HKSAR v. ANDRADE PEREIRA DOS SANTOS THIAGO FELIPE

CACC 184/2025 [2026] HKCA 980

On appeal from [2020] HKCFI 2906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 184 OF 2025

(ON APPEAL FROM HCCC NO 122 OF 2020)

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J U D G M E N T

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1.  On 30 September 2020, the applicant was sentenced to 11 years and 10 months’ imprisonment by Toh J (the judge), following a timely guilty plea to a single count of trafficking in a dangerous drug, namely 671.27 grammes of a solid containing 522.01 grammes of cocaine.

2.  On 16 June 2025, the applicant filed a notice of application for leave to appeal against sentence some four years and eight months out of time.  He applies for an extension of time in which to file his leave application.  In an accompanying affirmation dated 13 June 2025, he contends that the sentence is excessive and unfair, and seeks a reduction in his sentence in light of the revised sentencing guidelines laid down in HKSAR v Huang Ruifang (No 3)[1].  He explained that the delay in filing was because he had only recently become aware of the revised guidelines.

3.  The Court of Appeal is less disposed to grant leave to appeal out of time unless there are cogent and compelling reasons for the delay in filing the application[2].  In determining the applications, the Court will consider the length of the delay, whether the applicant has provided a reasonable explanation for it, and whether sufficient grounds of appeal have been shown.  The Court may also review the proposed grounds to ensure that, by refusing leave to appeal, it does not shut out any substantial and plainly arguable ground of appeal[3].

4.  Mr Edward Lau, for the respondent, opposes the grant of an extension of time, submitting that the applicant has failed to provide (i)  a proper explanation for the lengthy delay in filing and (ii)  any justifiable ground of appeal in support of his leave application. 

5.  He cites HKSAR v Hung Chan Wa[4],for the authority that a change in the previous understanding of the law does not in itself give rise to any automatic right of appeal out of time and that exceptional circumstances are required to justify the Court granting an extension of time to appeal on such a ground.  In other words, any difference between a sentence under the former guidelines and the new guidelines would have to be sufficiently significant to justify the Court of Appeal’s interference. 

6.  The applicant appears in person at the leave hearing, having had his application for legal aid refused on 11 August 2025.

The summary of facts

7.  The facts outlined to the judge and admitted by the applicant were as follows.[5] On 17 May 2019, the applicant arrived at Hong Kong International Airport on a flight from Sao Paulo, Brazil, via Dubai, United Arab Emirates.  He was intercepted for customs clearance while carrying a hand-carry suitcase and a backpack.  Inside the suitcase, Customs officers found four abnormally heavy and stiff garments, packed in two transparent plastic bags and concealed within a zipped lining.  The four garments were subsequently certified to contain the quantity of cocaine particularised in the count, with an estimated street value of HK$663,886.

8.  The applicant was arrested and cautioned.  Customs officers searched him and found in his possession 75 Brazilian reals, US$1,401, a mobile telephone, an itinerary and a purported hotel reservation.  The mobile telephone revealed suspicious WhatsApp messages exchanged between him and “Dafinny Prima” about his trip to Hong Kong.

9.  The applicant stated under caution that a person called “Dafinny Prima” (Dafinny)  had placed two plastic bags of clothing inside the suitcase and asked him to bring them to Hong Kong.  He said he was to go to BP International, where someone would contact him, and that he had received the flight ticket and a night of accommodation at that hotel.[6] According to Dafinny, the items were two pieces of good quality curtains.

10.  In a subsequent video recorded interview, the applicant said he was a hairdresser in Brazil earning about 3,000 reals (around HK$5,700)  per month, and had planned his trip to Hong Kong since January 2019.  He said that a distant relative, “Sharon”, arranged and paid for his flight and one night at BP International, to be repaid by doing her hair.  He described Dafinny as the boyfriend of his friend “Sabrina”, whom he had known for over ten years. On the day of departure, Dafinny collected and returned his suitcase with two transparent plastic bags containing garments.  He did not open those bags and was assured by Dafinny that they were just “clothing” and that there was “nothing wrong”, and that he only had to “get there and hand it over”.  He said he communicated with Dafinny via WhatsApp and could only provide his mobile number.  He could provide Sharon and Sabrina’s mobile numbers, but did not know their full names and had deleted all the messages.  He said the money found on him was his savings for the trip and for buying hair products.  He confirmed that the suitcase and clothes belonged to him, and were packed by him in Brazil, and that the garments soaked with cocaine were found inside the suitcase.

11.  At his plea, the applicant admitted that he was knowingly in possession of the dangerous drugs seized for the purpose of trafficking.

The sentencing

12.  The applicant, a Brazilian national, was 24 years old at the time of sentencing and had a clear record in both Hong Kong and Brazil[7].  He had worked as a qualified hairdresser.

13.  In mitigation, defence counsel submitted that the applicant was a naive young man who had intended to travel to Hong Kong for a holiday and that this was his first trip abroad.  It was said that he was a “typical mule”, tricked into importing the drugs by his so-called friends, including Dafinny, who was a drug dealer, and that he received no reward.  Counsel urged the judge not to enhance the sentence for the international element.  Letters from the applicant, his family and friends in Brazil were also submitted to attest to his remorse and good character.[8]

14.  In sentencing the applicant, the judge identified the appropriate range of starting points for the 522 grammes of cocaine as 17 years and 6 months to 18 years’ imprisonment, in accordance with the former sentencing guidelines in R v Lau Tak Ming[9].  Having considered the applicant’s background and the circumstances of the case, she adopted a starting point of 17 years and 6 months’ imprisonment and enhanced it by 1 year for the international element involved in smuggling the drugs across the border into Hong Kong, bringing it to 18 years and 6 months’ imprisonment.  The judge noted that the applicant had participated in a controlled delivery after his arrest by returning to the hotel and calling the person whose telephone number he had been given, but the operation was unsuccessful as that person did not contact him.  Taking into account his guilty plea and his participation in the unsuccessful controlled delivery, she gave him a total discount of 36%, resulting in a sentence of 11 years and 10 months’ imprisonment.[10] 

The ground of appeal

15.  The applicant bases his appeal solely on the revised sentencing guidelines in Huang Ruifang (No 3)[11]concerning the offence of trafficking in large quantities of a dangerous drug, including cocaine, which were laid down by this Court on 5 March 2025 after his sentence was passed.  He seeks to derive a benefit from these revised guidelines and to obtain a reduction in his sentence.  He makes a general complaint that his sentence is unfair and excessive.

Discussion

16.  In HKSAR v Lam Man Tak[12], the Court of Appeal concluded that the commencement date of the ‘state of affairs’ leading to the revision of the sentencing guidelines in Huang Ruifang (No 3) should be 18 September 2018, and that the date from which the revised sentencing guidelines should be applied was the date of sentence. 

17.  Since the applicant was sentenced on 30 September 2020, he should be regarded, subject to the issue of his application being out of time, as in principle entitled to derive benefit from the revised sentencing guidelines if the Court were to accept his appeal and sentence him afresh in accordance with the six-step approach set out in HKSAR v Herry Jane Yusuph[13]. However, the applicant is technically not “in the system” unless and until he succeeds in his application for an extension of time to file a leave application to appeal his sentence.  That status, as explained in Lam Man Tak[14], normally applies to an applicant or appellant whose appeal against sentence is extant, where the revised guidelines were handed down after sentence was passed at first instance under the previous guidelines, but before the appeal has been disposed of.

18.  As a matter of principle, the Court of Appeal does not tinker with the result if the difference between a sentence passed at trial and the sentence considered appropriate by the appellate court would not be significant.  The position is the same where the difference in sentence passed at trial based on previous guidelines and the sentence contemplated by the appellate court under revised guidelines is not significant.  This was explained by the Court of Appeal in HKSAR v Au Chun Wah[15] :

“A difference of 13 months in the starting point between the former and revised guidelines would translate to a difference of just under 9 months’ imprisonment on a plea. We are of the view that such a difference between the former and the revised guidelines was not significant enough to warrant our interference in this case.”

19.  Given that the changes to the sentencing guidelines brought about by Huang Ruifang (No 3) were the impetus for this application, I have nevertheless considered whether the new sentencing regime would provide the applicant with a reasonably arguable ground of appeal, thereby justifying the granting of leave to appeal out of time.  Under the revised guidelines, 522 grammes of cocaine fall within the band of 500 to 1500 grammes of cocaine, which corresponds to a range of 16 to 20 years’ imprisonment.  This correlates with a starting point of 16 years and 1 month’s imprisonment.  Applying the enhancement of 1 year for the international element and the 36% discount for the applicant’s timely guilty plea and participation in an unsuccessful controlled delivery given by the judge, the resultant sentence would be 10 years and 11 months’ imprisonment.  The difference between the current sentence and one under the revised guidelines is 11 months.  As pointed out by the respondent, the enhancement for the international element could have been greater, and the additional allowance for the applicant’s participation in an unsuccessful controlled delivery was generous. 

20.  Bearing these matters in mind, if the applicant were to be sentenced afresh under the revised guidelines and according to the relevant sentencing principles, the sentence is unlikely to be different to the sentence he received, and would definitely not exceed 11 months’ imprisonment less than his present term.  For this reason, I do not consider that the revised sentencing guidelines would make any real difference to the applicant’s position before an appellate court. In the circumstances, there is no justification for granting the applicant leave to appeal his sentence out of time.  Accordingly, the application for an extension of time to file an application for leave to appeal against sentence is refused.

21.  The applicant is reminded of his right to renew his application for leave out of time to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.