HKSAR v. Pastana Carvalho Andreza Narely

CACC 215/2026, [2026] HKCA 1515

On appeal from [2021] HKCFI 2117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 215 OF 2026

(ON APPEAL FROM HCCC NO 354 OF 2019)

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J U D G M E N T

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1.This is the applicant’s application for bail pending her appeal against her “Original Sentence”.

2.I say “Original Sentence” because of the following history. The applicant was charged with one count of trafficking in 959g of a slurry containing 634g of cocaine. Upon her plea of guilty, she was sentenced on 5 July 2021 to 10½ years of imprisonment. This, I call the Original Sentence. The Secretary for Justice subsequently applied to review the Original Sentence (the “AR”). The AR was successful. The Court of Appeal on 5 July 2022 set aside the Original Sentence and, in accordance with its powers under section 81B(1)(a) of the Criminal Procedure Ordinance (Cap. 221), substituted a sentence of 12½ years’ imprisonment (the “Reviewed Sentence”).

3.Section 81B(1)(a) of the Criminal Procedure Ordinance stipulates as follows:

(1)  Upon the hearing of the application the Court of Appeal may, by order—

(a)  if it thinks that the sentence was not authorized by law, was wrong in principle or was manifestly excessive or manifestly inadequate, quash the sentence passed by the court and pass such other sentence (whether more or less severe) warranted in law in substitution therefor as it thinks ought to have been passed;

4.The effect of the ruling by the Court of Appeal is that the Original Sentence has been quashed.

5.The applicant now seeks to appeal against the Original Sentence out of time. The basis of her appeal is the revised sentencing guidelines in HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138.

6.The applicant acknowledges that her appeal faces a jurisdictional hurdle. Ms Priscilia Lam SC for the applicant however relies on HKSAR v Oliinyk Alla [2026] 2 HKC 1137 and submits that despite the AR, the Court of Appeal still has jurisdiction to hear her present appeal, and hence the power to grant her bail.

7.In Oliinyk Alla, Macrae Acting CJHC was of the view that despite an earlier application for review by the Secretary for Justice, the applicant was entitled to apply for leave to appeal against her original sentence, and the Court had jurisdiction to entertain her application out of time. The reasons are as follows:

Although the subject-matter of the previous application for review (in which the present applicant was the respondent) and the current application for leave to appeal by the applicant is essentially the same, namely, the applicant’s sentence of 22 years and 4 months’ imprisonment, the matter before us is not just the first time she has sought leave to appeal against her sentence, but the application is made on a very different basis, which could not have arisen when she was last before the Court as a respondent  in 2023 and 2024.

8.There is however one important difference between Oliinyk Alla and the present application. In that case, the Secretary for Justice’s application for review was refused. The original sentence stood. However, in the present case, the AR was successful. The Original Sentence had been quashed. It no longer exists.

9.The above difference leads to 2 hurdles which the applicant has to overcome, and which Oliinyk Alla does not provide any ready answer:

(a)  The first is the absence of any legal basis for her to seek to appeal against a sentence that has been quashed, one that no longer exists; and

(b)  There is further this. In addition to the quashing of the Original Sentence, the Court of Appeal in substitution of the Original Sentence passed the Reviewed Sentence. Even if the applicant can establish that upon application of the revised guidelines in Huang, her sentence would be significantly lower than the quashed Original Sentence, she still faces the substituted Reviewed Sentence. It remains in force until somehow set aside. But for that I am not persuaded at this stage that the Court of Appeal as being functus officio is in the position to do.

10.In the paragraph above, I underlined the words “Even if”. There, I made an assumption on the merits in the applicant’s favour. But that assumption may not be justified. I explain further:

(a)  As observed by Zervos JA in HKSAR v Yusuf Lukman Adepoju [2026] HKCA 1050:

Depending on the actual term of sentence, a difference of less than one year between the sentence under the previous guidelines and that under the revised guidelines will ordinarily not be regarded as significant enough to warrant appellate interference, whereas a difference of one year or more will ordinarily be so regarded.

(b)  By any standard, the Original Sentence of 10½ years of imprisonment was extremely lenient;

(c)  I do not need to go through the details, but even with all the favourable factors which Ms Lam could put forward on the applicant’s behalf, she realistically suggests that the resultant sentence upon application of the revised guidelines would only be 4 months less. Ms Kwan, having looked at the matter from a slightly different perspective, puts forward the sentence of 10¾ years of imprisonment;

(d)  Be it 4 months less or 3 months more, the difference is not significant;

(e)  I have considered the various comments and observations made by the Court of Appeal during the AR in respect of the applicant’s conduct and background, and in particular those at §§27, 30 and 40 of the Reasons for Judgment. I am not satisfied that it is reasonably arguable that this is an exceptional case which warrants appellant interference despite the absence of any significant difference.

11.Ms Lam has indicated that she may file further submissions on the jurisdictional points discussed above. But as of now, and on the materials before me, I am not persuaded that reasonably arguable grounds have been made out.

12.This being a matter of jurisdiction, I will have to adopt a principled approach. For the above reasons, I refuse the applicant’s application.

Ms Janice Kwan, SPP, of the Department of Justice, for the Respondent

Ms Priscilia Lam SC leading Mr Kasper Fan, instructed by Vitus Lawyers, assigned by the Director of Legal Aid, for the Applicant