HKSAR v. PAUL SHAUN WAYNE WENDELL

CACC 187 /2025, [2026] HKCA 89

On Appeal From [2020] HKCFI 2712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 187 OF 2025

(ON APPEAL FROM HCCC NO 145 OF 2020)

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J U D G M E N T

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1.  The applicant, a national of Guyana, pleaded guilty before a magistrate on 22 June 2020 to one charge of trafficking in a dangerous drug, namely 915.7 grammes of a solid containing 406.8 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Having been committed to the High Court for sentence, he was in due course sentenced by Yau J (“the judge”) on 21 September 2020 to 10½ years’ imprisonment.

2.  By his Form XI Notice of Application for leave to appeal against sentence (“Form XI”) filed on 17 June 2025, the applicant now seeks leave to appeal against his sentence out of time in view of the new sentencing guidelines handed down by the Court in HKSAR v Huang Ruifang (No 3)^[1].

The facts of the case

3.  On 3 September 2019, the applicant arrived at Hong Kong International Airport on a flight from São Paulo in Brazil via Doha in Qatar.  He was refused permission to land by the Immigration authorities and referred to Customs officers in the Arrival Hall of the airport for inspection.  The officers discovered that the applicant was carrying two suitcases, with a total of 915.7 grammes of a solid containing 406.8 grammes of cocaine concealed within the pulling handles, or rods, of the two suitcases, with a street value of HK$1,155,613.40^[2].

4.  The applicant, who had US$950 on his person, stated in a video recorded interview that he had gone from Guyana to Brazil and then on to Hong Kong for sightseeing.  He claimed to have obtained the two suitcases from a friend in São Paulo, Brazil.  Subsequent to the interview, the applicant admitted committing the said offence^[3].

Sentence

5.  In mitigation, it was submitted that: (i) the applicant was 42 years of age, a divorced father of two teenage daughters, and a mechanical engineer earning about US$1,000 per month; (ii) he had been lured into trafficking cocaine by friends for money; (iii) he was remorseful for having committing the offence and thereby causing a tragedy to his family; (iv) he was neither the mastermind of the offence, nor part of a syndicate; and (v) he had a clear criminal record^[4]. By reference to the guidelines laid down by the Court in HKSAR v Chung Ping Kun^[5],it was submitted on the applicant’s behalf that, for bringing in 406.8 grammes of cocaine narcotic from Brazil, any enhancement for the international element should be no more than 9 months’ imprisonment^[6].

6.  Applying the prevailing guidelines set out in Attorney General v Pedro Nel Rojas^[7] and R v Lau Tak Ming^[8], the judge arrived at a starting point of 15 years and 2 months’ imprisonment for trafficking in the quantity in question.  Finding little or no mitigating value in the applicant’s personal circumstances, the judge enhanced the starting point by 7 months’ imprisonment for importing cocaine across the border into Hong Kong.  Having been granted a full one-third discount for his plea, the applicant was sentenced to 10½ years’ imprisonment^[9].  

Ground of appeal

7.  The applicant acts in person in this application.  In his Form XI and written submission^[10], the applicant has stated that he is making this application out of time in order to benefit from the revised sentencing guidelines in Huang Ruifang (No 3).  He was in fact sentenced some 4½ years before the decision in Huang Ruifang (No 3) was published.

8.  The applicant argues that the revised guideline should apply to him “automatically” and relies on the recent decision in HKSAR v Fadonougbo Frejus Lezin^[11], contending that his situation is the same or similar.  It should be noted, however, that the Court was still seized of, and dealing with, the appeal against conviction in Fadonougbo Frejus Lezin when it granted him leave to appeal against sentence out of time.

The respondent’s submission

9.  Ms Chan Sze Yan, for the respondent, opposes the application, submitting that, even if Huang Ruifang (No 3) applied, the starting point for trafficking in 406.8 grammes of cocaine would be 14 years and 9 months’ imprisonment, a mere 5 months lower than the starting point actually adopted under the previous guidelines.  However, this 5-month difference can be offset by the enhancement for the international element, which could have been more severe.

10.  In HKSAR v Raman Kapusamy^[12], the Court explained the rationale behind enhancing sentences for so-called “drug mules” who brought dangerous drugs into Hong Kong: although they were couriers, their actions were intentional and elaborate, often causing them to cross continents, and resulted in harm to communities with which they had no connection. Furthermore, the greater the quantity of drugs imported, the greater the harm that would be caused to the community of Hong Kong. 

11.  The respondent argued that the quantity of the dangerous drugs, which he brought into Hong Kong, should have been properly reflected in the enhancement he received.  Even under Chung Ping Kun, which suggested an enhancement of 6 to 12 months’ imprisonment for bringing 200 to 500 grammes of cocaine into Hong Kong, the applicant’s 7-month enhancement for importing 406.8 grammes of the drug across several continents was already very generous.  Accordingly, the applicant’s sentence had not been rendered manifestly excessive by the marginal difference between the arithmetic starting points of the old and the new guidelines^[13].

Consideration

12.  Since the applicant was sentenced on 21 September 2020, two years after 18 September 2018, he at least falls on the right side of the cut-off date for any consideration of the application of the revised guidelines in Huang Ruifang (No 3) to his sentence, as has now been made clear in the Court’s most recent judgment in HKSAR v Lam Man Tak^[14]. However, his appeal has not been “in the system” for many years and, accordingly, the applicant is well out of time.

13.  In Lam Man Tak, the Court explained its approach to the application of the Huang Ruifang (No 3) guidelines to various cases:

“29. … Thus, sentencing in dangerous drugs cases is not a simple question of arithmetic.

30. Furthermore, the difference between a sentence under the revised guidelines in Huang Ruifang (No 3) and a sentence under the former guidelines in Abdallah would have to be significant, even making due allowance for the fact that there has been a change in the range of sentences applicable. It must be remembered that an appeal against sentence may be allowed by the Court where it is either wrong in principle or manifestly excessive, not where it is marginally excessive or simply on the high side. Moreover, appellate courts do not “prune” sentences (R v Kan Chik Tung^[15]) nor do they “tinker” with them (HKSAR v Sze Kwan Lung^[16]), just because they might have passed different ones.

…

47. … Bearing in mind the humanity of the law, as well as the important need for certainty and finality, we have concluded that appellants still “in the system” on or after 18 September 2018, are in principle entitled to benefit from the revised guidelines in Huang Ruifang (No 3); subject to their eligibility and other sentencing principles, including those comprehensively laid down in Herry Jane Yusuph, as well as those governing appeals against sentence (as explained at [30] supra), and any other relevant considerations which may apply.

…

50.     … Thus, for anyone applying out of time to appeal against a sentence passed on or after 18 September 2018, ordinary principles will govern whether the Court will exercise its discretion to permit such an application, bearing in mind that such leave is an exceptional remedy.”

14.  The applicant did not appeal his sentence until he was more than 4½ years’ out of time.  No explanation has been given for the delay beyond the fact that there has been a change in the law, or sentencing regime. Given the changes to the guidelines brought about by Huang Ruifang (No 3), I have nevertheless considered whether the fact that there is a 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.

15.  I do not believe the new sentencing guidelines would make any difference to the applicant’s position.  Whilst he may be classified in general terms as a ‘courier’, the fact is he was an international courier who had travelled from Guyana to Brazil via Doha to Hong Kong, across three continents, in order to put more than 400 grammes of cocaine narcotic worth more than HK$1 million onto the streets of this city.  He was a professional man with two children, for whom he was responsible financially; he must have fully realised the appalling consequences of his actions if caught. Given his role and culpability as well as the significant international element involved, I would not envisage an appellate court, even under the revised guidelines, considering a sentence lower than that which he received under the previous guidelines.

16.  Moreover, I must reiterate the point made in Lam Man Tak that even if there had been a slight difference between the sentence passed in this case and one that might have been passed under the revised guidelines, the Court would not interfere.  The Court of Appeal does not tinker with sentences.

17.  For these reasons, I refuse the applicant leave to appeal out of time.  It is open to the applicant to renew his application before the Court of Appeal, but he should be informed that the 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 conclude that there was no justification for the renewal of the application.

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

[2] Summary of Facts at [1]-[4]: Appeal Bundle (“AB”), p 3.

[3] Summary of Facts at [5] & [6]: AB, pp 3 & 4.

[4] Transcript of Mitigation: AB, pp 8-10. 

[5] HKSAR v Chung Ping Kun (Unrep., CACC 85/2014, 2 July 2014), at [9].

[6] Transcript of Mitigation: AB, p 10D-L.

[7] Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.

[8] R v Lau Tak Ming [1990] 2 HKLR 370.

[9] Transcript of Sentence: AB, p 7C-N.

[10] Letter from the applicant, dated 25 September 2025 (filed on 3 October 2025).

[11] HKSAR v Fadonougbo Frejus Lezin [2025] 4 HKLRD 851, at [69] to [71].

[12] HKSAR v Raman Kapusamy [2024] 2 HKLRD 955, at [69] & [70].

[13] Respondent’s Skeleton Submissions, [13]-[17].

[14] HKSAR v Lam Man Tak (Unrep., CACC 49/2018, 20 January 2026).

[15] R v Kan Chik Tung [1963] HKLR 721, at 732.

[16] HKSAR v Sze Kwan Lung (Unrep., CACC 92/2002, 11 December 2003).