Barnes J (giving the judgment of the Court):
原訟法庭法官張慧玲頒發上訴法庭判案書：

The applicant was charged with one count of Trafficking in a Dangerous Drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
申請人被控一‍項「販運危險藥物」罪，違反香港法例第 134 章《危險藥物條例》第 4(1)(a)及(3) 條。

He pleaded guilty before Deputy District Judge Josiah Lam (as he then was) at the District Court and was sentenced to 28 months’ imprisonment.  He now seeks leave to appeal against his sentence.
申請人在區域法院暫委法官林‍偉‍權(當時官階)席前承認控罪，被判監禁28 個月，申請人現針對判刑申請上訴許可。

Admitted Facts
承認案情

The facts disclosed that on the material night, a detective police constable posed as a drug buyer and contacted the applicant by phone.  The applicant asked the constable if he wanted “ice” and how much he wanted.  The constable replied that he wanted “two dong”(兩戙).   Later the applicant phoned the constable and told him to proceed to the lift lobby set out in the charge to make a transaction.  The constable and his colleagues went to the lobby to lay ambush.  When the applicant appeared, he gave four packets of “ice” to the constable who in turn gave him $1,200.  At this juncture the other officers who had been laying ambush turned up and arrested the applicant.  Under caution the applicant said he was unemployed and he sold dangerous drugs to make money.  The “ice” involved was 1.07 grammes.
案情顯示在案發當晚有一‍名探員假扮毒品買家，打電話予申請人。申請人問探員他是否想要「冰」及要多少，探員回答說要「兩‍戙」。申請人稍後打電話給探員，著他前往控罪所指的電梯大堂作交易。探員及他同事到大堂埋伏。當申請人出現時，將四‍包「冰」毒交給探員，探員交了1,200 元予申請人。此時埋伏的探員便現身，將申請人拘捕。警誡下申請人說他無業，賣危險藥物賺錢。涉案「冰」毒為1.07 克。

Background
背景

The applicant was born in November 1972 and is now aged 37.  He is divorced and was unemployed at the time of the offence.  He had 13 court appearances with a total of 22 convictions, four of which were related to dangerous drugs (one being possession of dangerous drugs and three being trafficking in a dangerous drug).
申請人在1972 年11 月出生，現年37 歲，離了婚，案發時失業。他有13 次出庭紀錄，共有22 次刑事紀錄；其中四‍次與危險藥物有關(一次管有危險藥物，三次販運危險藥物)。

Sentence
判刑

Deputy Judge Lam referred to the sentencing guidelines laid down in Ching Kwok Hung which provide that the tariff for trafficking in up to 10 grammes of “ice” is 3 to 7 years’ imprisonment.  Having considered the facts of the case and the applicant’s previous similar record, Deputy Judge Lam adopted 3 years and 6 months as the starting point.  He gave the applicant a one-third discount and sentenced him to 28 months’ imprisonment.
林法官引述案例程國雄 就「冰」毒的判刑指引，販運至10 克「冰」毒，監禁由3 年至7 年。林法官考慮了案情及申請人的販運危險藥物前科後，以3 年6 個月為量刑起點；給予申請人三分之一的刑期扣減後，判刑28 個月。

Grounds of appeal
上訴理由

The ground of appeal put forward by Mr Suen Kam Hee, counsel for the applicant, was that the sentence was manifestly excessive.  He relied on Yeung Kam Chun and Lee Yin Yu  to support his arguments, submitting that for the trafficking of small amounts of “ice”, the sentencing judge was not obliged to take a starting point of 3 years.
申請人代表孫‍錦‍熹大律師提出的上訴理由是刑期明顯過重。孫大律師引用案例楊錦進 及李燕如 支持他的論點，指在販運少量「冰」毒時，法官並非必須以3 年為量刑起點。

Mr Suen also submitted that Deputy Judge Lam was wrong in principle to further enhance a sentence that was already manifestly excessive on the basis that the applicant had three similar previous records.   Mr Suen argued that although the court determined in Chan Pui Chi4 that for a defendant who was a persistent offender, the court was entitled to adopt a slightly higher starting point, that should depend on the gravity of the crime.  The quantity of “ice” involved in the present case was small and did not justify a large upward adjustment of the starting point.
孫大律師亦指林法官以申請人有三次相同刑事紀錄而把已明顯過重的刑期再加高，是犯了原則上的錯誤。孫大律師指雖然陳沛枝 一案法庭裁定若被告人持續犯案，法庭可採納稍高量刑起點，但這要因應罪行嚴重程度，本案涉及「冰」毒數量少，不足以大幅調高量刑起點。

Discussion
討論

In Yeung Kam Chun, one of the offences that the defendant faced was trafficking in 1.59 grammes of “ice”.  The Court of Appeal did not agree with the respondent’s submission about the 3 to 7 years sentencing tariff laid down in Ching Kwok Hung: namely, that 3 years was the minimum starting point.  The Court of Appeal pointed out that for small amounts of “ice”, the judge was not obliged to start with 3 years and it would be within the discretion of the judge to adopt a starting point lower than 3 years in consideration of the actual amount of “ice” involved.
在楊錦進一案 ，案中被告其中一項控罪是販運1.59 克「冰」毒。上訴庭不同意答辯人就程國雄案中3 年至7 年指引所作的陳詞：即3 年是最低限度的量刑起點，上訴庭指在處理少量「冰」毒時，法官並非必須以3 年作為量刑基準，法官有酌情權可因應「冰」毒的實際份量而採納一個較3 年為低的起點。

In Lee Yin Yu, one of the offences that the defendant faced was trafficking in 0.51 gramme of “ice”.  The facts of the case showed that she sold the 0.51 gramme of “ice” to a 16-year-old person for $100.  Having considered Ching Kwok Hung, the trial judge sentenced her to 3 years’ imprisonment.  The Court of Appeal referred to Yeung Kam Chun and stated that judges were not bound to adopt a starting point of 3 years.  While the Court of Appeal agreed with the view of the trial judge that the sale of the dangerous drug to a teenager was an aggravating factor which warranted an enhancement of the sentence, it was of the view that the starting point of three years was manifestly excessive and that two years should be adopted as the appropriate starting point.
在李燕如一案，案中被告其中一項罪名是販運0.51 克「冰」毒。案情顯示她將該0.51 克「冰」毒以100 元出售給一名16 歲的人。原審法官考慮了程國雄後，判處被告3 年監禁。上訴庭引述楊錦進指法官並非必須以3 年為量刑起點。上訴庭同意原審法官指出售危險藥物予年青人是一‍項使案情更為嚴重的加刑因素，但上訴庭仍指3 年量刑起點是明顯過高，恰當的量刑起點是兩‍年。

In the present case, the amount of “ice” that the applicant trafficked in was 1.07 grammes, which was indeed a small amount.  If he were a first offender, the court would not need to take 3 years as the starting point. However, the fact remains that he was a recidivist who had three previous similar convictions, for which he had been sentenced to ten to twelve months’ imprisonment.  Yet he showed no interest in attempts to rehabilitate himself.
在本案，申請人涉及販運的「冰」毒是1.07 克，份量確是少。若申請人是初犯，實不須以3 年為量刑起點，但申請人確屢罰屢犯，而且已有三‍次販運危險藥物前科，曾被判刑10至12 個月，但申請人仍不知悔改。

In Chan Pui Chi, the Court of Appeal stated that the court was entitled to take a higher starting point for a persistent offender than it would have had for someone of a clear record.  We do not agree that a judge may only do so in serious cases.  The Court of Appeal in Chan Pui Chi’s case cited shoplifting as an example and enunciated that if such an offence was repeated, a heavier sentence was likely to be imposed for repetition.
在陳沛枝一案，上訴庭已道出法官可採納較判一名初犯者為高的量刑起點來處理屢罰屢犯的被告人。本庭不同意祇在案情嚴重時法官才可如此做。上訴庭在陳沛枝一案列出店舖盜竊為例，指判罰會因犯人多次重犯而加重。

In view of the facts of this case, the quantity of “ice” involved and the applicant’s persistence in crime, the appropriate starting point should be 3 years.  A starting point of 3 years and 6 months was manifestly excessive.
以本案案情、涉案「冰」的份量及申請人屢罰屢犯的前科而言，恰當的量刑起點是3 年。3 年6 個月的量刑起點是明顯過高。

For the reasons given, we shall grant leave to appeal.  Treating the hearing as the appeal, we allow the appeal to the extent that the 28 months’ imprisonment is set aside and substituted by a sentence of 2 years’ imprisonment.
基於上述理由，本庭批准上訴許可申請，並視為正式上訴。上訴得直，28 個月刑期擱置，改為兩‍年監禁。

Mr Suen Kam Hee, instructed by Director of Legal Aid, for the Applicant.
答辯人：由律政司高級檢控官雷芷茗代表香港特別行政區。

Mr Ira Lui, Senior Public Prosecutor, of the Department of Justice, for the Respondent.
申請人：由法律援助署委派孫錦熹大律師代表。