Hon Cheung JA (giving the reasons for judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書：

Background
背景

The applicant of this case pleaded guilty to two charges: The first charge was assaulting a police officer in the due execution of his duty (“the assault police charge”), contrary to section 36(b) of the Offences Against the Person Ordinance, Cap 212, Laws of Hong Kong, and the second charge was trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, Laws of Hong Kong.
本案的申請人承認兩項控罪。第一項是「襲擊在正當執行職務的警務人員」罪(「襲警罪」)，違反《侵害人身罪條例》(香港法例第212章)第36(b) 條。第二項控罪是「販運危險藥物」罪，違反《危險藥物條例》(香港法例第134章)第4(1)(a)及(3)條。

The facts were that on 10 September 2013 the police conducted an anti-narcotics operation in a building in Lower Wong Tai Sin Estate.  The first prosecution witness (“PW1”) was instructed to stay at one end of the corridor of one of the floors to carry out observation, while his teammates were on the staircase between two floors, waiting to give support and assistance.  At the material time, the applicant and the other defendant in the present case walked towards PW1, each holding an iron bar of about 1.5 feet long in their hands. PW1 revealed his police identity to them and demanded that they put down their weapons, but the other defendant swung his iron bar at PW1 and the applicant kicked PW1 in his left knee.  However, both of them were subdued by PW1.  Subsequently, the police searched the applicant’s dwelling place and found a packet which contained 29.92 grammes of ketamine.
案情顯示警方在2013年9月10日在黃大仙下邨一幢樓宇進行反毒品行動。控方第一證人負責留守在某層樓的走廊盡頭監視，他的同僚則駐守在樓層之間的樓梯支援。案發時第一申請人與同案的另一名被告手上分別持有一支約長1.5呎的鐵通走向控方第一證人。控方第一證人向他們表明警察身份及要求他們放下武器，但同案的另一名被告人用鐵通揮向控方第一證人，而申請人用腳踢控方第一證人的左膝。但兩人被控方第一證人成功制服。之後，警員到申請人的住所搜查及發現一包含有29.92克的氯胺酮。

Terms of Imprisonment
刑期

District Judge Anthony Kwok adopted 18 months as the starting point for the first charge, ie the assault police charge and reduced it by one third on account of the applicant’s guilty plea, resulting in a term of 12 months’ imprisonment for that charge.  As for the charge of trafficking in a dangerous drug, according to the sentencing guidelines laid down in Secretary for Justice v Hii Siew Cheng（許守誠）& Another [2008] 3 HKC 323, the appropriate starting point for an amount of ketamine close to 30 grammes is 5 years.  As the applicant claimed that four grammes of the 30 grammes or so ketamine was for his own use, the District Judge set the starting point at four years and eight months, ie 56 months.  Since the applicant had given assistance to the law enforcing authorities, the District Judge reduced the sentence by half, making a term of 28 months.  He further ordered that four months of the term of 12 months for the first charge be run concurrently with and that the remaining eight months be run consecutively to the sentence for the second charge.  Accordingly, the applicant was to serve 36 months’ imprisonment for these two charges.
區域法院法官郭啟安就第一項「襲警罪」採用18個月為量刑基準，由於申請人認罪，給予三分之一的量刑扣減及該項刑期定為12個月監禁。至於「販運危險藥物」罪，根據Secretary for Justice v Hii Siew Cheng & Another [2008] 3 HKC 323 [許守誠] 案例所頒下的量刑指引，接近30克的氯胺酮的適當量刑基準為5年。由於申請人稱聲該約30克的氯胺酮，其中4克為他自用，故此郭法官將量刑基準定為4年8個月，即56個月。由於申請人曾經協助執法機關，故此郭法官給予二分之一的量刑扣減，而將刑期定為28個月。郭法官將第一項控罪12個月刑期其中4個月與第二項控罪同期執行而其餘8個月分期執行，故此申請人在兩項控罪中須服36個月監禁。

The applicant applies for leave to appeal against sentence.  The only argument he put forward is that the District Judge should have reduced the term of imprisonment in respect of the first charge by the same proportion.
申請人就刑期提出上訴許可申請，他唯一論點是郭法官應該就第一項控罪的刑期給予同等份量的扣減。

Sentencing Principles
量刑原則

According to Z v HKSAR (2007) 10 HKCFAR 183, it is the policy of the courts to take into account in mitigation of sentence useful assistance the defendant had given to the authorities and give an appropriate reduction from the sentence which the defendant would otherwise have received.  The object of the policy is to encourage offenders to provide material assistance to the authorities for the prevention, detection and prosecution of crimes. The assistance rendered by a defendant will be taken into consideration by the court whether the information he provided concerns crimes for which he is being sentenced or other crimes unconnected to such crimes.  In that case, the defendant pleaded guilty to some fraud charges and theft charges, and was sentenced to 5½ years’ imprisonment.  He had provided the police with information that a number of illegal immigrants were coming to Hong Kong to commit [a] robbery with firearms.  Later, the illegal immigrants were intercepted by the police.  Although the defendant refused to be a witness, two of the persons arrested were convicted; one was convicted of aiding and abetting illegal immigrants to come to Hong Kong and the other was convicted of possession of a firearm and ammunition without a license.  The Court of Final Appeal held that the defendant was entitled to a reduction of sentence.
根據Z對HKSAR (2007) 10 HKCFAR 183一案，法庭的政策是將被告人曾向當局提供有用協助一事納入為減刑因素，從而對該人本應接受的刑期作出適當的扣減。這政策旨在鼓勵人們向當局提供實質協助，以達致防止罪案、偵破罪案和檢控罪犯的目標，不論被告人所提供的資料是否關乎他被判刑的罪行抑或另一些無關的罪行，他所提供的協助都會獲法庭考慮。在該案，被告人承認「欺詐」及「盜竊」罪，並被判監禁五年半。被告人曾向警方提供資料，指多名非法入境者將前來香港干犯「持械搶劫」罪。後來，上述非法入境者被警方截獲，雖然被告人拒絕出任證人，但其中兩名被捕人士分別被判「協助及教唆非法入境者前來香港」罪及「無牌管有火器及彈藥」罪成立。香港終審法院裁定被告人可獲減刑。

The cases before Z v HKSAR shows that the court took account of the fact that the material assistance provided by the defendant was only related to some of the charges he faced, and only reduced the sentences of those related charges.  As for those unrelated charges, there was no reduction of the sentences, see: R v Heung Chi Keung [1991] 1 HKLR 353 and R v G [2010] EWCA Crim 3047.
在Z對HKSAR一案之前的案例顯示法庭因應被告給予的實質協助只與部分他面對的控罪有關，而只給予該些有關的判刑刑期扣減，其他不相關的控罪則沒有給予同樣的刑期扣減，見：R v Heung Chi Keung [1991] 1 HKLR 353及R v G [2010] EWCA Crim 3047。

Our View
本庭意見

In the present case, we consider that a more appropriate approach would have been to reduce the terms of both of the sentences by one half.  However, we do not need to determine whether the District Judge had committed an error in principle by not giving the same one half reduction in relation to the assault police charge.  The reason is that even assuming, for the sake of discussion, that an error in principle was involved, we still need to consider whether the total sentence passed by the District Judge was manifestly excessive.  Since the two charges preferred against the applicant were of different nature, the sentences should undoubtedly be served consecutively.  This is in line with the sentencing principles, but the District Judge also considered another sentencing principle which is equally important, ie the totality principle.  Therefore, he ordered that only part of the sentence of the assault police charge be run consecutively to that of the charge of trafficking in a dangerous drug.
在本案，本庭認為更適當的做法是兩項刑期都採用一半的扣減，但本庭不需要裁決郭法官就「襲警罪」沒有給予同一的一半扣減是否犯了原則性旳錯誤，原因是就算為了討論而言，這涉及原則性的錯誤，本庭亦須考慮郭法官所判的整體刑期是否明顯過高。無疑，因為申請人面對的兩項控罪是不同性質，故此根據量刑原則，它們是應該分期執行，但郭法官同時考慮了另一項同樣重要的量刑原則，即「刑期整體性原則」，故此他只是把「襲警罪」的部分刑期與「販運危險藥物」罪的刑期分期執行。

In the light of all the circumstances of this case and having considered mitigating factors favourable to the applicant, we hold that the three years’ imprisonment imposed by the District Judge was appropriate and was not manifestly excessive.  For the above reasons, we dismiss the application.
綜觀整體案情，在考慮了本案對申請人有利的求情因素後，本庭認為郭法官所判的3年刑期是適當及沒有明顯過重之誤。基於上述原因，本庭駁回申請。

The Applicant, acting in person, present.
答辯人：由律政司署理高級助理刑事檢控專員鄭凱聰代表。

Mr Raymond Cheng, Senior Assistant Director of Public Prosecutions (Acting) of the Department of Justice, for the Respondent.
申請人：無律師代表, 親自應訊。