Hon. Tang V-P (giving the judgment of the Court):
上訴法庭副庭長鄧國楨頒發上訴法庭判案書：

The Applicant was charged with one count of trafficking in a dangerous drug, contrary to s.4(1)(a) and (3), Dangerous Drug Ordinance, Cap. 134, Laws of Hong Kong.  The particulars of offence allege that the Applicant, on 2 February, 2009, at the male public toilet in Luen Wan Street, Mong Kok, Kowloon, Hong Kong, unlawfully trafficked in a dangerous drug, namely, 17.51 grammes of a mixture containing 15.77 grammes of heroin hydrochloride.
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。罪行詳情指申請人於2009年2月2日，在香港九龍旺角聯運街男公廁，非法販運危險藥物，即內含15.77克海洛英鹽酸鹽的17.51克混合劑。

Prosecution’s Case
控方案情

At around 9:50 p.m. on Monday, 2 February 2009, the Applicant entered the male public toilet in Luen Wan Street, Mong Kok, with a male [later known to be male Chan Wai-keung].  A police officer found the two of them suspicious and thus followed them into the public toilet.  The Applicant and Chan Wai-keung entered a toilet cubicle and closed its door.  The police officer then went into an adjacent cubicle and climbed up the dividing wall to check out what they were doing inside the cubicle.
2009年2月2日，星期一，晚上約9時50分，申請人與一名男子（後獲知是男子陳惠強）一同走進旺角聯運街的公眾男廁。警員感到他們二人形跡可疑，因而尾隨他們進入該公廁。申請人與陳惠強走進同一廁格內並關上廁格門。警員走進隔壁廁格，攀上分隔牆壁查看他們在廁格內的舉動。

Upon seeing the Applicant putting his left hand into his left trousers pocket nervously, the police officer ordered him and Chan Wai-keung to open the cubicle door.  After that the police officer conducted a body search on them and found from the Applicant’s left trousers pocket a resealable transparent plastic bag containing 60 small plastic packets of white powder.  Under caution, the Applicant, while pointing at Chan Wai-keung, said, “The Sai Chai has just been bought by me from Ah Pai Gwut!  I also gave him 13,200 bucks.  I bought the Sai Chai just for myself to take my time to consume it.  It’s the first time I have bought from him, I really just bought it for myself to take my time to consume it.”  The Applicant had cash of $2,893 on him whilst Chan Wai-keung had cash of $15,688 on him.
警員看見申請人緊張地把左手放進左褲袋，於是著令他與陳惠強打開廁格門。其後，警員向他們進行搜查，並在申請人左褲袋內搜出一個可再封口的透明膠袋，內有60小膠包的白色粉末。在警誡下，申請人指著陳惠強說：「啲四仔我啱啱同阿排骨買！我仲俾咗13,200蚊佢。啲四仔我都係買嚟自己慢慢食咋，我第一次同佢買咋，我真係買嚟自己慢慢食咋」。申請人身上有現金2,893元，而陳惠強身上有現金15,688元。

The 60 small plastic packets of powder were subsequently certified by Government Chemist to be a total of 17.51 grammes of a mixture containing 15.77 grammes of heroin hydrochloride [a salt of heroin].
政府化驗師後來驗證該60小膠包內的粉末，內含15.77克海洛英鹽酸鹽（海洛英鹽）的共17.51克混合劑。

No fingerprints of the Applicant or Chan Wai-keung were found by the Government Chemist on the cash of $15,688 seized from Chan Wai-keung.  Nor was Chan Wai-keung’s DNA found by Government Chemist on the surface of the plastic bag used for containing the 60 small plastic packets of dangerous drug, found upon search from the Applicant’s pocket.
化驗師在陳惠強身上檢獲的15,688元現金中，找不到申請人或陳惠強的指紋。化驗師在申請人褲袋內搜出用以裝載60小膠包毒品的膠袋上也找不到陳惠強的DNA。

The Applicant pleaded guilty but claimed that part of the dangerous drugs were for his own consumption; he admitted that the remainder of the dangerous drugs were for the purpose of trafficking.
申請人認罪，但他提出該些危險藥物，部分是用於自己吸食；其餘部分，他則承認是作販賣用途。

A Newton Hearing was then conducted by District Judge Yuen to determine whether the Applicant’s version should be accepted.
區域法院法官源麗華隨即以紐頓聆訊（Newton Hearing）的方式來確定申請人的說法應否被接納。

There was no dispute between the prosecution and the defence as to whether the Applicant was a buyer.  The issue between the parties was whether the Applicant, after having bought the dangerous drugs, had them wholly for re-sale, or partly for self-consumption and partly for re-sale, and if it is the latter case, what is the ratio of the amount for self-consumption to that for re-sale.
當時控辯雙方沒有爭論申請人是否買家，他們爭論的是申請人購入毒品後是否全部轉賣，或部分自用、部分轉賣，如後者則自用和轉賣分量的比例。

After the Newton hearing, the trial judge found that the Applicant was a seller, not a buyer.  However, at the hearing the trial judge did not categorically indicate to the parties that she had rejected their stance towards the Applicant’s status [i.e. a buyer].  Further, the reason why the trial judge rejected the Applicant’s claim to be a buyer was that she did not believe the Applicant’s evidence that he bought the dangerous drugs in question with the “lai see money” of his children.  Nonetheless, even if the Applicant lied in this regard, it did not mean that he definitely was not a buyer but a seller.
原審法官經紐頓聆訊後，裁定申請人是賣家，而非買家，可是原審法官在聆訊時沒有向控辯雙方清楚表明她是不接納控辯雙方對申請人身份（即買家）的立場；況且原審法官拒納申請人聲稱自己為買家，是因為她不相信申請人作供時指自己是用兒女的「利是錢」去購買該些毒品。但是，即使申請人就這點是說謊，這不表示他一定不是買家而是賣家。

Given the fact that the prosecution had accepted the status of the Applicant as a buyer at the trial, we should, in our view, deal with this question on the basis that he was a buyer.
由於控方在原審時接納申請人是買家的身份，所以本庭認為應以申請人為買家作基礎來處理這個問題。

It was submitted by the Applicant that two-thirds of the dangerous drug bought by him were for his own consumption.  But this is only his one-sided story, which is not substantiated by any other concrete evidence.  The background of the Applicant, as summarized by the trial judge, is that he is a person living on public assistance.  His family members include his wife who has mental problem and his children who are aged 18, 22 and 23 respectively.  The eldest daughter is in employment while the two sons are still pursuing their studies.  The Applicant receives a monthly sum of about $12,000 in public assistance and is required to spend the whole sum on maintaining the family, and hence the family has no savings.  In view of the Applicant’s financial insufficiency, it is believed that he could not afford to buy such a large quantity of dangerous drugs for his own consumption.  Furthermore, the Applicant’s explanation that the money came from his children’s “lai see money” was rightly rejected by the trial judge.
申請人陳詞指買入的毒品中，三分之二是自用。但這只是他的一面之詞，並無其他實質證據證明。正如原審法官簡述申請人的背景，申請人是一名依賴綜援過活的人士，家中有一名患有精神病的妻子，以及年齡分別為18、22及23歲的子女。長女在職，兩名兒子則仍在求學階段。申請人每月收取約12,000元的綜援金，他須把全數的綜援金額用以維持家計，因此家中並無積蓄。申請人經濟緊絀，相信沒有能力購買如此多毒品作自用。況且申請人解釋這些金錢的來源是他兒女的利是錢，這也已被原審法官正確地拒納。

In HKSAR v Wong Suet Hau and Anor [2002] 1 HKLRD 69 (Stuart-Moore V-P, Mayo V-P, and Stock JA in Court) and HKSAR v Cheng Man Bor [2008] 4 HKLRD 841 (Cheung JA, Yeung JA and Chu J in Court), this Court has already dealt with the issue which concerns with a defendant who pleads guilty to trafficking in a dangerous drug but claims, as a ground of mitigation, that part of the dangerous drugs are for self-consumption.  It is the understanding of this Court that, in general circumstances, even if part of the dangerous drugs are for self-consumption, an appropriate discount should be given when passing sentence, but this would not be substantial, because there is also the latent risk that these dangerous drugs intended for self-consumption may be trafficked. Usually, it is unnecessary for a court to conduct a Newton hearing to determine whether part of the dangerous drugs are for self-consumption.
就被告人承認販運危險藥物罪，但以部份毒品是自用為求情理由的問題，本庭在HKSAR v Wong Suet Hau and Anor [2002] 1 HKLRD 69一案（上訴法庭副庭長司徒冕及梅賢玉和司徒敬法官）和 香港特別行政區 訴 鄭文波 [2008] 4 HKLRD 841一案（上訴法庭法官張澤祐、楊振權及原訟法庭法官朱芬齡）已處理過。以本庭的理解，一般情況來說，就算部份毒品是自用，量刑時應給予恰當扣減，但幅度不會很大，因為這些自用的毒品亦有被販運的潛在風險。一般來說，法庭不需舉行紐頓聆訊，藉以裁定是否部份毒品是供自用。

On the facts of the present case, a starting point of 5 years and 5 months is appropriate if there is no self-consumption factor in relation to part of the dangerous drugs.  As the Applicant is a drug addict, who has previous convictions relating to possession of dangerous drugs, it is possible that part of the dangerous drugs were for his own consumption.  In view of the fact that there is the self-consumption factor, in our judgment, a term of imprisonment for 4 years and 6 months is sufficient to reflect the gravity of the offence.  After a one-third discount for the Applicant’s plea of guilty, the sentence should therefore be 3 years.
以本案的案情而言，假如沒有部份毒品自用此因素，5年5個月的量刑起點是恰當的。申請人是一名癮君子，他有管有危險藥物前科，部分毒品會是自用的。由於有自用的因素，本庭認為4年6個月的刑期已經足夠反映罪行的嚴重性，加上申請人認罪而獲扣減三分一刑期，故刑期應為3年。

Leave to appeal is granted to the Applicant.  Treating the hearing of this application as the hearing of the appeal, we allow the appeal and reduce the sentence from 3 years and 7 months to 3 years.
本庭批准申請人上訴許可申請，並把他的申請視為正式上訴，判上訴得直，本庭把申請人的刑期由3年7個月減至3年。

Wong Po-wing, instructed by Haldanes assigned by the Director of Legal Aid, for the Applicant
答辯人：由律政司高級檢控官王詩麗代表。

Wong Sze-lai, Lily, Senior Public Prosecutor of the Department of Justice, for the Respondent
申請人：由法律援助署委派何敦、麥至理、鮑富律師行轉聘王寶榮大律師代表。