HKSAR v. Sanchez Rios Cesar Augusto

CACC 177/2025

[2026] HKCA 1372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 177 OF 2025

(ON APPEAL FROM HCCC NO 188 OF 2016)

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BETWEEN

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1.Upon pleading guilty to a single charge of trafficking in a dangerous drug, namely 2,363 grammes of a solid containing 1,719 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, the applicant was, on 15 July 2016, sentenced in the High Court by Deputy Judge D’Almada Remedios (as D’Almada Remedios J then was) (“the judge”) to 16 years and 8 months’ imprisonment.

2.By a Form XI filed with the Court on 16 June 2025, the applicant has sought leave to appeal against sentence out of time. 

Facts of the case

3.On 26 October 2015, the applicant, a Colombian citizen, arrived in Hong Kong on a flight originating from São Paulo, Brazil, via Dubai.  He was however denied entry and detained by Customs officers at the Hong Kong International Airport.

4.Upon a baggage check, there was found inside the rucksack the applicant was carrying five plastic packets containing a total of 2,535 grammes of a paste, which upon drying was found to contain 2,363 grammes of a solid containing 1,719 grammes of cocaine, with a retail value of HK$2,702,310. He was arrested and cautioned for trafficking in dangerous drugs.  At that time, he was also in possession of US$967.

5.During an interview, which was conducted in the presence of a Spanish interpreter, the applicant admitted that the purpose of his trip was to bring the rucksack, which he knew contained cocaine, into Hong Kong, although he had no idea when and how his rucksack was to be collected or dealt with upon arrival.  

6.In a subsequent video recorded interview, the applicant said that someone had arranged his trip to Hong Kong and offered him US$30,000 to US$35,000.  This person had threatened to kill him or hurt his sister if he refused to carry the dangerous drugs and if anything went wrong with the delivery. 

7.When pleading guilty in court, the applicant admitted that he was knowingly trafficking in dangerous drugs, accepting therefore that it was not a case of duress as suggested in interview[1].

Sentencing

8.The applicant was 21 years of age and had a clear record at the time of sentence.  It was said that his younger sister had been diagnosed with lupus in 2014; in order to pay her medical expenses, he ran up debts and committed the present offence for money[2].  He had also tried to assist Father Wotherspoon’s anti-drugs campaign.

9.The judge referred to the former sentencing guidelines in HKSAR v Abdallah[3] and adopted a starting point of 23 years’ imprisonment, which she enhanced by 2 years, for the international element engaged in carrying dangerous drugs across the border into Hong Kong, to 25 years’ imprisonment.  She gave the applicant a one-third discount for his plea but declined to give any further discount for his assistance in Father Wotherspoon’s campaign.  In the result, the judge passed a sentence of 16 years and 8 months’ imprisonment.

Grounds of appeal

10.Mr So, together with Mr Hui, for the applicant, has advanced a sole ground of appeal, which avers that the applicant’s sentence should be reduced in light of the revised guidelines in HKSAR v Huang Ruifang (No 3)[4]. He submits that if the applicant were to be re-sentenced on the basis of the revised guidelines, he should be entitled to a reduced sentence, which represents a difference of well over a year, and would result in his being immediately released from prison (the applicant’s earliest date of discharge, assuming remission for good behaviour, will otherwise be 8 December 2026).

11.It should be noted that the applicant’s perfected grounds of appeal[5] and written submission[6] (but not his submission in reply[7]) were both filed before the judgment of HKSAR v Lam Man Tak[8] was handed down on 20 January 2026, which judgment has since clarified the cut-off date for any consideration of the application of the revised guidelines in Huang Ruifang (No 3).

12.Mr So recognises that he has an uphill task in view of the decision in Lam Man Tak, but nevertheless argues that there are exceptional circumstances in this case to depart from it.  He submits that the floodgates would not be opened by allowing for such exceptional circumstances, since there must be relatively few prisoners still serving lengthy terms of imprisonment passed in accordance with the Abdallah guidelines. Whether that is so, one is still thrown back on identifying an exceptional circumstance which would merit the Court of Appeal exercising its discretion to reduce the sentence.

The respondent’s submission

13.Ms Fok, for the respondent, submits that, when the applicant lodged the present application, he was no longer in the appeal system; but even if he could bring himself within the appeal system, he has no reasonably arguable grounds of appeal, since the revised guidelines in Huang Ruifang (No 3) do not assist him, he having been sentenced well before the cut-off date of 18 September 2018, as explained in Lam Man Tak. 

14.Ms Fok further submits that the judge was lenient in adopting the lower limit of the range under the then prevailing Abdallah guidelines.  Moreover, there could be no complaint against the enhancement of 2 years’ imprisonment for the international element under the Abdallah supplementary guidelines, or the final sentence.  She submits that there is no merit in the present application.

Consideration

15.I agree with Ms Fok’s submissions.  The Huang Ruifang (No 3) guidelines do not apply to the appellant who was sentenced 2 years and 2 months before the ‘state of affairs’ even began with the judgments in HKSAR v Kilima Abubakar Abbas[9] on 18 September 2018, leading to the revised guidelines in Huang Ruifang (No 3), as explained in Lam Man Tak.  Accordingly, the applicant fell to be sentenced, and his appeal falls to be determined, under the former guidelines in Abdallah.  Even then, the applicant was sentenced more leniently than he might have been, since the starting point could have been, if one were to apply the Abdallah guidelines arithmetically, 23½ years’ imprisonment with a 2-year enhancement for the international element, making 25½ years’ imprisonment.  As it was, the judge in her discretion adopted a notional sentence after trial of 25 years’ imprisonment.

16.With respect to Mr So’s argument, I do not see a reasonable argument that there are any exceptional circumstances which would justify the Court of Appeal in reducing the sentence.

17.The application for leave to appeal against sentence must, therefore, be refused.  Although the applicant is less than 5 months from the completion of his sentence, I will nevertheless advise him that he has the right to renew his application for leave to the Court of Appeal, but he is also warned that that Court has the power to order the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.

Ms Jennifer Fok ADPP (Ag), of the Department of Justice, for the Respondent

Mr Simon So and Mr Jack Hui, instructed by Leung, Leung & Co, for the Applicant

[1]  Appeal Bundle (“AB”), p 8C.

[2]  AB, pp 7P-8B.

[3]  HKSAR v Abdallah [2009] 2 HKLRD 437.

[4]  HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138.

[5]  Dated 4 September 2025.

[6]  Dated 19 September 2025.

[7]  Dated 27 July 2026.

[8]  HKSAR v Lam Man Tak [2026] 2 HKLRD 199.

[9]  HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88.