or after 18 September 2018 may still benefit from Huang Ruifang (No 3). This is in recognition of Article 12(1) of the Hong Kong Bill of Rights, which incorporates the International Covenant on Civil and Political Rights (ICCPR):

“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 added)

Who can benefit from Huang Ruifang (No 3)?

The Court of Appeal spent a substantial passage explaining the application of Huang Ruifang (No 3) and the cut-off date of 18 September 2018 in different scenarios.

In summary, the new guideline could be applicable to the following situations:

• The offence was committed on or after the cut-off date.
• The date of sentence is on or after the cut-off date.

It is not applicable to the following situations:

• Magistracy or District Court cases.
• The appeal against sentence had been abandoned, unless the abandonment is nullified.
• The appeal against sentence had been heard and determined.
• A person who is no longer “in the system”, whereas the sentence was passed before the cut-off date.

Note that the Court retained a discretion to apply the new guideline to any cases that do not fit into the above categories. However, “such rare cases will be very exceptional indeed”.