HKSAR v. Pastana Carvalho Andreza Narely

On 12 August 2026, K Yeung JA handed down judgment in HKSAR v Pastana Carvalho Andreza Narely (CACC 215/2026), refusing the applicant's application for bail pending her intended out-of-time appeal against her original sentence. Ms Janice Kwan SPP appeared for the Respondent, while Ms Priscilia Lam SC leading Mr Kasper Fan (instructed by Vitus Lawyers and assigned by the Director of Legal Aid) acted for the Applicant.

The applicant pleaded guilty to trafficking in 959g of a slurry containing 634g of cocaine and was sentenced on 5 July 2021 to 10½ years' imprisonment (the "Original Sentence"). The Secretary for Justice applied to review that sentence under s 81B(1)(a) of the Criminal Procedure Ordinance (Cap 221). On 5 July 2022, the Court of Appeal allowed the application, quashed the Original Sentence as manifestly inadequate, and substituted 12½ years' imprisonment in its stead (the "Reviewed Sentence") (§§2–4).

The applicant now wishes to appeal against the Original Sentence out of time, relying on the revised sentencing guidelines in HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138 (§5). Ms Lam SC submitted that the Court retained jurisdiction to entertain the appeal, relying on HKSAR v Oliinyk Alla [2026] 2 HKC 1137, where Macrae Acting CJHC held that an applicant could still seek leave to appeal against her original sentence after a prior unsuccessful review, because the application was based on grounds which could not previously have arisen (§7).

K Yeung JA accepted that Oliinyk Alla provided general support for the proposition that a review and an appeal against the original sentence are not mutually exclusive, but identified a critical distinction: in Oliinyk Alla the review had been refused, so the original sentence still stood. Here, the Original Sentence was quashed and replaced by the Reviewed Sentence, which remains in force (§8). The court identified two resulting hurdles. First, there is no legal basis for an appeal against a sentence that no longer exists. Second, even if the revised Huang guidelines would yield a lower figure for the Original Sentence, the applicant still faces the substituted Reviewed Sentence, and the Court of Appeal is functus officio in respect of the review and cannot revisit it (§9).

The court went on to consider, assuming arguendo that the merits favour the applicant, whether a reasonably arguable basis for appellate interference existed. Applying the test in HKSAR v Yusuf Lukman Adepoju [2026] HKCA 1050, a difference of less than one year between the pre- and post-Huang sentence will not ordinarily warrant interference (§10(a)). The Original Sentence of 10½ years was in any event described as "extremely lenient"; Ms Lam realistically contended that the Huang-adjusted figure would be only four months lower, while Ms Kwan submitted a figure of 10¾ years (§10(c)). On either view the difference is immaterial (§10(d)). Reading the Court of Appeal's earlier review remarks at §§27, 30 and 40 of its Reasons for Judgment, the single judge was not satisfied that this was an exceptional case warranting interference (§10(e)).

Why it matters

Where a sentence has been successfully reviewed and substituted under s 81B, the original sentence ceases to exist and cannot be the subject of a later out-of-time appeal grounded on Huang. Practitioners advising clients who were the respondent on a successful review will need to consider whether the proper vehicle is some form of attack on the reviewed sentence itself, not the dead one. Equally, bail applications premised on Huang must engage with the Adepoju threshold and demonstrate a meaningful difference, not a marginal one, before jurisdiction and merit hurdles are likely to be crossed.